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[2018] ZAFSHC 4
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Duda v S (A264/2017) [2018] ZAFSHC 4 (4 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A264.2017
In
the Appeal between:
RESILE
KRESJAN
DUDA
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE,
J
et
CHESIWE, AJ
HEARD
ON:
04 DECEMBER 2017
JUDGMENT
BY:
CHESIWE , AJ
DELIVERED
ON:
04 JANUARY
2018
CHESIWE,
AJ
[1]
The appellant was charged in the Regional Court in Smithfield for
Contravention of Section 3(1) of the Stock Theft Act 57 of
1959, of
receiving stolen stock or produce. The appellant pleaded guilty on 2
December 2016 and was on the same day sentenced to
three (3) years
imprisonment. The appellant appeals against the sentence imposed.
[2]
The basis for the appeal is that the trial court erred in not
considering other available sentencing options.
[3]
The facts of the case are briefly that the appellant in 2014
exchanged his vehicle for 13 cattle. On 9 February 2015 the police
and the complainant arrived at the appellant's place. The owner of
the cattle identified the cattle as his
[4]
Mr Botha, on behalf of the appellant, in his oral argument and in the
Heads of Argument submitted that the learned Magistrate
erred in only
confining herself to section 15 of the Stock Theft Act 57 of 1959
read with
section 300
of the
Criminal Procedure Act 51 of 1977
when
considering options for a compensation order. In this regard
reference was made to the case of
S v SM
Huhu,
Free State High Court Review, No 96/2012 para 4 as well as
S
v
Khoza
2011 (1)
SACR 482
(GSJ para 8).
[5]
He submitted further that the imposed sentence is shockingly
inappropriate, and that the Magistrate at the trial court did not
take the provisions of
Section 297
of Act 51 of 1977 into
consideration when sentencing the appellant.
[6]
Mr Simpson, on behalf of the respondent; in his oral submissions and
Heads of Argument submitted that the trial court correctly
found that
a wholly suspended sentence would not be appropriate in the
circumstances of this matter. He contended further, that
the trial
court gave due consideration to the elements of punishment. He
submitted that the seriousness of the offence and failure
by the
appellant to show remorse call for a custodial sentence.
[7]
The appellant requested the court
aquo
to impose a sentence
that is coupled with a compensation order. From the record it appears
that the trial court considered the appellant's
ability to
compensate the complainant in the amount of R20 000 as required by
section 300. The appellant had five cattle
and the value of these
cattle was unknown to the trial court. Further that if such an order
was granted the complainant would be
burdened with an order that will
be difficult to enforce as the trial court would not be able to bring
the appellant back to court
for re-sentencing.
[8]
Section 297
of the
Criminal Procedure Act 51 of 1977
provide as
follows:
"
(1) Where a court convicts a person of any offence, other than an
offence in respect of which any law prescribes a minimum
punishment,
the court may in its discretion-
(i)
on one or more conditions, whether as to (aa) compensation;
(bb)
the rendering to the person aggrieved of some specific benefit or
service in lieu of compensation for damage or pecuniary loss."
The
provisions of
section 297
provides for compensation of the victim of
the offence and restoration of the status quo. On careful
consideration the legal provisions
of
section 297
, the nature of the
offence and the manner in which the offence was committed, and the
interests of the society, I am of the view
that the offence calls for
custodial sentence. The appellant kept the cattle in his possession
from November 2014 till February
2015. The appellant, even though he
pleaded guilty, did not report the matter to the police, but waited
until he was arrested for
possession of stolen stock theft to
acknowledge his guilt.
[9]
In
S v Stanley
1996 (2) SACR 570
(A) at 574b-g, the
court enquired into when a compensation order should be made, and
that fairness and logic would require that
there be a causal link
between the offence and the damage in respect of which the
compensation order is made. Stock
theft is a serious
crime and
a
sensitive issue for farmers. The court takes cognisance that it is
rife and prevalent around the Free State. (See Truiyens v State
2012
(1) SACR 79 SCA at para 24; Ntsiki v State
A165/2014 [2015] ZAFSHC (12 February 2015).
[10]
In
S v Khoza
2011 (1) SACR 482
(GSJ) at para 8, Claasen
J dealt with
section 297
and
300
of the aforementioned Act. He
highlighted in what manner a court can secure compensation to a
complainant who had suffered damages
to property and made the
following observations:
"An
order in terms of section 300 of the act would only be appropriate
where the accused has sufficient property or executable
assets to
compensate the complainant in full, or to a large extent. Where an
accused is unable to compensate the complainant in
full, an order in
terms of this section should not be made. If an accused is employed
and able to repay in instatements, it would
be more appropriate and
practical to impose a sentence suspended on condition if periodical
payments...... Compensation as a condition
of a suspended sentence is
too often not considered a condition of suspension is more flexible
as it can be judicially adopted
in the case of failure to pay,
without the complainant having to incur the costs and bother of
execution. Therefore courts should
rather make use of section 297
opportunities to impose compensation as a suspensive condition of the
sentence."
[11]
However, in this matter, the Learned Magistrate found that there was
no evidence that the appellant would be in a position
to afford an
amount of R20 000 offered for compensation. The appellant's legal
representative at the trial court informed the trial
court of a
reasonable possibility that the appellant would be opening a tavern
and was only awaiting the relevant papers. This
was speculative; it
is understandable that the Magistrate did not rely on assumptions of
a business that was not operational.
[12]
On reading the papers the trial court had given consideration as
envisaged in section 300 (1) which provides that:
"Where
the accused is to be sent to prison for a substantial period of time
and he has no assets an order under section 300
is usually
inappropriate."
In
State v Medal
1977 (1) SACR 682
LPD, the court stated
that
"as
the accused did not have any means to comply with the compensatory
order the trial magistrate should not have made such
an order."
[13]
In this instance the appellant did not have sufficient assets and
would not have been able to compensate the complainant in
full. There
is no indication
ex facie
the record that the appellant was
gainfully employed.
[14]
In
S v Rabie
1975 (4) SA 855
{A) at 857D-F,
the Appeal Court stated that:
"1.
In every appeal against sentence whether
imposed by magistrate or judge,
the court hearing the appeal -
(a)
should be guided by the principle that punishment is pre
eminently a matter for the
discretion of the trial court; and
(b)
should be careful not to erode such discretion; hence the further
principle that the sentence
should only be altered if the discretion
has not been judicially and properly exercised.
2.
The test under (b) is whether the sentence is initiated by
irregularity or misdirection or
is disturbingly inappropriate."
[15]
It is now trite that an appeal court can only interfere with a
sentence of a trial court in a case where the sentence
imposed was disturbingly inappropriate, or there was
irregularity or misdirection.
[16]
When imposing a sentence, a sentencing court must consider the basic
Zinn triad as propounded in
S
v
Zinn
1969 (2) SA 537
(A), the accused personal circumstances, the
nature and gravity of the offence and the interests of the community.
These factors
must be balanced against each other. In order to
reach an appropriate sentence, the court should not place too much
emphasis
on one
factor
and ignore the others. In addition the court must bear in mind the
objectives of sentencing which are prevention, retribution,
rehabilitation and deterrence not only retribution and deterrence.
[17]
I am satisfied that the trial court took cognisance of the personal
circumstances of the appellant, as well as his inability
to pay the
compensation of R20 000, though the appellant had vaguely told the
trial court he was prepared to pay a compensatory
amount in whatever
manner the court may deem fit. The information supplied was
not sufficient to empower the
court to make such an
order, regard being had of the appellant's financial position at the
time of granting the order.
[18]
It is trite that the court of appeal should not replace the sentence
imposed by the trial court with its own, unless it is
justified to do
so. See
S v Osibi
2005 (2)
SACR 35 (W) at 35 i - j.
As indicated, I see no reason to interfere
and replace the sentence
imposed.
[19]
The sentence imposed is not only appropriate, but just.
[20]
In view of the aforesaid I am not persuaded that the
trial court misdirected itself or that the sentence
is
shockingly inappropriate.
[21]
Therefore there is no justification to
tamper with it. In the
circumstances I
make the following order.
ORDER
[22]
The appeal against the sentence is dismissed.
[23]
The sentence imposed by the trial court is confirmed.
__________________
S
CHESIWE, AJ
I
concur
__________________
NM
MBHELE, J
On
behalf of appellant:
Mr Botha
Instructed
by:
GJ Bredenkamp Attorneys
Bloemfontein
On
behalf of respondent:
Adv Simpson
Instructed
by:
Director of Public Prosecution
Waterfall
Building
Bloemfontein