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[2013] ZAGPPHC 214
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Hlatswayo v S (A88/13) [2013] ZAGPPHC 214 (25 July 2013)
IN THE NOTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: A88/13
DATE:25/07/2013
In the matter between:
Lindeni
Rostah Hlatswayo
…......................................................
.Appellant
and
The
State
.......................................................................................
Respondent
JUDGMENT
PHATUDI
AJ
1.
PRELUDE:-
1.1
The Appellant in this matter, Lindeni Rostah Hlatswayo and her
co-accused, appeared before the Piet Retief Regional Court,
Mpumalanga Regional Division, on 21st August 2012, on a charge of
stock theft, to which they both pleaded not guilty. According
to the
particulars of the charge sheet, it was alleged that Appellant, who
was accused No.l, committed the alleged offence between
the 24-25
November 2010, it being alleged that the accused did unlawfully and
intentionally stole 10 goats to the value of R9 000,
being the
property of the complainants, one Jabulani Ndodi Mayisela
1.2
The Appellant and her co-accused, who happened to be her son, were
both represented by an Attorney.
1.3
It appears that during Plea explanation, the Appellant denied the
charge of theft as alleged, and stated further that, on finding
the
goats referred to in the kraal, at her house, she then confronted or
inquired from accused No.2, about them, who indicated
that he got the
goats from his uncle, and if anyone makes any inquiry, he will then
handle the matter.
1.4
In order to establish its case against the accused, the State called
the complainant, and Inspector Mandla Nkosi Thulane Buthelezi,
the
investigating officer in the case, to testify.
1.5
The Appellant and accused No. 2, also testified in their defence
after the close of the State's case.
1.6
On the 21st August 2012, both the Appellant and Accused No.2, were
convicted as charged on the Count of stock theft, and sentence
was
imposed against the Appellant on the 24th August 2012, whereupon a
four(4] years imprisonment term, two(2) years of which was
suspended
for a period of five(5) years, was meted out.
1.7
Being displeased by the sentence so imposed, the Appellant applied
for leave to appeal against both the conviction and sentence,
which
application was, however, turned down by the Learned Magistrate.
1.8
Persistent with its application as aforementioned, Appellant then
petitioned the Judge President of this Court for leave to
appeal
against both the conviction and sentence, which leave was granted on
the 06th December 2012, both the conviction and sentence.
2. BRIEF FACTS GIVING RISE TO
CONVICTION:
What
follows is a brief exposition of the facts that led to appellant's
conviction. We consider it unnecessary to re-live the issues
dealt
with at the trial in extenso. save to refer to the salient points of
the evidence.
2.1
The Charge Sheet, as already seen, alleged that both Appellant and
her co-accused, committed the crime of theft of 10 goats.
This it was
said, took place between 24-25 November 2010.
2.2
The Complainant testified that he was the owner of the stolen goats,
and that on the 24th November 2010, he ensured that his
38 goats were
secured in the kraal. The next day he noticed that 10 of them were
missing.
2.3
He said each goat was estimated to the value of R800.00 in the open
market. He sells goats to the villagers when they perform
cultural or
traditional rituals.
2.4
On 26/27 November 2010, he accompanied Inspector Buthelezi to Dumbe
Village, Paul Pietersburg. The purpose was to look for his
lost or
stolen goats in the area.
2.5
Be that as it may, it appears that acting on a tip-off, the parties
were shown a house were some 7 (seven) goats were locked
in a shack,
made of wiring mesh.
2.6
Accused No.2, was asked as to how the seven(7) goats happened to be
in their yard in the shack. According to the witness, Accused
No. 2
indicated that they were brought thereat by his brother the previous
night.
2.7
The witness then asked to see the owner of the house, who was pointed
as Appellant by Accused No. 2.
2.8
He testified that Appellant, on being asked how those goats were
found to be in her property, she indicated to him that it was
the
house property, and that they were previously bought. Only the 7
goats were found at the premises.
2.9
On being hard pressed about the goats as being bought, Appellant then
all of sudden changed her version, and sarcastically replied
that:-
"die
oog van die bokke sal weet hoe die bokke daar gekom het”
(See,
pi 7, line 15, Record)
2.10
The police, Inspector Buthelezi then placed the two suspects under
arrest and drove them to the Paul Pietersburg Police Station.
2.11
In identifying his lost live-stock, complainant testified that he
marked the "right ear”, ("oor merk by die
regteoor”
and with black tail(2 black marks on tail) and black mark under the
tail.
2.12
The 7 goats were retrieved and transported back to complainant's
homestead at Tafelberg, but the other 3 were not recovered.
2.13
The complainant did not know Appellant and Accused No. 2 prior to the
incident, but his family knew Accused No.3.
2.14
On the other hand, Appellant’s co-accused, i.e. Accused No. 2
conceded in his plea explanation, that 7 goats were found
at their
premises in a shack or kraal.
2.15
The complainant, as already shown, testified that he could identify
his stolen goats by their colour and the marks he made
on them.
2.16
Upon arrival at the Police Station, the appellant again changed their
version, and said the goats were brought to their home
by Accused No.
3 the previous night.
2.17
What remained obscure to the Court below, and quiet correctly so was,
as to why Appellant did not inform the Police about the
goats she
found on her property kraal? Clearly these goats were allegedly
delivered on 25th November 2010 thereat, and that was
when
Complainant lost his goats. One wonders whether was this a strange
coincidence.
(P99, line 10-20, Record)
2.18
From the record, it became apparent that Appellant's versions, which
were mutually contradictory, also contradicted in many
material
respects, Accused No. 2's version.
2.19
The Learned Magistrate expressed dissatisfaction on the credibility
character and demeanour of Appellant in her self-destructive
version
to the Court below.
(See P102-105, Record)
2.20
Turning to the improbabilities of the Appellant's version, as
captured on the record, the following facts were common cause:
-
1.
That, the 7 goats were found in her kraal at her premises
2.
That, no reasonable or credible explanation was offered as to how the
goats happened to be there
3.
That, the said goats, which were clearly identified by Complainant as
his, were undisputedly his.
4.That,
Appellant and Accused No.2's version were mutually contradictory,
particularly as to how and why complainant's live-stock
were found at
her property.
5.
Further that, Appellant was found to be an unreliable and less
credible witness who spoke "met soveel verskillende tonge".
3. AD CONVICTION:-
3.1
Having had regard to the totality of the evidence, it seems clear
that the Court of first instance, had established the Appellant’s
guilt beyond a reasonable doubt. The facts as well as the evidence,
as it appears on the record, were carefully assessed by the
trial
Court, and were found to have weighed heavily against the Accused’s
version, which was reasonably possibly not true,
let alone that it
was more often than not, fraught with inherent improbabilities.
(See,
S v Chabalala
2003 SACR 134(SCA)
@ 140A-B)
3.2
Both the Appellant an her co-accused, i.e. her son, testified in
their defence, even though the quality of their version, tended
to
contradict one another, and therefore, made it untenable. The
Appellant’s submission before this Court that, her evidence
should be treated as that of a single witness, cannot be sustained.
(See,
Appellant's Heads of Argument, paragraph 6.2, p.3)
3.3
It is an established law or rule that an accused person in criminal
trial does not have to prove his innocence, nor the Court
every time
has to believe his/her version as truthful. All what is indeed
required is that the accused's version, seen in its totality,
be
reasonably possibly true in the circumstances. In terms of our modern
constitutional law jurisprudence, which is underpinned
by the Bill of
Rights,
it is trite that: "every accused person has a right to a fair
trial, which includes the right:-”
Section
35(3)(h) of the Bill of Riahts:-
"to
be presumed innocent, to remain silent, and not to testify during the
proceedings".
3.3
In the present instance, however, Appellant chose to testify in her
own defence, and the Court below found her evidence inherently
improbable to be characterised as one that was reasonably possibly
true, to redeem her.
(See,
S v Schackel 2001 (4)SA 1 (SCA)
3.4
In the light of the foregoing considerations, we find sufficient
persuasion that the Appellant was properly convicted on that
count.
To that extent, the appeal against her conviction fails.
4.
AD SENTENCE:
4.1
Turning to the issue of whether the sentence imposed was proper, and
one fitting both the crime and the criminal, and whether
it reflects
the moral indignation and interests of the society, it is the duty of
the Appeal Court, such as the present one, to
be guided by the
principle that punishment is pre-eminently a matter for the
discretion of the trial court, and should, therefore,
be loath to
erode such a discretion, which is corroborated by the further
principle that sentence should only be altered where
the discretion
has not been "judicially and properly exercised”, the
test, in essence, being whether the sentence was
vitiated by
irregularity or misdirection, or was disturbingly inappropriate.
(S
v Rabie 1975(4) SA 855(AD) @ 862 G; See also S v Pieters 1987(3)SA
717(AD)
4.2
The general principle, which has for a long time been considered one
of the corner-stone of our penal law, is one of personalization
or
individualization of punishment.
4.3
In this case, the Court below did not find any previous convictions
against the Appellant established
(Pill, line 5, Record)
4.4
The Court below recorded the following mitigating factors in respect
of the Appellant:-
4.4.1
She was 52 years old, and a widow.
4.4.2
She has 7 children with ages ranging between 17 to 30 years old.
4.4.3
She is the First Offender.
4.4.4
The 7 stolen goats were recovered.
4.5
Roundly speaking, first offenders are not readily imprisoned, except
in certain instances, where e.g. where violent crime has
been
committed. This does not, by any means, suggest that first offenders
who committed heinous crime, cannot be directly incarcerated.
(See, S v Victor 1970(1)SA 427(AD)
4.6
In S v Zinn 1969(2) SA 537(AD) @ 541. Rumpf IA. with apparent
reference to the appellant’s age remarked as follows:-
"Appellant's
age undoubtedly requires consideration. He is 58 years old and has
been submitted to a very long period of imprisonment—
It has
also been submitted that the purpose of punishment, in a case like
the present, should not destroy the offender completely”.
The
Learned Judge, with reference to the duties of a Judge in imposing
punishment, referred to some old rather ancient authorities(Voet
Vol.l. p.57) which we find necessary to quote an extract from the
passage as it finds application to the circumstances of the present
appeal matter:
"It
is true, as CICero says in his work "Duties” 1 Chapter 25,
that anger should be especially kept down in punishing,
because he
who
comes
to punishment in wrath, will never hold that middle course which lies
between the too much and the too little. It is also
true, that it
would be desirable that they who hold the office of Judges, should be
like the laws, which approach punishment not
in a spirit of anger,
but in one of equity".
4.7
Applying these sentiments to the present appeal before us, the
record reveals that the Learned Magistrate was, with the greatest
of
respect, actuated by extraneous considerations completely foreign to
our traditional principles of punishment.
The
Learned Magistrate in sentencing the Appellant, erred in considering
irrelevant issues, and also misdirected himself over emphasising
the
prevalence of the crime, and its seriousness, while on the converse,
under-scaled the personal interests of the Appellant in
mitigation of
sentence.
(P.118,
line 5-20; and pp.119 etseq)
The
remarks made by the Court below furthermore demonstrated lack of
balance, and failure by it to "hold the middle course
which lies
between the too much, and the too little”, and which turned out
that the sentence imposed was also approached
in a spirit of anger.
referred to and cited in Zinn's case, supra. (own emphasis]
(See,
also p.128-130, Record)
4.8
In the circumstances, our view is that the sentence imposed was not
only gravely harsh, but was also shockingly a discord in
relation to
the gravity of the offence, the more so that, on the evidence,
Appellant did not physically drive the live-stock to
her house, as
the Court below found to be the case. Her role, therefore, was less
reprehensible.
(See
p. 123, line 15-20, Record)
4.9
Consequently, the appeal partly succeeds, as we make the following
Order:-
COURT ORDER:-
1.
That, the sentence of four(4) years imprisonment imposed which was
suspended for a period of two(2] years conditionally, is set
aside,
and it is substituted for the following sentence:-
(a)
"The accused is sentenced to a period of two(2) years
imprisonment, wholly suspended for a period of five(5) years, on
condition that accused is not convicted of any similar crime during
the operation of the suspension period”.
2.
The sentence is predated to 24th August 2012.
Date
delivered: 25 July 2013
PHATUDI AJ
KHUMALO
J
I
CONCUR AND IT IS SO ORDERED