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2004
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[2004] ZAFSHC 76
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S v Khoarai (953/2004) [2004] ZAFSHC 76 (29 July 2004)
IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No.: 953/2004
In
the Review between:
THE
STATE
and
CHARLES
THANKISO KHOARAI
___________________________________________________________
CORAM:
VAN
COPPENHAGEN et WRIGHT, JJ
___________________________________________________________
JUDGMENT
BY:
WRIGHT, J
___________________________________________________________
DELIVERED
ON:
29 JULY 2004
___________________________________________________________
The accused, a 30 year old first offender, was found
guilty of theft and sentenced to a fine R1 800,00 or 12 months
imprisonment of
which two thirds were suspended. According to the
record the accused was searched by Mrs K. Joubert and she found shoe
polish to
the value of R16,99 in his sock. The Magistrate took into
consideration that the accused was working at Shoprite-Checkers on
the
day in question and that he was a âmerchandisingâ for Premier
Milling.
It is trite law that every possible step should be taken
to keep a first offender from direct imprisonment if at all possible.
In
view of the value of the item stolen this was pre-eminently a
case for imposing a suspended sentence. The cases to which the
Magistrate
refers in his reasons do not support his reasons. The
case of
S v MOLENBEEK AND OTHERS
1997 (2) SACR 346
(O)
refers to stock theft
where different considerations apply. In another case to which the
Magistrate refers an amount of R1 367,00
was stolen. The fact that
the accused is a 30 year old first offender who probably lost his
employment as a result of this crime
is of considerable importance
and in view of all the circumstances the sentence imposed is
shockingly inappropriate.
In
view of all the considerations mentioned previously and appearing
from the record, the following sentence is apposite.
The
conviction is confirmed, but the sentence set aside and replaced with
the following:
A fine of R1 500,00 or six (6 ) months imprisonment wholly
suspended for four (4) years on condition that the accused is not
found
guilty of theft or attempted theft committed during the period
of suspension.
________________
G.F. WRIGHT, J
I CONCUR
_________________________
G.
VAN COPPENHAGEN, J
/scd