About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2018
>>
[2018] ZAKZDHC 16
|
|
Dlodlo v S (AR40/17) [2018] ZAKZDHC 16 (1 June 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-
NATAL DIVISION, DURBAN
Case
No: AR40/17
In
the matter between:
JAMES
DLODLO
APPELLANT
and
THE
STATE
RESPONDENT
Coram
: Mbatha et Poyo Dlwati JJ
Heard
: 01 June 2018
Delivered
: 01 June 2018
JUDGMENT
Poyo
Dlwati J:
[1]
The appellant was convicted of one count of housebreaking with intent
to steal and theft by the Regional Court sitting in Richards
Bay on
28 June 2016. On the same date, he was sentenced to eight years
’
imprisonment. The appellant applied for leave to appeal against his
sentence but same was refused by the learned magistrate. After
petitioning the Judge President of this division for leave to appeal
against his sentence, same was granted on 20 February 2017.
[2]
The facts upon which the appellant was convicted were as follows: On
4 July 2014 Ms Jabulile Julia Malinga, who was employed
as a domestic
worker at the home of Mr Matthew Neil Strydom situated at [...] D. D.
Road, Meerensee in Richards Bay testified that
she was on duty on
that day. Whilst she was busy with her duties, having commenced
working at 07H00, she spotted a male person
outside the house but
within the yard of Mr Strydom. She telephoned Mrs Strydom and advised
her about what she had seen. After
talking to Mrs Strydom, she saw
that person walking out through the gate.
[3]
She continued working. Later at about 09H00, she again looked through
the window. This time she saw two persons entering through
the gate
proceeding towards the garage. She again telephoned Mrs Strydom and
advised her of what she had seen. She noticed the
handle of the door
that leads to the garage moving. That door had been locked and Mr
Strydom usually locked it. Soon thereafter
the door was opened and
the two males were inside the house. She ran away and hid herself in
the bathroom.
[4]
Mrs Strydom phoned Ms Malinga and enquired where the people were. She
told her that the people were inside the house. A few
minutes later,
whilst still shocked inside the bathroom, Mr Strydom arrived in the
house and called her out. Mr Strydom thereafter
conducted an
inspection of the house in the presence of Ms Malinga. Ms Malinga
noticed that the cabinets in Mr Strydom’s
bedroom were opened.
A jewellery box and some cellular phones were found to be missing.
She was not able to identify those two
males as they had been facing
away from her.
[5]
Mr Donovan Demuny, Mr Strydom’s neighbour, testified that he
and Mr Rodney Laurens had just returned from fishing on the
day in
question. One of his neighbours had received a message on her mobile
group whatsapp that there were some people in Mr Strydom’s
yard. They proceeded to Mr Strydom’s home. As they were
approaching Mr Strydom’s home they saw one male person on top
of the wall with a Checkers bag in his hand. Thereafter Mr Demuny saw
the appellant standing on top of the running board (being
the flat
section in front of the cab) of a truck that was stationary in Mr
Strydom’s home. The appellant was trying to climb
the wall.
When the appellant saw Mr Demuny he jumped off the truck and ran
away. Mr Demuny gave chase. Mr Demuny saw that the appellant
was
carrying an electric device which was later identified as Mr
Strydom’s weather station. As the appellant was running
away he
threw the weather station on the ground. He continued to run down the
road as Mr Demuny was chasing him.
[6]
Mr Demuny managed to grab hold of the appellant. They wrestled and Mr
Demuny managed to push the appellant to the ground. On
the other hand
the person that was on top of the wall jumped off to another
neighbour’s property and ran away. Mr Laurens
went and joined
Mr Demuny and assisted him in tying the appellant with a tow rope to
keep him from running away. Some security
officers came along and
lent them handcuffs which they used to handcuff the appellant. They
then saw a blackberry cellular phone
lying on the ground not far from
where the appellant was. The police arrived at the scene and the
appellant was arrested.
[7]
Mr Laurens corroborated Mr Demuny’s evidence in all material
respects. Mr Strydom confirmed that after he received information
from his wife, he proceeded to his home. On his way, he met his
neighbour Mr Demuny on the street with Mr Laurens. They had
apprehended
the appellant. Mr Demuny showed him the weather station
and the blackberry cell phone that had been thrown away by the
appellant.
He identified those as his. Inside his house he found that
their jewellery box and its contents were missing. The value of the
missing jewellery ranged between R50 and R60 000. He also found
that his worker’s wages, being cash of about R50 000,
which he
had left in his bedroom was also missing together with about five
cellular phones which were valued at about R6 000 each.
[8]
Mr Strydom confirmed that when he left his house that morning he had
locked all the doors. He observed that the side wooden
door had been
broken open and that was where the assailants gained entry. The only
items recovered were the weather station and
the blackberry cellular
phone. The insurance also refused to pay out their claim. It was upon
this evidence that the appellant
was convicted.
[9]
The issue in this appeal is whether the sentence imposed on the
appellant by the learned magistrate was excessive and induced
a sense
of shock, as argued by Mr
Marimuthu
on behalf of the appellant. Mr
Marimuthu
also submitted that the learned magistrate had erred in attaching too
much weight to the appellant’s previous convictions
which were
not related to the offence at hand. He also referred us to various
cases where a term of seven years’ imprisonment
was imposed
mainly on repeat offenders, the point being that the appellant ought
to have been treated as a first offender in the
circumstances of this
case and received a lesser sentence.
[10]
Furthermore, it was submitted that whilst the learned magistrate made
reference to the fact that the appellant had been in
custody for a
while, this factor did not seem to have been considered and factored
in when the sentence was imposed. It is also
not clear from the
record how long the appellant was in custody for. It was submitted
that the appellant’s personal circumstances
weighed favourably
against the other factors and the appellant ought to have received a
lesser sentence. Under the circumstances,
so went the argument, our
interference was warranted.
[11]
Ms
Naidu
,
on behalf of the State submitted that the appellant had failed to
show any misdirection on the part of the learned magistrate
and
therefore the appeal had to fail as it had no merit. Furthermore, the
learned magistrate had weighed all the factors traditionally
taken
into account during the sentencing and had arrived at a just sentence
which was appropriate in this case.
[12]
It is a trite principle of our law that imposition of sentence is the
prerogative of the trial court.
[1]
An appellate court may not interfere with this discretion merely
because it would have imposed a different sentence. The appellate
court must be satisfied that the trial court committed a misdirection
of such a nature, degree, and seriousness that shows that
it did not
exercise its sentencing discretion at all or exercise it improperly
or unreasonably when imposing it.
[2]
Interference, therefore, is only justified where there exists a
striking or startling or disturbing disparity between the trial
court’s sentence and that which the appellate court would have
imposed. And in such instances the trial court’s discretion
is
regarded as having been unreasonably exercised.
[3]
[13]
Taking the above principles into account and having regard to the
triad referred to in
S
v Zinn,
[4]
I am of the view that there is a striking and startling disparity
between the trial court’s sentence and that which
this court
would have imposed. As held in
S
v Mthetwa & others
:
[5]
‘
It
is one thing to recite the personal circumstances of an accused. It
is another to fuse those circumstances in the consideration
of
sentence’.
There
is no doubt that housebreaking and theft are very serious and
prevalent offences. In fact, the evidence was that Ms Malinga
was
traumatised by the events of that day. This was evident from the fact
that she cried when she testified even though this was
about two
years after the incident. However, a period of eight years’
imprisonment for a person who has no relevant previous
convictions
induces a sense shock. I agree with Leach JA’s sentiments
expressed in
S
v Muller
[6]
that:
‘…
while
punishment and deterrence indeed come to the fore when imposing
sentences for armed robbery, it must be remembered, …
that
mercy, and not a sledgehammer, is the concomitant of justice’.
Nicholas
JA observed in
S
v Skenjana
,
[7]
that there is no reason to believe that the deterrent effect of a
prison sentence is always proportionate to its length.
[14]
Furthermore, that the appellant had no relevant previous convictions
at his age show that he is a good candidate for rehabilitation.
Moreover, the injuction to be merciful when imposing sentence must
not be overlooked. Furthermore, it is also trite now that the
period
that the appellant spent in prison awaiting trial must also be taken
into account and factored in during sentence.
[8]
In the circumstance, I am of the view that a period of four years’
imprisonment is appropriate and this will serve as a deterrent
to the
appellant and other would be offenders.
Order
[15]
I therefore propose the following order:
(a)
The appeal against sentence is upheld. The sentence imposed by the
learned magistrate is set aside and
replaced with:
‘
The
accused is sentenced to a period of four years’ imprisonment’.
The sentence is antedated to 28 June 2016.
__________________
POYO
DLWATI J
I
agree and it is so ordered
___________________
MBATHA
J
APPEARANCES
Date
of Hearing
: 01 June 2018
Date
of Judgment
: 01 June 2018
Counsel
for Appellant : Mr Marimuthu
Instructed
by :
Legal Aid Durban
Counsel
Respondent : Adv Naidoo
Instructed
by
: Director of
Public Prosecutions Durban
[1]
S v Hewitt
2017 (1) SACR 309
(SCA) para 8.
[2]
S v Pillay
1977 (4) SA 531
(A) at 535E-F .
[3]
S v Birkenfield
2000(1) SACR 325 (SCA) para 8.
[4]
S v Zinn
1969
(2) SA 537 (A).
[5]
S v Mthetwa & others
2015 (1) SACR 302
(GP) para 15.
[6]
S v Muller
2012
(2) SACR 545
(SCA) para 9.
[7]
S v Skenjana
1985 (3) SA 51
(A) at 54
I-55E.
[8]
S v Radebe & another
2013 (2) SACR 165
(SCA) para 13.