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[2015] ZAGPPHC 107
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Motseki v S (A342/2014) [2015] ZAGPPHC 107 (27 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIEK VAN
SUID-AFRIKA
CASE NUMBER:
A342/2014
DATE: 27 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
PATRICK
TUMELO
MOTSEKI
.............................................................................................
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1]
The appellant was convicted on a charge of theft in the court a
quo
and
sentenced to 3 years imprisonment.
[2]
The appellant was granted leave by the court
a
quo
to
appeal against both conviction and sentence.
FACTS
[3] The appellant
was, at the time of the incident, employed at Free State Trucking and
Spares. As part of his duties, he was the
driver of a company bakkie,
which bakkie displayed the name and particulars of his employer.
[8] It is common
cause that the appellant was in possession of the bakkie on 8 July
2012.
[9]
The evidence presented by the State, establishes that on the 8
th
of July 2012, a person driving the said bakkie, sold 211 kilogram of
scrap metal to a scrap yard in Unitas Park, Vereeniging for
an amount
of R 400. 00 (Four hundred rand). Mr Kenneth Palatsi, an employee at
the scrap yard, produced an inventory of the scrap
metal that was
purchased on 8 July 2012, which indicated that one
“
Domelo”
was
the seller of the said 211 kilogram scrap metal. The transaction
occurred at 8:50 in the morning and Mr Palatsi was able to
identify
the appellant in court, as the person who sold the scrap metal to
him.
[10] The scap metal
was identified as that belonging to Free State Trucking and Spares
and valued at approximately R 15 000, 00(Fifteen
Thousand Rand).
[11] The appellant
denied any knowledge or involvement in the theft.
AD CONVICTION
[12]
The appellant contends that the court
a
quo
,
although correctly identifying the issue in dispute as that of
identity, erred in finding that the State proved the identity of
the
appellant beyond reasonable doubt.
[13] The evidence of
Mr Palatsi coupled with the fact that, on the appellant’s own
version, he was in possession of the bakkie
at the time of the theft,
establishes the appellant’s guilt beyond reasonable doubt.
[4]
If the bakkie was, for instance, stolen before the theft occurred or
the appellant lend it to someone else during the time that
the theft
occurred, there might have been room for an argument that Mr Palatsi
made a mistake in identifying the appellant as the
perpetrator. The
facts set out
supra
,
however, leave no doubt that the appellant was indeed the perpetrator
of the theft.
[5] Mr Gama, counsel
for the appellant, quite correctly, conceded as much during argument.
[6] In the premises,
the appeal against conviction falls to be dismissed.
AD SENTENCE
[7]
The court
a quo
correctly
identified the three factors to be taken into account when
considering an appropriate sentence, to wit, the personal
circumstances of the accused, the interests of the community and the
seriousness of the offence.
[8]
Mr Gama submitted that, having regard to the abovementioned factors,
the sentence imposed by the court a
quo
,
is, on the facts in this matter, inappropriate.
[9]
In considering an appropriate sentence, the court
a
quo
had
regard to the following personal circumstances of the appellant:
“
Your
personal circumstances are as follows: You are a 40 year old male
person. Your school qualification is Grade 11. You are still
married,
your wife is employed earning R3500. You have been dismissed from
your employment after your arrest. You have two children,
they are
receiving a social grant since the time of your dismissal at work.
You are not a first offender before. In 2004 you were
convicted of
assault, however, it is not relevant to this matter. You have no
money to pay a fine to this court, your [indistinct]
requested to
consider a suspended sentence."
[10]
In considering the seriousness of the offence and the interests of
society, the court
a
quo
made
the following remarks:
“
Unfortunately,
you were the only one that we could identify in this matter, and
therefore we have to make an example of you. We
are in a country that
has big, big economical problems facing us. We have strikes on our
hands, property being damaged, townships
being damaged because of
money, the cost of the economy and you were one of the lucky ones
that had employment. You were the lucky
one that had the vehicle to
use. But you decided, as the prosecutor says, to bite the hand that
was feeding you.
The
State
versus Prinsloo
[1998]
states clearly what the High Courts think about theft from an
employer. We have to sentence people that steal from their
employers,
that the others that are working there will think twice, it is not
worth it to steal. I am going to lose my freedom,
I am going to lose
my job, I am going to be marked as a criminal, I better think twice
before I take something that I am supposed
to look after and protect.
Because if we
slight this and say this, no, this is fine, caution and discharge,
suspended sentence, give him a fine, the shop owners,
the employers
can close their businesses at the end of the day and say it is not
worth it. We are sitting here daily listening
to cases of theft from
employers. ”
[11]
The words
“
....we
have to make an example of you...”
is
a clear indication that the court
a
quo
attached
undue weight to the deterrence element. The value of the stolen
goods, having regard to the price the appellant received
for it, is
relatively small. I am mindful that the crime was committed in an
employer-employee relationship, but do not agree with
the court a
quo
that
direct imprisonment was, in the circumstances, proportionate to the
crime committed.
[12]
In S
v Mbingo
1984
(1) SA 552
AD at 555H, Grosskopf AJA, said the following in respect
of the over-emphasising of the deterrence factor:
“
On
the other hand, all these factors should be seen in their true
perspective. The prevalence of a certain type of offence and the
consequent need to impose sentences which act as deterrents cannot
justify a sentence which is disproportionate to the seriousness
of
the particular case with which the court is dealing. ”
[13] Mr Fourie,
counsel for the respondent, supported the above principal and
conceded that the sentence is disproportionate to
the crime.
[14] In the
premises, the sentence falls to be set aside and this court must
exercise its discretion in imposing a proportionate
sentence in the
particular circumstances of this matter.
[15]
It appears from the record, that the appellant has already served
5(five) months of the sentence imposed by the court a
quo.
[16]
Having regard to all the facts
supra,
I
am of the view that a sentence that is partly suspended should be
imposed.
ORDER
In the premises, I
propose the following order:
1. The appeal
against conviction is dismissed.
2. The appeal
against the sentence of three years imprisonment succeeds.
3. The sentence of
three years imprisonment is set aside and substituted with the
following:
“
The
accused is sentenced to three years imprisonment of which thirty one
months is suspended for three years on condition that the
accused is
not found guilty of theft or any other offence that involves
dishonesty during the period of suspension. ”
4. The sentence is
ante-dated to 7 June 2013.
It is so
ordered.
N JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I agree,
M G PHATUDI
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
ADVOCATE FOR THE
APPELLANT
ADVOCATE N GAMA
ADVOCATE FOR THE
STATE
ADVOCATE FOURIE
DATE OF HEARING: 12
FEBRUARY 2015