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[1989] ZASCA 119
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S v Shanduama (34/88) [1989] ZASCA 119 (26 September 1989)
34/88
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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
ANDREAS SHANDUAMA
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: SMALBERGER,
KUMLEBEN JJA et
NICHOLAS AJA
HEARD
: 18 SEPTEMBER 1989
DELIVERED
: 26 SEPTEMBER 1989
JUDGMENT
KUMLEBEN, JA
/....
1.
KUMLEBEN, JA
:
This is an appeal against sentence.
The appellant was one of twelve accused who appeared before Strydom J in the
Supreme Court of South West Africa on a charge of theft
and on certain
alternative charges.
The facts giving rise to them were common cause. Each of the appellants, who
were at the time employees of the CDM diamond mine at
Oranjemund, illicitly came
to possess rough and uncut diamonds, the property of the mine. These were given
to one of their number,
accused no 1, who had agreed to take them beyond the
security limits of the mine. He was caught
2/...
2.
in the act: hence the main count averring that all the accused
were jointly, as principals or accessories, guilty of theft. The first
alternative charge alleged a contravention of sec 30(1) of Proclamation No 17 of
1939 in that, with reference to the appellant (accused
no 2), ne unlawfully
concealed or retained, with intent to convert to his own use, 299 diamonds with
a mass of 350,9 carats and a
value of R213 866,00 At the start of the trial the
charge against accused no 5 was withdrawn. The remaining accused pleaded guilty:
accused no 1 to the main charge, the rest to the first alternative charge. Each
was found guilty in accordance with his plea. Sec
28, as amended, of the
Proclamation provides for a maximum sentence of a fine of R20 000 or 15 years'
imprisonment, or both, in the
case of a contravention of sec 30(1). The sentence
imposed on the appellant was a fine of R10 000
3/...
3. or 5 years' imprisonment plus a further 6 years
imprisonment, of which 2 were conditionally suspended.
After conviction the appellant gave evidence in mitigation of sentence, and a
security officer of the mine testified on behalf of
the respondent. The material
facts on the question of sentence, emerging from their evidence and from certain
admitted facts, can
be thus summarised.
The appellant, a 52-year-old member of the Ovambo tribe, was the father of no
less than 20 children, 7 of whom were children of a
previous and his present
marriage. Sixteen of them were attending school and the remaining 4 had not yet
reached school-going age.
He was responsible for their maintenance
4/...
4. and that of his present wif e. He had received no formal
education and first earned his livelihood as a herdsman.
He was first employed with the CDM at Oranjemund in 1959, progressing from
domestic servant, to office cleaner, to bus driver. From
1959 until the time of
his arrest in 1986 he was employed as a contract labourer, or "migrant", as such
was described in evidence.
Over this period of 27 years he was intermittently
thus employed on some 17 contracts for spells varying from 2 months to 12
months.
His salary at the time of his arrest was R780,20 per month. The facts
disclosed on the record relating to this form of employment
were: that such an
employee has no assurance of re-employment after a term of service; that the
periods of employment, as I have
indicated, vary; that
5/...
5.
he receives no remuneration from the mine during the interim
periods and in the nature of things cannot undertake any other form of
permanent
employment during such intervals and that he does not become entitled to pension
benefits but on reaching sixty years of
age may, if still an employee of the
mine, receive an ex
gratia
payment, the amount of which is in the
discretion of the mine management.
About six weeks before his arrest he found the parcel of diamonds lying in
the road after a rain storm, the suggestion being that
it had been washed out f
rom some place where it had been buried or otherwise hidden. The parcel was
secured with adhesive tape of
some kind. He realised that it contained
6/...
6. diamonds. He decided to pick it up and retain it on
account of the parlous situation at his home: his family did not have sufficient
money to pay for food, clothing or school fees. He did not, however, at any
stage open the parcel to examine the diamonds or count
them. Thus he succumbed
to temptation but, according to him, mastered his curiosity. In due course, as I
have said, the parcel was
handed over to accused no 1 with a view to its being
taken from the mine.
A procedure for rewarding certain employees who handed in diamonds found by
them was in operation at the time. This incentive did
not, however, extend to
contract workers. It was entirely at the discretion of the mine officials
whether, and if so in what amount,
such an employee would be rewarded for his
honesty.
7/...
7. The appellant is a first offender and before this lapse
had, one infers, an unblemished record as an employee at the mine.
Certain statistics, taken from a mine register, were admitted to show the
prevalence of offences relating to the misappropriation
of diamonds at the mine
during the previous four years. The figures referred to the annual number of
"cases", the number of arrests
and the aggregate value and mass of the diamonds
involved. However, as pointed out in the judgment, without evidence of the
nature
of the offences and the number of convictions, this information is of
little or no value.
In considering the question of sentence, the trial court, having stressed
that the offence is a
8/...
8. serious one which, if undetected or if the diamonds are
not recovered, adversely affects State interests and the economy of the
territory, took into account certain mitigatory features common to all the
accused. They were first offenders with dependants but
without sufficient means
to support them properly. The accused showed remorse for what they had done as
evidenced by statements made
by each on the day of arrest before a magistrate
admitting their guilt. As mentioned, they all pleaded guilty at the trial. The
court
also took into account, on the one hand, that they were contract employees
but, on the other hand, attached significant weight to
the value of the diamonds
involved, two matters to which I shall return.
In dealing specifically with the appellant, the learned Judge said:
9/...
9.
"Wat beskuldigde 2 betref, is veral sy persoonlike omstandighede, met 20
kinders om te versorg, van groot belang. Ek het ernstige
oorweging aan sy
omstandighede gegee, maar ek sal my plig versuim indien ek die beskuldigde nie
na die gevangenis stuur nie. In sy
geval bedra die waarde van die diamante R213
866. Bykomend tot al die omstandighede ten opsigte van die beskuldigde,
submitteer meneer
Maritz dat sy geval, en gesien diê wyse waarop hy in
besit van die diamante gekom het, onderskei kan word van die gevalle waar
'n
beskuldigde self diamante versamel en terughou. Dit is so dat ten gunste van die
beskuldigde aanvaar moet word dat hy die diamante
toevallig opgetel het, en hy
dus nie oor 'n tydperk diamante versamel het nie.
Die saak sou egter nie onderskei kan word bloot omdat die beskuldigde besluit
het om nie te kyk hoeveel diamante daar in sy pakkie
was nie. Hyself getuig dat
hy die pakkie vir 1 1/2 tot 2 maande in sy besit gehad het; geleentheid om
ondersoek in te stel, was daar
dus. Die feit dat hy dit nie gedoen het nie sou
hom, na my mening, nie in 'n beter posisie plaas as die persoon wat wel
ondersoek
instel nie. Beskuldigde self getuig dat hy kon voel dat dit 'n hele
klompie stene was, en hy moes besef het dat hy hom aan 'n risiko
blootstel.
Nietemin het hy, toe die geleentheid hom voordoen om die stene deur die
bemiddeling van beskuldigde nommer 1 deur te stuur,
dit benut.
Ek neem in ag, soos ook by die ander beskuldigdes,
10/...
10.
dat hierdie beskuldigde nie die presiese waarde van die stene besef het nie, of
selfs presies geweet het hoeveel stene daar was nie,
maar in die lig van die
bevinding hierbo sou 'n Hof, na my mening, kwalik kan bevind dat 'n beskuldigde
vir hom h voordeel behaal
het deur nie vas te stel wat die omvang van sy daad is
nie."
It emerged from the evidence of the appellant that bail in
the sum of R20 000 had been paid with money collected by relatives and
friends.
This is naturally no guarantee that he would receive outside assistance for the
payment of a
fine
and he was in no position to do so from his own
resources. One, however, infers from what was said in the judgment on sentence
that
the court was told that in the case of each accused, should a fine be
imposed, it could be paid. Mr Botes, who appeared on behalf
of the appellant
before us, confirmed this. He consequently restricted his argument to the
additional prison sentence imposed. He
did not contend that it ought to
11/...
11.
have been entirely suspended but submitted that the
unsuspended period of 4 years was in the circumstances unduly severe.
It was no part of the appellant's case when the matter was argued before us
that the court had mis-directed itself in any special
respect. Counsel's
sub-mission was that the court had attached undue weight to the aggravating
features of the offence whilst not
according the extenuating facts their true
worth.
In advancing this argument counsel laid special emphasis on the court's
approach to the value of the diamonds misappropriated by him.
The trial court,
so counsel submitted, whilst accepting and appreciating that the appellant did
not know their value and that the
appellant was surprised when this
12/...
12. was revealed to him, nevertheless attached undue
importance to the value of the diamonds in determining the sentence.
It is implicit in the quoted passage from the judgment that the court
accepted - somewhat charitably some might say - that the appellant
at no stage
opened the parcel to look at or count the diamonds. Be that as it may, he must
have realised that they were of value,
and that they might be of considerable
value, even though he did not know what-they were actually worth. In carefully
considering
the importance to be attached to the value of the diamonds, the
court cited with approval what was said on this subject by Beadle
ACJ in
S v
Nkomo and Others
1976(4) S A 800 (R.,A.D.) at 801 F - 802 F:
"The first criticism which was made of the
13/...
13.
magistrates' judgments in all these cases was that the magistrates paid too
rnuch regard to the uncut value of the emeralds with which
the appellants dealt.
In some cases the uncut value of the emeralds was considerable. It was argued
that the appellants were all
Africans who had no expert knowledge of the real
value of the emeralds and in fact in all the cases, or the majority of the
cases,
the prices which they received for selling the emeralds were very much
less than their real value. It was argued, therefore, that
the moral guilt of
all the appellants should not be assessed on the basis of the uncut value of the
stones with which they dealt,
but on the basis of what they thought the emeralds
were worth. This, in my view, is an argument without substance.
The object of the Mines and Minerals Act, when it deals with precious stones,
is obviously to see that the State is not prejudiced
by the illegal dealing in
such stones. It is to prevent such dealings that very severe penalties are
provided in the Act. The prejudice
to the State, when illegal dealing in
precious emeralds takes place, is much greater when the value of the stones is
great than it
is when the value of the stones is low, so the crime committed by
an accused person who deals in emeralds whose uncut value is very
great is a
much more serious of fence than the crime committed by an accused who deals in
emeralds whose uncut value is negligible.
The knowledge of the accused,
therefore, of the uncut value of the stones is by no means an overriding
consideration. I would not
go so far as to say
14/...
14.
that it is a matter which must not be taken into account at all. For example,
if someone is an expert in emeralds and knows precisely
the actual value of the
stones with which he is dealing and those stones are of very considerable value
indeed, his case would probably
be regarded as a more serious one than the case
of an unsophisticated African who only had a vague idea of the value of the
stones.
But in every one of the cases that are now before the Court - and this
applies to the vast majority of cases of illegal dealing in
emeralds - all these
appellants knew that they were dealing in precious stones, they all lived in an
area where emeralds were mined,
they all were, in one way or another, associated
with each other in what may be called a ring or conspiracy to dispose of stolen
emeralds, and they all knew that there was a fairly ready market for the selling
of emeralds. They must have appreciated, therefore,
that they were dealing in a
commodity which could be of considerable value. The mere fact that they may not
have realised the precise
value of the stones in which they were dealing, does
not seem to me to be a matter that must be carried too far. If, unbeknown to
them, they were dealing in a stone whose value was much greater than they
thought it was, then they ran that risk because they knew
perfectly well that
they had no right to be dealing in emeralds at all. There is no justification
whatsoever for any such dealing
in emeralds. So this argument that the uncut
value of the stones is not a f eature that must be taken into account, is an
argument
which, I think, can be to a large extent
15/...
15.
disregarded, although not entirely, because, as I say, one must take into
account to some extent the background of the particular
accused who is dealing
in the emeralds.
Per contra
, it by no means follows that, because the
stones were worthless, the appellant should not receive a fairly severe
sentence."
The observations of the learned judge in this extract
from the judgment, in my respectful view, comprehensively and accurately place
this consideration - the value of the diamonds and the accused's ignorance of
their precise worth - in its correct perspective. There
is no reason to conclude
that the approach reflected in it was not followed by the trial court and
applied to the facts of this case.
On the contrary, the judgment indicates that
it was.
Having said this, it does appear that the value of the diamonds involved in
the appellant's case was the critical factor which moved
the court to impose
16/...
16.
the sentence it did. The 11 accused all received heavy fines;
7 were in addition given wholly suspended sentences (accused nos 3,
4, 6, 8, 10,
11 and 12); and the other 4 partially suspended sentences. (Accused nos 1, 2, 7
and 9). Accused no 1 was more severely
sentenced for the obvious reason that he
played the leading role in attempting to take the diamonds from the mine
premises. In the
case of the other 3 accused, whose sentences were only
partially suspended, the admitted value of the diamonds involved was
respectively
R213 866,00 (the appellant), R30 556,00 (no 7) and R69 742,00 (no
9) whereas the highest value in respect of those whose sentences
were totally
suspended was R10 400,00 (no 4). Thus, one may safely infer, that the value of
the diamonds involved in those four instances
resulted in their receiving
partially, and not totally, suspended sentences.
17/...
17.
One also notes, by way of comparison, that the appellant
admitted having misappropriated 299 diamonds whereas the next largest number
admitted to (by accused no 9) was 107 diamonds. Thus the court properly had
regard to the number and value of the diamonds involved
in the case of the
appellant in imposing a more severe sentence on him.
Counsel also referred particularly to the fact that the appellant was a
contract worker, with all the disadvantages attaching to this
form of
employment, and submitted,firstly,that this fact made it more dif-ficult for the
appellant to withstand the temptation to
misappropriate thê diamonds
and,secondly,that the com-plainant by adopting this form of employment was in a
measure to blame
for what occurred. In passing sentence
18/...
18. the court acknowledged that the fact that the
appellant was a contract worker contributed to his economic plight and took this
into account in his favour. As regards the further submission (that the
complainant was in a sense the author of its own (potential)
loss), where theft
or a similar offence on the part of an employee can be, wholly or partially,
attributed to exploitation on the
part of the employer by way of inadeguate
remuneration or in some other way, this is a relevant consideration. In such a
case the
need to satisfy the retributive element of punishment is
pro
tanto
reduced: the employee's misconduct is plainly less deserving of
condemnation and the need to requite the complainant by way of punishment
of the
offender is likewise diminished. There must, however, be proof of such
exploitation. The disadvantages attaching to contract
employment, or certain of
them,
19/...
19. have been referred to. But certain other facts
necessary before such a conclusion can be reached, are not disclosed. The full
terms of this form of employment are not set out and the reasons for such, as
opposed to employment on a permanent basis, are not
disclosëd. One also
does not know how the salary of the appellant compared with what he would have
been able to earn with his
skills in the open market elsewhere in that
territory. These are all relevant facts on which the record is silent. Without
such information
it would be wrong to attribute fault on this score to the
complainant. This was in effect the conclusion of the trial court and in
my view
it cannot be faulted.
For the rest, counsel for the appellant stressed the other mitigating factors
whilst counsel
20/...
20. for the respondent, as thoroughly, drew attention to
countervailing considerations calling for a severe sentence. All were carefully
considered by the court a
quo
. In my view it cannot be said that the
trial court in passing sentence failed to exercise a proper discretion.
The appeal is dismissed.
M E KUMLEBEN
JUDGE
OF APPEAL
SMALBERGER JA) NICHOLAS AJA) - Concur