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[2011] ZAKZDHC 12
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Makhaye v S (AR103/10) [2011] ZAKZDHC 12; 2011 (2) SACR 173 (KZD) (3 March 2011)
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
Case No: AR103/10
In
the matter between:
THANDUKAZI
SELBY MAKHAYE
…......................................................................
Appellant
and
THE
STATE
…............................................................................................................
Respondent
J U D G M E N T
SEEGOBIN J
[1] The appellant was convicted by the regional court
magistrate Mr. ZP Nkosi on a charge of theft of a motor vehicle and
was sentenced
to five (5) years imprisonment. His appeal before this
court is with leave of the court
a quo.
[2] The appellant, who was legally represented, pleaded
not guilty and elected to remain silent. In the course of the trial
however,
his defence appeared to be that the only reason why he was
arrested was because the police had found him in a road which was in
close proximity to the house where the stolen vehicle was found. In
order to prove its case against the appellant, the State relied
mainly on circumstantial evidence. The conviction of the appellant
was based upon certain inferences drawn by the learned magistrate
as
reflected by the following passage from his judgment:
“
The doors and the ignition of the vehicle had
been tampered with, and in the absence of any credible explanation of
his presence
there on the premises and his working on the vehicle an
inference is irresistible that he had been involved in it’s
theft,
or knew of it’s recent theft and was perpetuating this
theft in view of items that were found stolen from the vehicle and
had no business to be there”.
[3] When the appeal was argued, Mr
Howse,
for the
appellant indicated that the appellant was prepared to withdraw his
appeal against the conviction
“
to the extent that he abides by the conviction
of theft based on the third
inference
drawn by the Learned Magistrate”
. In
view of this limited concession by the appellant, it is necessary to
briefly examine the evidence relied on by the State.
[4] The vehicle in question, a maroon Nissan Sabre with
registration number CSZ349FS, belonged to the complainant a Mrs
Johanna
Aletta Els. During the evening of 4 April 2008 she parked her
vehicle at the Pick ‘n Pay Mall in Scottburgh where she and
her
husband went for supper. She emerged about 2 hours later to find that
her vehicle was missing. The theft was reported to the
Scottburgh
Police Station. On 15 April 2008, she was requested to come to the
police pound at Scottburgh where she positively identified
her
vehicle. The vehicle was in fact recovered by the police from House
513, G Section, Umlazi Township on 10 April 2008 by Inspector
Nyidi
and certain other policemen who proceeded to the house in question
after receiving information from Supt. Gumbi. When Insp.
Nyidi
entered the premises of House 513 he found the appellant standing
next to vehicle with two registration plates bearing numbers
CSZ 349
FS in his hands. The appellant denied that the plates belonged to
him. Not being satisfied with this explanation, Inspector
Nyidi
confirmed via radio that the vehicle in question had in fact been
reported stolen at Scottburgh under Cas 44/04/08. The appellant
was
then arrested.
[5] Supt. Gumbi tesfied that on 10 April 2008 he
received information about a suspected stolen motor vehicle which was
parked at
a house in Umlazi Township. He proceeded to the house and
observed the appellant busy working on the vehicle. He immediately
proceeded
to the Umlazi Police Station and made a report. Following
upon this report he accompanied Inspector Nyidi to G Section, Umlazi
and pointed out the house to him. He waited in the road while
Inspector Nyidi and other policemen entered the premises. A short
while later they emerged with the appellant. They also had two
registration plates in their possession. The numbers were checked
over the police radio and it was confirmed that they belonged to a
stolen vehicle.
[6] The appellant testified and called a witness in his
defence. Essentially his version was that he was standing outside his
motor
vehicle on the side of the road opposite the house in question.
He had gone to fetch the son of his taxi box. While waiting there
a
boy by the name of Thamo approached him and they chatted for a while.
Police vehicles suddenly approached and Thamo ran away.
Supt. Gumbi
chased after Thamo but returned without him. When Supt. Gumbi
returned, he had registration plates in his possession.
The appellant
denied that he knew anything about the stolen vehicle. The witness
called by the appellant did not assist him in
any way. His evidence
was to the effect that he merely assisted the appellant by removing
his vehicle from the scene when the appellant
was arrested.
[7] In my view, the learned magistrate correctly
rejected the appellant’s version as being improbable in the
circumstances.
The appellant’s presence near the vehicle with
the registration plates in his possession justified the inferences
that were
drawn. Although there was no evidence that he was directly
involved in the theft of the vehicle, his possession of the vehicle
and its registration plates a mere six days after it’s theft,
for which he was unable to provide a satisfactory explanation,
rendered him guilty of theft. It follows that the appellant was
correctly convicted.
[8] Insofar as the issue of sentence is concerned, it is
clear that the Learned Magistrate paid particular attention to the
appellant’s
previous conviction in the present matter. The
appellant had only one previous conviction for an offence described
as “possession
of housebreaking and for car theft implements
and not being able to justify such possession”. This offence
was committed
on 15 October 1998 and the appellant was sentenced on 1
October 1999. He was sentenced to a fine of R3000,00 or 6 months
imprisonment,
half of which was suspended for 5 years on condition
that he was not convicted of a similar offence or theft or attempted
theft
during the period of suspension.
[9] In
S v Muggel
1
,
Ngcobo J (as he then was) set out the extent to which it is
permissible to take previous convictions into account when imposing
sentence to be the following :
“
1. In terms of s 271(4) of the Act the court is required to
take previous convictions which have been proved against the accused
into consideration when imposing a sentence.
2. In terms of s 271A previous convictions automatically fall away
as previous convictions after the expiration of a period of ten
years
from the date of conviction unless the previous conviction relates to
an offence for which the punishment may be a period
of imprisonment
exceeding six months without the option of a fine or the person has
been convicted of an offence for which punishment
may be a period of
six months’ imprisonment without the option of a fine during
that period. This section does not merely
provide that such previous
convictions should not be taken into consideration when sentence is
imposed, but it specifically provides
that they fall away as previous
conviction. S v Zondi
1995 (1) SACR 18
(A) at 23
g-j.
In terms of s 271A the sentencing court has no discretion. It
cannot take into consideration any previous convictions which fall
within the purview of the section. S v Zondi (supra).
3. Although s 271 (4) requires the sentencing court to take
previous convictions into account when determining the appropriate
sentence,
it does not take away the discretion of the sentencing
court. The court is enjoined to exercise its discretion judicially
when
taking into consideration previous convictions.
4. In the exercise of its discretion, the sentencing court is
required to have regard to the nature, the number and the extent of
similar previous convictions and the passage of time between them and
the present offence. The relevance and importance of those
convictions depends upon the element they have in common with the
offence in question. S v J
1989 (1) SA 669
(A) at 675C – D.
5. Previous convictions, which bear no relationship whatsoever to
the crime, are relevant in a limited sense only and simply with
a
view to determining to what extent, if any, the form of punishment
imposed for those crimes served as effective deterrents for
the
person in his or her career of crime and also to indicate the extent
to which the person has an uncontrollable urge to lawlessness
which
reduces the chance of reform. S v J (supra at 675).
6. The tendency of taking everything that appears on the form
SAP69 into consideration, regardless of the passage of time, must be
avoided. It must also be borne in mind that even a criminal is
entitled to ask that the lid on the distant past should be kept
tightly closed. S v Mqwathi
1985 (4) SA 22
(T).
7. The degree of emphasis to be placed upon previous convictions
is a matter which is within the discretion of the trial court. Where
the degree of emphasis is disturbingly inappropriate, in that it
cannot be said that the sentencing court exercised its discretion
judicially, the court of appeal will interfere”.
[10] The present offence was committed by the appellant
on 10 April 2008 (the date of his arrest) which is almost 10 years
after
the commission of his previous offence and for almost 9 years
since he was sentenced in that matter. It is apparent from the
judgment
of the trial court that it considered the previous
conviction as particularly relevant with a view to determining the
extent to
which the previous punishment had served to act as an
effective deterrent on the appellant. This is apparent from the
Learned Magistrate’s
comment that “it does not look like
the type of sentence deterred you”. In my view, the previous
conviction and sentence
seemed to have deterred the appellant
sufficiently because he was not convicted of any offence during the 5
year period of suspension,
least of all one involving theft. In fact,
he was not convicted of any crime for a total period of almost 9
years. The reliance
by the trial court on the previous conviction and
its over-emphasis thereon, were disturbingly inappropriate and
constitutes a
material misdirection on its part which warrants
interference by this court. Additionally, bearing in mind that it was
never established
that the appellant was the actual thief and given
his personal circumstances, the trial court ought to have considered
other appropriate
sentencing options. It was not disputed that the
appellant was gainfully employed and is responsible for the support
of a large
extended family. While there is no doubt that the
appellant was convicted of a very serious offence, the undue emphasis
of one
factor over another would constitute a misdirection. Clearly,
in this case the choice of 5 years direct imprisonment was based
largely on the previous conviction.
[11] In light of these misdirections on the part of the
trial court, Mr
Howse
submitted that one of the options open
to us was to refer the matter back to the court
a quo
to
obtain a pre-sentencing reports to consider the imposition of
correctional supervision given the fact that the appellant is
gainfully employed and does support a large family. I do not consider
this to be a reasonable option. The fact remains that the
appellant
has been convicted of a serious offence and the imposed sentence
while allowing him to rehabilitate himself, must also
serve as a
sufficient deterrence not to engage in this type of conduct in the
future. I am accordingly of the view that a suitable
sentence would
be one that is subject to the provisions of
Section 276(1)
(i) of the
Criminal Procedure Act 51 of 1977
.
[12] I accordingly make the following order:
(a) The conviction is confirmed.
(b) The appeal against the sentence is upheld.
(c) The sentence imposed by the Court
a
quo
is substituted with the following:
“The accused is sentenced to Five (5) years imprisonment of
which a period of one year of imprisonment is suspended for three
(3)
years on condition that the accused is not convicted of theft or
attempted theft during the period of suspension. The accused
may be
placed under correctional supervision in the discretion of the
Commissioner in terms of the provisions of the
Section 276(1)(i)
of
the
Criminal Procedure Act 51 of 1977
.”
Seegobin
J
I agree.
Balton
J
For
the Applicant : Adv. J.E Howse
Instructed
by : B.T Dlamini Mbadu & Associates
For
the Respondent : Adv. M.V. Mcanyana
Date of
hearing : 14 February 2011
Date of
Judgment : 03 March 2011
1
1998
(2) SACR 414
(c)