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South Africa: North Gauteng High Court, Pretoria
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[2016] ZAGPPHC 1174
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S v Ncube (A798/16) [2016] ZAGPPHC 1174 (21 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
A798/16
DATE:
21/11/16
HIGH
COURT REF. NO. : 293/16
CASE
NO
: A268/16
MAGISTRATE'S
SERIAL NO: 24/16
IN
THE MATTER BETWEEN:
THE
STATE
Vs
MBUYISELO
NCUBE
REVIEW
JUDGMENT
TOLMAY,
J:
[1]
The accused, a 28 year old male, was convicted in the magistrate's
court, Pretoria North on a charge of theft after a plea of
guilty. He
was sentenced to 24 months imprisonment half of which is wholly
suspended for 3 years on condition that the accused
is not convicted
of theft during the period of suspension. He was declared unfit to
possess a firearm in terms of section 103 of
Act 60 of 2000.
[2]
The reviewing judge questioned the appropriateness of the sentence
and the magistrate conceded that the sentence is unduly harsh.
[3]
The
accused's
previous
conviction
was
committed
during
2007,
more
than
7
years ago.
I
am
of
the
view that the previous conviction should play a very limited role.
Although it might not be as such an indication of remorse,
it should
at least be considered
as a
possible mitigating factor
[1]
.
The plea of guilty must also be looked at in the
broader
context
of
all the
relevant
circumstances
of the
case. This will also include the fact that he and his wife were
unemployed and have 2 children aged 4 and 2 years old and
the goods
were recovered. In
the light
of all the circumstances
of the case
the sentence is shockingly inappropriate and the Court
should
intervene.
[4]
I am of the view that a suspended sentence is appropriate under the
circumstances and I am of the view that no cogent reason
exist to
declare him unlawful to possess a firearm.
[5]
Consequently I make the following order:
The
conviction is confirmed and the sentence is set aside and substituted
with the following:
"The
accused is sentenced to 8 months' imprisonment wholly suspended for
3
years
on
condition
that
he
is
not
found
guilty
of
theft
during
the period of suspension."
__________________
R
G TOLMAY
JUDGE
OF THE HIGH COURT
I
agree
__________________
C
PRETORIUS
JUDGE
OF THE HIGH COURT
[1]
S v
Mvelase
1958(3) SA
126 (N)
127 D; S v
Motaung
1959(1) SA
799 (T)