About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 81
|
|
Mkhuba and Others v S (A368/2015) [2015] ZAGPPHC 81 (16 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No:
A368/2015
Date: 16 February
2015
In the matter
between:
IGNATIUS
MKHUBA
................................................................................................
1
st
APPELLANT
SIPHO
KHWELA
.......................................................................................................
2
nd
APPELLANT
NHLANHLA
PLATA
.................................................................................................
3
rd
APPELLANT
and
THE STATE
Coram: Baqwa J
Heard:
Delivered:
JUDGMENT
BAQWA J
[1] This is appeal
against sentence from the decision of the Regional Court for Regional
Court Division of North West sitting at
Klerksdorp.
[2]
The appellants were charged and convicted on one count of
housebreaking with intent to steal and theft after they had pleaded
guilty in terms of
Section
112
(2) of the
Criminal Procedure Act 51 of 1977
on
the 3
rd
December 2013.
[3] The third
appellant was granted leave to appeal against sentence only by the
trial Court whilst the first and second appellant’s
filed
applications for leave to appeal after the prescribed and
simultaneously applied for condonation of the said late filling
of
their applications.
[4] The State has
not opposed the applications for condonation and the appellant’s
applications have been granted.
[5] The conviction
and sentence followed an incident where on 28 March 2013 and at or
near Kanana, North West the appellants with
intent to steal, broke
into and entered the house of one Ramaisa where they stole one
television set, the property of the said
Ramaisa. They had done so
upon receiving information that the complainant would not be at home.
[6] The appellants
were arrested some five months later and the television set which
they had sold to a third party was recovered
and returned to the
complainant.
[7] The appellants
were all sentenced to serve a term of five (5) years imprisonment and
they based their appeal on the submission
that the sentence imposed
is too severe and that it induces a sense of shock.
[8] This submission
is based on the fact that all the appellants were first offenders who
were in their twenties and who had no
previous convictions. Moreover,
all the appellants had pleaded guilty which was indicative of remorse
on their part.
[9] Counsel for the
appellants submits that no one was injured during the commission of
the offence and that the television set
in question was recovered and
that complainant did not suffer any loss.
[10] It is trite law
that in every appeal against sentence, the Court hearing the appeal
should be guided by the principle that
punishment is pre - eminently
a matter for the discretion of the trial Court and should be careful
not to erode such discretion
hence the further principle that
sentence should be altered in exceptional circumstances.
[11] Whilst the
latter statement of the law is correct, the Court has to take into
account any special circumstances of each particular
case where such
exists. The fact is, the most severe sentence is not necessarily the
most appropriate. Most prisoners have to return
to society one day
and the longer the sentence the more likely society is to be troubled
by that person.
See: S v Skenjana
1985 (3) SA 51
A at p64
S v
S 1997
(3)
830
at 839 G - H
[12]
Whilst the Court a
quo
seems
to have taken cognizance of the mitigating factors mentioned above,
it does not seem to have reflected that thereof in the
sentence
imposed.
[13] Whilst not
minimizing the seriousness of the crime, it does not appear that
appellants are persons who pose a serious threat
to society as to
merit a sentence of five years imprisonment.
[14] In the
circumstances I find it appropriate to temper the sentence with a
measure of mercy by imposing a lesser sentence.
[15] In the
circumstances, I accept that this is an appropriate case for the
imposition of a no-custodial sentence which would still
serve as a
deterrent to committing any further similar crimes.
[16] In the result I
propose that the following order is made:
14.1 The appeal
against sentence is upheld
14.2 The effective
sentence of five (5) years imprisonment is set aside and substituted
with a sentence of five years imprisonment
which is suspended for the
five (5) years on condition that the appellants are not found guilty
of committing a similar offence
during the period of suspension.
S.A.M.
BAQWA
(JUDGE
OF THE HIGH COURT)
I agree and it is so
ordered
N. KOLLAPEN
(JUDGE OF THE
HIGH COURT)