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[2016] ZAGPPHC 857
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Radebe v S (A721/2015) [2016] ZAGPPHC 857 (15 September 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
15/9/16
CASE
NO: A721/2015
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
EMMANUEL MFANA
RADEBE APPELLANT
and
STATE RESPONDENT
JUDGMENT
YACOOB,
AJ:
1.
The appellant was convicted on 29 May 2014 in the regional court,
Piet Retief, of receiving stolen property and driving a motor
vehicle
without a valid licence, after pleading guilty. He was sentenced on
the same day to four years' imprisonment for receiving
stolen
property and one year for driving without a licence. He had no prior
convictions. He appeals only against the sentences
imposed, with the
leave of this court.
2.
The appellant was apprehended on 24 October 2013, in a vehicle which
had been stolen in an armed robbery during September 2013.
He was
driving without a valid licence. He stated in his explanation of plea
that he had purchased the vehicle for R10 000 and
that he had
suspected at the time of purchase that the vehicle was stolen, but
ignored his suspicions.
3.
The appellant is a chicken seller with three children, who was at the
time of conviction 34 years old. He made a profit of about
R 1000 a
month. At the time of sentence he indicated that he had R5000
available with which to pay the fine.
4.
It is well established in our law that sentencing is a matter of
discretion for the trial court, which must exercise its discretion
judicially, and that a sentence will not be interfered with on appeal
except where the discretion has not been exercised judicially,
is
unreasonable or disproportionate, or induces a sense of shock. Where
a misdirection by the trial court vitiates its exercise
of
discretion, the appeal court is entitled to consider sentence afresh,
while a sentence that is shocking or disproportionate
may only be
interfered with if the discrepancy between that and what the appeal
court may impose is substantial. See for example
S
v Anderson
1964
(3) SA 494
(AD) at 495C-E; S
v Malgas
2001 (2) SA 1222
(SCA)
at [12].
5.
In this case, it appears from the record that the magistrate, Mr
Hallat, conducted the sentencing procedure in such a manner
that his
discretion was not exercised judicially, and, in fact, is vitiated.
6.
I deal below with the sentences imposed for each charge separately.
RECEIVING STOLEN PROPERTY
7.
As I have set out above, the appellant pleaded guilty to receiving
stolen property, and the prosecutor in the case accepted the
plea.
There was no version other than the appellant's version before the
Court. The State did not attempt to prove that the appellant
had
committed theft, robbery, or any other offence, although the
appellant had initially been charged with theft.
8.
In the prosecutor's address regarding sentence, he submitted that the
appellant's explanation of plea comes very close to theft,
presumably
because the appellant had admitted that he was suspicious of whether
the vehicle had been stolen property. The prosecutor
also made
reference to the vehicle having been stolen in an armed robbery in
September 2012. He stated that the appellant had said
he had been in
possession of the vehicle for a very long time, which was not the
evidence before the court.
9.
The prosecutor also made reference to the fact that there was false
documentation for the vehicle and asked the court to infer
that the
appellant had had help or a favour to obtain these. There was no
evidence of this, nor was the appellant charged with
any offence
relevant to the irregularity of the papers, apart from those he had
pleaded guilty to.
10.
In passing sentence, the magistrate made the following comments, the
vast majority of which had no basis in any evidence or
submissions
before the court, and many of which were not relevant:
a. that he didn't know
where someone who makes R1000 per month chicken farming would get R
10 000 to buy a car;
b. that the appellant had
"dieselfde storie" as a man earlier that morning, that he
was going to Pongola to a traditional
healer when he was apprehended;
c. that the previous
accused, like the appellant "het vir die Hof 'n storietjie
vertel" that he bought, or got, or borrowed
a car from someone
else who "nodeloos om te se" could not be found (despite
the appellant's plea explanation having been
accepted, the magistrate
made it clear that he did not believe the appellant and was
suspicious of the appellant);
d. that the court was
taking the appellant's version "met a knippie sout"
e. that he wished people
would think of a new reason why they are in possession of a vehicle
when they are caught at roadblocks;
f. that he (the
magistrate) himself knows that vehicles that have been stolen go over
the border to Swaziland on the road past Piet
Retief;
g. that a working vehicle
that is purchased for R10 000 must have been stolen;
h. that the State
accepted the plea because they probably could not prove the charge of
armed robbery or robbery or theft;
i. that this kind of
crime is a big problem that the police do nothing about;
j. that the senior
echelons of the police had decided to close the vehicle theft unit,
despite the prevalence of vehicle theft;
k. that people drive
stolen vehicles over the border because they have connections with
the police;
l. that the court had had
police officers before it who permitted "hierdie tipe van ding";
m. that most evidence is
that people drive past to the border post, turn off the tar road onto
a dirt road to get into Swaziland,
and that nobody does anything
about it, and
n. that this is the
reason so many vehicles are stolen, because it is a profitable
occupation.
11.
The magistrate then proceeded to impose a sentence of four years for
the offence of receiving stolen property.
12.
It is evident that the magistrate considered a number of things that
were neither placed before him in evidence nor as submissions,
and
which were irrelevant to the charge to which the appellant had
pleaded guilty, and the circumstances of h·1s plea.
13.
The appellant appears to be bearing the burden of other matters that
the magistrate has heard, and of evidence that the magistrate
has
come across in other matters, or in other circumstances.
14.
The magistrate has not exercised his discretion judicially in
considering the appellant's sentence, and this court is free to
consider sentence afresh.
15.
The
appropriate sentence for receiving stolen property varies in the case
law from correctional supervision,
[1]
to a fine and a suspended period of imprisonment for one year,
[2]
to two years
[3]
(each of these
for the receipt of one stolen vehicle), to an effective six years for
five vehicles where evidence connected the
accused with the
thefts,
[4]
and, in an extreme
case, fifteen years for 102 counts.
[5]
16.
It must be taken into account that the first appellant is a first
offender, and is a breadwinner.
17.
The appellant's counsel suggested that a sentence of four years, two
of which are suspended, is appropriate. I agree.
DRIVING WITHOUT A VALID
DRIVER'S LICENCE
18.
The appellant pleaded guilty to driving on a public road without a
driver's licence. There was no evidence before the court
whether he
had ever had a driver's licence or his licence had merely expired.
Nor was there any evidence that he had been driving
recklessly or
dangerously, or regarding his driving skills in general. He was also
not charged with any offence of reckless or
dangerous driving.
19.
In considering sentence, the magistrate made the following remarks:
a. that he (the
magistrate) drives about 200km or more on ten or twelve days a month,
and not a day goes by that he does not have
to take evasive action as
a result of people "wat geen idee het how om 'n voertuig te
bestuur nie, wat glad nie die reels
van die pad ken nie, wat glad nie
eers agter 'n voertuig se stuurwiel behoort te wees nie";
b. that the appellant is
one of those people, and
c. that the appellant
would long ago had obtained a licence if he knew how to drive
properly.
20.
The magistrate then proceeded to impose the maximum sentence, of a
year in prison without a fine, on the appellant, again for
a first
offence with no aggravating circumstances to which the appellant had
pleaded guilty.
21.
The magistrate took into account his own frustrations of sharing the
road with incompetent drivers, and imposed them on the
appellant,
with no evidence to support his conclusions.
22.
Again, he has failed to exercise his discretion judicially. In
addition, the imposition of the maximum sentence in the circumstances
of this case, and the fact that the magistrate did not order that it
run concurrently with the sentence of four years, induces
a sense of
shock. It appears to this court that the magistrate also allowed his
view that the appellant was guilty of theft colour
his judgment, in
imposing this sentence.
23.
In the circumstances, it is our view that a fine would have been
appropriate. The appellant's counsel suggests that a fine suspended
for five years would be appropriate, as it would serve as a deterrent
This suggestion has merit.
CONCLUSION
24.
The magistrate's approach in this case is regrettable. Had the
appellant not pleaded guilty, his right to be presumed innocent
would
have been affected. As it is, the magistrate appears to have presumed
the appellant guilty of offences with which he was
not even charged,
and for which there was no evidence.
25.
It is well established that judicial officers must be careful of
taking into account information obtained extra-curially, even
when
that information was obtained in other trials that judicial officer
has heard. In particular, if the judicial officer intends
to take
judicial notice of such information, she must give the accused the
opportunity to respond to the court and adduce evidence
if necessary
(S
v
Chipape
2010 (1) SACR 245
(GNP) at [33]-[341).
26.
In this case the magistrate did not permit the appellant an
opportunity to address him on the issues on which he appears to
have
relied in deciding the appellant's sentence. The magistrate also
failed to consider this matter on its own merits. The appellant's
rights to a fair trial were at risk.
27.
The fact that the appellant chose to plead guilty protected him from
any serious breach of his rights, because the magistrate
was not
called upon to decide the appellant's guilt. Even this impediment the
magistrate attempted to overcome in the sentencing
procedure. This is
cause for concern.
ORDER
28.
I order as follows:
a. The appeal against
sentence is upheld.
b. Both sentences imposed
by the magistrate are set aside and substituted with the following:
i.
In respect of receiving stolen property, the appellant is sentenced
to four years imprisonment, two of which are suspended for
five
years.
ii.
In respect of driving without a valid licence, the appellant is
sentenced to pay a fine of R500, suspended for five years.
iii.
Both sentences are to run from 29 May 2014.
___________________
S.
YACOOB
ACTING
JUDGE OF THE HIGH COURT
I
concur and it is so ordered
__________________
R.G
TOLMAY
JUDGE
OF THE HIGH COURT
Appearances
:
On
behalf of the appellant: ADV. LA VAN WYK
Instructed
by:
PRETORIA
JUSTICE CENTRE
2
nd
Floor FNB Building 206 Church Street
PRETORIA
0001
On
behalf of the respondent:
Instructed
by:
DIRECTOR
OF PUBLIC PROSECUTIONS
Presidential
Building
28
Church Square
PRETORIA
0001
[1]
S v Siebert
1998 (1) SACR 554
(A)
[2]
S v Skweyiya 1984 (4) SA 712 (A)
[3]
S v Mani 2002 (2) SACR 393 (E)
[4]
S v Moller 1990 (3) SA 876 (A)
[5]
National Director of Public Prosecutions v Kyriacou
2003 (2) SACR
524
(SCA)