About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2011
>>
[2011] ZAKZPHC 27
|
|
Mazibuko v S (AR 707/05, N90/2005) [2011] ZAKZPHC 27 (9 June 2011)
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
High Court No: AR 707/05
Case No: N90/2005
In the matter between:
ALPHEUS BONGOKUHLE MAZIBUKO
…................................
APPLICANT
and
THE STATE
…..............................................................................
RESPONDENT
APPEAL JUDGMENT
Delivered: 09/06/2011
MBATHA J
[1] This is appeal from the Magistrate Court, Louwsburg,
held at Ngome.
[2] The Appellant was charged and convicted for theft of
two (2) bundles of pine timber valued at R4 200,00. He was sentenced
to
undergo twelve (12) months imprisonment. The Appellant was
arraigned with three others, of which two were three acquitted at the
end of trial. The judgment and sentence were delivered on the 23
rd
of August 2005. On the 4
th
of October 2005 Appellant was
granted leave to appeal and released on bail of R1 000,00.
[3] It was raised on behalf of the Appellant that it is
not clear if leave to appeal was granted only against sentence or
not. The
submissions made by the Appellant’s counsel before
this Court relate to both judgment and sentence. It is imperative
that
I address this issue first as it touches on the core of the
matter.
[4] The learned Magistrate is clear and unambiguous, in
that, the appeal is on sentence only. I quote:
“
I have
considered that another Court would not have reached a different
conclusion. The Appellant is guilty of theft and there was
an eye
witness. I do not doubt the correctness of the decision to find
Appellant guilty of theft. However, the leave to appeal
be granted
for the Court to consider the issue of sentence, whether the sentence
with an option of a fine is appropriate in the
circumstances.”
[5] I have therefore confirmed to submissions made on
sentence only.
[6] It is common cause that Appellant was sentenced to
twelve (12) months imprisonment, irrespective of being in possession
of a
constructed record. In evaluation whether the Appellant was
given an appropriate sentence, I have taken into account the personal
circumstances of the Appellant at the time of sentencing in the
Magistrate’s Court, as they appear ex facie from the record.
Appellant was thirty three years old, gainfully
employed, married and has children.
He is a first offender and as a consequence of this
case, it brought loss of employment for him.
The aggravating circumstances were that he was in a
position of trust and stole from his employer.
The Appellant was caught on the scene of the crime,
which led to the recovery of the timber by his employer.
[7] I find that there is just a paucity of information
relating to the Appellant’s personal circumstances. We only
have his
age. I have found the following discrepancies:
(a) It is stated that he is married, there is no mention
whether the Appellant’s spouse is gainfully employed or not.
(b) The number of children is not mentioned and if they
are attending school or not.
(c) Appellant is described as a breadwinner no details
are given regarding this aspect and how much he earns.
(d) The record further states that he has been employed
for a number of years and gives no further details regarding that.
[8] The presiding officer ought to have exercised powers
given to him in terms of section 274 of the Criminal Procedure Act,
which
reads as follows:-
“
A Court may,
before passing sentence, receive such evidence as it thinks fit in
order to inform itself as to the proper sentence
to be passed.”
This duty extends even to the represented accused in any
trial, if such mitigation factors have not been adequately placed
before
him. In
S v Zuma
2006 (2) SACR 257
(W) 261 (g) Van der
Merwe J noted that:
“
The Court is at
liberty itself to investigate the situation in order for it to impose
a proper sentence.”
[9] In canvassing the aforementioned factors, the Court
would then come up with an appropriate sentence, which will take into
account
the crime, the offender and the interest of society as stated
in S v Zinn
1969 (2) SA 537
(A).
[10] In this case a custodial sentence of twelve (12)
months imprisonment has been imposed on the Appellant. Custodial
sentences
should be imposed as sparingly as possible. The interests
of the individual and society should weighed to come to an
appropriate
sentence. In cases where a person is a first offender,
whenever possible a sentence of imprisonment must be avoided.
[11] The sentence must also deter the offender from
committing further offences. I find that the learned Magistrate
failed to consider
a fine or suspended imprisonment in this case,
though one of those punitive measures could have been put in place.
[12] The Appellant was convicted of theft with one
Madide. Madide is a family man and has children too. He was also a
first offender
and more or less of the same age with the Appellant.
The Court aquo imposed a fine in respect of Madide. This has led to a
gross
disparity in sentencing. It is trite law that a wider
discretion is given to trial Magistrates with regard to the
assessment of
punishment except in the case of minimum sentences.
[13] This sentence imposed on the Appellant is
disturbing inappropriate, when compared with a sentence imposed on
his co-accused
Madide. The Appellant and Madide played an equal part
in the commission of the same crime and have comparable personal
circumstances.
Interference is only justified if the lighter sentence
is a reasonable or commonly imposed sentence. Only then, by reason of
the
sentences being disproportionate, can the heavier sentence be
ameliorated on the ground of its being disturbingly inappropriate.
The aforementioned principles were stated in
S v Marx
1989
(SA) 1 at 223.
[14] I will not canvass the issues raised regarding the
reconstructed record. Had the appeal been on conviction, I should
have applied
my mind on that aspect in details, in particular if this
resulted in any prejudice to the Appellant before Court. I, and for
purposes
of sentence, the record is clear and unambiguous.
[15] I find that the sentence imposed by the learned
Magistrate induces a sense of shock and that there was disparity in
sentencing
of the two accused.
[16] It is accordingly ordered as following:
A sentence of twelve (12) months imprisonment imposed
upon the Appellant is hereby set-aside.
In place thereof it is substituted as follows:
Appellant/Accused is sentenced to twelve (12) months
imprisonment, wholly suspended for a period of three years on
condition that
the Appellant/accused is not convicted of a crime of
theft committed during the period of suspension.
The sentence is ante dated to 23
rd
August
2005.
It is so ordered.
________________
Mbatha J
I concur: _____________
Hadebe AJ
Date of Hearing: 12 May 2011
Date of Judgment: 09 June 2011
For the Appellant: Adv P.Marimuthu
Instructed by: PMB Justice Centre
20 Otto Street
Pietermaritzburg
For the Respondent: Adv Z. Dyasi
Instructed by: Legal Aid, Pietermaritzburg