S v Mafitoe (736/07) [2007] ZAFSHC 145 (13 December 2007)

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[2007] ZAFSHC 145
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S v Mafitoe (736/07) [2007] ZAFSHC 145 (13 December 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. : 736/07
In
the review between:-
THE
STATE
versus
GILBERT MALEFANE
MAFITOE
_____________________________________________________
CORAM:
RAMPAI,
J
et
MOCUMIE,
AJ
JUDGMENT
BY:
MOCUMIE,
AJ
_____________________________________________________
DELIVERED
ON:
13/12/07
_____________________________________________________
[1] This
is a review in terms of section 302 read with 304 of the Criminal
Procedure Act 51 of 1977 (“the CPA”). The accused
was convicted
of theft on 19 June 2007 in the district Magistrate court of
Botshabelo,Free State. He was sentenced to three years
imprisonment,
on 19July 2007.
[2]
Bloem
AJ
forwarded a query to the Magistrate requesting reasons for sentence
as none were recorded on the court record. The Magistrate has
since
given reasons on three pages in which he maintains that the term of
imprisonment he imposed was the only appropriate sentence
in this
case.
[3] The
accused was correctly convicted of theft. The issue is whether the
Magistrate exercised his discretion judiciously when he
sentenced the
accused to the aforementioned sentence.
[4] The
Magistrate found (
ex-post
facto
)
that when imposing a sentence in offences such as this, the interests
of the society should come forward strongly. He is of the
view that
it is important for the courts to strife to bring home the message
that this is a serious offence not only to the accused
but to the
community in order to protect the credibility of the justice system.
[5] The Magistrate found
that the accused’s two similar previous convictions of
housebreaking with intent to steal and theft counted
against him. In
these cases the accused was sentenced to two years imprisonment
(housebreaking) and three months imprisonment (theft)
between the
year 2000 and 2003. He then on this basis found that other options
of sentence including an option of a fine, a suspended
sentence or
correctional supervision were not appropriate albeit not giving
reasons.
[6] The
impression one gains from the reasons for sentence is that after the
prosecutor indicated during the trial (s)he asked for
a heavy
sentence as captured on page 5 of the typed version : “
Vra
vir ‘n swaar vonnis”,
the Magistrate then proceeded to impose sentence on that premise
without giving due consideration to the accused’s personal
circumstances,
the seriousness of the crime and the interests of the
society. The impression gained further is that the Magistrate did
not even
reflect on the appropriate sentence to impose in this case.
[7] Imprisonment
without an option of a fine should be imposed after a careful
consideration of all the facts of the case, the personal
circumstances of the accused, the nature and prevalence of the
offence and the societal purpose that can be served by the imposition
of the sentence including its possible negative effect on the
accused.
[8] It
is clear from the Magistrate’s
ex-post
facto
reasons for sentence and his comments in his response to
Bloem
AJ’s
query that he placed considerable weight on the interests of society.
[9] However
serious the offence may be, it is irregular to proceed from the
assumption that because the offence was serious, imprisonment
was the
only appropriate sentence as stressed by the Magistrate in para 6 of
the three-paged document:
“
Redes:
‘n Lang
termyn direkte gevangenisstraf is
volgens
my
die enigste gepaste straf.”
(Own
underlining.)
See
S
v D
1999 (1) SACR 122
(NC) at 127a-b;S v Du Toit 1979 (3) SA at
857H-858A.
[10] The accused was 20
years of age when he committed this offence. The evidence shows how
this offence was committed. It is clear
that this is not the typical
theft case (stock theft, theft emanating from housebreaking or
robbery) that we find in our courts on
a daily basis and are
prevalent. The accused was unemployed and not attending school but
had two minor children.
[11] What indeed counted
against the accused was the two previous convictions of similar
nature committed in 2000 and 2003. The fact
that the cell-phone was
never recovered also put him in a very bad light. It is correct that
previous convictions reflect the character
of the accused as one that
has shown no repentance.
[12] The
previous convictions of the accused including the sentences imposed
in those cases (2000/2003) should not dissuade the court
from
applying its mind to the facts before it and exercising its
discretion judiciously to impose an appropriate sentence and still
send the correct message to the accused and to the society. The
sentences imposed there (regardless of the circumstances then) show
that even then no other consideration and options of sentences were
considered when the accused was even younger and immature.
Correctional
supervision is one of the options for an alternative
sentence provided for in the CPA. It is a severe sentence that has
rehabilitation
and retribution compacted into one. It gives results
required if the aim of the presiding officer is amongst others to
ensure that
this young offender is brought in line with the correct
way of living where he can serve punishment amidst the society he has
wronged.
It can even be imposed in the most serious of offences
including murder. See the exposition and value of correctional
supervision
by
Kriegler
AJA
in
S
v R
1993 (1) SACR 209
(A).
[14] When
imposing sentence a presiding officer must blend the sentence it has
in mind and eventually imposes with mercy. Mercy is
not a sign of
weakness or fear for the criminals. In
S
v Groenemeyer
1974 (2) SA 542
(C) at 544A-B the Court states:
“
Die
Howe is nie hier om wraak te neem nie. Die Howe sink nooit, ooit, tot
die peil van die misdadiger nie. Straf moet onder alle omstandighede
menslik wees, en, wat meer is, straf is nie iets wat jy uit 'n
slotmasjien haal nie. Jy druk nie 'n misdaad in die masjien en haal
'n straf uit nie. Dit is die kenmerk van ons regstelsel dat mense
gestraf word as hulle self, as mense. Dit is altyd die mens self
wat
die reg mee te doen het, en die landdros het dit uit die oog verloor
in hierdie vonnis. Hy het nie reg gehandel nie toe hy gesê
het die
Hof het nie genade nie. Die Hof het genade, - ek neem aan by 'genade'
hier meen hy die Engelse woord 'compassion' - vir elke
persoon wat
voor hom verskyn. Daar kan geen geregtigheid wees sonder genade
nie."”
[15]
A year later in
S
v J
1975 (3) SA 146
(O) at 159F-G
Steyn
J
(as he was then) echoed the same words when he stated:
“
Die
Hof is nie 'n pynbank nie. Dit is nie 'n instrument van pyniging
waarop 'n beskuldigde gebreek moet word omdat hy 'n weersinwekkende
misdaad gepleeg het nie. Die Hof is die instrument waardeur die
samelewing handel beide om homself te beveilig sowel as om die
beskuldigde,
indien moontlik, deur middel van straf te red as mens en
te verbeter wanneer hy homself so gedra het dat hy die samelewing
onwettiglik
leed en skade aangedoen het. Wanneer 'n mens 'n lid van
die samelewing op onwettige wyse onregmatiglik leed of skade aandoen
dan
doen hy die samelewing self ook leed en skade aan. Maar, ons is
'n beskaafde Westerse gemeenskap met die Christelike geloof as die
grondslag en die hoeksteenwaarop ons Staat en ons samelewing gebou
is. Dit moet altyd in gedagte gehou word en die goue boodskap
van die
Bergprediking moet ook nooit uit die oog verloor word nie. Wanneer 'n
Hof moet besluit watter straf opgelê moet word, moet
hy derhalwe
aandagtig daaraan wees dat die doodstraf die onbeskryflik-uiterste
stap is wat die samelewing kan doen en dat 'n menslike
lewe uitgewis
behoort te word alleenlik wanneer dit onder die omstandighede van die
besonderesaak algeheel onvermydelik is en daar
dus in werklikheid vir
die Hof geen ander keuse is nie."
[16] I
am of the view that the Magistrate misdirected himself in concluding
that a prison sentence without an option of a fine, or
correctional
supervision, was the only suitable sentence to impose on a 20 year
old offender in these circumstances.
[17] I
have considered remitting the matter back to the court
a
quo
to reconsider sentence afresh. However, in the light of what I have
said above I have decided against it because this Court is in
as good
a position to impose an appropriate sentence as the trial court. I
am of the view that a fine coupled with imprisonment
wholly
suspended, would be appropriate.
In
the circumstances I make the following order:
The conviction is
confirmed.
The 3 (three) years
imprisonment imposed by the Magistrate is set aside and substituted
with the following:
“
R1200.00
(one thousand and two hundred rand) or 8 (eight) months imprisonment
of which R600, 00 (six hundred rand) or 5 (five) months
imprisonment
is suspended for 3 (three) years on condition that the accused is not
convicted of theft or attempt thereto committed
during the period of
suspension.”
________________
B.C. MOCUMIE, AJ
I concur.
______________
M.H.
RAMPAI, J
BCM/sp