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[2009] ZAGPPHC 254
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S v Mahlanga (A 438/09) [2009] ZAGPPHC 254 (1 June 2009)
NOT REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
DATE:01/06/2009
CASE
NO:A438/09
High
Court Ref No.: 83
Magistrate
Serial No.: 65/08
Case
No. M230/08
MAGISTRATE
NSIKAZI
(Held at Matsulu)
THE
STATE V BONGANI MHLANGA
REVIEW
JUDGMENT
SOUTHWOOD
J
[1]
Or 7 August 2008 the accused was found guilty of theft (of Telkom
cable) in the Kabokweni magistrates’ court and sentenced
to 2
years imprisonment In answer to the reviewing judge's query 35 to why
he did not suspend part of the sentence the presiding
magistrate
stated –
‘
The
reason for the sentence is that the crime of theft of Escom cable in
the district of Msikazi is very rife and highly inconveniencing
to
the community and the rendering of the essential services in the
area. The value of the cable is R2 600, 00 but the inconvenienced
that has been caused by the cutting and stealing of that cable is
very high The court felt that under the circumstances two years
direct imprisonment was an appropriate sentence/
[2]
The Director of Public Prosecutions does not support the sentence
which he considers to be disturbingly inappropriate in the
circumstances The Director of Public Prosecutions considers that the
appropriate sentence was 2 years imprisonment with half suspended
on
appropriate conditions. I agree.
[3]
While the theft of Telkom cables is very prevalent and causes severe
disruption and inconvenience the presiding magistrate unduly
emphasised these factors and did not sufficiently take into account
the relative youthfulness of the accused and the fact that
he is a
first offender. The sentence should have been properly balanced to
punish and deter the accused by suspension of a part
of the sentence.
[4]
The following order is made:
i.
The conviction is confirmed;
ii.
The sentence is set aside and substituted with a sentence of 2 (two)
years imprisonment, half suspended for 5 (five) years on
condition
that the accused is not again found guilty of theft committed during
the period of suspension
iii.
In terms of section 282 of Act 51 of 1977 the substituted sentence is
deemed to have been imposed on 7 August 2008.
B.R.
SOUTH WOOD
JUDGE
OF THE HIGH COURT
I
agree
C.
PRETORIOUS
JUDGE
OF THE HIGH COURT