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1990
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[1990] ZASCA 98
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S v Ngxoxo (176/89) [1990] ZASCA 98 (21 September 1990)
176/89
whn
LUNDI NGXOXO
Appellant
and
THE STATE
Respondent
JOUBERT
ACJ
IN THE SUPREME COURT OF SOUTH
AFRICA
APPELLATE DIVISION
In the matter between:
LUNDI NGXOXO
Appellant
and
THE STATE
Respondent
Coram
: JOUBERT ACJ et SMALBERGER NESTADT JJA.
Date of Hearing
: 31 August 1990
Date of Delivery
: 21 September
1990
JUDGMENT JOUBERT
ACJ:
/On
2
On 29 March 1988 the appellant was charged in the Regional
Court held at Germiston with the theft of two bags of money containing
R4 322-02
out of a parked vehicle in Germiston. It was alleged in the charge sheet that
the money belonged to, or was in the lawful
possession of, Hendrik Mokoena
and/or Karoo Ochse. The appellant pleaded guilty to the charge. His counsel, Mr
Witz, handed in a
written statement in terms of
section 112(2)
of the
Criminal
Procedure Act No 51 of 1977
as Exhibit A which reads as follows:
1. "I, Lundi
Ngxoxo, an adult male aged 25 years
understand the charge against
me.
2.
I admit that I am guilty of the offence of
theft.
3. I admit further that on or about the 8th of January,1988 and at Germiston, in
the regional division of the Southern Transvaal,
I wrongfully and intentionally
stole 2 bankbags containing
R4 322,02 from a motor vehicle which was the property and in the lawful
possession of Hendrik Mokoena and/or Karoo Ochse.
/3
3
4. I admit further that I took the said money for my
own personal use and in
doing so I deprived the
lawful owners of the possession of same.
5. I admit further that I know what I was doing
was
wrong.
6. I am sorry for what I
did.
(Signed) L Mgxoxo
FACTUAL CONTEXT IN WHICH THE OFFENCE WAS COMMITTED
1. I was in the company of a friend of mine in Germiston.
We were approached
by a person known as Henry whom
I know from the race-course.
2. He then requested us to take the money from the vehicle while he went to the
0 K Bazaars to look for his friend who was buying
meat.
3.
He told me that the amount of money which
was
R4 322,02 was in the front of the car where I could
reach it easily.
4. I then pushed open the window of the car and took
the bag with the money
and I then ran away.
5. I was then apprehended by unknown persons being members of the
public.
6.
My friend who was in my company managed to get
away.
/4
4
7. I admit that I knew what I was doing was wrong and that I did not have
permission to take the money.
8. When I was arrested I dropped the bag containing the money and it was
recovered.
9. I was promised Rl 000,00 share out of
the proceeds.
Dated at Germiston this 29th day of MARCH, 1988.
(signed) L Ngxoxo."
The prosecutor had nothing to add. The regional magistrate thereupon
proceeded to convict the appellant as charged. He was sentenced
to 4 years'
imprisonment of which 1 year was conditionally suspended for 5 years. He
thereafter appealed unsucessfully against his
sentence to the Transvaal
Provincial Division. He now appeals to this Court against his sentence with
leave of the Court
a quo
.
The appeal is directed against the sentence
imposed by the regional magistrate. In regard to the personal circumstances of
the appellant
cognizance was taken
/5
5
of the following aspects:
1. the appellant was 25 years of age and married with two
children;
2.
he had fixed employment, earning R45 per
week;
3.
he had pleaded guilty to the
charge;
4.
he was a first
offender;
5.
he had; shown remorse for what he
has done.
In considering the nature of the offence
the regional magistrate pointed out that theft was a serious offence. Theft of
goods from
motor vehicles was a very prevalent crime. The amount of money
involved was over R4 000-00. The money was recovered with the assistance
of
members of the public who apprehended the appellant at the scene of the crime.
Such recovery could accordingly not be attributed
to any action on the part of
the appellant.
In dealing with the circumstances in which
/6
6
the theft was committed the regional magistrate
mentioned
"that a window of this vehicle was damaged in order to
get
entrance into the vehicle". This amounts technically
to a
misdirection, the true factual position being that the
appellant pushed open
the window of the motor vehicle.
In my judgment this is a misdirection of an
insignificant
nature which in the circumstances of this case does not detfact
from
the seriousness of the offence.
There is, however, a very important
aspect concerning the circumstances in which the theft was committed, as
mentioned in the
section 112(2)
statement, of which the regional magistrate took
no cognizance whatever in sentencing the appellant. It was a certain Henry who
prodded
the appellant into the perpetration of the theft by giving him the
essential information viz that the money bags were in the front
of the motor
vehicle within easy reach.
/7
7 The sum of money contained in the two money bags was disclosed to
the appellant who was promised a R1 000 share from the stolen
money. Henry
undertook to absent himself momentarily from the scene of the crime while the
appellant comitted the theft. Henry would
on this version of the appellant have
been a
socius criminis
as well as an instigator of the planning and
commission of the theft. Moreover, the probabilities are overwhelming that Henry
and
Hendrik Mokoena were the same person as may be inferred from the nature of
the information furnished by Henry to the appellant. Failure
on the part of the
regional magistrate in imposing sentence to have considered the role played by
Henry, as mentioned above, amounts
to a serious misdirection which leaves us at
large to impose a suitable sentence. The basis of the magistrate's approach was
that
the appellant committed the theft entirely
/8...
8
on his own and that the appellant acted like a common
thief
who usually steals from parked vehicles. He failed to distinguish the
unusual circumstances of this case from the prevailing types
of theft from
parked vehicles.
In the light of the aforegoing and having regard to the
interests of society as well as the purposes of punishment, I am of the view
that in the circumstances of this case the sentence should provide for a fine as
an alternative to imprisonment to meet the ends
of justice. Payment of the fine
which this Court has in mind is according to what counsel for the appellant
disclosed to us within
the appellant's means.
The sentence imposed by the
regional magistrate is accordingly set aside and the following sentence is
imposed:
/9...
9
A fine of R2 000-00 or 2 years imprisonment plus an additional 2 years'
imprisonment suspended for 5 years on condition that the
appellant is not
convicted of theft or attempted theft committed during the period of
suspension.
C P JOUBERT ACJ.
SMALBERGER JA Concur.
NESTADT JA