S v Mfana [2009] ZAFSHC 73 (11 June 2009)

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[2009] ZAFSHC 73
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S v Mfana [2009] ZAFSHC 73 (11 June 2009)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
No. : 103/2009
In
the review between:
THE
STATE
versus
BONGANI PRECIOUS
MFANA
CORAM:
MOCUMIE
& MOLEMELA, JJ
JUDGMENT BY:
MOCUMIE,
J
DELIVERED ON:
11
JUNE 2009
[1] The matter came
before me on automatic review in terms of section 302 read with 304
of the Criminal Procedure Act, 51 of 1977
(“ the CPA”). The
accused, a 19 year old young man, appeared in the Magistrate’s
Court Virginia on a charge of contravention
of section 1(1) of the
General Law Amendment Act, 50 of 1956, to wit the use of a motor
vehicle without the owner’s consent.
On 14 November 2008 he
pleaded guilty to the charge and was correctly convicted as charged.
He was sentenced to R3 000,00 (three
thousand rand) or 12 (twelve)
months imprisonment which was wholly suspended on certain conditions.
[2] I was of the view
that the sentence imposed was too harsh even if it was suspended. I
sent a query to that effect. The presiding
officer has since
responded and I thank him.
[3] The undisputed facts
of this case as gleaned from the accused’s plea of guilty in terms
of section 112 of the CPA is as follows:
On 14 November 2008 the
accused was at his home studying for his matric/grade 12 final
examination. At around 22h00 he stopped
studying and went to his
sister’s bedroom where he took the keys of her car, an Opel Corsa
valued at R85 000,00 without her permission
or consent. He drove to
the other part of the township and picked up his friends. He drove
them to Welkom. At about 24h00 as fate
would have it, he had a flat
tyre. He left the car where it stopped and went to the township to
get a spare wheel which he could
not get. Instead of going home he
slept at his friend’s home. When he returned to where he had left
the car the following day
he found his sister and the police. He was
afraid to stop and only returned to his home in the evening whereupon
the police were
called and he was arrested.
[4] In his reasons for
sentence the presiding officer stated the following on page 20 of the
record:
“
Dit is duidelik dat u weens u
jeugdigheid ‘n gebrek aan oordeel aan die hand gelê het en
dat u eie selfsugtige begeertes
aanleiding gegee het dat u hierdie
voertuig sonder toestemming gebruik het. Sou hierdie geval nie
gewees het dat dit u suster
se voertuig was nie het ek u ‘n
aansienlike swaarder straf opgelê vandag. Die feit egter dat u
‘n algehele eerste oortreder
is, dat u nie in staat is om ‘n
boete te betaal nie, wat u wil studeer aan die technikon in Pretoria
wys dat u iemand is wat
‘n oordeelsfout begaan het en om te keer
dat u ‘n verdere oordeelsfout begaan gaan ek vir u die volgende
vonnis oplê.....”
[5] The presiding officer
continued in his reasons to say:
“
Na oorweging van al die
relevante vonnisopsies is die hof van oordeel dat die volgende ‘n
gepaste en gebalanseerde vonnis is volgens
die eise van ons tyd.....”
[6] In mitigation of
sentence the accused called his sister, the owner of the car to plead
for him. It was established during cross-examination
that the
insurance had paid for the damages to the car. However the sister
had to pay R4 800,00 as excess. It was further established
that the
accused has never taken his sister’s car without her permission
before. None of the passengers who travelled with him
were injured.
[7] The accused’s
personal circumstances are as follows: He is 19 years of age; he was
doing Grade 12 in 2008 at Mamelo Senior
Secondary School in Meloding,
Virginia when he was arrested for this transgression; he had applied
for admission at University/Technikon
in Pretoria where his father
was residing to study accounting; the complainant is his sister and
she is employed by the local municipality.
It is not recorded whether
his mother was employed. Both the accused and his sister are staying
with their mother. He is a first
offender. He pleaded guilty.
These are the favourable
conditions which convinced the presiding officer, correctly so, that
the accused was not material for prison.
[8]
Bosielo
J
in
S
v Shilubane
2008 (1) SACR 295
(T) at 296 i – j reiterates the basic triad to be
adopted when imposing sentence in the following words:
“
The guiding light when
sentencing still remains the oft-quoted dictum in
S
v V
1972 (3) SA
611
(A) at 614D (also
S
v Zinn
1969 (2)
SA 537
(A)) where it is clearly stated:
‘
Punishment must fit the
criminal, the society and be blended with mercy...”
[9] The Appellate Court
and High Courts have repeatedly implored presiding officers to
seriously take the personal circumstances
of the accused or the
accused as a person with his or her own unique characteristics,
weaknesses and strengths into account when
imposing sentences and not
just to pay lip service to the notion. Emphasis has also been made by
the courts that of all the mitigating
factors which should count in
favour of the accused, youthfulness should invariably be a strong
mitigating factor. In
S
v Mohlobane
1969 (1) SA 561
(A) at 565 C – E
Rumpff
CJ
stated that in general a court will not punish an immature young
person as severely as it would an adult. Authors in this field
in
particular
SS
Terblanche
in his book:
The
Guide to Sentencing in South Africa, 2nd edition, 2007
agree
with him that the younger the offender, the clearer the evidence
needs to be about his background, education, intelligence
and mental
abilities in order to enable the court to determine the level of his
maturity, and therefore, his blameworthiness.
See too
S
v Lehnberg en ’n Ander
1975 (4) SA 553
(A) at 561A where
Rumpff
CJ
was
at pains to explain why young offenders are treated differently when
he stated:
“
Youthfulness is immaturity, lack
of experience, indiscretion and susceptibility to the influence of
others....”
(
Translated.)
[10]
Bosielo
J
in
S
v Phulwane and Others
2003
(1) SACR 631
(T) at 634 h to 635
states
the following aptly:
“
When a youth
or juvenile strays from the path of rectitude to criminal conduct, it
is the responsibility of judicial officers invested
with the task of
sentencing such a youth to ensure that she or he receives all
relevant information pertaining to such a juvenile
to enable him or
her to structure a sentence that will best suit the needs and
interests of the particular youth. It is, after
all, a salutary
principle of sentencing that sentence must be individualised. I
venture to suggest that every judicial officer
who has to sentence a
youthful offender must ensure that whatsoever sentence he or she
decides to impose will promote the rehabilitation
of that particular
youth and have, as its priority, the reintegration of the youthful
offender back into his or her family and,
of course, the community.”
[11]
Legodi
J
in
S
v Nyambosi
2009 (1) SACR 447
(T) at 449 c – d states more or less the same
when he states that :
“
There are other options of
sentencing to direct imprisonment. For example, the introduction of
correctional supervision as a sentencing
option has ushered in a new
phase in the South African criminal justice system. As a whole,
punishment, whether it be rehabilitation
or, if need be, highly
punitive in nature, is not necessary or even primarily attainable by
means of imprisonment. The legislature
having expressed itself
clearly, regarding correctional supervision in terms of
section 276A
of the
Criminal Procedure Act 51 of 1977
, it is the duty of the
presiding officers to use these ample means of sentencing at their
disposal.”
[12] See too remarks made
by
Kriegler
J
in
S
v R
1993 (1) SACR 209
(A) at 476;
S
v D
1995 (1) SACR 259
(A);
S
v Potgieter
1994 (1) SACR 61
(A).
[13] The presiding
officer in his reasons for sentence refers, correctly so, to the
youthfulness of the accused. He shows that
he considered this factor
because it was the most favourable compared to all other factors. Of
even greater significance, he acknowledges,
correctly in my view,
that this was but an error of judgment on the accused’s part and
not evidence of a propensity to commit
crime. This is so because
accused is a first offender. But surprisingly (he) imposes a fine
coupled with imprisonment
albeit
suspended in line with the prosecutor’s plea captured in the
following paragraph:
“
The sentence should be one that
prevents him from committing this kind of offence or any other
offence for that matter and further
that will send a message to his
peers and friends and the community that it will not be tolerated by
the court…”
.
[14] It is relevant to
quote part of what the accused and his sister said in mitigation of
sentence as recorded on pages 11 to 15
of the court record:
“
Hoe vorder u op skool?---Ek gaan
more Pretoria toe Edelagbare ek wil net daar gaan registreer,ek het
eintlik gister teruggekom.
Waarvoor wil u registreer---Ek wil
‘ouditing’ daar gaan doen.”
This is what the sister
said:
“…
Ja, ek vra die hof om hom ‘n
vonnis te gee die wat hom sal toelaat Edelagbare om terug skool toe
te gaan Edelagbare.---(Accused)
En ek wil hê my suster moet
bevestig dat ek sal nie weer voor die hof kom nie
Edelagbare.---(Sister)
Ek
belowe Edelagbare dat,en ek glo ook dat nou dit is die eerste en die
laaste keer dat hy nou voor die hof verskyn.
”
(My underlining)
[15] This is a young man
who aspires to be an accountant who says to the court he has learnt
from his mistake. He promised the court
that it was the last time
that he would be seen in a court of law. His sister, the aggrieved
party, expressed the same sentiments.
[16] In the light of his
guilty plea and what he told the court in mitigation of sentence as
well as what his sister put before
the court I do not gain a sense
that he was not accepting responsibility for his wrongful conduct. He
was remorseful and said so
in many words. The presiding officer
acknowledged all that was said in mitigation of sentence. There is
nothing that barred the
presiding officer at this point to request
more information that will assist in determining a more suitable
sentence.
[17] A pre-sentence
report would have been beneficial to the presiding officer because it
would have given the presiding officer
a better view of the accused
as an individual before him. It would have indicated his background,
his level of maturity, his strengths
and weaknesses. It would further
have indicated to the presiding what other options the court had in
this unique set of facts.
The sister would have been interviewed and
the impact this case had on her and her family would have been noted
and integrated
into the assessment of the accused. She would have had
the opportunity to be heard and as a result her interests and
aspirations
as a victim in the criminal justice system in a would
have been taken due cognizance of.
[18] In an article in the
Acta
Criminologica 21(3) 2008
entitled
Restorative
Justice: A contemporary South African Review, A Skelton and M Batley
express the following at 44
paraphrased:
“…
restorative justice process
could have been convened where the parties would have reached an
agreement, the details of which could
have been returned to court as
a set of recommendations. They could be set as conditions for
postponement or suspension of a sentence
or of a caution and
discharge …in terms of
section 297
of the
Criminal Procedure Act as
amended or as conditions of correctional supervision
section 276(h).
The typical outcomes of a family group conference include: an
apology, restitution, performance of service for the victim or
community service for the benefit of the community, referral of the
offender to some form of assistance programme to address some
of his
or her needs.”
[19] In the particular
context of this matter, where the accused, due to immaturity and lack
of judgment wronged his own sister,
I have no doubt that a family
conference would have been an ideal way to solve this problem. The
victim (sister) and the family
would have had the opportunity to
engage the accused who is a family member and to offer him an
opportunity for introspection followed
by a possible apology.
Inevitably this would have restored the equilibrium in the disturbed
family relations without sacrificing
the accused on the alter of
deterrence.
[20] Both
Bertelsmann
J
in
S
v Maluleke
2008(1) SACR 49 (T) and
Bosielo
J
in
S
v Shilubane
2008 (1) SACR 295
(T) have actively advocated for the use of
restorative justice in sentencing and encouraged presiding officers
to move away from
imposing traditional sentences including, in my
view, imprisonment coupled with a fine even if suspended as in this
case, in circumstances
where conventional sentences are patently
inappropriate as in this case. They both encourage presiding officers
to be innovative
and proactive in opting for other alternative
sentences to direct imprisonment in order to solve the problem of
inter
alia
recidivism and overcrowding in our prisons. I share their view
entirely especially in cases like the one at hand. See too
Albie
Sach’
s
remarks in this regard in
M
v S (Centre for Child Law
Amicus
Curiae
2007 (12) BCLR 1312
(CC).
[21] It is clear that the
accused committed this offence not out of inherent criminality but
due to indiscretion or lack of judgment.
Undoubtedly such an accused
requires a sentence designed to help him acquire some measure of
intellectual and emotional maturity
to deal with every day pressure
brought on our youth by peer pressure and unrealistic expectations.
[22] To my mind an
appropriate sentence would have been the one which would ensure that
the accused is exposed to a programme where
he would be taught life
skills, better social values, respect for other people’s rights. To
sentence such an accused to a suspended
sentence, is in my view,
shortsighted and self defeating.
[23] In my view this is a
typical case in which either correctional supervision under
section
290
alternatively suspension of imposition of sentence in terms of
section 297
of the CPA, should have been imposed especially
considering the negative impact this sentence will have on the
accused in future
when he seeks employment. I can also not shut my
eyes to the real possibility that, should the accused for whatever
reason be in
breach of some of the conditions of suspension of his
sentence, he may have to serve this sentence.
[24] In view of what I
have discussed in the preceding paragraphs I am of the view that the
sentence imposed is inappropriate.
As a result this court is entitled
to tamper with and impose an appropriate sentence. Since the accused
is already under the impression
that his sentence was suspended, to
bring him back to court to consider appropriate and relevant
conditions under which he should
have been released, will be
inappropriate. In the interest of bringing finality to the matter I
will tamper with the sentence without
imposing any conditions which
will make the sentence more onerous on him.
[25] In the circumstances
I make the following order:
ORDER:
The conviction is
confirmed.
The sentence imposed
is set aside and substituted by the following sentence:
“
In terms of
section 297(a)
(ii)
of the
Criminal Procedure Act 51 of 1977
the imposition of sentence
is suspended unconditionally for a period of 3 years.”
3. It is ordered that
this order be brought to the attention of the accused within a
reasonable time from the date of this order.
___
_______________
B
.C.
MOCUMIE, J
I
concur.
__
______________
M
.B
MOLEMELA, J
BCM/sp