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[2023] ZAECMHC 19
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Lungu v S (CA&R89/22) [2023] ZAECMHC 19 (2 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
Case
no: CA&R89/22
Court
a
quo
Case No. RCMF103/22
NOT
REPORTABLE
In the
matter between:
WISEMAN
MAYIBUYE LUNGU
Appellant
and
STATE
Respondent
JUDGMENT
ZILWA AJ
[1]
The
Appellant, together with his co-accused, were
convicted
in the Regional Court, Mount Frere on 13 July 2022 after having
pleaded guilty to the charge of contravening the provisions
of
Section 2, read with the provisions of Section 1, Sections 11, 12, 14
and 15 of Stock Theft Act
[1]
.
He was found in possession of stolen 15 sheep valued at +-
R22 500.00.
[2]
They
were each sentenced to undergo eight (8) years imprisonment and were
also declared unfit to possess a firearm in terms of Section
103 of
the Firearms Control Act
[2]
.
The Appellant has appealed against sentence only.
[3]
Leave
to appeal was applied for which was refused by the court
a
quo
on 08 September 2022. The Appellant
was granted leave to appeal by this Court on 14 November 2022. The
Respondent has opposed the
appeal.
[4]
The
grounds of appeal relied upon by the Appellant, have been couched as
follows:
“
1.
The Learned
Magistrate erred and misdirected itself by hot giving consideration
at all to my personal circumstances as the Applicant,
to my age (67),
my illness (High Blood Pressure, HIV [...] status, Diabetic), sole
breadwinner to my unemployed wife and two children,
using the same
confiscated vehicle bought cash with my pensions from mines, a year
ago and first time offender.
2.
The
Learned Magistrate further erred in not taking into consideration
facts of the case, that is my involvement on the matter
went as
far as my vehicle being hired by accused No. 3 who pleaded not guilty
and yet still to be tried and separation application
of trials was
granted as a result of us pleading with my driver, who is my
co-accused herein.
3.
The Learned Magistrate blatantly disregarded other sentencing options
like, sentence with
fine, part sentence, suspended or wholly
suspend sentence over above the direct term of imprisonment as if
such sentence options
do not exist or are not deterrent especially on
this type of offence. He exercised his unfettered discretion
arbitrarily.
4.
The
Learned Magistrate over emphasized the prevalence of offence over my
personal circumstances, and seriousness of the offence
in present
case in total disregard of circumstances of the offence as if its
personal to the Magistrate and more so that he is
also from same
region and having stock also, which I submit is totally misguidance
in the mind of the Magistrate herein.
5.
The
Learned Magistrate even on the decision to dismiss the Leave to
Appeal further misdirected himself by saying sentence is not
shockingly inappropriate if one takes into account seriousness and
prevalence of offence in the Region, which he happened also
to be
from same region and has livestock also, I am reliable informed.”
[5]
It
is apposite to highlight in this judgment some of the Learned
Magistrate’s comments
[3]
that appear
to support grounds number 3 and 4 as follows:
“…
This
is the dagger into the lives of the poor farmers of this community of
this Court's jurisdiction. The poor farmers of this area,
instead of
taking the money to invest in other forms of business, they have
invested in stock farming. When their stock gets stolen
in this
fashion, the following thing is their death. They die because of
[indistinct] because of this kind of an offence and if
you look
around this offence is very high. It is not longer ... [indistinct]
it is business now. People are ... [indistinct] situation
or
formation and they are doing business with other people's stock. Look
how in the manner how this offence was committed…
…
People's
kraal, stock kraals are empty in this area of this Regional Court's
jurisdiction because if your stock is stolen, the next
minute it is
in Queenstown or Bloemfontein.”
[6]
Having
gone through the record of proceedings in the court
a
quo,
no
basis is apparent for the abovesaid finding by the Learned Magistrate
who appears to have considered information extraneous to
the record
which the parties had no opportunity to deal with. This constituted a
serious misdirection. Nonetheless, the Learned
Magistrate also seems
to have taken judicial notice of the reality that throughout the
country, this is an offence that is prevalent.
However, the Court
should be careful not to over-emphasize this aspect and should be
mindful of the regional incidence of the offence
as indicated by
as
Wessels
J
in
S
v Ndhlovu
[4]
,
namely
that :
“
one
should not overlook the fact that all things being equal one is
likely to find that stock theft is committed more frequently
in an
area where farmers farm mainly with stock or poultry
.”
[7]
In
order to reach a conclusion on whether the trial court imposed an
appropriate sentence, it is important to have regard to what
is
commonly known as
Zinn
’
s
triad as enunciated in the case of
S
v Zinn
[5]
.
Owing
to
the
trite known limits on an appeal court’s power to interfere with
a trial court’s sentencing discretion, the issue
on appeal is
mainly is whether the Court
a
quo
misdirected
itself in any material respect. One of the enquires is whether the
sentence that would have been imposed by the Appeal
Court differs so
substantially from that imposed by the Court
a
quo
as
to justify the sentence imposed being classified as shockingly or
startlingly or disturbingly inappropriate, these being the
only bases
upon which an Appeal Court may interfere with a trial court’s
sentencing jurisdiction.
[6]
[8]
It
is this Court’s view that the Magistrate’s approach of
over-emphasizing the impact of stock theft (which, in any
event, was
not based on the evidence led or part of the submissions made)
constituted a misdirection.
[9]
The
following dicta in the case of
S
v Pillay
[7]
are
apposite:
"[n]ow
the word 'misdirection' in the present context simply means an error
committed by the Court in determining or applying
the facts for
assessing the appropriate sentence ... [A] mere misdirection is not
by itself sufficient to entitle the Appeal Court
to interfere with
the sentence; it must be of such a nature, degree, or seriousness
that it shows, directly or inferentially, that
the Court did not
exercise its discretion at all or exercised it improperly or
unreasonably. Such a misdirection is usually and
conveniently termed
one that vitiates the Court's decision on sentence"
[10]
In casu
the trial
court clearly committed a misdirection of the nature and extent
referred to in
S v Pillay
which
therefore indicates that he did not exercise his discretion properly.
[11]
The Court
a
quo
further
made a point of the impact the stock theft has on the community and
society at large but he seemed to have accorded a little
consideration to the following remarks by Harms JA in
S
v Mhlakaza & Another
[8]
:
“
The
object of sentencing is not to satisfy public opinion but to serve
the public interest. . . A sentencing policy that caters
predominantly or exclusively for public opinion is inherently flawed.
It remains the court’s duty to impose fearlessly an
appropriate
and fair sentence even if the sentence does not satisfy the public.”
[12]
I will now turn to a brief survey of comparable
cases dealing with theft of small stock such as goats and sheep for
purposes of
juxtaposing the sentences imposed by the Court
a
quo
with the sentences imposed in those
cases.
[13]
The decision
of this division,
Vunati
v
S
[9]
the
Appellant had been convicted of stealing 21 sheep. Petse AJ (as he
was then), in confirming a sentence of five years’
imprisonment, took into account the seriousness of the offence of
stock theft and the large number of sheep stolen by the Appellant
‘
in
what on all accounts appears to be an organised theft motivated by
nothing other than greed
’
.
[14]
In
S
v Tyers
[10]
the
Appellant had been convicted in separate trials of the theft of 15
and 18 sheep. He had been sentenced to 15 months’ imprisonment
in respect of each conviction. When he appealed against these
sentences, the court gave him notice that it was considering an
increase in sentence. The Appeal Court held that the trial Magistrate
had given insufficient weight to a number of aggravating factors,
namely the number of sheep stolen, the organised nature of the
offences, the fact that the Appellant had not committed them out
of
economic need or hunger and that he had been motivated by greed. The
sentences were increased to two years’ imprisonment
in respect
of each conviction – a total of four years’ imprisonment.
[15]
In
S
v Molenbeek & Andere
[11]
the
Appellant, two of whom were policemen, had between them stolen a
total of six, five and eight sheep. One was only convicted
of one
count, three were convicted of two counts and one was convicted of
all three counts. All were employed, were young –
either 20 or
21 years old – and they were all treated as first offenders.
They were all sentenced to 18 months’ imprisonment
on each
count, of which ten months per count was suspended. In other words,
the effective terms of imprisonment imposed were eight
months (in
respect of one Appellant), 16 months (in respect of three Appellants)
and 24 months (in respect of one Appellant). These
sentences were
confirmed on appeal.
[16]
In
S
v Oosthuizen
[12]
the
Appellant had been convicted of three counts of stock theft,
involving one, four and 11 sheep, committed over one and a half
months. All of the sheep were ewes in lamb, the Appellant was a first
offender, the offences were carefully planned and were committed
out
of greed. Kriegler AJA described the offences as ‘inherently
serious’ and the sentences imposed as ‘robust,
particularly in their cumulative effect’. An effective sentence
of four years’ imprisonment was confirmed on appeal.
[17]
In
S
v Oosthuisen & ‘n Ander
[13]
the
Appellants, having been convicted of the theft of six sheep, were
sentenced to 18 and 12 months’ imprisonment respectively.
The
First Appellant was a 34 year old farmer who, as a result of an
accident, had two artificial legs. He had two previous convictions
for stock theft. The Second Appellant, a 41 year old railway worker,
was a first offender. The sentences were confirmed on appeal.
[18]
From the above survey, it is
clear that the sentences imposed in this case are substantially more
severe than any sentence that
this Court has been referred to or has
been able to find in either the law reports and in unreported
comparable cases.
[19]
The Appellant, in mitigation, submitted that he is
an elderly person who is 67 years old. He is a first offender who is
suffering
from a chronic illness, diabetes and is HIV [...]. In
addition, during argument of the appeal, the Appellant’s legal
representative brought to the attention of the Court that the
Appellant was admitted in hospital from 4 December 2022 to 8 March
2023 due to his ill-health which - so the argument ran – on its
own is a clear indication that insufficient weight had been
attached
to his health when he was sentenced. Even though no documentary
evidence was produced to that effect the submission was
that this
Court should have regard to this information which accords with the
probabilities. There is no reason to doubt the veracity
of this
information which was conveyed by an officer of the court and was in
line with the undisputed state of health of the Appellant
at the
trial. For the same reason there is no merit in the submission by
counsel for the State that there is no indication that
the
hospitalisation resulted from any of the known ailments that the
Appellant suffers from. This submission is not supported by
the
probabilities.
[20]
From the record the Appellant clearly demonstrated
how he found himself embroiled in the commission of the offence. Even
his plea
explanation revealed that he played a very minimal role in
the commission of the offence. It was his vehicle, which he purchased
with the money he received from his pensions pay-out, that was hired
by his co-accused. He drove with him from Ntabankulu to Mount
Frere
and it is where the sheep were taken and loaded in the vehicle.
Nothing suggests that the Appellant partook in any stealing
of these
sheep. As they were driving back to Ntabankulu they were stopped by
the members of the South African Police Services who
demanded proof
of ownership of the stock. They were arrested because they could not
account for the stock.
[21]
Counsel for the State,
Mr
Methuso
, correctly conceded during
argument that he was unable to find any authority that supports the
sentence imposed by the Court
a quo. Mr
Tshitshi,
who appeared for the
Appellant, also made this point. It was therefore common cause that
the sentence imposed upon the Appellant
was disproportionate and
that, by implication, warrants interference by this Court.
[22]
Mr
Methuso
referred
to the case of
S
v Solani
[14]
which dealt
with stock thieves which is clearly distinguishable from the case
before us. It is trite that the Court has to look
at the
blameworthiness of the accused in question. The present matter is
clearly different from a case dealing with actual stock
theft and
accused who actually participated in the commission of the offence.
This is an important consideration which was not
borne in mind by the
Court
a
quo
when
imposing sentence on the Appellant. The Respondent has conceded that
we are not dealing with a stock thief in this appeal.
To that extent
the Court
a
quo
materially
misdirected itself.
UNFITNESS TO POSSESS A FIREARM
[23]
The circumstances of this
case do not show a propensity to violence or crime by the Appellant.
In fact, nowhere in the evidence
has it been shown that there was an
act of violence on the Appellant’s part. It was therefore
inappropriate to declare him
unfit to possess a firearm in terms of
section 103
of the
Firearms Control Act 62 of 2000
. The offence of
the contravention of section 3 of the Stock Theft Act does not resort
under either section 103(1) or Schedule 2
referred to in
section
103(2)
of the
Firearms Control Act. The
Appellant must therefore be
deemed fit to possess a firearm since the legislation does not
prescribe an inquiry into his fitness
to possess a firearm. I will
however for clarity's sake make an order in this regard since he was
previously ordered to be unfit
to possess a firearm.
ORDER
1)
The appeal against
sentence is upheld.
2)
The
sentence and order dated 13 July 2022 is hereby set aside and
replaced with the following:
a)
In
terms of section 14 of the Stock Theft Act 57 of 1959 read with
section 92(1)(b) of the Magistrates Court Act 32 of 1944 the
Appellant is sentenced to R5 000.00 (five thousand rands) or 12
(twelve) months imprisonment.
b)
In
addition, the Appellant is sentenced to 12 (twelve) months
imprisonment which is wholly suspended for 3 (three) years on
condition
he is not again convicted of the contravention of the Stock
Theft Act 57 of 1959 by receiving stock or produce knowing the same
to have been stolen; or inciting, instigating, commanding or
procuring another person- (i) to steal such stock or produce; or (ii)
to receive such stock or produce; or knowingly disposing of, or
knowingly assisting in the disposal of, stock or produce which
has
been stolen or which has been received with knowledge of it having
been stolen; or contravening sections two or three of the
Stock Theft
Act 57 of 1959 and which offences were committed within the period of
suspension.
c)
The
Appellant is deemed fit to possess a firearm in terms of the
Firearms
Control Act 60 of 2000
.
H ZILWA
ACTING JUDGE OF THE HIGH COURT
I concur
D POTGIETER
JUDGE OF THE HIGH COURT
Heard
: 24 April 2023
Delivered :
02 May 2023
Appearances
:
For
the Appellant:
Mr
Tshitshi
Instructed
by
Mkata
Attorneys
77
Nelson Mandela Drive
MTHATHA
Ref:
Mr S. Tshitshi
For
the Respondent:
Mr
Methuso
Instructed
by
Director
of Public Prosecutions
94
Sissions Street
Fortgale
MTHATHA
Ref.:Unknown
[1]
59 of 1959.
[2]
60 of 2000.
[3]
This is an
extract copied and pasted from the transcribed record which forms
part of the bundle.
[4]
S
v Ndhlovu
1961 (2) SA 637
(N) at 638C.
[5]
S
v Zinn
1969
(2) SA 537
(A).
[6]
See :
S
v Kgosimore
1999
(2) SACR 238
(SCA)
para 10.;
S
v Malgas
2001
(1) SACR 469
(SCA)
para 12.
[7]
S
v Pillay
1977
(4) SA 531
(A) at 534H-534G.
[8]
S
v Mhlakaza & Another
1997
(1) SACR 515
(SCA) at E-G.
[9]
Vunati
v S
[2003] JOL 11171
(E).
[10]
S
v Tyers
1997
(1) SACR 261
(NC).
[11]
S
v Molenbeek & Andere
1997
(2) SACR 346
(O).
[12]
S
v Oosthuisen
1993
(1) SACR 10
(A).
[13]
S
v Oosthuisen & ‘n ander
1996
(1) SACR 475
(C).
[14]
S
v
Solani
1978 (1) SA 432
(TK).