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[2019] ZAFSHC 189
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NNete v S (A51/2019) [2019] ZAFSHC 189 (19 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No: A51/2019
In
the appeal between:-
MOLEKO
STEPHEN
NNETE
Appellant
and
THE
STATE
Respondent
CORAM
:
MHLAMBI, J
et
MOLITSOANE, J
JUDGMENT
BY
: MOLITSOANE, J
HEARD
ON
:
9 SEPTEMBER 2019
DELIVERED
ON
:
19 SEPTEMBER 2019
[1]
The appellant was convicted in the Regional Court sitting in Koppies
on a charge of theft of stock read with certain provisions
of the
Stock Theft Act, 57 of 1959. He was sentenced to 6 years
imprisonment in terms of Section 276 (1)(b) of the
Criminal Procedure
Act 51 of 1977.He felt aggrieved by the sentence and this appeal is
with leave of the trial court.
[2]
The facts of this case are briefly as follows:
Mr
Philemon Makwane testified that he was approached by two unknown
people who needed to transport cattle to an auction in Vereeniging.
He contacted the appellant and made arrangements for the latter to
drive his (Makwane) vehicle and assist these two people.
The
following morning the appellant left with the witness’ vehicle
with the said unknown people to the auction. He transported
five heads of cattle for the said people. At the auction, the
appellant misrepresented to the auctioneer that he was the owner
of
the cattle that was to be auctioned. The cattle had, however,
been stolen from the farm Nedersetting.
[3]
The grounds on which the appellant relies on are briefly set out as
follows:
(a) That the sentence is
shockingly high and inappropriate;
(b) That the Court
a
quo
erred in overemphasizing the factors in aggravation, while
minimising the factors in mitigation;
(c) The Court
a quo
did not take cognisance of the pre-sentence report and;
(d) The Court
a quo
disregarded that the complainant suffered no loss due to the return
of his cattle.
[4]
It is trite that sentencing is pre-eminently the terrain of the trial
court. The appeal court may only in limited circumstances
interfere with the sentencing discretion of the trial court, unless
it has been convincingly shown that such a discretion was not
properly exercised or the sentence was shockingly inappropriate. (See
S v Malgas
2001 (1) SACR 409
(SCA);
S v Rabie
1975(4)
SA 855(A).
[5]
It is further trite that in assessing a proper sentence what has to
be considered is the triad consisting of the crime, the
offender and
the interest of society- See
Zinn
1969(2) SA537 (A).
[6]
The appellant is 47 years old and a divorced father of three
children. Two of his children are majors and at tertiary
institutions. He is responsible for payment of their tertiary
fees. The youngest is a minor and stays with his mother
and he
contributes an amount of R1500 per month towards the maintenance of
the said child. He has a string of previous convictions,
mostly
for assault. His last conviction was in 2012. The trial
court was alive to the fact that none of his previous
convictions had
an element of dishonesty and correctly in my view, treated the
appellant as a first offender.
[7]
It is the contention of the appellant that the trial court failed to
properly have regard to the pre-sentence report.
This
contention is in my view without merit.
[8]
The Court
a quo
dealt extensively in both its judgement on the
merits and sentence on the extent of the planning of this deed.
It is clear
to this Court that for the success of this theft, several
people were involved in its planning. The planning included
providing
false permits and procuring documents. The owner of
the truck who later turned state witness also appears to have been
involved
in the execution of this crime. It is for that reason
that the court
a quo
rejected the evidence of the owner of the
vehicle and went to the extent of ordering the forfeiture of the
vehicle in terms of
Section 35 (1)(b) of the Criminal Procedure Act.
The probation officer dealt with various sentence options and
recommended a wholly
suspended sentence. The court
a quo
rejected same. While the courts are usually guided and appreciate the
recommendations of probation officers in sentencing, it has
to be
borne in mind that the court is not bound by the recommendations in
those reports. Sentencing remains the domain of the trial
court and
deviation on appeal is only permissible in circumstances as alluded
above.
[9]
It is indeed so that the five cattle stolen were all recovered in a
good condition. That should, however, be mirrored
against the
potential loss the complainant could have suffered had the sale
eventuated. The value of the cattle was R 38 000.
It
is not through any goodwill on the part of the appellant that the
cattle were recovered. Had it not been for the vigilance
of the
auctioneers and the prompt action by the police, the cattle might
have been sold to unsuspecting third parties, to the detriment
of the
complainant and the third parties.
[10]
In the pre-sentence report, the appellant alleges remorse on his
part. This alleged apparent remorse was correctly rejected
by
the trial court. He failed to take the witness stand so that
this ‘”remorse”’ could be subjected
to
scrutiny by way of cross examination. This allegation of remorse only
surfaced during the discussion with the probation officer.
No
evidence was led to substantiate this remorse.
[11]
Theft of stock is prevalent in our country. Not only does this
crime affect the owners of farms, but it also affects
the overall
economy of our country. It affects the farm workers in that if
this type of offence continues unabated, the farmers
would most
likely go out of business and the workers also stand to lose their
employment. For this reason the court has a duty
to protect the
interests of society.
[12]
In my view, the test in interfering with sentence on appeal is not
whether this court would have given a different sentence
than the one
imposed by the trial court but whether the trial court exercised its
discretion properly or whether the sentence is
disturbingly
inappropriate. I am unable to find that the trial court exercised its
discretion wrongly or that this sentence is
disturbingly
inappropriate. I make the following order:
ORDER
1. The appeal against the
sentence is dismissed.
2. The sentence is
confirmed.
3. The order in terms of
s103
(1) of the
Firearms Control Act 60 of 2000
is confirmed.
__________________
PE
MOLITSOANE
I
agree
__________________
JJ
MHLAMBI
For
the Appellant: Adv S Kruger
Instructed
by: Legal Aid South Africa
BLOEMFONTEIN
For
the Respondent: Adv Eskteen
Instructed
by: Deputy Director of Public Prosecutions
BLOEMFONTEIN