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[2018] ZAFSHC 134
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S v Matsitela and Others (78/2017) [2018] ZAFSHC 134 (14 September 2018)
IN THE HIGH
COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 78/2017
In
the matter between:
THE
STATE
and
MALOME
ALFRED MATSITELA
1st
Accused
STEVEN
LANGA
2nd
Accused
AMOS
NGUBENI
3rd
Accused
ANDRIES
MKHUMBUZA
4th
Accused
HEARD
ON:
13
SEPTEMBER 2018
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
14
SEPTEMBER 2018
[1]
Messrs Matsitela, Langa, Ngubeni and Mkhumbuza, it is now time to
sentence you. In order to achieve a balanced sentence
I shall
consider firstly you as persons and your personal circumstances,
secondly the nature and severity of the crimes and thirdly,
the
interests of the community. The objects of punishment, to wit
retribution, prevention, deterrence and reformation will
also be kept
in mind.
[2]
I set out your personal details in my judgment convicting you and I
shall not repeat that. Mr Van der Merwe mentioned
further
personal aspects when he addressed me in mitigation. These can
be summarised as follows.
[3]
Mr Matsitela, your scrap metal business closed down after your
arrest. I accept that you and your family have lost a source
of
income and that some of your income streams might be from legal
activities. Your wife is unemployed and your father-in-law is
now
supporting your family. Your landlord is on the verge of
selling what is left of your business for arrear rental.
You
passed matric and obtained a diploma in business management.
You were arrested on 23 October 2015 and you spent time,
about 26
months, in custody awaiting trial. However, you were sentenced
on 7 December 2017 for similar matters and since
then you are a
sentenced prisoner. You have been sentenced to an effective
period of 12 years’ imprisonment.
Your convictions in
2017 relate to offences committed at the end of 2014 and the
beginning of 2015. Those convictions are
not previous
convictions as the present offences were committed prior to those
offences. However you have previous convictions
which I shall
return to later.
[4]
Mr Langa, before your arrest you were a taxi driver, earning
approximately R4000.00 per month. Your highest academic
qualification is Standard 5. Your wife is unemployed and you
were the sole breadwinner. I have not been informed who
is
caring for your family now. You have not spent any time in
custody awaiting trial as you were arrested in another case
and
sentenced in that matter on 27 June 2017. You received an
effective sentence of 20 years’ imprisonment. Similar
offences were committed than
in
casu,
although
y
ou
were also convicted and sentenced in respect of gang-related
activities. Your previous convictions will be dealt with later.
[5] Mr Ngubeni, you
passed standard 4 and worked as a window fitter, earning about
R4 500.00 before your arrest. You
own a proper (brick)
house. Your wife is a security officer who supports your
children of school-going age. You were
arrested on 2 February
2017 and spent one and a half years in custody awaiting trial. You
are a first offender.
[6]
Mr Mkhumbuza, you were a tavern owner and also sold clothes on the
side-line. Your income was approximately R5 000.00
per
month. You are engaged in a traditional marriage and used to
send monthly between R1 500.00 and R2 000.00 to
your family
in Mozambique. You dropped out of school in grade 2. You
were arrested on 3 August 2017 and spent a year
in custody awaiting
trial. You are not a first offender. I shall deal with
your previous conviction later. Your Toyota
Tazz motor vehicle has
been seized, although no forfeiture order has been made yet.
[7]
Theft is a serious crime in itself, even if committed in isolated
circumstances by individual persons. However, when the crime
is
committed by gangs or syndicates or two or more people in a planned
and organised manner, the seriousness of the crime reaches
a
different level, not even to speak of the stealing of items forming
part of a country’s essential infrastructure relevant
to the
delivery of basic services to the community. POCA contains
prescribed sentences for transgression of the provisions
of that Act
and count 7 attracts a prescribed minimum sentence in accordance with
the provisions of s 51(2) of Act 105 of 1997
read with Part II of
Schedule 2. You can count yourselves fortunate insofar as the
Criminal Matters Amendment Act, 18 of 2015 (“the
2015 Act”),
only came into operation on 1June 2016. As mentioned earlier,
theft of ferrous or non-ferrous metal forming
part of essential
infrastructure and offences under s 3 of the 2015 Act now attract
prescribed minimum sentences. Therefore
sentences in respect of
counts 9 and 10 must be considered in view of the prescribed minimum
sentences legislation. Counts
3, 4, 5, 6 and 8 would have
attracted prescribed minimum sentences if committed after 1 June
2016. The legislature made it
clear in the preamble of the 2015
Act that legislation was warranted as a result of
“
the
unacceptably high incidence of crime relating to essential
infrastructure”
,...since
“
essential
infrastructure-related offences are becoming increasingly more
organised”
and
“
offences
which of themselves are relatively minor but causing considerable
damage to essential infrastructure.”
[8] Our legislature has
in mind with the 2015 Act, read with Act 105 of 1997 that courts
should impose the prescribed minimum sentences,
unless there are
really convincing reasons to depart from that, referred to in s 51(3)
of Act 105 of 1997 as substantial and compelling
circumstances.
Although, dealing with a totally different offence, the warning in
S
v Matyityi
2011 (1) SACR 40
(SCA) at para [23] must be heeded.
I quote:
“
Parliament
has spoken. It has ordained minimum sentences for certain specified
offences. Courts are obliged to impose those sentences
unless there
are truly convincing reasons for departing from them.”
[9]
Although constitutional rights such as the privacy and physical
integrity of another human being are not applicable here such
as,
e.g.
in the case of rape, the effect of the crimes may be equally
devastating to human beings and also affect a large section of the
community, unlike a rape or murder case where one usually finds one
victim only. No doubt, members of the community have
constitutional rights such as the freedom of movement (s 21) and the
right to sufficient food and water (s 27) to name just two
rights.
Local governments must strive in terms of s 152 of the
Constitution to comply with their objectives,
inter
alia
to ensure the provision of services to the community in a sustainable
manner and to promote a safe and healthy environment.
They
cannot comply if their electricity supply is cut off by criminals
stealing copper from
e.g.
Eskom. I shall deal with this again when the third leg of the
triad is discussed.
[10]
I accept that we are not confronted with the worst kind of
interfering with essential infrastructure
in
casu
,
but the minimum sentences legislation is not aimed at those cases
only. I accept also that a court may consider proportionality
when considering whether a prescribed minimum sentence should be
imposed. As long ago as 2002 Ackermann J, speaking for a
unanimous Constitutional Court bench, said the following in respect
of the overall purpose of POCA:
“
The rapid
growth of organised crime, money laundering, criminal gang activities
and racketeering threatens the rights of all in
the Republic,
presents a danger to public order, safety and stability, and
threatens economic stability. This is also a serious
international problem and has been identified as an international
security threat.”
[11]
The interests of the community must be given due weight as well.
I touched upon it. I do not have any evidence
of how many
persons were affected as a result of Telkom’s decision not to
repair the relevant telephone lines. I was
told it was not
cost-effective to do so. I am in the dark in this regard.
It is possible that farmers and their employees
are sitting ducks,
staying in remote areas with no landline communication, which they
and their predecessors have been enjoying
for decades, whilst staying
outside cellphone reception areas, e.g. in mountainous areas.
It is also possible that those
farms lie derelict and that the effect
on the community is minimal.
[12]
The water supply to the town of Senekal was interrupted in a time
when many Free State towns, including Senekal, had their
own
infrastructure problems which were exacerbated by a serious drought.
Thieves that cruelly and without considering the
consequences of
their deeds steal essential infrastructure must be severely punished
as a measure of the community’s abhorrence.
[13] I accept that
transportation of goods and passengers by train was not affected due
to the stealing of the FCC cables
in casu
. Fact of the
matter is that the tampering took place on the main railway line in
the Free State that links Gauteng with the
Eastern and the Western
Cape provinces. Witnesses provided uncontested evidence of
potential devastating effects as a consequence
of the stealing of
copper cables and tampering with the railway infrastructure. I
do not have to repeat that.
[14]
Adv O Wessels testified in aggravation of sentence. She is the
chairperson of the South African Revenue Protection Association
(“SARPA”) for the Free State, Northern Cape and Lesotho.
She explained the co-operation between all stakeholders, some
of
which I mentioned
supra,
in
order to come up with strategies to fight the common enemy,
inter
alia
the copper theft syndicates in this country. The magnitude of
the problem is incomprehensible. She referred to the
estimated
negative impact on the economy in the amount of R5bn as published by
the former Minister of Police in November 2013.
The costs to
replace stolen cables over the last four years are in excess of R273m
for Eskom, R81m for Transnet and R480m for Telkom.
A thief with
a primary school education would not be able to appreciate these
figures.
[15]
Ms Wessels testified that over the last nine years CPI in Kroonstad
has effected the arrest of over 900 suspects in respect
of copper
theft in the Free State province alone. Over 230 000
copper theft incidents were reported through South Africa
over a four
year period. She mentioned that, according to her investigation
and intimate knowledge of the copper theft industry,
11 of the 18
copper theft syndicates operating in the country that she is aware
of, sold their copper to accused 1. She also
testified that she
has documentary proof, stored on her computer and obtained for
another case against the accused in the Eastern
Cape, that
accused 1 made a profit of R21m in the four months before his arrest
and that his cheque payments to known copper
thieves during that
time, excluding amounts less than R5000.00, amounted to R15m.
Mr van der Merwe denied this, but did not
investigate this version
any further. Ms Wessels’ testimony is accepted without
reservation, but I am prepared to give
accused 1 the benefit of not
allowing such hearsay evidence which is unfortunately inadmissible.
I have seen too often in
my life that financial statements or
financial analyses by so-called experts are flawed. I do not
know who drafted the analysis,
what experience this person has and
what source documents were available to him/her. In any event,
this information relates
to a period more than a year after the
crimes of January 2014, for which I convicted accused 1, were
committed. That evidence
may become relevant in the other
matter. I accept that accused 1 is not your average working
class citizen. We know
that at the time of his arrest he was
staying in a security complex, normally afforded by the rich only.
[16]
Messrs Matsitela, Langa, Ngubeni and Mkumbuza, none of you testified
in mitigation and none of you showed any sign of remorse.
Your
personal circumstances have been recognised, but those must take a
backseat in light of the other two elements of the triad.
I
shall try to sentence you in order to give effect to the purposes of
sentence and specifically the chances of rehabilitation.
Both
legal representatives were
ad
idem
that long term imprisonment was the only option available to the
court.
[17]
Mr Ngubeni and Mr Mkumbuza, your crimes have been committed over a
period of nearly three years. Mr Ngubeni, you are
a first
offender, but the same does not apply to you, Mr Mkumbuza. You
have been convicted of possession of presumably stolen
property in
August 2009. This is a crime involving dishonesty. You
had to serve an effective sentence of 3 years’
imprisonment.
That offence occurred a long time ago and I shall treat you and your
brother the same. Mr Matsitela and
Mr Langa, your convictions
in 2017 are indicative of dishonesty. Mr Matsitela, in your
case and bearing in mind also the
evidence led during the trial, it
is proof of your propensity to steal items belonging to the essential
infrastructure of our country.
I also take into consideration,
Mr Matsitela, that you offered a convenient dumping place and market
for stolen copper and that
the others would not be able to make money
out of their theft, was it not for you and criminals like you.
Mr Langa, you were
convicted of failing to give satisfactory account
of possession of goods in respect of two separate matters in Kenhardt
during
August 2014. Your sentence of 3 years’
imprisonment was wholly suspended for 5 years which means that it may
now become
operative. I have been told that you received
a sentence of 20 years’ imprisonment on 27 June 2017 for copper
theft and gang-related counts, but this is not contained in the SAP
69’s handed in and admitted by you. Mr Van der
Merwe
clearly has personal knowledge hereof and I therefore accept that you
have indeed been convicted and sentenced as he stated
in his oral
argument. He confirmed it again this afternoon. The same
applies to accused 1 whose SAP 69’s indicate
6 years instead of
12 years’ imprisonment. Mr Langa, your propensity to
commit crimes relating to essential infrastructure
is also clear.
[18]
Mr Van der Merwe did not argue that substantial and compelling
circumstances exist. I could not find any. I reiterate
that the only way that these crimes can be curbed is by imposing
heavy penalties and as far as possible to adhere to the intention
of
the legislature. Local authorities are cash-stripped and can
ill-afford to better protect their infrastructure.
None of them
can afford to guard their infrastructure all the time. The same
applies to utilities such as Telkom, Eskom and
Transnet.
Entities such as Telkom, Eskom and Transnet probably pay millions of
Rands to private investigators to do the work
that SAPS have to do,
and may I say, this case would probably not have reached the doors of
the court without the laborious work
and professional and highly
skilled approach to crime intelligence and investigation undertaken
by Mr Doubles van Deventer and
the staff of CPI. The
employ of private investigators is a clear indication of the
magnitude of the problem.
The next issue is whether the
prescribed minimum sentences would be disproportionate with the
seriousness of the offences.
I do not think so for the reasons
advanced
supra.
[19]
It is now time to inform you, Messrs Matsitela, Langa, Ngubeni and
Mkhumbuza of the sentences that I decided to impose.
I have
considered the harshness of the sentences if the cumulative effect
thereof is not appropriately dealt with. In that
sense I shall
show you some mercy in the hope that you are candidates for
rehabilitation. It is clear that your career paths
have gone in
the wrong direction as indicated.
[20]
You are sentenced as follows:
Count 1 – accused
1: 15 years’ imprisonment;
Count 2 – accused
1, 2, 3 and 4: 7 years’ imprisonment;
Counts 3, 4 and 5 –
accused 1, 2, 3 and 4: 4 years’ imprisonment on each count;
Counts 6 - accused
3 and 4: 4 years’ imprisonment;
Count 7 – accused 3
and 4: 10 years’ imprisonment;
Count 8 - accused 3 and
4: 6 years’ imprisonment;
Count 9 – accused 3
and 4: 8 years’ imprisonment;
Count
10 – accused 3 and 4: 15 years’ imprisonment.
[21] The sentences shall
run concurrently with each other in terms of s 280(2) of the Criminal
Procedure Act, 51 of 1997 on the
following basis: (a) accused
1’s sentences shall run concurrently on the basis that accused
1 shall serve effective
imprisonment of 18 years, 6 years of which
shall run concurrently with the sentence which he is presently
serving; (b) accused
2’s sentences shall run concurrently on
the basis that he shall serve effective imprisonment of 12 years, 6
years of which
shall run concurrently with the sentence which he is
presently serving; (c) accused 3 and 4’s sentences shall
run
concurrently on the basis that they shall serve 20 years’
effective imprisonment.
JP
DAFFUE, ADJP
14
September 2018