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[2015] ZAGPPHC 238
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Mokoena v S (A223/15) [2015] ZAGPPHC 238 (31 March 2015)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NUMBER: A223/15
CASE NO: A393/14
DATE: 31 MARCH 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN THE MATTER
BETWEEN:
HOSEA
MOKOENA
.................................................................................................................
PLAINTIFF
AND
THE
STATE
..........................................................................................................................
DEFENDANT
JUDGMENT
LEDWABA, DJP
1
.
[1.1] The accused
was arraigned in the magistrates court for the district of Praktiseer
on a charge of malicious injury to property.
[1.2] The accused,
who was not legally represented, pleaded not guilty to the charge.
After evidence was led the accused was convicted
as charged.
[1.3] The presiding
magistrate thereafter sentenced the accused to six months
imprisonment.
[1.4] In terms of
Section 302(1 )(a) of Act 51 of 1977 the matter is reviewable in the
ordinary course as the accused, having been
unrepresented, was
sentenced to imprisonment exceeding six months. In terms of Section
304(1) of Act 51 of 1977, the Honourable
the Reviewing Judge must
decide whether the proceedings were in accordance with justice.
[1.5] Initially the
Registrar allocated the review to the Honourable Judge Nobanda, AJ
who issued a directive dated 18 September
2014 to order the immediate
release of the accused. On 29 September 2014 Nobanda, AJ requested
reasons from the presiding officer
pertaining to the imposed
sentence. It appears that the letter was only received by the
magistrate’s court on 28 November
2014. The magistrate
responded that he was not in a position to respond to the queries as
the accused had already been released
and any response would only be
of academic interest. There is no indication that the Office of the
Director of Public Prosecutions
was ever requested to comment as to
the order of immediate release of the accused.
[1.6] Of academic
interest, the magistrate further stated that the aforesaid order
clearly means the Honourable Acting Judge Nobanda
has made a finding
that the conviction and sentence of the accused must be set aside and
her Ladyship will give the reasons later.
[1.7] I think the
magistrate was wrong in stating that Nobanda, AJ has pronounced
herself on the conviction and sentence of the
accused because Nobanda
AJ had not yet given her reasons for directing that the accused
should be released.
[1.8] The other
disturbing factor in this matter is that there is no indication that
the Office of the Public Prosecution (DPP)
was requested to comment
on the release of the accused nor did she discuss the release of the
accused with another Judge senior
to her before she directed that the
accused should be released.
[1.9] The practice
of discussing the matter with a senior Judge and/or the office of the
DPP is important to avoid the situation
that occurred in this matter.
The practice has been followed for many years. It is an important and
valuable practice because the
State is given an opportunity to
respond and in most, if not all, instances the office of the DPP is
requested to comment and it
complies within a very short space of
time and their comment are valuable.
[1.10] Since the
acting stint of Nobanda AJ was over in January 2015 the Registrar
allocated the matter to the Honourable Judge
Molopa-Sethosa and it
appears she was in agreement with the sentiments expressed by the
magistrate.
[1.11] The matter
was forwarded to my office. I then forwarded the matter to the office
of the DPP. I hereby thank the office of
the DPP for their prompt and
sagacious comments.
[1.12] The accused
in the matter admitted that he intentionally burned the complainant’s
clothes, together with the children’s
clothes and birth
certificates.
2
.
[2.1] The accused
was properly assisted by the magistrate and he did not dispute the
evidence of Saphira Motlala that he damaged
the items as described in
the charge sheet. During cross-examination he also admitted that he
burned the clothing and other items.
It is therefore submitted that
the accused was correctly convicted and malicious injury to property.
3.
[3.1] The accused
was sentenced to undergo six months imprisonment. According to the
records (attached) of the Department of Correctional
Services, he was
released on 18 September 2014. This means the accused served an
effective sentence of approximately two months
imprisonment.
[3.2] According to
the evidence of the accused during mitigation he was unable to pay a
fine, and he requested in essence a postponed
sentence in order for
him to find work and pay a fine. The magistrate was of the view that
the accused was “obsessed”
and held that direct
imprisonment was appropriate. In this regard it is submitted that the
queries raised by Nobanda AJ was needed
to be addressed by the
magistrate.
[3.3]
I think the imposed sentence induces a sense of shock and is unduly
harsh. As was stated in
S
v V
1972 (3) SA
611
(A) 614D - E:
“
Punishment
should fir the criminal as well as the crime, be fair to the accused
and to society, and be blended with a measure of
mercy; see
S
vs Sparks and
Stevtler
(AD
18
May
1972).
The
element of mercy, a hallmark of civilized and enlightened
administration, should not be overlooked, lest the court be in danger
of reducing itself to the plane of the criminal; compare the remarks
in
S v De Bruvn
en ‘n Ander
1968(4)
SA 498(A) at 513E.
True
mercy has nothing in common with soft weakness or maudlin sympathy
for the criminal, of permissive tolerance. It is an element
of
justice itself.”
[3.4] On the
circumstances of this case I think an appropriate sentence is that of
three months’ imprisonment and one month
to be suspended on
normal conditions.
I therefore make
the following order:
1. The conviction is
confirmed and is in accordance with justice
2. The sentence is
set aside and substituted with the following sentence
2.1 “Accused
is sentenced to three months imprisonment and one month thereof is
suspended for three years on condition that
the accused is not
convicted of malicious damage to property and sentenced to direct
imprisonment without an option of a fine within
the period of
suspension”
2.2 The sentence
is antedated to the 15 July 2014.
A P LEDWABA
DEPUTY JUDGE
PRESIDENT
THOBANE, AJ