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2016
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[2016] ZAFSHC 106
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Mathiga and Others v S (A54/2016) [2016] ZAFSHC 106 (23 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A54/2016
In
the matter between:
KERILENG
JACOB MATHIGA
1
st
Appellant
MOSALA
SOLOMON MATHIGA
2
nd
Appellant
VUSUMI
SOLOMON NKOMANDA
3
rd
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE, J et ZIETSMAN, AJ
HEARD
ON:
20 JUNE 2016
JUDGMENT
BY:
MBHELE, J
DELIVERED
ON:
23 JUNE 2016
[1]
This is an appeal against sentence. The appellants were convicted of
housebreaking with intent to steal and theft by a regional
court
sitting at Viljoenskroon on 21 June 2015 and were sentenced as
follows on the same day, first appellant was sentenced
to six
years imprisonment while 2
nd
and 3
rd
appellants were each sentenced to 5 years imprisonment. Leave
to appeal against sentence was granted on petition by
this court.
[2]
The grounds upon which the appellants are challenging their sentence
are briefly that the regional magistrate erred by overemphasising
the
aggravating factors and the interests of the society and disregarding
the appellants’ personal circumstances. It
is further
submitted that he erred when he found that the damage caused by the
offence the appellants are convicted on runs into
millions of rands
without evidence being led to support such a statement.
[3]
The facts that led to the appellants’ conviction were that on
11 July 2014 at Viljoenskroon the appellants broke into
a container
belonging to Vodacom and stole 16 batteries owned by Vodacom and 8
batteries owned by MTN. The batteries are
used to sustain
network connectivity.
[4]
We are called upon to determine whether the trial court improperly or
unreasonably exercised its judicial discretion.
[5]
Mr. Makhene, on behalf of the appellants, stood by the heads as filed
and implored us to answer the above question in the affirmative.
[6]
Mr. Chalale, on behalf of the respondent, submitted that the question
must be answered in the negative, counsel urged us to
dismiss the
appeal and confirm the sentences.
[7]
We have to take into account the appellants’ personal
circumstances.
[8]
First appellant was 36 years of age at the time of sentencing,
married with four minor children, for the purposes of sentence
he was regarded as a a first offender, he was gainfully employed and
earned R 150 per day. He was the sole breadwinner for his
family.
[9]
Second appellant was 34 years old and divorced, he has one minor
child who was 14 years of age, he worked at a bar and earned
R50 per
day. He is a first offender.
[10]
3
rd
Appellant was 33 years old and married. He has two minor children who
were 3 years and 2 years of age respectively. He was
self
employed and earned R4000 per month. He went to school up to grade
11.
[11]
Sentencing is pre- eminently in the discretion of a trial court.
The sentence can only be interfered with if the sentencing
court
exercised its discretion unreasonably or in circumstances where the
sentence is vitiated with irregularity, misdirection
or where there
is a striking disparity between the sentence and that which the
appeal court would have imposed had it been the
trial court.
(See
S
v Rabie
1975
(4) SA 855
(A);
S
v Pieters
1987 (3) SA 717
( A) at 727).
[12]
The type of housebreaking and theft that the appellants have been
found guilty of has far reaching economic and social consequences.
The theft of batteries at telecommunications networks towers extend
far beyond the physical damage on the cellular tower. The
operators have to bear repair costs, employment of security, loss of
income and deal with a flurry of customer complaints.
[14]
Consumers have to battle with network unavailability, and inability
to access emergency services. Businesses relying on the
affected
networks are affected as well. This type of offence leaves a huge
dent on the economy and ordinary people’s social
lives.
[14]
The trial court, in my view, took all the relevant factors into
consideration when sentencing the appellants.
[15]
When weighing up the mitigating factors against the aggravating
circumstances of this matter as well as the interest of community,
I
am not persuaded that the sentence imposed is unjust. I am of
the view that the trial court exercised its discretion judiciously.
There is no basis for us to interfere with the sentences.
ORDER
[16]
I make the following order:
The
appeal fails and sentences are confirmed.
______________
N.M.
MBHELE, J
I
concur
_____________
ZIETSMAN,
AJ
On
behalf of applicant: Adv. Makhene
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. Chalale
Instructed
by:
Office
of the Director: Public Prosecutions
BLOEMFONTEIN