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[2016] ZAFSHC 143
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Makwa v S (A172/2015) [2016] ZAFSHC 143 (25 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A172/2015
DATE:
25 AUGUST 2016
In
the appeal between:
KAMOHELO
TYS
MAKWA
..................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:
VAN ZYL, J
et
BOKWA, AJ
JUDGMENT
BY:
VAN ZYL, J
DELIVERED
ON:
25 AUGUST 2016
[1]
The appellant was convicted on a charge of theft and sentenced to 24
months’ imprisonment. The appeal is directed
against the
sentence only with the leave of the court
a quo
. The
appellant was released on bail pending the outcome of the appeal.
[2]
The appellant had been found guilty on the basis that he had stolen
two bottles of Jagermeister liquor, worth R400,00 from Checkers,
Welkom. He was legally represented during the trial. He
pleaded not guilty and did not give any plea explanation.
The
state called one Mr Polaki as a witness. He is a security
officer who was on duty on 19 December 2014 when the incident
occurred. He testified that he saw the appellant entering the
shop whilst carrying a small bag. He went to certain
shelves
and from there to a fridge, from which fridge he took a pack of six
Windhoek beers. The appellant then proceeded
to the tills and
paid for the beers. As he was about to leave the shop, Mr
Polaki noticed that the bag which the appellant
had been carrying,
had a bigger appearance than when he entered the shop. He
requested to search the bag and found two bottles
of Jagermeister
liquor. The appellant was unable to produce a slip for the said
liquor. He explained that he had bought
the liquor at a Chinese
shop before he came to Checkers. The appellant however then
admitted to Mr Polaki that he had stolen
the two bottles of liquor
from Checkers. When asked where the tags were which were
attached to the bottles, the appellant
walked back to shelves where
he had earlier left the tags which he removed from the bottles.
After cross-examination of Mr
Polaki, the legal representative of the
appellant indicated that the appellant wishes to make certain formal
admissions in terms
of
section 220
of the
Criminal Procedure Act, 51
of 1977
. It was then admitted that the appellant had taken the
two bottles of liquor, worth R400,00 from Checkers without any
permission
and with the intension to deprive Checkers of its
ownership, whilst knowing that it was wrong to do so. The
appellant was
consequently convicted on the aforesaid basis.
[3]
In terms of the notice of appeal the sentence is shockingly harsh and
inappropriate as the result of the following:
1.
The court ignored the rehabilitation and
reformative elements of punishment.
2.
The court overemphasised the previous
convictions of the appellant.
3.
The court overemphasised the seriousness of
the offence.
4.
The court failed to give proper
consideration to the personal circumstances of the appellant.
5.
The court failed to take into consideration
the
“
remorseful acceptance of the
responsibility of the offence that the applicant took, which became
tantamount to a plea of guilty
in terms of
section 112
of the
Criminal Procedure Act, 51 of 1977
”.
[4]
It is trite law that a court of appeal will not lightly interfere
with an imposed sentence. See
S v
Kibido
1998 (2) SACR 213
(SCA) at
216 G – H;
S v Sadler
2000 (1) SACR 331
(SCA) at 334D – 335 A.
[5]
It is evident from the judgment on the sentence that the following
personal circumstances had indeed been taken into consideration
by
the court
a quo
in favour of the appellant:
1.
The appellant was 27 years old at the time
of sentencing.
2.
The appellant was working as a consultant
at Visual Homes where he was earning commission of between R700,00
and R1 500,00
per month.
3.
He was not married, but lived with his life
partner who at the time was pregnant with his child. His life
partner was unemployed
with the result that the appellant was the
sole breadwinner.
4.
His highest standard of education is grade
12.
[6] The appellant’s
legal representative submitted during his argument in mitigation of
sentence in the court
a quo
that the admissions in terms of
section 220
of the
Criminal Procedure Act tantamount
to a plea of
guilty, which expedited the proceedings and which is also indicative
of the appellant’s remorsefulness.
As indicated earlier,
this aspect was also referred to in the appellant’s notice of
appeal. However, in my view the
court a
quo
cannot be
faulted for not having taken it into consideration as an alleged
mitigating factor. Had the appellant truly been
remorseful, one
would have expected him to have pleaded guilty from the outset as an
indication that he accepts responsibility
for his deed, which is the
first step towards potential rehabilitation. Instead the
appellant waited until the finalisation
of the evidence and
cross-examination of the state’s main witness and only then did
he decide to make the
section 220
admissions, probably because he
realised that the state has a very strong case against him.
Such conduct is not indicative
of true remorse. The following
dictum
stated in
S v Matyityi
2011 (1) SACR 40
(SCA) at par [13] is very applicable in this regard:
“
[13]
Remorse was said to be manifested in him pleading guilty and
apologising, through his counsel (who did so on his behalf from
the
bar) to both Ms KD and Mr Cannon. It has been held, quite correctly,
that a plea of guilty in the face of an open and shut
case against an
accused person is a neutral factor. The evidence linking the
respondent to the crimes was overwhelming. In addition
to the stolen
items found at the home of his girlfriend, there was DNA evidence
linking him to the crime scene, pointings-out made
by him, and his
positive identification at an identification parade. There is,
moreover, a chasm between regret and remorse. Many
accused persons
might well regret their conduct, but that does not without more
translate to genuine remorse. Remorse is a gnawing
pain of conscience
for the plight of another. Thus genuine contrition can only come from
an appreciation and acknowledgement of
the extent of one's error.
Whether the offender is sincerely remorseful, and not simply
feeling sorry for himself or herself
at having been caught, is a
factual question. It is to the surrounding actions of the accused,
rather than what he says in court,
that one should rather look. In
order for the remorse to be a valid consideration, the penitence must
be sincere and the accused
must take the court fully into his or her
confidence. Until and unless that happens, the genuineness of the
contrition alleged
to exist cannot be determined. After all, before a
court can find that an accused person is genuinely remorseful, it
needs to have
a proper appreciation of, inter alia: what motivated
the accused to commit the deed; what has since provoked his or her
change
of heart; and whether he or she does indeed have a true
appreciation of the consequences of those actions. There is no
indication
that any of this, all of which was peculiarly within the
respondent's knowledge, was explored in this case.”
[7]
When considering the aggravating factors, I have to agree with the
contention on behalf of the appellant that the court
a
quo
overemphasised the seriousness of
the offence in the particular circumstances by exaggerating the
negative impact of theft on the
community in general and on the
tax-payers’ money in the absence of any evidence in this regard
and by,
inter alia
,
referring to evidence on financial losses suffered due to shoplifting
which had previously been led in court in a completely different
matter.
[8]
However, theft still remains a very serious offence and moreover so
in the particular circumstances of this matter. The appellant
had
enough money to pay for the beers, but he wanted even more liquor.
The particular items were not stolen in circumstances of
destitution,
but apparently solely for the sake of socialising and having an
enjoyable time.
[9]
The previous convictions of the appellant have a severe impact as an
aggravating factor in this matter. The appellant has been
living a
life of dishonesty. The appellant`s previous convictions consist of
the following;
1.
On 2 July 2009 he was convicted of fraud
and sentenced to R2 000.00 or 8 months’ imprisonment, and
a further 4 months’
imprisonment wholly suspended on certain
conditions.
2.
On 13 April 2010 he was convicted of theft
and sentenced to 3 years’ imprisonment in terms of
section
276(1)(i)
of Act 51 of 1997. That crime was committed on 3
October 2008.
3.
On 25 June 2010 he was convicted of
housebreaking with the intent to steal and theft, which was committed
on 11 August 2008, and
for which he was sentenced to 5 years’
imprisonment in terms of section 276(1)(i) of Act 51 of 1977.
Although
he has previously been imprisoned, it did not deter him from
committing the current offence. It is evident from the record
that
the appellant was released on parole during August 2013. The current
offence was committed on 19 December 2014, just over
a year after
having been released on parole and whilst still serving parole. The
appellant has clearly not been rehabilitated to
the extent that he is
able to mend his ways by living a life free of crime.
[10]
Although a sentence of 24 months’ imprisonment is not a light
sentence for a conviction of theft of products to the value
of
R400,00, the circumstances of this particular matter, especially the
appellant’s previous convictions, places this conviction
in a
more serious category which necessitates a heavier sentence.
[11]
In the circumstances there is no basis upon which we can interfere
with the imposed sentence. Even if I was to consider
the
sentence completely afresh, I would still have imposed a similar
sentence. Mr Van der Merwe, who drafted the heads of argument
on
behalf of the appellant, in my view correctly indicated in the said
heads of argument that his instructions are that the appeal
should
succeed, but that he cannot make any responsible submissions in
support thereof. Mr Gumbi, who appeared on behalf
of the
appellant during the hearing of the appeal, also conceded
accordingly.
[12]
The appellant’s appeal against the imposed sentence, is
consequently dismissed.
C.
VAN ZYL, J
I
concur.
I.R.O.
BOKWA, AJ
On
behalf of the appellant: Mr Gumbi
Instructed
by:
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. L. Zweni
Instructed
by:
The
Director: Public Prosecutions
BLOEMFONTEIN