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2015
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[2015] ZAGPPHC 54
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Ngakane v S (A573/2014) [2015] ZAGPPHC 54 (7 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A573/2014
DATE:
7 FEBRUARY 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
SHAUDI
NGAKANE
.........................................................................................
Appellant
and
THE
STATE
....................................................................................................
Respondent
JUDGMENT
Tuchten
J
:
1. The appellant was
charged in a regional court with one count of housebreaking with
intent to rob and robbery with aggravating
circumstances, committed
on 12 March 2011. The complainant, who is not a South African
national, was the owner of a tuck shop.
The circumstances were the
following. The appellant was part of a mob of about ten persons who
attacked the complainant’s
shop during the night. The appellant
and his cousin were asleep in the shop. They heard a noise and the
complainant saw members
of the mob breaking the burglar proofing of
the shop. The complainant tried to stop the attack but was struck by
a stone thrown
by one of the attackers. The stone thrower was not
identified. The mob then looted the tuck shop.
2. The appellant was
identified as one of the attackers. He was convicted as I have set
out and sentenced to 15 years imprisonment.
He was granted leave to
appeal against the sentence.
3. It is submitted
on the appellant’s behalf that the sentence is shocking and
disproportionate. The appellant was 26 years
old at the time of his
arrest, single and had no dependents. He was unemployed at the time
of his arrest and was in custody for
at least 18 months before he was
sentenced.
4. The difficulty
facing the appellant is that he was a repeat offender. He had the
following previous convictions committed on
the dates which appear
below:
4.1 2004: theft.
Sentence was postponed.
4.2 2004: theft.
Sentence was postponed.
4.3 2006: theft.
Sentenced to a fine of R60 or 60 days in prison with a further 6
months imprisonment suspended.
4.4 2006: assault
with intent to cause grievous bodily harm. Sentenced to 6 months
imprisonment suspended.
4.5 2007: theft.
Sentenced to a fine of R600 or 60 days imprisonment.
4.6 2009: theft.
Sentenced to 3 years imprisonment of which one year was suspended.
5. On 27 October
2010, the appellant was released on parole. The period of parole was
due to expire on 26 October 2011. This means
that in addition to his
bad record, the appellant was on parole when he committed the
offences presently under consideration. The
appellant has had the
benefit of most of the softer options provided by our criminal
justice system: fines, suspended sentences,
a short period of
imprisonment and parole. None of these has deterred the appellant
from serious criminal behaviour. For that a
severe sentence is
demanded.
6. The regional
magistrate took the appellant’s personal circumstances and his
criminal record into account but appears to
have overlooked an
aggravating factor, ie that the appellant was on parole when he
committed the present offences.
7. Looting the shops
of foreigners is a grave and prevalent offence in the province of
Gauteng. In the heads of argument of counsel
for the State, this kind
of offence is described, with justification, as a disease that has
spread among the community. Counsel
submits that the offence
demonstrates racism and xenophobia. While this latter submission may
well have substance as a general
proposition, there is no evidence to
this effect in the case before us. It is conceivable that the
appellant simply took advantage
of the situation to commit his crimes
and was not motivated by the race or ethnic origins of the
complainant.
8. But there is
generally no excuse for this kind of behaviour and in this case none
was offered. The appellant expressed no remorse.
Taking the crime,
the interests of the appellant and the interests of society into
account, conduct such as that of the appellant
must be severely
punished. I thinkthat the sentence imposed by the regional magistrate
was entirely appropriate.
9. I make the
following order: The appeal is dismissed and the conviction and
sentence are confirmed.
NB Tuchten
Judge of the High
Court
9 February 2015
I agree.
EM
Kubushi
Judge
of the High Court
9 February 2015