About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2009
>>
[2009] ZAGPJHC 112
|
|
S v Villet (DH 712/2009) [2009] ZAGPJHC 112 (14 October 2009)
SOUTH GAUTENG HIGH COURT,
JOHANNSESBURG
High Court Ref. No.
109/2009
Magistrate’s
Ref. No. 09/2009
Review Case No. DH
712/2009
THE STATE
versus
RIKA
MADELYN
VILLET
......................................................................
Accused
REVIEW JUDGMENT
MEYER, J.
[1] This is a
review in the ordinary course. The learned magistrate was, in terms
of
section 304
(2) (a) of the
Criminal Procedure Act 51 of 1977
,
required to furnish a statement in respect of this matter. A
detailed response was received. The matter was referred to the
Director of Public Prosecutions for comment. A detailed review
opinion was received from Adv. Dakana S.C. and Adv. Mothibe, S.C.
for
which I express my gratitude. They referred to a number of decided
cases that support my conclusion that the trial court has
not
exercised the discretion bestowed upon it in imposing sentence on the
accused in this matter properly and reasonably.
[2]
The
accused, a 42 year old woman, was charged in the Magistrates’
Court, Roodepoort, with the crime of theft of one pair of
shoes from
a shop in Roodepoort. The pair of shoes was valued at R59.00. The
accused was not legally represented. She was rightly
convicted on
her plea of guilty. She was sentenced to a fine in the sum of
R2000.00 or six months imprisonment. A further twelve
months’
imprisonment was imposed and suspended for a period of 5 years on
condition that she is not convicted of theft or
attempted theft
during the period of suspension.
[3
] I
commence by referring to the oft quoted passage in the judgment of
Holmes J.A. in
S
v Rabie
1975
(4) SA 855
(A), at p 862G – H:
‘
Punishment
should fit the criminal as well as the crime, be fair to society, and
be blended with a measure of mercy according to
the circumstances.’
[4
] With
reference to the ingredient of mercy, Holmes, J.A. said this, at p
862 D – F of the judgment:
‘
(i) It is a
balanced and humane state of thought.
(ii) It tempers one’s approach
to the factors to be considered in arriving at an appropriate
sentence.
(iii) It has nothing in common with
maudlin sympathy for the accused.
(iv) It recognises
that fair punishment may sometimes have to be robust.
(v) It eschews insensitive
censoriousness in sentencing a fellow mortal, and so avoids severity
in anger.
(vi) The measure of the scope of mercy
depends upon the circumstances of each case.’
[5] The accused was
a first offender. She was 42 years of age at the time that sentence
was imposed upon her. She is an assistant
to a day mother and earns
an income of R1 900.00 per month, which is less than the fine portion
of her sentence. She has three
children. Two of them, aged 19 and
15, live with her. The pair of shoes that she stole was meant for
her own personal use. She
pleaded guilty and expressed remorse when
she was questioned by the learned magistrate.
[6]
Shoplifting
of an item to the value of R59.00 is a petty offence when it is
compared to murder, rape, robbery, and a long list of
other common
law crimes and statutory offences. I accordingly disagree with the
following finding made by the learned magistrate
in her judgment on
sentence after she referred to the prevalence of shoplifting:
‘
So geen
persoon, nie die Hooggeregshof, geen ander persoon moet kom sê
dat deesdae winkeldiefstal is ‘n “petty
offence”.’
[7] In this
finding, the learned magistrate misdirected herself in two further
respects: Firstly, precedents of the High Court
are binding on her.
There are decided cases of the High Court in which it was held that
shoplifting of items of relative little
value is a petty offence.
The learned magistrate referred to some of them in her statement. I
only need to add what was said
by Snyders J (as she then was), my
brother Van Oosten, J concurring, in
S v David Hlosu
(review case no. DH 346/2003 WLD unreported) concerning a sentence
that was imposed upon an accused in the Magistrates’ Court,
Roodepoort pursuant to a conviction of theft of a T-shirt valued at
R50.00:
‘
This case is the typical one of
an indigent accused and his first brush with the law through a petty
offence.’
Secondly,
the prevalence of a petty offence does not change it into a serious
crime. Its prevalance is rather a circumstance, and it may
be a
weighty one depending on all the circumstances of a particular
matter, that should be taken into account in considering an
appropriate sentence for a particular accused.
[8
] It
is clear from the learned magistrate’s judgment on sentence
that shoplifting is prevalent in the area of jurisdiction
of the
Roodepoort Magistrates’ Court, as well as other areas in
Gauteng. The losses incurred as a result thereof undoubtedly
have
adverse economic impacts that percolate from the owners of affected
businesses to all South Africans who are faced with rising
prices for
daily needs. This is undoubtedly a factor that ought to have been and
that was rightly taken into account in considering
an appropriate
sentence for the accused. But the prevalence of shoplifting and its
adverse consequences were, regrettably, over-emphasised.
[9
] Of
particular concern to me is an example given by the learned
magistrate in her judgment on sentence of a woman who had compelled
the learned magistrate and witnesses to go through a trial before she
eventually made admissions. I requested the learned magistrate
to
explain this example with reference to an accused person’s
constitutional right to remain silent and the
onus
upon
the State to prove a person’s guilt beyond reasonable doubt.
The learned magistrate responded that ‘the point
was that she
showed no remorse, even with the overwhelming evidence against her.’
[10
] The
example was in the first instance not pertinent to the consideration
of an appropriate sentence for the accused. I have already
mentioned
that the accused pleaded guilty and expressed remorse when she was
questioned by the learned magistrate before she was
sentenced. I
realise that pleas of guilty have frequently been taken into account
by sentencing courts as a mitigating factor,
either for the reason
that an accused has ‘not wasted the time of the court’ or
because it was considered to be an
expression of remorse. Tendering
a plea of guilty is, however, not necessarily indicative of sincere
remorse, but may simply mean
that a particular accused is realistic
for reasons such as that he or she perceives the case against him or
her to be overwhelming
and uncontestable. See:
S
v M
2007
(2) SACR 60
(WLD), paras [70] – [80]. Secondly, a court’s
time cannot be considered ‘wasted’ by an accused person
who elects not to tender a plea of guilty. S. 35(3)(h) of the
Constitution affords every accused person the right to a fair trial,
which includes the right to be presumed innocent, to remain silent,
and not to testify during the proceedings. I hasten to add
that
these are not new rights.
[11
] The
sentence imposed by the learned magistrate is, in my judgement,
disproportionate to the crime, the interests of society, and
the
personal circumstances of and the mitigating factors in favour of the
accused. I do not detect any mercy. The sentence is,
in my
judgment, disturbingly inappropriate and the result of several
misdirections.
[12
] The
fact that part of the sentence was suspended does not render it
appropriate. Having reviewed a number of judgments on sentence
in
shoplifting cases in
S
v Ndlovu
(review
case No. 5/5227/2001 WLD unreported), my sisters Mailula, J and
Khampepe, J concurring, concluded as follows:
‘
It is clear
from the aforegoing that the principle propounded in these matters is
that in shoplifting cases it is inappropriate
to add to any initial
sentence of a fine with imprisonment as an alternative a further
suspended sentence of imprisonment without
the option of a fine.’
[13
] An
appropriate sentence in all the circumstances is, in my judgment, a
fine of R600.00 or imprisonment for three months, wholly
suspended
for three years on condition that the accused is not convicted of
theft or attempted theft committed during the period
of suspension.
[14
] In
the result the conviction is confirmed and the sentence imposed by
the learned magistrate is set aside and replaced by the
following:
The accused is
sentence
d
to a fine of R600.00 or to three months’ imprisonment, wholly
suspended for three years on condition that the accused is
not
convicted of theft or attempted theft committed during the period of
suspension.
P.A. MEYER
JUDGE OF THE HIGH COURT
I agree.
R.S. MATHOPO
JUDGE OF THE HIGH COURT
14 October 2009.