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[2002] ZAWCHC 6
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S v Gqobozo (P1272/2002) [2002] ZAWCHC 6; 2005 (1) SACR 589 (C) (17 February 2002)
IN
THE HIGH COURT OF SOUTH AFRICA
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
Review Number:
025285
Magistrate’s
Serial Number:20/2002
Case No: P1272/2002
In
the matter between
THE
STATE
and
SIPHIWO
GQOBOZO
Accused
REVIEW JUDGMENT
: 17 FEBRUARY 2002
BLIGNAULT
J
:
[1]
The accused was indicted in the magistrate’s court for the
district of Wynberg
on a count of theft, namely that on 2 August 2002
and at or near Samora, Phillipi he stole 200 metres of Telkom cable.
The
accused pleaded not guilty. He did not have any legal
representation. After hearing the evidence of one state witness and
the accused
the magistrate convicted him of theft.
[2]
The state did not prove any previous convictions. The
magistrate was informed
that the accused was 23 years old and that he
was in standard 8 at school. No information regarding the value
of the cable
was placed before the court. The magistrate asked
the accused: “Can you pay a fine?” He answered : “I
have money to pay a fine.”
[3]
The magistrate then sentenced the accused as follows:
“
Fined
R1 000,00 or 6 months’ imprisonment. A further 6 months
imprisonment is suspended for a period of 5 years on condition
that
the accused is not convicted of the crime of theft, committed during
the period of suspension.”
[4]
The matter came before me on automatic review. I had no problem
with the conviction
but the sentence concerned me. I
accordingly directed the following query to the magistrate:
“
The
accused was convicted of the theft of 200 metres Telkom cable.
He was sentenced to a fine of R1 000,00 or 6 (six) months’
imprisonment and a further 6 (six) months’ imprisonment
suspended for 5 (five) years.
(i)
The record does not reflect the value (or
the cost) of the cable. What assumptions, if any, were made in
this regard.
(ii)
According to the record there was no
full investigation of his ability to pay a fine of R1 000,00.
This was apparently not
paid. Was it explained to him that he
could arrange to pay it by way of instalments?
Your
comments on these matters would be appreciated.”
[5]
The magistrate replied that no evidence had been led regarding the
value of the cable
but in the light of his experience he assumed that
the value was about R800,00. He accepted that the accused had
no income
of his own and that someone else paid his bail of R400,00.
He regarded the offence as a serious one and he was of the opinion
that a heavy fine was appropriate. He referred in this regard
to the following passage in
S v BOKBAARD
1991 (2) SACR 622
(C)
at 623f:
“
Boetes
word egter ook opgelê wanneer 'n strafoplegger meen dat 'n
beskuldigde eintlik gevangenisstraf verdien, maar tog bereid
is om
hom 'n geleentheid te gee om die geheel of 'n gedeelte van sy
gevangenisstraf af te koop.”
According
to the case record it was not explained to the accused that he could
arrange to pay the fine by way of instalments.
The oversight,
he said, was regretted. Finally he advised that the
accused did not pay the fine but he was released
on correctional
supervision on 28 November 2002, twenty days after he was sentenced.
[6]
It seems to me that the sentencing procedure in this case was
irregular in a number
of respects. The first irregularity is
that the value of the stolen goods was not proven nor was any
admission thereof obtained
from the accused. It is trite law
that the seriousness of the crime is a relevant factor when it comes
to sentence.
In a case of theft the value of the stolen goods
would generally be a relevant factor affecting the severity of the
sentence. Although
the onus of proof does not apply in its ordinary
sense to the process of sentencing, the procedure being more
inquisitorial than
the trial itself, it is accepted that an accused
is entitled to the benefit of the doubt in a case where there is
uncertainty in
regard to the facts. See
S v SHEPARD AND
OTHERS
1967 (4) SA 170
(W) at 181H;
S v M
1988 (2)
SA 779
(A) at 783 HI;
Schmidt Bewysreg
4e uitgawe 60.
[7]
Applying this approach to the facts of the present case leads to the
conclusion that
the magistrate was not entitled to assume that the
value of the stolen goods was R800,00. It should have been
proved by the
state or else admitted by the accused. In
obtaining such admissions it is necessary to heed the judgment of
Conradie J in
S v OCTOBER
1991 (1) SACR 384
(C). At 384
-5 he said the following:
“
The
value was established in the lower court by way of admission. Each of
the accused in the lower court was asked the following
question:
'Erken
u dat die waarde daarvan (meaning the stolen goods) plus minus R5000
is?'
In
the case of the appellant he said: 'Ja, ek stem saam daarmee', and in
the case of the other accused who was asked:
'Erken
u dat die waarde van die goedere wat u gesteel het plus minus R5000
beloop?' his answer was ‘Ja’.
The
charge-sheet does not contain a detailed schedule of the goods which
were alleged to have been stolen. All that the charge-sheet
alleges is 'klere, skoene, kinderspeelgoed', these three categories
of goods are bracketed together, 'totale waarde plus minus
R5 000'.
It does not appear to me to be a satisfactory procedure to establish
the value of stolen goods in this haphazard manner.
It would, in the
case of a represented accused, not be entirely satisfactory, but in
the case of an unrepresented accused I think
that it is to be
deprecated. There is authority for saying that an unrepresented
accused should not be required to make admissions
concerning matters
of which he cannot be expected to have personal knowledge. Unless
invoices or delivery notes or consignment
notes or some documentation
was shown to each of the accused in the regional court, he would have
had no basis whatever on which
to make an informed admission
concerning the value of the goods.”
[8]
The second irregularity in this case is the magistrate’s
reasoning in
imposing a fine. The passage in the
BOKBAARD
case which he cited in his reasons does not support him at all.
This is apparent when the entire passage, at 623 f-i,
is
considered:
“
Boetes
word egter ook opgelê wanneer 'n strafoplegger meen dat 'n
beskuldigde eintlik gevangenisstraf verdien, maar tog bereid
is om
hom 'n geleentheid te gee om die geheel of 'n gedeelte van sy
gevangenisstraf af te koop. (Sien in hierdie verband die bespreking
van F J Louw in (1990) 25 Die Landdros (Desember uitgawe).) Hierdie
soort boetes tref mens veral aan by dwelmtransaksies waar 'n
strafoplegger vermoed dat groot winste gemaak is. Ek dink nie dat dit
'n ongesonde benadering is nie, met hierdie voorbehoud,
dat
waar 'n beskuldigde 'n boete opgelê word wat hy na alle
waarskynlikheid nie sal kan betaal nie (en die huidige is so
'n
geval) daar baie versigtig na die alternatiewe gevangenistermyn gekyk
moet word. In so 'n geval is die alternatiewe gevangenisstraf
nie
primêr 'n afdwingings-meganisme nie maar primêr 'n
bestraffingsmaatreël. Daar moet na die alternatiewe
gevangenisstraf gekyk word asof dit die enigste straf is wat opgelê
word wanneer dit, vir alle praktiese doeleindes, die
enigste straf is
wat opgelê word. In casu sou die hof benede hom dus moes afvra
of dit geregverdig was om vir hierdie betrokke
misdryf een jaar
gevangenisstraf op te lê. Die beskuldigde se finansiële
vermoëns is blykbaar glad nie ondersoek
nie. Hy het nog nie
vantevore met betrekking tot dwelmmiddels oortree nie en het slegs
een noemenswaardige vorige veroordeling,
een van huisbraak in Maart
1989, waarvoor hy drie maande gevangenisstraf opgelê is.”
[9]
In
S v LUTHULI
2000 (1) SACR 338
(C) the general principle was
reiterated, at 340 e-g:
“
It
is nevertheless a general principle of sentencing in our law that,
where a fine is appropriate, the fine imposed should not so
far
exceed the accused's means that he or she will never be able to pay
it (see, for example, S v Sithole and E
Another
1979 (2) SA 67
(A) at 69G - H, S v Mlalazi and Another
1992 (2) SACR
673
(W) at 674f-g, S v Koopman
1998 (1) SACR 621
(C) at 623d-j, S v
Kika
1998 (2) SACR 428
(W) at 429d-h and the other authorities
referred to in these cases). However, this is by no means an
inflexible rule and there
are circumstances in which a fine outside
the ability of the accused may legitimately be imposed…”
In
the present case there are no considerations taking it outside the
field of application of the general principle. The magistrate
knew
that the accused could not pay a fine of R1 000,00. Yet he
proceeded to impose precisely such a fine. In my view
that was
irregular.
[10]
There are a number of comparable decisions in which first offenders
were given suspended sentences
for housebreaking or theft namely
S
v Jantjies and Another
1990 (2) SACR 440
(C);
S v Pietersen
and Another
1990 (2) SACR 40
(C):
S v Sagarias
1991 (1)
SACR 231
(Nm);
S v Pienaar
1992 (2) SACR 649
(C);
S v
Standaard
1997 (2) SASV 668 (C) and
S v Isaacs
2002(1)
SACR 176 (C). The principal reasons for this approach is that
the prisons are overcrowded, that conditions are often
appalling and
that the exposure of the accused to hardened criminals is more likely
to have a negative than a rehabilitative effect.
For the same reasons
direct imprisonment was inappropriate in this case.
[11]
It seems to me therefore that the second portion of the sentence
actually imposed upon the accused
would have been an appropriate
sentence in this case. The first part of his sentence which
reads “
Fined R1 000,00 or 6 months’ imprisonment”
is accordingly set aside and deleted. The second part of
the sentence is amended to read:
“
A
period of 6 months’ imprisonment is imposed which is suspended
for a period of 5 years on condition that the accused is
not
convicted of the crime of theft, committed during the period of
suspension.”
Save
for these amendments the conviction and sentence of the accused are
confirmed.
A
P BLIGNAULT
CLEAVER
J:
I agree.
R
B CLEAVER