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[2013] ZAFSHC 200
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S v Nyathi (262/2013) [2013] ZAFSHC 200 (7 November 2013)
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
..................................................................................................
....................................................................................................................................................................................................
Review
Number: 262/2013
In the review of:-
THE STATE
and
EKKES NYATHI
CORAM: MOLEMELA, J et LEKALE, J
DELIVERED ON: 07 NOVEMBER 2013
MOLEMELA, J
[1] This matter served before me as a
special review as contemplated in the provisions of
section 304(4)
of
the
Criminal Procedure Act 51 of 1977
.
[2] The accused person, an 18 year old
Malawian national, was charged with contravention of
section 49(1)(a)
of the
Immigration Act 13 of 2002
in that he entered and remained in
the Republic of South Africa without a valid passport or permit. He
was also charged with attempted
theft of vouchers valued at R200.00.
The accused pleaded guilty and was duly convicted by the court a quo.
The two offences were
taken together for purposes of sentencing and
the accused person was sentenced to four (4) months’
imprisonment. The court
a quo further ordered that after serving his
sentence, the accused person be deported to his country of origin.
[3] The trial magistrate referred the
matter to the High Court on special review. In the covering letter to
this referral the learned
magistrate stated as follows:-
“
During
a judicial quality assurance assessment it was picked up that in the
above-mentioned case an incompetent sentence was imposed.
According
to the query the accused was sentenced to four months imprisonment
while according to the Act only imprisonment not exceeding
three
months could be imposed. Case herewith for your further attention.”
[4] The
Immigration Act 13 of 2002
provides that a person who has contravened
section 49(1)
thereof
shall, on conviction, be liable “to a fine or to imprisonment
not exceeding three months”. I agree that in
imposing a heavier
sentence than the one stipulated in that Act, the court a quo acted
ultra vires
and imposed an incompetent sentence that falls to
be set aside. It is indeed a pity that the incompetent sentence was
only detected
well after the sentence was served in full. According
to the learned magistrate, the error was only discovered at an
inspection
that took place two years after finalisation of the
matter. This case demonstrates how failure to conduct inspections on
a regular
basis or failure to have internal quality control measures
in place can defeat their purpose and impact negatively on the rights
of accused persons. It is a regrettable state of affairs. It is hoped
that quality control inspections will be conducted more regularly
in
future.
[5] I am of the view that another
reason why the sentence imposed by the court a quo is assailable and
falls to be set aside is
that the court a quo misdirected itself by
concluding that an imprisonment sentence without the option of a fine
was the only appropriate
sentence to impose on an 18 year old first
offender. Having formed this view, I directed a query to the trial
magistrate, enquiring
whether a custodial sentence was not too harsh
considering that (i) the accused was only 18 (eighteen) years old at
the time of
commission of the offences; (ii)that he was a first
offender; (iii) that he pleaded guilty; and (iv) that when he was
sentenced
he had already spent 7 (seven) weeks in custody awaiting
trial.
[6] In his response to this particular
query, the learned magistrate inter alia, stated as follows:
“
It
is my respectful view that a custodial sentence was not too harsh
under the circumstances. Firstly the court did take into
consideration
the mitigation factors referred to by the Honourable
Judge Molemela in her remarks. Except that the court also looked at
other
factors and also at how the community felt about these types of
offences. In this regard the court took into consideration that
at
the time of the offences:
(a) there had been a huge
increase in the number of illegal immigrants in the District of Vrede
[and] this aggrieved the community;
(b) many businesses were
opened by foreigners that had resulted in local citizens sitting
without employment [and] this outraged
the community;
(c) Except for the
accused being an illegal immigrant he had also been found guilty of
Attempted Theft.”
[7] The learned magistrate further
stated that he took judicial cognisance that at the time the offences
were committed there had
been a huge increase in the number of
illegal immigrants in the district of Vrede and that many local
citizens had lost their employment.
He stated that he intended to
send a strong message as many illegal immigrants were also charged
with serious offences.
[8] Having
considered the learned magistrate’s reasons and the record, I
became fortified in my view that he indeed had misdirected
himself by
adopting an incorrect approach in sentencing the youthful accused
person.
In the case of
S v Phulwane and Others
2003 (1) SACR 631
(T), the three appellants, aged 20 years, 22 years
and 18 years respectively had been convicted of housebreaking with
intent to
steal and theft of groceries worth R1 500,00. They
were sentenced to three years imprisonment. On appeal, the court held
that
the trial court had failed to acknowledge the important fact
that the accused persons were relatively young, with clean criminal
records and deserved sentences based more on rehabilitation than
deterrence. The court set aside the sentences imposed by the trial
court on the appellants and remitted the matter back for a proper
consideration of the sentence. At p634 the court inter alia stated
as
follows:-
“
When
a youth or juvenile strays from the path of rectitude to criminal
conduct, it is the responsibility of judicial officers entrusted
with
the task of sentencing such a youth to ensure that he or she receives
all relevant information pertaining to such a juvenile
to enable him
or her to structure a sentence that will best-suit the needs and
interests of the particular youth. It is after all
a salutary
principle that sentence must be individualised. I venture to suggest
that every judicial officer who has to sentence
a youthful offender
must ensure that whatsoever sentence he or she decides to impose will
promote rehabilitation of that particular
youth and have, as its
priority, the reintegration of the youthful offender back into his or
her family and, of course the community.”
[9] The court in that case also
referred to the case of
S v Nkosi
2002 (1) SACR 135
(W)
at 143b, where the following remarks were made:
“
The
fine balance that needs to be struck between society’s needs to
punish crime while not overlooking the interests of a
juvenile
offender was emphasised by Botha JA in
S
v Jansen & Another
1975 (1) SA 425
(A) at 427 – 428 in the following terms: The
interests of society cannot be served by disregarding the interests
of the juvenile,
for a mistaken form of punishment might easily
result in a person with a distorted personality being eventually
returned to society.”
[10] I echo the
sentiments expressed in both authorities referred to, above.
It
is to be borne in mind that the remarks made by the court in those
cases were made notwithstanding the fact that the accused
persons in
those matters had committed serious offences. I am of the view that
the offences committed by the youthful accused person
in this
particular matter (contravention of the
Immigration Act, for
which
the maximum sentence is three months’ imprisonment and
attempted theft of goods worth R200.00) clearly do not fall
in the
category of serious offences. Their prevalence does not, in my view,
elevate them to the category of serious offences. The
circumstances
of this case thus cried out for the rehabilitation objective of
sentencing to come to the fore. Instead, the court
a quo sacrificed
the accused person’s personal circumstances at the altar of
deterrence and failed to individualise his sentence.
The zeal to send
a message that commission of a particular sentence will not be
tolerated must never be allowed to supersede the
discretionary
sentencing powers of imposing a sentence that fits the offence,
serves the interests of society and is fully cognisant
of the accused
person’s mitigating factors.
[11] The record
does not show that the court a quo considered any other sentence than
the custodial sentence it imposed. I am satisfied
that its conclusion
that direct imprisonment was the only appropriate sentence in
circumstances that did not warrant such a sentence
emanated from its
under-emphasis of the accused person’s personal circumstances.
This constitutes a material misdirection.
Imposing a custodial
sentence on a youthful offender who had a clean record, had already
spent seven weeks in detention, had not
committed serious offences
and had promptly pleaded guilty potentially exposed him to
interaction with recalcitrant criminals and
was indeed a serious
injustice to both society and the offender in question. See
S
v Phulwane
(supra)
at
635d-e.
[12]
The
material misdirection committed by court a quo warrants interference
with the sentence it imposed. In the case of
S v Malgas
2001 (1) SACR 369
(SCA) at 478 d – h. “
Where
material misdirection by the trial court vitiates its exercise of
that discretion, an appellate Court is of course entitled
to consider
the question of sentence afresh. In doing so, it assesses sentence as
if it were a court of first instance and the
sentence imposed by the
trial court has no relevance”.
[13] I also noted that in the process
of sentencing the accused, the court a quo stated as follows:
“
He
[accused] was also found guilty of a very serious offence of
attempted theft, there at Sindalowitch where he attempted to steal
voucher papers and that is another problem with illegal immigrants in
this country. It happens quite often that they are the persons
being
arrested for crimes being committed in this country, just like the
accused.”
These remarks are rather unfortunate.
In the first place, attempted theft of vouchers valued at R200.00
does not warrant being classified
as a serious offence. Secondly,
without any statistical backing, the general remark that illegal
immigrants “quite often”
commit crimes in this country is
as unwarranted as the harsh sentence that was imposed on this young
accused person.
[14] I have already alluded to the
fact that the sentence was imposed two years ago. The Department of
Correctional Services confirmed
that the accused was deported to his
country of origin after serving his sentence. Remitting the matter
back to the trial court
for sentencing will obviously serve no
purpose under the circumstances.
[15] I now turn to consider sentence
afresh. The accused person’s mitigating factors have already
been highlighted. The impact
of his age on determining an appropriate
sentence has also been sufficiently canvassed earlier in this
judgment. It cannot be denied
that members of the community have, at
various forums, verbally expressed their frustrations about what they
perceive as the state’s
shortcomings in addressing the problem
of the presence of illegal immigrants in this country. The community
expects the state to
deal decisively with the matter. The judiciary,
as one of the arms of the state, needs to do its part. It can only do
so by imposing
appropriate sentences that are dictated to by the
facts of each case. I agree that any sentence that is imposed must,
of necessity,
be coupled with an order of deportation. Such orders,
coupled with effective use of state resources to curb entry of
illegal immigrants
into the country will significantly reduce the
prevalence of this offence.
[16] It is settled law that the period
spent by an accused person in custody while awaiting trial must be
taken into account when
determining an appropriate sentence. The
accused person spent seven weeks in custody awaiting his trial. The
consideration of this
period will be evident from the sentence that
will be imposed.
[17] Having considered all the
aforementioned circumstances, the following order is made:
1. The accused’s conviction on
both charges is confirmed.
2. The sentence imposed by the court a
quo in respect of both charges is set aside and replaced with the
following:
“
A fine of
R600.00 or 1 (one) month’s imprisonment, wholly suspended for
two years on condition that the accused is not again
convicted of
contravention of
section 49(1)(a)
of the
Immigration Act 13 of 2002
or any offence with an element of dishonesty committed during the
period of suspension.”
3. The sentence mentioned in clause 2
above is antedated to 12 April 2011.
4. The registrar of this court is
directed to ensure that the Senior Magistrate or Head of Office
responsible for Vrede Magistrate’s
Court is provided with a
copy of this judgment for noting.
_________________
M.B. MOLEMELA, J
I concur.
_____________
L.J. LEKALE, J
/sp