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2014
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[2014] ZAFSHC 25
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Mugota v S (A244/2013) [2014] ZAFSHC 25 (13 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A244/2013
In
the matter between:
DONALD
MUGOTA
..................................................................................
Appellant
and
THE
STATE
.............................................................................................
Respondent
CORAM:
JORDAAN, J
et
MOLOI, J
HEARD
ON:
10 MARCH 2014
DELIVERED
ON:
13 MARCH 2014
MOLOI,
J
[1]
The appellant pleaded guilty to trespassing on the mine property in
Welkom, being an illegal immigrant in contravention of section
49(1)(a) of Act 13 of 2002 and attempted theft of gold bearing
substance and was duly convicted. He was sentenced to R
20 000.00
or two (2) years imprisonment, R 300.00 or 30 days
imprisonment and R 1000.00 or four (4) months imprisonment,
respectively.
With the leave of the trial court, he came before
on appeal against the sentences imposed.
[2]
The major argument before us was that the sentence imposed in respect
of the trespassing charge, viz the R 20 000.00 or two
years
imprisonment was shockingly high and inappropriate as the fine was
higher than what he could afford, viz R 3000.00. The Trespass
Act No.
6 of 1959 provides for sentence of a fine not exceeding R 2000.00 or
imprisonment not exceeding two (2) years. Taking into
account the
provisions of the Adjustment of Fines Act No. 101 of 1991 the trial
court would be within its rights to impose a fine
of R 20 000.00
despite the provisions of section 2(1) of Act 6 of 1959 (Trespass
Act).
[3]
From the onset Mr Nel, for the appellant, conceded that the trial
court referred in its assessment of appropriate sentence to
the fact
that the appellant was the first offender, that he pleaded guilty
right at the outset and that he was the only breadwinner
for his
family. It was submitted that the appellant was married with three
(3) minor children and that his wife was unemployed.
It was also
submitted that the appellant has completed school, (whatever that
meant) and that he has been in South Africa since
2008 after fleeing
his country, Zimbabwe, as an asylum seeker. The appellant is also an
asthma sufferer and could only stay underground
at the mine for only
five hours and could not even steal the gold substance because of his
health condition.
[4]
The trial court also considered the seriousness and the prevalence of
the crime committed by illegal miners in the Free State
goldfields in
particular and in the country in general. The incidents of these
illegal mining activities have assumed serious proportions
and have,
in some instances, resulted in death and by the illegal miners
amongst themselves. That the economy of the country suffers
great
losses from these illegal activities goes without saying. The courts
can safely take judicial notice of the fact that these
illegal
activities are orchestrated and are syndicated with the foot soldiers
doing the dirty work for the faceless bosses.
[5]
The submissions advanced on behalf of the appellant cannot and do not
entitle this count to interfere with the exercise of the
sentencing
discretion by the trial court:
S v
Anderson
1964(3) SA 494 (A) and
S
v Kibido
1998(2) SACR 213 (SCA).
There is no law that says a first offender should not be punished
with sufficiently harsh sentence. There
is equally no law that says a
fine that is imposed should not exceed the amount an accused person
has. That would lead to absurdities
and lead to the accused dictating
to the courts what fines must be imposed. The appellant’s plea
of guilty was inevitable
having being caught red handed. The
co-operation given to authorities cannot be to his credit as stated
in
S v Sebata
1994 (2) SACR 319
(C) at 325F. The submission that he is a
breadwinner for his family raises eyebrows as to how does he make
money to provide for
his family as there is no mention of his
employment at all. It is also inconceivable how he is an asylum
seeker since 2008 and
after six years there is no finality reached
about his asylum. There was, in fact, nothing to point out that there
was asylum sought
and what the outcome was save what he says. His
asthmatic condition and his five hour stay underground cannot be
supported with
tangible evidence except what he says. Equally it is
surprising to note that the charge sheet notes the appellants address
as unknown
and one wonders where his family lives. The court can
safely accept that he could not give his address to the authorities.
[6]
It is common knowledge that the majority of the illegal miners in
this country are foreigners that are illegally in the Republic.
There
is no law regulating the illegal mining activities. The most the
State can charge the illegal miners with is Trespass and
Theft or
Attempted Theft as in our case. It is hoped that the legislature can
enact a law that will have harsh punishment for these
illegal
activities which are assuming horrendous proportions.
[7]
In my view the trial court took all the relevant considerations into
account and balanced them properly as required by
S v Rabie
1975 (4) SA 855
(A) at 862 A. This court has no reason to interfere
with the sentencing discretion by the trial court. The court was
provided with
a number of cases in which lesser sentence was imposed.
All those cases were of course, review cases where the circumstances
are
totally different from an appeal case.
ORDER:
The
appeal is consequently dismissed.
K. J. MOLOI, J
I
concur.
A.
F. JORDAAN, J
On
behalf of the Appellant:
Adv. P.W NEL
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of Respondent:
Adv B.G CLAASSENS
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN