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[2009] ZAGPPHC 251
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S v Smith (A457/09) [2009] ZAGPPHC 251 (28 May 2009)
NOT REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
DATE:28/05/2009
CASE
NO:A457/09
High
Court Ref no : 101
Review
case no : MR15/09/BNK
THE
HONOURABLE MR JUSTICE RABIE
In
the matter between:
THE
STATE
And
MARTINUS
PHILLIPUS SMITH
REVIEW
JUDGMENT
RABIE
J;
1.
The
accused was convicted on 25 June 2003 on a charge of theft of a Nokia
cell phone valued at R800.00. He was sentenced to a fine
of R3.000.00
or 8 months imprisonment wholly suspended for a period of 3 years on
condition that he is not convicted of an offence
which involves
dishonesty committed during the period of suspension. It was further
ordered that the accused pay the amount of
R300.00 to the clerk of
the court as a compensation fine which will be paid over to the
complainant.
2.
The
matter came before this court on review and the judge in chambers
enquired whether the sentence was not excessive and furthermore
whether the compensation order could have been made since it does not
appear from the record that the prosecutor acted on the instructions
of the complainant.
3.
Both
the Magistrate and the State Advocate and the Deputy Director of
Public Prosecutions responded to the inquiry and I am indebted
to
them for their input.
4.
As
far as the facts of the matter are concerned the following may
briefly be referred to: The accused is a tow truck driver who
towed
the complainant's vehicle after it had been involved in a collision.
The complainant enquired about her cell phone which
should have been
In the vehicle and at first the accused could not find the cell phone
and informed the complainant of that fact.
However, at a later stage,
he found the cell phone in the motor vehicle but decided to keep the
cell phone and not inform the complainant
that he had found it.
5.
The
accused pleaded guilty and he was properly convicted
6.
The
accused is a first offender and he showed remorse for his deed. He
testified that he felt very ashamed and he offered to buy
a new cell
phone for the complainant.
7.
The
magistrate was of the view that the aforesaid sentence was not
shockingly inappropriate and in this regard particularly referred
to
the fact that the accused was in a relationship of trust with the
complainant and that his breach of this trust is an aggravating
factor. In this regard the Deputy Director of Public Prosecutions
referred to the (natters of S v Kunene 2001 (1 )SACR119(W) and
S v
Shilubane 2008(1)SACR. and submitted that in the circumstances the
sentence does not appear to be excessive. Mention was made
of the
fact that there is no evidence on record of the accused's income but
that it appears that he would be able to pay the fine
which was
suspended.
8.
In
my view the sentence is probably higher than I would have imposed if
I had to do so in the first instance. However, I do not
regard this
sentence as shockingly inappropriate or impropriate to such a degree
that this court should interfere. The victim of
a motor vehicle
collision usually finds himself in a very vulnerable position and
relies on the tow truck driver to take care of
his vehicle and his
possessions inside the vehicle in a proper manner. The victim is at
the mercy of the tow truck driver in this
regard and the breach of
that relationship of trust is a serious matter. Consequently, I am of
the view that this court should
not interfere with the sentence
imposed upon the accused.
9.
Regarding
the compensation order it is clear that such an order can only be
made in terms of section 300(1} of Act 51 of 1977 upon
application of
the injured person or of the prosecutor acting on the instructions of
the injured person. In the present matter
there is no evidence to
indicate that the prosecutor acted on the instructions of the
complainant.
10.
An
order under section 300 has the effect of a civil order and the court
should ask the prosecutor whether he has been authorised
by the
complainant to make such an application. Such authority is expressly
required by the Act for the reason that it affects
the complainant's
right to claim compensation in a civil court. See S v Tlame
1982(4)SA319(P) and S v Bepela 1978{2)SA22(BH) at
page 23.
11.
In
S v Msiza 1979(4)SA473{T) at page 474 the compensation order was set
aside because the complainant had made no application nor
given
evidence regarding his damages and also because the audi alteram
partem principle had not been applied by giving the accused
an
opportunity to lead evidence or make his presentations regarding the
amount of the damages,
12.
In
my view there is no evidence that the prosecutor acted on the
instructions of the complainant and consequently the magistrate
was
not entitled to make the compensation order. See further S v Ntandane
(2006)JOL17681{T) and S v McKlopper (2007)J01_19590(E).
13.
In
the result the following order is made,
1.
The conviction and sentence is confirmed.
2.
The compensation order (‘‘compensation fine") is set
aside. If the accused had already paid this amount he should
be
reimbursed by the Clerk of the court a quo.
C.P
RABIE
JUDGE
OF THE HIGH COURT
I
agree
MURPHY
JUDGE
OF THE HIGH COURT