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[2024] ZAKZPHC 79
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S v Buthelezi (350/2024) [2024] ZAKZPHC 79; 2024 (2) SACR 542 (KZP) (6 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
High
Court case no: 350/2024
Magistrate’s case
no: 73/2024
Magistrate’s serial
no: 04/2024
[Reportable]
In
the matter
between:
THE
STATE
and
NOMVULA
BUTHELEZI
ACCUSED
ORDER
Delivered on: 6
September 2024
On
review from
the Dundee Magistrates’
Court (sitting as court of first instance):
1.
The sentence of three years imprisonment imposed by the magistrate on
30 July is set aside.
2.
The accused is to be released from prison forthwith;
3.
The accused is sentenced to a term of six months’ imprisonment
suspended for a period
of five years on condition that the accused is
not convicted of theft or any attempt thereto which is committed
during the period
of suspension, which sentence is ante-dated to 30
July 2024;
4.
The order declaring the accused unfit to possess a firearm in
terms of
s 103
of the
Firearms Control Act 60 of 2000
is set aside.
REVIEW JUDGMENT
M
G Chetty AJ (E Bezuidenhout J concurring):
Introduction
[1]
This is an automatic review that was placed before me
by the
registrar of this division on 27 August 2024. In view of the urgency
of the matter, I have dispensed with directing an enquiry
to the
magistrate as any delay will further prejudice the accused and her
minor child.
Facts
[2]
The accused appeared in the Dundee Magistrates’
Court where she
was charged on one count of theft in that on or about 18 July 2024
she unlawfully and intentionally stole two Nivea
roll-ons to the
value of R75, which was in the lawful possession of TFS or Mr
Siyabonga Khumalo.
[3]
The magistrate enquired from the accused
how she
intended to plead and she stated that she intended to plead guilty.
The accused informed the magistrate that she wanted
to conduct her
own defence. He enquired from the accused whether she stole the
items to which she replied she did. The magistrate
enquired further,
where she put the roll-ons and she stated that she put them into her
pocket.
[4]
The prosecutor asked for the matter
to be placed on
the roll for hearing 25 July 2024 for a plea to be taken. The
prosecutor upon enquiry informed the magistrate that
the State is
opposed to the granting of bail. The matter was postponed to 25 July
2024 for a possible plea and the accused was
ordered to be kept in
custody.
[5]
On 25 July 2024, and when the matter was
called, the
prosecutor informed the magistrate that the matter was on the roll
for a plea and that the accused was conducting her
own defence.
However, the prosecutor suggested that the matter be postponed until
the following Monday, 29 July 2024, as it was
already late in the
day. The matter was postponed to 29 July 2024 and the accused was
ordered to remain in custody.
[6]
On 29 July 2024, and when the case was called,
the
prosecutor put the charge to the accused, whereupon the magistrate
asked her how she pleads to the charge. The accused indicated
that
she pleads guilty and further that she intended to conduct her own
defence.
[7]
The magistrate thereafter proceeded
to question the
accused in terms of the provisions of
s 112(1)(
b
) of the
Criminal Procedure Act 51 of 1977
and he subsequently convicted the
accused on the offence charged.
[8]
The prosecutor read out the accused’s
previous convictions, which are the following:
(a)
On 3 November 2016 the accused was convicted of theft in the
Dundee
Magistrates’ Court and she was cautioned and discharged and she
was not declared unfit to possess a firearm in terms
of s 103 of
the Firearms Control Act 60 of 2000;
(b)
On 22 August 2018, the accused was convicted in the Dundee
Magistrates Court for the offence of theft and she was sentenced to a
fine of R300 or 30 days imprisonment. She was not declared
unfit to
possess a firearm in terms of
s 103
of the
Firearms Control Act;
(c)
On 18 July 2024, she was convicted on the offence
of theft at
the Dundee Magistrates Court and she was sentenced to a fine of R500
or thirty days imprisonment, which was wholly
suspended for five
years on condition that the accused was not convicted of theft or
attempted theft during the period of suspension.
[9]
When the magistrate enquired from the accused whether
she was aware
of her previous convictions that were read out by the prosecutor, the
accused informed the magistrate that she did
not know her previous
convictions. The magistrate informed the accused that what the
prosecutor had read out to the court were
the offences for which she
had been found guilty. The accused responded that she was only aware
of the one conviction where she
was sentenced to pay a fine of R500
or thirty days’ imprisonment, which was wholly suspended. The
accused stated further
that she did not know about the convictions in
respect of the case of 2016 and 2018. The prosecutor then requested
the matter to
be adjourned in order for the investigating officer to
confirm the accused’s previous convictions. The matter was then
adjourned
to 30 July 2024. The accused was held in custody as no bail
was fixed.
[10]
On 30 July 2024, the prosecutor placed
on record
that the accused had informed her that she now remembers
her previous convictions. The prosecutor read the previous
convictions
into the record whereupon the magistrate enquired from
the accused whether she was aware of her previous convictions to
which she
responded in the affirmative and further and she confirmed
that those were her previous convictions. It is recorded that the
accused
admitted her previous convictions and the SAP 69 was handed
in as an exhibit marked “A”.
[11]
The magistrate then gave the accused the
opportunity
to present mitigating factors and other relevant facts
which he would take into consideration when arriving at an
appropriate sentence.
The magistrate enquired whether she wished to
give evidence under oath and the accused informed the magistrate that
she would not.
[12]
The below mentioned is what she placed on record:
(a)
She requested the court to give her ‘a small sentence’
because she lives with her minor child, whom she maintains.
(b)
The minor child is 11 years old and is going to school.
(c)
She has no parents.
(d)
She is 27 years old and unemployed.
(e)
She informed the magistrate that she supports herself and the
child
from a grant that she collects as well as the sum of R350, which she
is collecting. She did not explain the origins of the
grant nor did
she state the amount thereof.
(f)
When asked about the whereabouts of the child,
she replied that she
‘believe it [sic] is by the neighbours’.
(g)
She has been in custody since 18 July 2024 and the matter had
already
been postponed.
(h)
On being questioned by the magistrate on the whereabouts of
the
child’s father, she replied that he ran away when the baby was
still young and she was left alone with the child.
[13]
The prosecutor placed on record that the aggravating circumstances of
the case
outweighed the accused’s personal circumstances. The
aggravating circumstances that were placed on record are as follows:
(a)
The offence for which the accused was convicted was a serious
offence
which was prevalent not only in court’s jurisdiction but around
the entire country.
(b)
The accused had been convicted of similar offences and is therefore
a
repeat offender.
(c)
Her last conviction was on 18 July 2024 and after she
was given a
suspended sentence, she committed the same offence and was arrested
on the very same day.
(d)
She had not learnt from her past mistakes and she continues
repeating
the same offence.
(e)
She does not take the child’s wellbeing into consideration
when
she is committing these offences. She only thinks of the child when
she is apprehended.
(f)
The owners of the shop from which she had stolen
look up to the
courts to ensure that justice is served.
(g)
Due to the conduct of the accused, business owners suffer losses
and
at some stage they would have to upgrade their security measures in
order to combat such conduct.
[14]
The prosecutor asked the magistrate to impose a sentence of direct
imprisonment
since a sentence coupled with a fine is not suitable for
the accused. The prosecutor asked the magistrate to deal with the
provisions
of
s 103
of the
Firearms Control Act.
[15
]
The
magistrate in passing sentence referred to the case of
S
v Zinn
[1]
where the below mentioned was said:
‘
It
then becomes the task of this Court to impose the sentence which it
thinks suitable in the circumstances. What has to be considered
is
the triad consisting of the crime, the offender and the interests of
society.’
[16]
In considering what the magistrate thought to be an appropriate
sentence in
the circumstances, he mentioned the following factors:
(a)
The offence is both serious and prevalent, not only in the
district,
but also throughout the country. The court deals with these matters
on a daily basis and there is not a single day where
the court does
not deal with the offences of this nature.
(b)
Despite the value of the items being R75 and is a small amount,
it is
a huge amount for the owner of the shop, and hence does not detract
from the seriousness thereof.
(c)
The owner’s livelihood is running the store and
that’s
how he supports himself and his family. Should the business suffer,
it would lead to retrenchments and worse the closure
of the business.
Business owners spend a huge amount of money on security as a result
of persons such as the accused.
(d)
The magistrate also took into consideration that the accused
has an
11-year-old child who is school going and who is in grade three.
Further that the accused does not know the whereabouts
of the child
and assumes that she is with the neighbours, because the child’s
father ran away when the child was very young.
The magistrate
requested the prosecutor to get the investigating officer to contact
Social Development to trace the child.
(e)
The magistrate was of the opinion that the accused did not
love her
child because if she did, she would have thought of the child before
committing the offence.
(f)
He took into account that the accused is 27 years
old, is unemployed
and that she receives a grant as well as the sum of R350.
(g)
The reason why the accused stole the items was because she
did not
have enough money to pay for the items. However, to this the
magistrate remarked that the accused did not have to steal
the items
worth R75 as she was receiving a grant as well as the sum of R350.If
she did not have the money to pay for it, then she
should have waited
until she had the money.
(h)
The magistrate commented that he is worried about the fact
that the
accused has three previous convictions and all previous convictions
relate to the offence for which the accused has been
found guilty
namely, theft.
(i)
The magistrate was concerned by the fact that the
accused’s
last previous conviction was on 18 July 2024 which was a week prior
to this matter being heard and further that
on the very same day the
accused committed a further offence. He added that the pace at
which the accused is committing the
offences is very alarming.
(j)
The learned magistrate was in agreement with the
submissions made by
the prosecutor that the accused is not remorseful and that she has
not learnt a lesson from her past convictions.
[17]
In handing down sentence, the magistrate remarked that in passing
sentence,
the court will look into the interest of society and pass a
sentence, which has a rehabilitative effect, a deterrent effect and
a
preventative effect. Each sentence must be blended with a measure of
mercy according to the circumstances of each case. Sentences
that are
imposed by the court must not only deter the accused from committing
further offences but must also deter like-minded
persons like the
accused from committing similar offences. A sentence must send a
strong message that offences of this nature will
not be tolerated.
The complainant and community at large look up to the courts to
impose a sentence or sentences that are in the
interests of justice.
The learned magistrate said he had considered the factors that were
submitted by the prosecutor and those
which were submitted by the
accused and he is of the view that the appropriate sentence to impose
is for the accused to undergo
three years’ direct imprisonment.
In respect of
s 103
of the
Firearms Control Act he
declared the
accused unfit to possess a firearm.
Issues
to be decided
[18]
There are two crisp issues which have to be decided in this review
namely:
(a)
Whether the court misdirected itself in imposing a sentence
of three
years direct imprisonment without considering whether any other
sentence could have been imposed; and,
(b)
Whether the learned magistrate had due regard to the accused’s
minor child when he sentenced the accused.
Did
the magistrate misdirect himself in imposing a sentence of three
years’ direct imprisonment without considering whether
any
other sentence could have been imposed?
[19]
As set out above, the magistrate, when arriving at an appropriate
sentence
made general comments and statements about the purpose of
punishment. He referred to the
Zinn
triad and spoke about the
prevalence of the petty crime of shoplifting. He focused on what
losses the business owners had suffered
and the effects it would have
on the economy. He stated that the accused had previous convictions
for similar offences, the latest
being on 18 July 2024, a day before
this offence was committed. He was of the view that the accused
should be taught a lesson because
of her previous convictions. The
business from which the accused stole needs to be protected from
persons such as the accused.
The magistrate was of the view that the
court had to impose a sentence that would deter others from
committing offences of this
nature. He was of the view that society
needs to be protected from repeat offenders such as the accused. It
was for these reasons
that the sentence of direct imprisonment was
the only appropriate sentence that he could impose.
[20]
In my view, it is clear that the sentence imposed by the learned
magistrate
is disproportionate. The learned magistrate placed undue
weight on the fact that the accused had previous convictions for
similar
offences.
[21]
In light of
this issue, the following was held in
S
v Baartman
:
[2]
‘
But
the period of imprisonment must be reasonable in relation to the
seriousness of the offence. Otherwise, it inevitably overemphasises
the interests of society at the expense of the interests of justice
and the interest of the offender. If it does this, it cannot
be a
just sentence.
In a case such as this it
is necessary to be aware of three considerations:
(a)
the
accused should be sentenced for the offence charged and not for his
previous record;
(b)
the
public interest is harmed rather than served by sentences that are
out of all proportion to the gravity of the offence; and
(c)
while
it may be justifiable up to a point to impose escalating sentences on
offenders who keep on repeating the same offence, there
are
boundaries to the extent to which sentences for petty crimes can be
increased.
Thus, a thief who steals
a loaf of bread should not have to go to gaol for 10 years because he
has stolen countless loaves of bread,
one at a time, in the past. His
sentence should never escalate with the passage of time from a few
weeks for initial offences,
to a few months, eventually to years, and
then to many years; the offence remains a petty offence no matter how
often it is repeated.’
And
the court in
Thorne
v S
,
[3]
referring to
Baartman
with approval added
‘
Even
in the ordinary course of events where a past conviction can be
considered as a previous conviction that would play a part
in
influencing a sentence a court would impose our courts has warned
against a practise, where previous convictions as has happened
in
this case should be used to justify the imposition of ever increasing
sentences. See
S v Stenge
2008 (2) SACV
27
at 30 c – d
. Especially in
cases where an accused person’s due to dire socio-economic
conditions and poverty commit petty theft offences
in order either to
feed themselves or their families.
[22]
Baartman
held further that
[4]
‘
it
all comes down to the basic principle that punishment must fit the
crime. Where the crime is petty theft and the offenders previous
record makes imprisonment rather that an alternative form of
punishment, imperative, the period must still be in proportion to
the
petty nature of the crime.’
[23]
It is my view that the magistrate misdirected himself when he imposed
sentence
of 3 years direct imprisonment. Furthermore, that this is
not a case where society needs to be protected from the accused by
removing
her altogether. The sentence imposed by the court is unduly
harsh and inappropriate in the circumstances. The sentence will be
set aside and replaced with an alternative sentence.
Did
the court consider the best interests of the minor child when
sentencing the accused?
[24]
In
S
v M
[5]
Sachs J, worded the issue as follows:
‘
When
considering whether to impose imprisonment on the primary caregiver
of young children, did the courts below pay sufficient
attention to
the constitutional provision that in all matters concerning children,
the children’s interests shall be paramount?’
[25]
It is my view that the magistrate did not consider the child’s
best interest
when he sentenced the accused as the child’s
primary caregiver to a term of direct imprisonment.
[26]
Section 28 of the Constitution
of the Republic of
South Africa, 1996
provides that a ‘child’s best
interests are of paramount importance in every matter concerning the
child’. By
not considering the interests of the accused’s
minor child, the learned magistrate committed a grave misdirection.
[27]
The
majority judgment in
S
v M
set
out the duties of a court sentencing a primary caregiver of minor
children. The court defined a primary caregiver as ‘a
person
with whom the child lives with and who performs everyday tasks like
ensuring that the child is fed and looked after and
attends school
regularly.’
[6]
The court
held that ‘[f]ocused and informed attention needs to be given
to the interests of the children at appropriate moments
in the
sentencing process.’
[7]
The majority further held that what was expected of a sentencing
court is to give ‘
sufficient
independent and informed attention as required by section 28(2) read
with section 28(1)
(b)
,
to the impact on the children’
[8]
when
deciding whether to send primary caregiver to prison. Furthermore,
S
v M
cautioned that
[9]
‘
The
objective is to ensure that the sentencing court
is in a position adequately to balance all the varied interests
involved, including
those of the children
placed at risk.
. . . the form of
punishment imposed is the one that is least damaging to the interests
of the children, given the legitimate range
of choices in the
circumstances available to the sentencing court.’
[28]
In
S
v Piater
,
[10]
the court held in this regard as follows:
‘
Section
28(2), read with s 28(1)
(b)
,
imposes four responsibilities on a sentencing court when a custodial
sentence for a primary caregiver is in issue, namely:
(a)
To establish whether there will be an
impact on the child;
(b)
to consider independently the child's
best interests. In other words, the child's best interests should not
be considered as an
appendage to the primary caregiver's personal
circumstances;
(c)
to attach appropriate weight to the
child's best interests; and
(d)
to ensure that the child will be taken
care of if the primary caregiver is sent to prison.’
[29]
In the present case, the accused responded to the court’s
enquiry as
to who is taking care of the child, as follows ‘I
believe it [sic] it is by the neighbours’. The court
enquired
from the accused as to the whereabouts of the father of the
child and she replied ‘He ran away and left me alone with the
child when the baby was still young’.
[30]
Insofar as the child’s well-being is concerned, the magistrate
directed
the prosecutor to inform the investigating officer to
contact social development and trace the whereabouts of child. Aside
from
this, the magistrate did not consider any further factors
regarding the child. The accused is the primary caregiver of the
child.
Now that she is incarcerated, she herself is uncertain as to
the whereabouts of the child. Clearly, the court did not consider the
interests of the child when sentencing the accused. There is nothing
in the magistrate’s reasons reflecting that he properly
applied
an informed mind to the duties flowing from s 28(2) read with
s 28(1)
(b)
of the Constitution.
[31]
I therefore conclude that the magistrate, in passing the sentence,
did not
give sufficient, independent and informed attention as is
required by s 28(2) read with s 28(1)
(b)
to the
impact the sentence will have on the child by having sentenced the
accused to prison. In fact, he only considered the prevalence
of the
crime, the seriousness of the crime and the interests of society.
[32]
The sentence which I propose is – the accused is sentenced to a
term
of thirty days imprisonment suspended for a period of five years
provided that the accused is not convicted of theft or any attempt
thereto which is committed during the period of suspension, which
sentence ante dated to 30 July 2024. The accused would have by
the
time this judgment is handed down, completed serving thirty days’
imprisonment.
[33]
In so far as the order granted by the magistrate that the accused is
unfit
to possess a firearm, that order is set aside as sentence now
imposed is a non-custodial sentence.
[34]
The learned
magistrate ought to have conducted an enquiry in terms of
s 103(1)
of
the
Firearms Control Act but
failed to do so. The prosecutor merely
‘left it in the hands of court to deal with this issue’.
What is envisaged by
legislature is for the magistrate to conduct an
enquiry and have full regard for all the relevant and material facts
that are placed
before it by the accused as well as by the
prosecutor.
[11]
In this case
no enquiry was conducted and no questions were asked of the accused,
nor did the prosecutor make any submissions with
regard thereto.
Conclusion
[35]
In the circumstances, the sentence imposed by the magistrate is not
appropriate
and not in accordance with justice.
[36]
In the premises, the below mentioned order is made:
1.
The sentence of three years imprisonment imposed by the magistrate on
27 July 2024 is set
aside.
2.
The accused is to be released from prison forthwith;
3.
The accused is sentenced to a term of 30 days imprisonment suspended
for a period of five
years provided that the accused is not convicted
of theft or any attempt thereto, which is committed during the period
of suspension,
which sentence is ante dated to 30 July 2024
4.
The order declaring the accused unfit to possess a firearm in terms
of
s 103
of the
Firearms Control Act 60 of 2000
is set aside.
M G Chetty AJ
E
Bezuidenhout
J
[1]
S v
Zinn
1969 (2) SA 537
(A) at 540G-H.
[2]
S v
Baartman
1997 (1) SACR 304
(E) at 305B-F (
Baartman
).
[3]
Thorne
v S
[2015]
ZAWCHC 52
para 12.
[4]
Baartman
at
305F-G.
[5]
S v M
(Centre for Child Law as amicus curiae)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC);
2007 (12) BCLR 1312
(CC)
para 1 (
S
v M
).
[6]
S v M
para 28.
[7]
S
v M
para
33.
[8]
S
v M
para
48.
[9]
S
v M
para
33.
[10]
S v
Piater
2013 (2) SACR 254
(GNP) para 23.
[11]
S
v Mkhonza
2010
(1) SACR 602
KZP see also
S
v Smith
2006 SACR 307(W)
see also
S
v Lukwe
2005 (2) SACR 578(W).