IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Review No. : 1284/2005
In the review between:
THE STATE
versus
TSHEPO MOFOKENG
_____________________________________________________
CORAM: HANCKE J et WRIGHT J
JUDGMENT BY: WRIGHT J
_____________________________________________________
DELIVERED ON: 10 NOVEMBER 2005
_____________________________________________________
[1] The accused, a seventeenyear old boy, was found guilty of
housebreaking with intent to steal and theft and sentenced to
36 (thirty six) months imprisonment.
[2] It appears that the State proved no previous convictions at
that stage. The accused requested forgiveness for his
conduct. After that he was questioned by the court and at a
later stage the evidence of the social worker, Jacoba
Petronella Prinsloo, was led. She mentioned, inter alia, the
following during her evidence:
“1. Accused has no background at all as far as I have
investigated the matter.
2. No one is prepared to take the responsibility.
3. At least if the court can impose a direct imprisonment, that sentence
can be suitable for him.
4. At least he will get a shelter, a meal everyday.
5. He will be away to the situation of getting himself in committing crimes.
6. He will be referred to Juvenile Prison.
7. He will have the opportunity to attend the school while in Juvenile
Prison and when he leaves the place – will be able to stand on his own feet,
8. At the Juvenile cells everything that can be suitable for him will be
made and he will be monitored on each and every step he takes.
9. If he cannot cope at school mentally there are other opportunities that
are available like handcraft etc.
10. We set programmes that will enhance him in his life, like Psychiatrics
who will rehabilitate him in drug abuse as he is using drugs.
11. The section programmes I have mentioned are suitable for Prisoners
that are sentenced from 2 years and above.”
[3] Evidence was led on 8 September 2005 and at a later stage
on 15 September 2005 when the State did prove two
previous convictions which were admitted by the accused.
At that stage he was not told that he can lead further
evidence if required with regard to sentence.
[4] The two previous convictions both date from 2004 and refer
to housebreaking and theft and stock theft respectively. The
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other aggravating factor is that an amount of R6 100,00 was
involved in the present matter.
[5] Mitigating factors are that the stolen goods were recovered
and most important that the accused was only a seventeen
year old boy when the crime was committed. The social
worker mentioned many other mitigating factors which the
magistrate refers to in paragraph 3 of his reasons which
reads as follows:
“The sentence might seem to be drastic by its nature. The court
considered the personal circumstances of the offender that he is
not born and bred in the area he is currently residing, family
members cannot be traced, has no guardian, no visible means
of support, is not schooling, not working, he is mentally neglect,
furnishing false information to protect himself, he is not under
proper control so to be disciplined, he is a victim of outside
forces, and is capable of being manipulated by outside
circumstances as a result of his upbringing. He is not removed
from his family members but is removed from the tendency of
vicious boys, from the community he disturbs the balances of
legal order which may lead to the evil, that those immediately
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affected by the crime decide to take the law into their hands and
punish him.”
[6] In view of all the circumstances I come to the conclusion that
the sentence is sufficiently inappropriate to necessitate
interference. The main factor here is of cause the age of the
accused and the mitigating factors mentioned in the report.
[7] The conviction is accordingly confirmed but the sentence set
aside and replaced with the following:
Twenty four (24) months imprisonment.
The sentence must be deemed to have been imposed on 15
September 2005.
_____________
G.F. WRIGHT, J
I agree.
_______________
S.P.B. HANCKE, J
/sp
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