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1993
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[1993] ZASCA 152
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S v Langley (581/92) [1993] ZASCA 152 (29 September 1993)
/CCC
CASE NO 581/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
ERROL NOEL
LANGLEY
APPELLANT
and
THE
STATE RE
SPONDEN
T
CORAM
: VAN HEERDEN, NESTADT JJA et NICHOLAS AJA
DATE HEARD
: 14 SEPTEMBER 1993
DATE DELIVERED
: 29 SEPTEMBER 1993
JUDGMENT NESTADT, JA
:
The appellant was convicted in the Magistrate's Court, Pretoria, of
malicious damage to property. He was sentenced, _to six months
imprisonment.
2
He unsuccessfully appealed to the Transvaal Provincial Division. This is
a further appeal (against sentence only). It is before us
with the leave of this
Court.
The incident which gave rise to the appellant's conviction
occurred on the morning of 18 April 1991. The appellant was driving his
vehicle
along a public road in Pretoria. He overtook a car being driven by the
complainant, a Mrs Pretorius. The appellant passed
her on her left hand side.
She testified that having done so, he cut in front of her, forcing her to swerve
to her right to avoid
a collision; and that she reprimanded him by sounding her
hooter once when this happened and again a little later as he went off
onto a
side road. In his evidence the appellant denied that he drove in this manner.
Though admitting that after having overtaken
her he proceeded over to
the
3
right hand side of the road, his version was that he did so in a safe
manner. He alleged, however, that this notwithstanding, the
complainant "came
right up on my tail...hooted and...I thought she was going to hit me".
The magistrate made no finding as to which of these two accounts was the
truth. It matters not. It is what happened afterwards that
is important. And in
this regard the facts are largely common cause. The appellant, apparently
annoyed with the complainant, turned
round and (in his words) "went after her".
He caught up with her car at a circle. He stopped his vehicle, jumped out and
went up
to her. She was still sitting in her car. He banged on the window of the
driver's door because "I wanted to ask her what her problem
was, why she was
trying to force me off the road...She provoked me to such an extent that
I
4
was...very cross". The complainant did not react; she remained sitting in
her car and said nothing. Apparently this incensed the appellant
further. He
then broke or ripped off a rear view mirror affixed to the side of the
complainant' s car. Having done that he threw
it to the ground, walked back to
his car and drove off. The conviction of malicious damage to property related to
the breaking off
of the mirror.
The magistrate's judgment on sentence is so
-brief that I propose to quote it in full. It reads:
"The court takes into consideration your personal circumstances. You are
36 years of age, married with two children, you are working
and your income is
R2 100. You told the court that you will pay the damage you caused to the
vehicle of the complainant and as you
were not in time this morning, you did not
pay anything because the complainant left after the court issued a warrant of
arrest for
you.
The court must also take into consideration the previous conviction. You
were sentenced on 2 May 1980 to twelve months' imprisonment
suspended for five
years and this was also for malicious injury
5
to property.
The court is of the opinion that the following sentence is an appropriate
sentence in your case. You are
SENTENCED TO SIX MONTHS'
IMPRISONMENT
."
The magistrate's
approach calls for critical
comment. It is, of course, desirable that a
judicial
officer's reasons for sentence be reasonably full (cf
R
vs Dematema
1967(4) SA 371(R) at 375 B-C and
S
vs
Immelman
1978(3) SA 726(A) at 729 A-C). In
casu,
I
do
not think that the reasons given measure up to this
standard. There is no apparent consideration of any
alternative forms of punishment. Thus there is no
reference to a fine or periodical imprisonment or a
community service order or even to a suspended period of
imprisonment. What then were the magistrate's reasons
for sentence? Obviously one was the appellant's
previous conviction. But it was more than eleven years
old and should not have carried much, if any, weight as
an aggravating factor (S
vs Mqwathi
1985(4) SA 22(T)
6
which should now be read in the light of the new sec 271 A of the
Criminal Procedure Act 51 of 1977
).
The other reason for the
sentence imposed is, as appears from what has been quoted, the appellant's
failure to compensate the complainant
for the damage to her car (amounting to
R300). The appellant did give an undertaking to do so. On his conviction on 11
October 1991
he asked, however, that he be given until the end of the following
month to make payment. This is because he was "running a tight
budget". The
magistrate was not prepared to accede to this request and postponed sentence
until 1 November 1991 "to enable accused
to pay complainant". I can understand
the justification for this attitude. The amount was not large; and the appellant
had had some
months to save up
7
the money. It is what happened at the resumed hearing on 1 November that
calls for adverse comment. It appears that the appellant
was late for court. It
appears further that in his absence the complainant told the court that the
appellant had not paid her anything.
Hence the reference in the judgment to the
appellant "not (being) in time this morning". I shall assume that it was not the
magistrate's
intention to take this factor into account in sentencing the
appellant. Were she to have done so, it would, of course, have been
a gross
misdirection. But there was nevertheless another misdirection. Though telling
the appellant that the complainant alleged
that she had still not been
compensated for the damage to her car, the magistrate did not ask him whether
this was true. Nor did
she invite the appellant to explain why, if it was true,
he
8
had not yet paid. The magistrate should have done so, particularly seeing
that the appellant was unrepresented. In these circumstances
the magistrate was
not entitled to hold it against the appellant that he had not paid the
complainant.
But even if the magistrate was justified in taking account of what we now
know to be the appellant's failure to compensate the complainant,
I do not think
that a prison sentence was warranted. I do not underestimate the loutish
behaviour of the appellant. However frustrated
and annoyed he may have felt, the
manner in which he sought to take the law into his own hands falls to be
strongly condemned. What
he did must have been very upsetting to the
complainant. He should have curbed what appears to be an aggressive nature. For
not having
done so more than a nominal sentence was called for. But not
imprisonment (for six months) . In
9
my opinion such a sentence was unduly severe and this is a further reason
for concluding as I do that the magistrate failed to properly
exercise her
discretion as-to sentence. It seems to me that the general reluctance of our
courts to impose short term imprisonment,
at least on a first offender (
S vs
Abt
1975(3) SA 214(A) at 219 in
fin
;
S vs Scheepers
1977(2) SA
154(A) at 159 A-C) was not sufficiently taken into account. A fairly substantial
fine coupled with a short, conditionally
suspended period of imprisonment would
have been more appropriate. This is the type of sentence I propose to
substitute.
One last observation. A degree of impatience or irritation with the
appellant on the part of the magistrate is to be detected from
the record. This
should have been guarded against and if possible avoided
10
(
S vs Sallem
1987(4) SA 772(A)).
The appeal succeeds.
The sentence of the
trial court is set aside. The following sentence
is
substituted:
The accused is ordered to pay a fine of R1 000 or undergo three months
imprisonment. In addition he is sentenced to three months imprisonment
suspended
for five years on condition that (i) he pay the sum of R300 as compensation to
the complainant to the clerk of the trial
court within one month of this
judgment and (ii) he is not found guilty of malicious damage to property
committed during the period
of suspension and in respect whereof he is sentenced
to imprisonment without the option of a
fine.
NESTADT, JA
VAN HEERDEN, JA ) NICHOLAS, AJA
) CONCUR