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[2013] ZAFSHC 26
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Msimanga v S (A119/12) [2013] ZAFSHC 26 (4 February 2013)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case no: A119/12
In a matter between:
FANA BEN MSIMANGA
.....................................................
APPELLANT
And
THE STATE
....................................................................
RESPONDENT
CORAM:
C.J.
MUSI, J et DA ROCHA-BOLTNEY, AJ
JUDGMENT BY:
C.J
.
MUSI, J
_____________________________________________________
HEARD ON:
04 FEBRUARY 2013
DELIVERED ON:
04 FEBRUARY 2013
[1] The appellant was
convicted of theft of copper conducting cable, by the regional
magistrate Viljoenskroon,and sentenced to nine
(9) year’s
imprisonment. An application for leave to appeal against the
conviction and sentence was dismissed. The appellant
petitioned the
Judge President. Leave to appeal against the conviction was refused.
He was however granted leave to appeal against
the sentence.
[2] The factual matrix of
this matter is briefly as follows. On 27 March 2010 security guards
who were engaged to patrol Eskom’s
conducting cable lines at
Vierfontein, in the district of Viljoenskroon, noticed a pick-up
dropping off five persons near an area
called the jersey line. (This
is apparently the name given to that particular stretch of conducting
cable line by Eskom). Those
persons moved towards the conducting
cable. The security guards saw a spark or flash as they called it.
The spark was caused by
a bolt cutter cutting the conducting cable.
[3] They moved towards
the place where they saw the flash. They saw men rolling conducting
cable. When they approached the men,
they ran away. They followed the
men and the appellant and another person were caught and arrested.
[4] Despite the damning
evidence against him, the appellant elected not to testify. The
regional magistrate duly convicted him.
[5] The State called Mr
Johannes Meyer, an investigating officer employed by Eskom, to
testify before sentence was passed. According
to him the copper cable
cannot be reused. It has to be sold as scrap. He estimated its value
between R34 000-00 and R35 000-00.
He testified that the total
monetary loss to replace and repair the conducting cable was R277
000-00.
[6] He further testified
that the loss that Eskom suffers as a result of theft and repair of
conducting cables in that particular
area is approximately R30
million per annum. The loss occasioned by theft of cable in that
region amounts to R2½ million
to R3 million annually. As a
result of the damage to the cable in this matter electricity supply
to the mines in the region was
disrupted. According to him it takes
between 24 and 72 hours to restore electricity supply but they have
alternative electricity
supply in the event of theft.
[7] The appellant was
thirty-two (32) years old, unmarried but cohabitated. He and his
partner have an eleven (11) year old child.
He passed standard
8(eight) and was employed as a taxi driver. He earned R350-00 per
week. He was arrested on 27 March 2010 and
sentenced on 31 August
2010. He was in custody for that period. He had a previous conviction
for theft. During September 2003 he
was sentenced to R2000-00 or four
months imprisonment of which half was suspended for five (5) years on
certain conditions.
[8] The regional
magistrate found that the offence was serious and that Eskom suffered
huge losses because of this particular theft
and generally because of
theft of copper conducting cable.
[9] Mr Reyneke, on behalf
of the appellant, argued that the sentence is shockingly
inappropriate. He did not argue that the magistrate
misdirected
himself or that he committed an irregularity which warrants this
Court’s interference.
[10] Mrs Liebenberg, on
behalf of the respondent on the other hand, argued that the sentence
is appropriate in the light of all
the aggravating factors that are
present in this matter.She highlighted the loss that Eskom suffered;
the fact that the appellant
was employed; the ramifications of this
particular crime; the fact that the crime is prevalent and that it is
difficult to apprehend
offenders. She also alluded to the fact that
the appellant has a relevant previous conviction. She however
conceded that the sentence
is heavy, but argued that it is not
shockingly inappropriate.
[11] It is trite that a
court of appeal will not interfere lightly with the sentence of the
trial court because sentencing is pre-eminently
in the discretion of
the trial court. A court of appeal will only interfere if the trial
court misdirected itself or where it has
committed an irregularity or
where the sentence is shockingly inappropriate. A court of appeal may
also interefere where the discretion
vested in the trial court is
exercised improperly or unreasonably. See
S v Pieters
1987 (3)
SA 717
(A)at 728 b-c
.
[12] We have in this
division regrettably seen an increase in the number of theft of
copper cable appeals being argued before us.
Likewise many automatic
review matters where stiff sentences for this kind of offence have
been imposed, have landed on my desk.
[13] Theft of copper
cable is very rife at the goldfields probably because of all the
mines situated in that area. Mining is not
a small cog in our
economic machine. It is an integral part of our economy. It therefore
means that if mining operations are stopped
because of theft of
copper cable, a vital organ of our economy is stopped.
[14] Theft of copper
cable leading to mines has a direct and negative effect on our
economy. Theft of copper cable conducting electricity
to homes also
has a negative effect on the economy and the lives of those who pay
for and expect an uninterrupted supply of electricity.
The economic
loss that it visits on Eskom is also astronomical as Mr Meyer’s
evidence indicated. I therefore share the regional
magistrate’s
view that this is a very serious crime.
[15] In this particular
case the appellant was gainfully employed. The commission of the
crime was therefore motivated by greed
and not need. It is also true,
as Mrs Liebenberg argued, that people who steal copper cable normally
do so at night and it is not
easy to apprehend them.
[16] This offence was
planned because these people went to the scene with all the necessary
tools to commit the crime without being
electrocuted. A bolt cutter,a
nylon robe a hacksaw and branderings to which the hacksaw was tied
when the copper cable was cut,
were found at the scene.
[17] According to Mr
Meyer the cable that was cut conducts 88 000 volts of electricity.
Cutting such a cable is by itself a very
dangerous and life
threatening thing to do.
[18] In my view the most
effective way of showing offenders and would be offenders that the
game is not worth the candle is generally
by imposing direct
imprisonment even for first offenders.
[19] Mrs Liebenberg
attached two judgments of this Court to her heads of argument in
which sentences of six (6) years’ imprisonment
respectively
imposed on first offenders were confirmed on appeal.
[20] In
Ernest
Mogale v The State
case number 123/99 judgment delivered on
13 December 1999 by my retired brother Beckley J, the appellant was
convicted of stealing
copper cable worth R28 000-00. He was sentenced
to six (6) years imprisonment. His appeal against the sentence was
dismissed.
[21] In the matter of
Matthews Godla v The State
case number A98/2009
judgment delivered on 3 March 2011, the appellant was also convicted
of theft of copper cable. The value is
not stated in the judgment,
but is described as a large quantity of copper cable. Ms Liebenberg
favourited us with the record of
this appeal. The witness testified
that the value might be plus minus R25 000-00. In the
Matthews
Godla
matter it was not Eskom cables that was stolen, but indeed
cable that was laid by the complainant in order to supply electricity
to a machine that he was using on his farm. The appellant in this
matter was sentenced to six (6) years imprisonment in the regional
court, Koffiefontein. His appeal against the sentence was also
dismissed.
[22] I am acutely aware
that it is not always wise to compare sentences imposed in different
cases because the circumstances under
which these offences have been
committed and the personal circumstances of the accused or appellants
are different. On the other
hand the disparity between sentences
imposed for similar offences should not be too great. There are no
factors present in this
matter that warrant such a pronounced
deviation from the sentences that are generally imposed in this
division for this kind of
offence.
[23] Although the
appellant has a previous conviction for theft, he was not in conflict
with the law for a period of seven (7) years.
He was also in custody
for a period of five (5) months awaiting trial. He does not seem to
have been the leader of the group.
[24] Having regard to his
personal circumstances the seriousness of the offence, the interest
of society and the sentences imposed
in the past for similar offences
the sentence of a nine (9) years imprisonment evokes a sense of
disquiet in me. It is in my view
shockingly inappropriate. I am of
the view that a sentence of seven (7) years imprisonment would be
more appropriate, because the
appellant, unlike the two appellants in
the cases mentioned in paragraphs 20 and 21 above, is not a first
offender. Secondly, the
value of the cables stolen in this matter is
higher than the value of the copper cable stolen in those matters.
[25] In this matter there
is also evidence relating to the total loss in terms of replacement
and repair value of the copper cable
whereas in those cases there was
no evidence to that effect.
[26] I accordingly, make
the following order:
1. The appeal is upheld.
2. The conviction is
confirmed.
3. The sentence is set
aside and replaced by the following sentence: Seven (7) years
imprisonment.
4. The sentence is
antedated to 31 August 2010.
_______________
C.J. MUSI, J
I
concur
_______________________
DA
ROCHA-BOLTNEY, AJ
/ar