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[2013] ZAGPPHC 24
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Macu and Others v S (A978/2011) [2013] ZAGPPHC 24 (6 February 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: A978/2011
Date:06/02/2013
In
the matter between:
THEMBA
MACU
.....................................................................................................
First
Appellant
LEHLOHONOLO
PETRUS
MOKOENA
…........................................................
Second
Appellant
LUCKY
MOKOENA
..............................................................................................
Third
Appellant
BONGANI
JIMMY
MACU
…..............................................................................
Fourth
Appellant
and
THE
STATE
….......................................................................................................
Respondent
JUDGMENT
PRETORIUS
J.
[1]
The appellants were convicted of theft of 102 boxes of cigarettes to
the value of R714,000.00 from the British American Tobacco
Company.
The provisions of section 51(2) of Act 105 of 1997 applies. All the
appellants were legally represented in the court a
quo.
[2]
The first appellant withdrew his appeal as he had already been
released on parole. The first, second and fourth appellants were
sentenced to 7 years imprisonment by the presiding magistrate in
Heidelberg on 14 May 2010. The third appellant was sentenced to
10
years imprisonment. The reason for the distinction was that the third
appellant was employed by British American Tobacco Company
at the
time and he had planned the crime.
[3]
The appellant was refused leave to appeal by the magistrate, but was
granted leave to appeal against sentence only, when petitioning
the
High Court.
[4]
It is common cause that the appellant entered the factory of the
British American Tobacco Company during the night of 12 November
2007
at Heidelberg and loaded 102 boxes of cigarettes to the value of R714
000 on a bakkie and a Dyna truck driven by the appellant.
The police
intercepted the truck and arrested the appellants.
[5]
The personal circumstances of the 2nd appellant was that he was 26
years old. He was a taxi-driver earning R2800.00 per month
of which
he paid R1500.00 maintenance for his three children aged 6 years,
years and 7 months.
[6]
The persona! circumstances of the 3rd appellant was that he was 34
years old; had 3 children aged 6, 5 years and a baby of 3
months. He
earned R3,500.00 per month.
[7]
The personal circumstances of the 4th appellant was that he was 26
years old. His income was R7000.00 - R8000.00 per month.
All the
appellants are first offenders.
[8]
As the value of the goods exceeded R500,000.00 the minimum sentence
of 15 years imprisonment in terms of section 51 and 52 of
105 of
1997, applies. However, the magistrate found substantial and
compelling circumstances, in that the appellants were first
offenders
and all the goods had been recovered.
[9]
In S v Rabie
1975 (4) SA 855
(A) Holmes JA held at 857 D - E;
“
in
every appeal against sentence, whether imposed by a magistrate or a
Judge, the Court hearing the appeal -
(a)
should be guided by the principle that punishment is "pre-eminently
a matter for the discretion of the trial Court”;
and
(a)
should be careful not to erode such discretion: hence the further
principle that the sentence should only be altered if the
discretion
has not been "judicially and properly exercised.”
[1]
Counsel for the appellants requested the court to suspend a part of
the 7 years imprisonment imposed by the magistrate, as well
as a part
of the 10 years imposed on the third appellant.
[2]
In S v Abrahams
2002 (1) SACR 116
(SCA) at par 26 Cameron JA held:
“
[26]
This was made clear in Malgas. Even when substantial and compelling
circumstances are found to exist, the fact that the Legislature
has
set a high prescribed sentence as 'ordinarily appropriate' is a
consideration that the courts are 'to respect, and not merely
pay lip
service to'. When sentence is ultimately imposed, due regard must
therefore be paid to what the Legislature has set as
the 'bench
mark'. The Constitutional Court has held that the approach enunciated
in Malgas steers an appropriate path -
'which
the Legislature doubtless intended, respecting the Legislature's
decision to ensure that consistently higher sentences are
imposed in
relation to the serious crimes covered by s 51 and at the same time
promoting 'the spirit, purport and objects of the
Bill of Rights'”
[12]
The court has carefully considered the sentences and cannot find that
the magistrate had misdirected himself or that there
was any
irregularity. The court a quo took into consideration the individual
participation of the appellants in committing the
theft. The court
has to agree with counsel for the respondent that the sentences are
not inappropriate or shockingly harsh. Therefore
this court will not
interfere with the sentences.
[13]
The following order is made:
The
appeal against the sentences is dismissed.
C
Pretorius
Judge
of the High Court
JF
van Schalkwyk
I
agree,
Judge
of the High Court
Case
number: A978/11
Heard
on: 4 February 2013
For
the Appellant
Instructed
by:David H Botha, Du Plessis & Kruger
For
the Respondent: Adv Wilsenach
Instructed
by:Director of Public Prosecutions
Date
of Judgment