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[2012] ZAGPPHC 364
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S v Mashiloane (A662/12) [2012] ZAGPPHC 364 (20 September 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT,PRETOR1A)
Case No: A662/12
Date: 20 September
2012
Case No: B132/2012
High Court Ref No:
763
Magistrate serial
no: 44/2012
In the matter
between:
THE STATE
VERSUS
THABO HEZEKIEL
MASHILOANE
REVIEW JUDGMENT
MAVUNDLA J:.
[1] This matter came
by way of on automatic review in terms of section 302 of Act 51 of
1977 of the judgment of the Magistrate Court
of Lydenburg delivered
on 23 April 2012.
[2] On 23 April 2012
the accused, a 24 year old male, who acted in person, pleaded guiity
to a charge of theft of 3 packs of Melrose
full cream valued at
R49.97 from Shoprite Lydenburg in the district of Lydenburg on or
about 21 April 2012.
[3] The accused,
responding to the Magistrate’s questions in terms of s112(1
)(b) of the
Criminal Procedure Act 51 of 1977
, conceded having taken
the 3 (three) packs of Melrose cheese, packs of Melrose full cream
valued at R49.97 from Shoprite Lydenburg,
and that he had no right
and or permission to do so and that he did not intend to pay
therefore. He further stated that he intended
to eat the cheese and
did not have sufficient money to pay towards same.
[4] The plea of the
accused was quite correctly admitted and he was then duiy convicted
as charged.
[5] In mitigation,
the accused stated that he worked at Steelwork and earned R900.00 per
fortnight. He has a child that he is maintaining
although the child
is not his. He is not married. Nothing was done to canvass further
details regarding this child. The accused
was a first offender.
[6] The magistrate
had regard to the seriousness of the theft out of supermarkets and
the increase of such offence as well as the
ramifications thereof.
The magistrate then sentenced the accused to R3000, 00 or six months
imprisonment wholly suspended for a
period of 5 (five) years on
condition that he is not convicted of theft or attempted theft
committed during the period of suspension,
in terms of section 103 of
the Firearms Control Act the accused was declared not unfit to
possess a firearm.
[7] The above
mentioned fine of R3000, 00, as reflected on the record of
proceedings, was however on the J4 reflected as R2000.
00. Because of
this discrepancy, I sent a query to the magistrate to for
clarification.
[8] I also inquired
from the magistrate whether, regard being had to the value of the
items stolen, the sentence imposed was not
rather inappropriately
harsh. In this regard I referred the learned magistrate to the fines
imposed in the following matters:
S v Matseletsele
1991 (1) SACR 340
(E)
S v Bhembe
1993 (1)
SACR 164
(T)
S v Beja
2003 (1)
SACR 168
(SE)
[9]
The response of the magistrate pointed out that the correct fine was
the amount of R3000. 00 and apologised for the erroneous
recording in
the J4. He further stated that the sentence was intended to deter
others and the sentence was appropriate because
such offence entails,
inter alia,
the
shop owners having to hire security personnel in response to profit
losses. He further concluded that the sentence imposed was
appropriate.
[10] I forwarded the
magistrate’s response to the office of the Director of Public
Prosecutions and invited them to provide
me with their opinion. The
State Advocate Y Ndzalela, Deputy Director of Public Prosecutions,
North Gauteng Pretoria, Adv E Leornard
concurring, has gladly opined
that the sentence is shockingly inappropriate and that sentence of
R1500, 00 or six months imprisonment
with further condition would be
appropriate.
[11]
In the case of S
v
Mgwenya
2003
JOL 11519
(T) Bosielo J, (as he then was), stated the following:
“
The
fact that theft is generally on the increase is well known. The
serious loss suffered by the business community, particularly
self-service, stores is also well known. Obviously theft from
business premises has far-reaching consequences on the broader
economy
and unfortunately the consumers themselves. Clearly the
business community deserves the protection of the law. However, it is
a
serious misdirection for a sentencing officer to overemphasize the
prevalence and seriousness of an offence and the interests of
the
community at the expense of the interest of an accused. Clearly it is
wring to sacrifice an accused on the altar of general
deterrence.
Quite correctly the accused had to be punished for the offence he
committed. However considerations of fairness and
justice demand that
there must be reasonable proportion between the offence for which an
accused is convicted and the sentence
he receives. Where the sentence
imposed is startlingly disproportionate to the offence committed,
this amounts to an irregularity.”
[12]
In the matter of S
v
Banda
and
others 1991(2) SA 352(B) at 355B:
“
What
is necessary is that the court shall consider, and try to balance
evenly, the nature and circumstances of the offence, the
characteristics of the offence and his circumstances and the impact
of the crime on the community, its welfare and concern.”
[13] In the
following matters the sentences were as follows.
13.1
In S
v Van Rooyert
1991
(1) SACR 120
(C) the accused, a first offender was convicted of
stealing clothing to the value of R190. 00. The sentence of four
months’
imprisonment the sentence was altered on review to 34
days’ imprisonment.
13.2
In
S v Bhembe
1993
(1) SACR 164
(T) a 27 year old man, who was married and had two
children, earned R350. 00 per month, and a first offender, was
convicted of
theft of a motor vehicle wheel valued at R3u0. 00, was
sentenced to 9 (nine) months imprisonment. On review, the sentence
was set
aside and replaced with one of fine of R600. 00 or six months
imprisonment.
13.3
In S
v Beja
2003
(1) SACR 168
(SE), the value of items stolen was R84.99. The accused
was a 31 year old mother of two children and had seven previous
convictions.
The sentence of 18 months imprisonment on review was set
aside and replaced with one of six months' imprisonment.
13.4
In
S
v
Baartman
1997
(1) SACR 304
(E) the accused was convicted of theft of food valued at
R21.00. His sentence of nine months' imprisonment was on review set
aside
and replaced with eight months’ imprisonment.
13.5
In S v
Matseletsele
1991
(1) SACR 340
(E) a 34-year-old male having two previous conviction in
1977 for theft and housebreaking and one in 1981 on two counts of
housebreaking,
was convicted of theft of two packets of yeast, valued
at R6.38, from supermarket, on review his sentence of six months’
imprisonment, was on review, bearing in mind the value of the stolen
goods and the long period since his last conviction, was wholly
suspended for five years.
[14]
I am of the considered view that, the sentence imposed in
casu,
was
shockingly excessive and disproportionate to the a value of the items
involved. I am of the view that, in the light of the above
authorities, the magistrate misdirected himself in imposing the fine
mentioned hereinabove. In the circumstances this Court is
at large to
interfere with the discretionary fine imposed by the magistrate.
[15] Having regard
to the circumstances of this case a fine of R1500 or three (3) months
imprisonment wholly suspended for five
(5) years on conditions that
the accused is not convicted of theft or attempted theft committed in
the period of suspension for
which direct imprisonment without an
option of a fine is imposed, will be appropriate.
[16]
In the result, I make the following
Order:
1. That the
conviction of the accused in review number B132/12 is confirmed.
2. That the sentence
imposed by the Magistrate in review number B132/ 12 is set aside and
substituted with the following:
“
The
Accused is sentenced to a fine of R1500 or three (3) months
imprisonment, wholly suspended for five (5) years on condition that
the accused is not convicted of theft or attempted theft committed in
the period of suspension for which direct imprisonment without
an
option of a fine is imposed,"
N.M. MAVUNDLA
JUDGE OF THE HIGH
COURT
I
agree
M.W.
MSIMEKI
JUDGE
OF THE HIGH COURT