About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 76
|
|
Ncwane v S (AR211/2016) [2016] ZAKZPHC 76 (1 September 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
CASE NO:
AR211/2016
DATE: 1
SEPTEMBER 2016
NOT
REPORTABLE
In the
matter between:
PAUL
NCWANE
................................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram: Seegobin J et Radebe J
Heard : 23 August 2016
Delivered : 01 September 2016
ORDER
On appeal
from the Magistrates Court, Scottburgh, (sitting as a court of first
instance):
(a) The
appeal against sentence is upheld.
(b) The
sentence imposed by the court
a quo
is set aside and is
replaced with the following:
“
The accused is
sentenced to nine months imprisonment or a fine of R3000,00, half of
which is suspended for a period of five years
on condition that he is
not convicted of theft or a contravention of section 36 or 37 of the
General Law Amendment Act No.62 of
1955 (possession of stolen
property or receiving stolen property) or any other offence involving
an element of dishonesty committed
during the period of suspension.
JUDGMENT
SEEGOBIN J
(Radebe J concurring):
[1] The
appellant, a 26 year old male, pleaded guilty in the Magistrates
Court, Scottburgh, on 18 February 2016 to one count of
theft of
alcohol to the value of R800,00 and was duly convicted. He was
sentenced to a period of nine months’ imprisonment
without an
option of a fine. The present appeal, with leave of the court
a
quo
, is against sentence only.
[2] The
offence in question was committed on 17 July 2015 when the appellant
visited the bar of the Orissa Inn at Umzinto.
When he noticed
that the barman’s attention was diverted away from him, he
stole five bottles of whiskey to the value of
R800,00, which he later
sold.
[3] The
record reveals that the appellant has one previous conviction for the
possession of dagga which offence was committed in
2008 and in
respect of which the appellant paid a fine of R100,00. For
purposes of the present offence the appellant was
considered to be a
first offender. Despite this and the other personal
circumstances of the appellant which were placed before
the court,
the learned magistrate imposed a sentence of direct imprisonment for
nine months.
[4] The
personal circumstances of the appellant were that he was 26 years
old, he was single but supported his sister’s child
from a
salary of R3500,00 which he was earning from doing his internship at
Sappi Saicor. The appellant pleaded guilty to
the offence and
showed a measure of remorse for his conduct. The circumstances
surrounding the commission of the offence
as pleaded to by the
appellant indicated that it was not pre-planned but was committed on
the spur of the moment and rather opportunistically.
[5] An
examination of the learned magistrate’s reasons for sentencing
the appellant as he did indicates, in my view, that
he
over-emphasized the gravity of the offence and paid very little
attention to the appellant’s personal circumstances as
set out
above. Additionally, he failed to consider any alternative
forms of sentence which would not only cause the appellant
to suffer
some hardship but would also provide him with an opportunity to
rehabilitate himself. In this regard the learned
magistrate has
erred and accordingly the sentence imposed warrants interference by
this court.
[6] In my
view, an appropriate sentence should be a period of imprisonment with
the option of a fine with a portion thereof to be
suspended for a
period on certain conditions. It follows that the appeal against
sentence must succeed.
ORDER
[7] In all
the circumstances, the order I make is the following:
(a) The
appeal against sentence is upheld.
(b) The
sentence imposed by the court
a quo
is set aside and is
replaced with the following:
“
The
accused is sentenced to nine months imprisonment or a fine of
R3000,00, half of which is suspended for a period of five years
on
condition that he is not convicted of theft or a contravention of
section 36 or 37 of the General Law Amendment Act No.62 of
1955
(possession of stolen property or receiving stolen property) or any
other offence involving an element of dishonesty committed
during the
period of suspension.
I agree
RADEBE J
Date of Hearing : 23 August 2016
Date of Judgment : 01 September 2016
Counsel for Appellant : P.M. Mkumbuzi
Instructed by : Durban Justice Centre
Counsel for Respondent : M.E. Mthembu
Instructed by : Director of Public Prosecutions
Pietermaritzburg