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[2017] ZAGPPHC 124
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Ginidza v S (A235/2016) [2017] ZAGPPHC 124 (31 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,PRETORIA)
CASE
NO: A235/2016
DATE:
31/3/2017
In
the matter between:
WILSON
NTOKOZO VINCENT
GINIDZA
APPELLANT
AND
THE
STATE
RESPONDENT
JUDGMENT
S
HIRI
LE
L
E
AJ
(Hughes
J
Concurring):
THE
BACKGROUND
[1]
The Appellant in this matter appeared in the Regional Court, Plat
Retief, on a count of housebreaking with the intent to steal
and
theft (read with the provisions of Section 262(1) and 264 of the
Criminal Procedure Act, 51 of 1977 ("the CPA").
[2]
In his plea explanation in terms of s112(2) of the CPA the Appellant
admitted that on the 19
th
May 2015 he unlawfully and
intentionally stole a generator and a monkeywrench being the
lawful property of Andile Perseverance
Ngema by breaking through the
padlock using a bolt cutter spanner.
[3]
The Appellant was found guilty as charged in terms of s112(2) of the
CPA on the 25
th
June 2015 and sentenced to four
(4) years imprisonment in terms of Section 276(1)(b) of the CPA.
[4]
He was also declared unfit to possess a firearm.
LEAVE
TO APPEAL
[5]
This Appeal comes before this Court after the Appellant had
successfully petitioned this Court for Leave to Appeal against
sentence.
[6]
The Appellant now appeals against the sentence.
C
R
I
TICISM
OF THE
TRIAL CO
U
RT
[7]
The main criticism of the trial Court is that it misdirected itself
in the following respects:
7.1
It over emphasised the seriousness of the crime and the interest of
society whilst
the personal circumstances of the Appellant were under
emphasised;
7.2
The trial Court failed to exercise its discretion judicially, fairly
and properly
and In particular the trial Court made the remark that
certain foreigners, or a great deal of them are here [In South
Africa] with
one thing in mind, to commit crimes;
7.3
That the sentence evokes a sense of shock and is despairingly
disproportionate to
the offence.
P
R
OPOSED
S
E
N
TENCE
[8]
It is proposed that the whole sentence should be set aside and
replaced with a wholly suspended sentence taking into account
the
fact that the Appellant pleaded guilty, Is remorseful, and
co-operated with the Police, the generator was recovered, and that
he
is a first offender.
SENTENCI
N
G
CONS
I
DE
RAT
I
ONS
[9]
Factors taken into account by the Court a
quo
were the
following:
9.1
He was twenty seven (27) years old;
9.2
He was unemployed;
9.3
He is not married;
9.4
He has five (5) minor children;
9.5
He pleaded guilty;
9.6
He did not benefit anything from the commission of this
offence;
9.7
He is remorseful;
9.8
He Is a candidate for rehabilitation;
9.9
The stolen generator was recovered;
9.10
The complainant did not suffer any loss other than the one occasioned
on the
padlock;
9.11
He co-operated with the Police;
9.12
He is a first offender.
[10]
It is trite law that the Imposition of a sentence is in the
discretion of the trial Court. A Court sitting on an Appeal should
be
careful not to erode the discretion of the trial Court, and would
generally only interfere with such discretion If it was not
judicially and properly exercised on in circumstances where the
sentence imposed is tainted by an irregularity or misdirection
or is
disturbingly Inappropriate.
[See:
Sv Pillay1997(4) SA 53(A) at 535 0-G] Sv Packereysammy
2004 (2) SACR
169
(SCA)]
[11]
A departure from the sentence imposed by the trial Court will require
this Court to find truly convincing reasons for doing
so.
[12]
As already alluded to here above it was submitted on behalf of the
Appellant that the Presiding Magistrate did not properly
take into
consideration all the personal circumstances of the Appellant and
that the sentence Imposed was shockingly harsh and
inappropriate.
[13]
It was further submitted that the Presiding Magistrate failed to
exercise his discretion judicially, fairly and properly having
regard
to the remarks made relating to foreigners In South Africa being here
with one purpose in mind, which is to commit crimes.
[14]
The remarks by the Presiding Magistrate are unfortunate. The remarks
lend themselves to, and taint the sentence imposed by
the Learned
Magistrate with biasness towards foreigners, and gives the impression
that the sentence imposed was influenced by the
Learned Magistrate's
views on foreign nationals in the country.
[15]
I am of the view that the sentence imposed, which appears to be
tainted by bias on the part of the Magistrate is clearly
inappropriate,
having regard to all the factors put forward as
mitigating factors, which the Presiding Magistrate should have taken
into account.
[16]
I am of the view that the sentence imposed is in the circumstances
too harsh and in appropriate.
ORDER
[17]
In the result I make the following order:
17.1
The Appeal against sentence succeeds;
14.1
The sentence is replaced with the following order:
"The
Appellant
is
sentenced
to
four
(4)
years
imprisonment,
half
of
which
is
wholly
suspended
for
two
(2)
years
on
condition
the
accused
does
not
commit
a
similar
offence".
DATED
AT PRETORIA ON THIS THE 27
TH
DAY OF MARCH 2017.
______________________________
SHIRILELE
AJ
Acting
Judge
of
the
H
i
gh
Court
of
South Africa,
Ga
u
teng
D
i
vis
i
on,
Pretoria.
I
agree
______________________________
HUGHES
J
Judge
of
the
High
Court
of South
Africa,
Gauteng
Division,
Pretoria
APPEARANCES:
FOR
THE APPELANT: MB KGARARGA
PRETORIA
JUSTICE CENTRE.
FOR
THE RESPONDENT: ADV C PRUIS
THE
STATE
APPEAL
DATE: 14 MARCH 2017
DELIVERY
DATE: