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2024
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[2024] ZANCHC 104
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S v Mias (Special Review) (CA&R 64/2024) [2024] ZANCHC 104; 2025 (2) SACR 322 (NCK) (12 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: CA&R 64/2024
Date delivered:
12-11-2024
Reportable:
Yes/No
Circulate
to Judges:
Yes/No
Circulate
to Magistrates:
Yes/No
In
the matter between:
THE
STATE
and
DAVID
MIAS
CORAM:
WILLIAMS J et LEVER J:
JUDGMENT ON SPECIAL
REVIEW
WILLIAMS
J:
1.
This matter has been submitted on special
review for a determination
as to whether the sentence imposed by the magistrate, Philipstown is
in accordance with justice.
2.
The accused pleaded guilty to one count of
stock theft in that he
admitted to stealing and slaughtering one Dorper ewe, the property of
another and which was valued at R2800,00.
He was convicted
accordingly.
3.
It transpired during the sentencing proceedings
that the accused was
not a first offender but had been convicted previously of multiple
serious offences including, during 2018
a conviction on a charge of
stock theft for which he was sentenced to 6 months imprisonment
wholly suspended for a period of 3
years subject to certain
conditions and a further conviction on a charge of stock theft during
2021, for which he was sentenced
to 3 years imprisonment.
4.
In light of his previous convictions the prosecutor
applied for the
committal of the accused for sentencing by the regional court in
terms of
s114
of the
Criminal Procedure Act 51 of 1977
. The
magistrate apparently refused the application, his response thereto
having been transcribed as “
indistinct”
, and
proceeded to sentence the accused to 4 years imprisonment on the
basis that “
The form of mercy that the court is going to
give you is not to send you to regional court, but as the court can
give you a sentence,
a higher sentence at least in such matters. . .”
5.
Upon enquiry as to the competence of the sentence
imposed, after a
judicial quality assessment was conducted at the Phillipstown
Magistrates Court, the magistrate indicated that
he had no additional
statements or comments to make in this regard. As a result I do
not see the need to direct any further
inquiries to the magistrate.
6.
The magistrate’s court is a creature
of statute and its powers
and sentencing jurisdiction are set out in the Magistrate’s
Courts Act, 32 of 1944 S 92(1)(a)
thereof states as follows:
“
(1)
Save as otherwise in this Act or in any other law specially provided,
the court, whenever
it may punish a person for an offence—
(a)
by imprisonment, may impose a sentence of imprisonment for a period
not exceeding
three years, where the court is not the court of a
regional division, or not exceeding 15 years, where the court is the
court of
a regional division;”
7.
I may add that s14 of the Stock Theft Act,
57 of 1949 similarly
limits the penal jurisdiction of the magistrate’s court in
respect of an offence under the Stock Theft
Act.
8.
The sentence imposed in the magistrate’s
court was beyond its
jurisdiction and as such it must be set aside. The normal order
in such a case would be to refer the
matter back to the trial court
to impose sentence afresh. However due to the delay of about 17
months in sending this matter
on review since the sentence was
imposed and having all the relevant facts before us for
consideration, it would be in the interests
of justice that this
court determine the matter finally.
9.
The accused was 37 years old when the offence
was committed. He
was unemployed. He is single and has a daughter who was 9 years
old at the time. He passed
grade 7 at school. Whilst it is so
that stock theft is prevalent in the rural areas of the Northern-Cape
and has a negative effect
on the economy of the province, presiding
officers should be mindful to not impose progressively heavier
sentences merely because
the accused is a repeat offender. The
personal circumstances of each offender must be taken into account.
10.
In casu
the accused is unemployed and has a family to
maintain. All indications are that he stole the sheep with the
intention of
slaughtering it for the pot. In fact in his
written guilty plea he stated that he slaughtered the sheep and only
took some
of the meat as he could not carry the whole sheep.
There is no indication that he stole the sheep for financial gain.
11.
Whilst it is so that a firm position should be taken on the issue
of
stock theft, given the prevalence of this offence, an accused should
not be sacrificed on the altar of deterrence. The
accused has
pleaded guilty and did not waste any time or resources in this
matter.
12.
Taking all the relevant circumstances into consideration I am of
the
view that a sentence of 3 years imprisonment is appropriate.
Taking into account the circumstances in which this matter
was sent
on review it would be appropriate to ante-date the above sentence to
the date of original sentence, being 3 May 2023.
In
the circumstances the following order is made:
a)
The conviction is confirmed.
b)
The sentence imposed is set aside and replaced with the
following:
“
The
accused is sentenced to 3 (three) years imprisonment.”
c)
The sentence is antedated to 3 May 2023.
CC
WILLIAMS
JUDGE
I
concur
L
LEVER
JUDGE