About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2011
>>
[2011] ZAGPPHC 114
|
|
Makhetha v S (A247/2010) [2011] ZAGPPHC 114 (10 June 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE no: A247/2010
DATE: 10/06/2011
In
the matter between:
WILLIE
MAKHETHA
.....................................................................................................
Appellant
And
THE
STATE
.....................................................................................................................................................................
Respondent
Judgment
Mavundla
J,
[1]
The
appellant was convicted at the Regional Court on a count of theft of
motor vehicle. He was on 7 November 2009 declared a habitual
criminal
in terms of section 286(1) of the Criminal Procedure Act. He now
approach this Court with the leave of court against both
conviction
and sentence.
[2]
The appellant through out the trial was dully represented by Mr.Van
Der Merwe. He pleaded not guilty to the count of motor vehicle
theft
in that on 7 November 2008 and at or near Germiston Mall he
unlawfully and intentionally stole a motor vehicle, to wit a
VW Golf,
Reg. No. RNX 664 GP valued at +-R15 000. 00 the property or in lawful
possession of Mr. Manke Esau Motshwana.
[3]
The defence of the appellant was disclosed. It was alleged that he
was approached by Mr. Joe Ndlovu on 7 November 2008 who inquired
from
him whether he was not interested in purchasing a motor vehicle for
an amount of R8 000. 00. The appellant indicated that
he is
interested. Mr. Ndlovu came with the vehicle and the appellant paid
him an amount of R5 000. 00 and was given the vehicle.
The
registration documents would be handed to him on payment of the
balance of R3 000. 00. After the appellant had taken possession
of
the vehicle, he drove to Dududuza where he was confronted by an
unknown person who accused him of having stolen the motor vehicle.
The police arrived and the appellant was arrested. The appellant
avers that he was a bona fide possessor of the motor vehicle.
[4]
The issue in this case is whether the version of the appellant is
reasonable possibly true, bearing in mind that the appellant
need not
prove his innocence but the State must prove his guilt beyond
reasonable doubt. This question would have to be decided
on the
background of the evidence that was led.
[5]
The motor vehicle was parked by its owner at Golden Mall on the day
in question at 13:55. On his return he found the motor vehicle
stolen. He reported the vehicle to the police as stolen. He was
telephonically informed by his brother forty minutes later that
the
vehicle was found at Duduza. He went to identify his motor vehicle at
Duduza police station at about 18:00 of the same day.
[6]
Inspector Elias Jaco Rassool of the SAPS stationed at Duduza Police
Station was stopped driving along Sonne Street at about
16:45 by Mr.
Mbatha who informed him of having sported his brother's vehicle which
was stolen at Germiston driving along R550 in
the direction of Nigel.
He asked Mr. Mbatha to climb in his police motor vehicle. Along the
road Mr. Mbatha pointed out to him
a gold Golf 1 motor vehicle which
was parked along the shoulder of the road. He approached the motor
vehicle and noticed one occupant
in it on the driver's sit. He tapped
on the window. The drive, the appellant, did not want to open the
door and he had to force
it open. He identified himself to the
driver. On inquiry the appellant said that it was his motor vehicle.
The appellant had put
the key he had in the ignition into his pocket.
He said that the appellant did not tell him that he had purchased the
vehicle for
R3 000, 00 from a Mr Joe of Nelspruit. The appellant had
an Allan key which was filed on the sides which was handed into the
SAP13.
[7]
Under cross-examination Mr. Rassol denied that he stopped the vehicle
of the appellant. He insisted that the motor vehicle the
appellant
was driving was parked on the side of the road. He denied that the
appellant told him that he paid R5 000. 00 for the
vehicle. He
further said that the ignition point had been tempered with and the
key that was in the ignition was of a Toyota brand
but could not
turn. They had to use the Allen key to start the vehicle with. He
learnt from the radio control that the motor vehicle
was stolen at
Golden Mall in Germiston.
[8]
Mr. Ebson Mbatha testified that the complainant is his brother-in-
law. He further testified that the complainant informed him
telephonically about 16:10 that his motor vehicle was stolen. He
advised him to report the matter to the nearest police station.
He
was in a taxi on his way home when he saw the complainant's motor
vehicle coming from the direction of Alberton heading in the
direction of Nigel. He asked the driver of taxi to stop and he
alighted. After a few minutes he got help from a passing polite
motor
vehicle and explained about having seen the stolen motor vehicle. He
drove with the police in the direction he had seen the
motor vehicle
heading towards. They found the motor vehicle parked along the road.
The appellant who was the driver of the motor
vehicle informed them
that he had bought it for R3 000.00. He informed the appellant that
the motor vehicle was stolen about forty
minutes ago.
[9]
The version of the appellant was that he was found with the motor
vehicle on the 8 November 2008. He had bought the motor vehicle
from
one Joe Ndlovu for R8 000.00 towards which he paid R5000.00.
[10]
The improbability of the appellant's version lies in the very fact
that it was never put to the State witnesses that the vehicle
was
recovered on the 8 November 2008. The evidence of the State witnesses
that the vehicle was recovered on the 7 November 2008
was not
challenged. Besides, a motor vehicle is a commodity that is not
readily disposables. The vehicle was recovered within forty
minutes
of its theft. It is highly improbable that the thief of the motor
vehicle could have had an opportunity within a matter
of less than
forty minutes to have sought a buyer and sold the vehicle. The
appellant did not know where Mr Ndlovu was to be found.
Yet this is
the person who still had the registration documents of the vehicle.
It bags the question as to how was the appellant
to get hold of the
registration documents when he eventually wanted to pay the balance
of the alleged R3 000. 00, if he did not
know where Mr. Ndlovu was to
be found. The inference to be made is that Mr. Ndlovu did not exists,
and that the appellant was the
person who stole the motor vehicle. In
my view, the magistrate quite correctly rejected the version of the
appellant to be not
reasonably possibly true but falls and found him
guilty as charged.
[11]
The appellant was declared a habitual criminal in terms of section
286(1) of the Criminal Procedure Act. The appellant was
at the time
of sentencing 42 years old. His wife is deceased. He has one minor
son aged 17 years old from his marriage and another
three year old
child with his girlfriend. He does not know who looks after the
children since his arrest. He was employed at Okweta
Trading Building
Constructions where he earned not less than R4 000. 00 per month.
[12]
The previous convictions of the appellant are that on 31 January 1985
he was convicted of theft and sentenced in terms of s294
of Act 51 of
1977 to 5 lashes; on 14 October 1985 he was convicted of 4 counts of
theft and sentenced to 2 years imprisonment on
each count; on 14
October 1986 he was convicted of housebreaking with intent to steal
and theft. He was sentenced to 4 years imprisonment
which was ordered
to run concurrently with the 8 years imprisonment of 14 October 1986.
On 2 April 1993 he was convicted of the
following offences: robbery
and sentenced to 10 years imprisonment, on count 2 possession of
weapon without a licence (Act 75 of
1969) and sentenced to 18 months
imprisonment; count 3 possession of unlicensed ammunition (Act 75 of
1969) and sentenced to 6
months imprisonment. It was ordered that the
sentences in respect of counts 2 and 3 to run concurrently with the
sentence in count
1. He was released on parole on 1 July 1997 on
parole observation until 1 August 2001; On 22 February 2001 he was
convicted on
theft committed on 16 August 2000 and sentenced to 5
years imprisonment; On 30 June 2001 he was convicted on possession of
housebreaking
and or car theft implements and not justify such
possession (Act 129 of 1993 sec 2 Third General Amendment Act) and
sentenced to
3 years imprisonment. The appellant was in respect of
this matter arrested on 28 July 2005.
[13]
The appellant was in terms of s286(1) declared a habitual criminal.
This section requires that the court must be satisfied
that the
accused habitually commits crime and that circumstances warrant that
he be declared a habitual criminal, vide S v Stenge
2008 (2) SACR 27.
[14]
In the matter of S v Niemand 2002 (1) SA21 at 26 E-G Madala J (as he
then was) said:
"[12] The crux of
the matter is that the law seeks to punish a person who manifests a
persistent tendency to commit crime by
sentencing him/her to what
amounts to preventive detention. Under s65(4)(b)(iv) if CSA the
consequence of a prisoner being declared
an habitual criminal under
s1 of CSA means 'a sentence of imprisonment for an indefinite period.
Conversely a determinate sentence
means a sentence of imprisonment
for a determinate period. It also seeks to remove him/her from
society for the protection of the
public."
[15]
In my view, an indeterminate sentence is intrinsically by its nature
cruel and severe; vide R v Edwards
1953 (4) SA 168
(A); S v Tcoeib
1996 (1) SACR 390
(NmS)
(1996 (7) BCLR
990
;
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594.
The habitually declared person's faith is
left to many imponderables to be decided by the prison authorities as
to when he would
be released.
[16]
Madal J (as he then was) stated, inter alia, that:
"[24] The rationale
behind declaration is the acceptance of the fact that there are
certain persistent and intractable offenders
who are not only
nuisances but have a tendency to commit crimes repeatedly,
consequently making themselves a menace to society.
It then becomes
imperative that such persons be removed from society for the purposes
of rehabilitating them. In this way the protection
of the public
against such offenders is achieved. As was held in S v Dodo a
sentence which is grossly disproportionate to the length
of sentence
merited by the offences in question postulate cruel, inhumane and
degrading punishment or treatment."
1
[17]
As stated pointed out by Ngcobo J. in the matter of Veidman v
Director of Public Prosecutions, WLD 2006 (2) SACR319 (CC), at
349d-e
that the right to a fair trial as guaranteed in the Bill of Rights
embraces a broader and substantial fairness. In my view,
where there
is a minimum sentence to be imposed, that prescriptive tempers with
the discretion of the court, then in such a situation
the starting
point by the sentencing authority must be that in accordance with the
values of fairness in the broader sentence he
must first look at
whether there is any need to impose a lesser sentence. This is
nothing new since the very call for placing mitigating
circumstances
is calculated to determine whether a lesser sentence than that would
be expected by society, which for ever will
be baying for the blood
of the offender should be imposed. Where this exercise has not been
conducted then it cannot be said that
the accused person has had a
fair trial in so far as the sentencing is concerned. Then such
sentencing is tainted as the result
of the irregularity of not
examining, as in this case, whether there exists substantial and
compelling circumstances warranting
a departure from the imposition
of the prescribed minimum sentence.
[18]
This Court has held that where the minimum sentence is likely to be
imposed, the accused person must at the commencement of
the trial be
warned of the applicability of the Minimum Sentence Act
2
.
The appellant is entitled to, inter alia, the right to a fair trial;
3
to be informed of the reason for the detention
4
and its continuation; to conditions of detention that are consistent
with human dignity. In my view, a declaration as an habitual
criminal, on face value offends to the rights referred herein above.
Any sentence that has the potential of encroaching to the
rights of
the offender, must be brought to his attention, not on the day of the
imposition of such sentence, but well in advance.
In my view, the
appellant should have been at one or other stage been warned that on
a subsequent conviction, he might be declared
a habitual criminal.
[19]
Having regard to the fact that the motor vehicle concerned was
recovered, the appellant had not been previously warned of the
risk
of being declared an habitual criminal were he to be further
convicted, his declaration as an habitual criminal is under the
circumstances an inappropriate and shockingly sever sentence
5
.
In my view, the magistrate misdirected himself in failing to have
regard to the factors mentioned herein above when he declared
the
appellant an habitual criminal. In the circumstances this Court must
interfere with the sentence and impose an appropriate
sentence..
[20]
In the premises I make the following order:
1.
That the appeal on the conviction is dismissed;
2.
That the conviction is confirmed;
3.
That the appeal on sentence is upheld;
4.
That the sentence imposed by the Regional Court on 7 November 2009
is set aside and substituted with the following sentence:
"The
accused is sentenced to six years imprisonment; That the accused is
warned that in the event of a further conviction he
runs the risk of
being declared an habitual criminal"
5.
That the sentence is antedated to the 7 November 2009.
N. M MAVUNDLA
JUDGE
OF THE
HIGH COURT
J GOODEY
ACTING JUDGE OF THE
HIGH COURT
DATE OF JUDGMENT :
10/06/2011
APPELLANTS
ATT : PRETORIA LEGAL AID CENTRE
APPELLANT'S
S ADV : MR. M. G. BOTHA
RESPONDENTS'
ATT : DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS'
ADV : ADV H. CREIGHTON
1
S
v Niemand supra
at
29D
2
S v Chowe (1) SACR i 41 (GNP) at 149d para {22] & footnote 19
therei
3
S35(3).
4
S35(2)(a)
5
Vde S v
Pillay
1977
(4) SA 531
(A);
R
v
Dlumayo
1948
(2) SA 677
(A).