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1994
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[1994] ZASCA 98
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S v Gangat (326/93) [1994] ZASCA 98 (1 June 1994)
\ihg
CASE NO 326/93
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
NOOR MOHAMMED
GANGAT
Appellant
and
THE
STATE
Respondent
CORAM
: HEFER, FH GROSSKOPF JJA et MAHOMED AJA
DATE OF
HEARING:
23 MAY 1994
DATE OF JUDGMENT:
1 JUNE
1994
JUDGMENT
MAHOMED, AJA:
2
The appellant was charged with stock theft in the Regional
Court for the Eastern Cape. He was found guilty and sentenced to five years
imprisonment of which two years were suspended for five years on the condition
that he was not found guilty of theft committed during
the period of suspension
(and in respect of which he was sentenced to an unsuspended term of imprisonment
without the option of a
fine).
The Magistrate made two further orders. He directed the appellant to pay
compensation to the complainant in the sum of Rl 160. The
liability of the
appellant was to be joint and several with the other accused in the trial who
had perpetrated the theft. Secondly
the Magistrate made an order in terms of
Section 35 of Act 51 of 1977 forfeiting the rights of the appellant in two motor
vehicles.
An appeal against the sentence imposed on the appellant was pursued in
the Eastern Cape Division. That
3
appeal was unsuccessful but leave to appeal to this Court
was granted by the Court a quo.
The appellant was found guilty of stealing 85 sheep. These sheep were the
property of the complainant, Mr. Robert King, and were part
of a group of 343
sheep which the complainant had on his farm in a camp known as Top Dairy
Camp.
The theft took place on the 28th February 1992. On that day, the
appellant used a motor vehicle ("the car") to convey one Phindile
Skoti and his
son, Benjamin, to some point in the vicinity of the Top Dairy Camp. The Skotis
were dropped by him in that area.
Later that night the Skotis unlawfully removed 85 of the sheep from this
camp to a camp called "Skuinskraal" on a neighbouring farm.
From Skuinskraal, 44
of these sheep were later taken to the appellant's house in a "bakkie". At the
instance of the appellant some
of his employees assisted in the
delivery.
4 36 of these sheep and the 41 sheep still remaining at
Skuinskraal were recovered, but the complainant never regained possession
of 8
of the stolen sheep. The actual damage suffered by him was Rl 160. His potential
damage exceeded R17 000.
The effective sentence of imprisonment imposed by the Magistrate was
three years. It was contended that this was not an appropriate
sentence in the
circumstances of this case.
The appellant was a first offender. He was 42 years old and suffered from
diabetes. He was under considerable financial pressure and
his father's recent
death had left him with burdensome problems on the business and in the
administration of the deceased's estate
under the Group Areas Act. His
dependents included a wife, two children and his widowed mother. There can be
little doubt that imprisonment
for three years would impact severely on such a
person and his family. As
5 Melunsky J, concluded in the Court a quo
it is "undoubtedly a substantial sentence".
That conclusion, however, does not itself entitle this Court, to
interfere with the sentence imposed by the Magistrate. Sentencing
is a matter
pre-eminently falling within the discretion of the sentencing officer, and this
Court is not entitled to interfere with
the exercise of that discretion unless
it is influenced by some demonstrable misdirection, or unless it is so
manifestly unreasonable
as to permit the inference that the sentencing officer
must have failed to apply his mind properly to the matter, or applied some
wrong
principle or otherwise committed some irregularity.
Counsel for the appellant submitted that the
Magistrate had indeed misdirected himself and had applied
a wrong principle, in the following passage:
"Hierdie is nie die gewone veediefstal waarmee die howe te doen kry waar
'n enkele stuk vee of twee of drie gesteel word nie. Nog
minder
6
is dit gepleeg as gevolg van Monger en nood. Dit is baie duidelik dat dit
gepleeg was en soos deur beskuldigde 1 erken in sy getuienis
vir finansiele
gewin. Die wetgewer beskou hierdie tipe van misdaad in 'n baie ernstige lig en
daarom verleen dit aan die gewone landdroshof
bevoegdheid om swaarder vonnisse
op te lê in hierdie spesifieke
gevalle".
Counsel contended that the
Magistrate had considered stock theft to be a more serious kind of offence than
other theft, simply because
the Stock Theft Act of 1959 grants authority to
Magistrates to impose in respect of stock theft, sentences which would otherwise
be outside their jurisdiction. If this is what the Magistrate meant in the
passage I have quoted it would indeed be a misdirection.
Stock theft still remains theft. The Act does not authorise or prescribe
greater penalties for stock theft. It simply confers jurisdiction
on the
Magistrate Courts to impose in respect of the theft of stock
7
sentences which would be beyond their ordinary limits of jurisdiction, but only
if such sentences are indicated in the particular
circumstances of any case.
[
R v Hemley en
'n
Ander
1960 (1) SA 397
(GW) at 399 A - 400 A;
S v Tshawana
1969 (2) SA 252
(E) at 252 H - 253 C;
S v Pittele
1975 (4) SA 229
(NC) at 229 G - 230 A].
I am not convinced, however, that in the passage quoted, the Magistrate
intended to say that the stock theft was considered by the
legislature to be
more serious per se than other forms of theft. In its context what he was
seeking to emphasise was that
this type of case
, where a businessman uses
his transport and employees to facilitate the theft of a large amount of stock
for his own gain and profit
is more serious than the usual type of stock theft
in which a farm worker steals two or three sheep to satisfy his own hunger and
need. But even if I am wrong in this interpretation of the passage, the
Magistrate's punishment of the appellant
8 was not premised upon the
proposition attributed to him on behalf of the appellant, but on the inherently
aggravating features in
the conduct of the appellant, disclosed by the
circumstances of this case. What the appellant did was to use the infrastructure
of
his business, his transport and his employees, to cause the theft of a large
number of sheep from an isolated farm with the obvious
motive to make what would
have been for him a very handsome gain running into thousands of rands, and to
protect himself from detection
by using others to do the more dangerous work of
removing the sheep from the camp of the complainant and then transporting them
to
the appellant's premises.
This kind of conduct is inherently reprehensible. It would be no less
serious if what was stolen were not sheep but some other assets
not subject to
the provisions of the Stock Theft Act.
It is conduct which justifies severe censure
9
from the Courts. The sentence imposed by the Magistrate is
clearly a strong and vigorous expression of that need. But it is not so
severe
as to attract the inference that the Magistrate failed to apply his mind
properly to all the relevant factors or so strikingly
different from the
sentence we would have imposed if we had been sitting as a Court of first
instance, as to permit us to interfere
with that sentence.
Counsel for the appellant contended that in considering the impact of the
sentence on the appellant regard must be had not only to
the substantial term of
imprisonment imposed upon him but also to the order of forfeiture made in
respect of the two vehicles used
in the commission of the offence and the order
directing payment of compensation to the complainant.
The order of compensation has the effect of a civil judgment in terms of
Section 300 (3) of Act 51 of 1977. It simply gives effect
to what is in any
event a
10
civil liability of the appellant and does not in any way
add to his punishment.
A forfeiture order in terms of Section 35 of
Act 51 of 1977 is different. Whether or not it constitutes punishment stricto
sensu,
it is an additional sanction, which can and often does impact very
prejudicially on an accused. The cumulative effect of such an
order upon the
substantive sentence of a fine or imprisonment, might be such as to punish the
accused more severely than is justified
by the relevant circumstances of a case.
For this reason its possible impact can be relevant both in considering the
substance of
the sentence itself and in considering whether such a declaration
of forfeiture should be made at all. [S v
Khan
1965 (3) SA 783
(A) at 791
F - G;
S v Tshezi
1961 (2) SA 276
(E) at 278 B - C;
S v Marais
1982 (3) SA 988
(A) at 1000 G - H;
S v Hlanqothe en 'n Ander
1979 (4) SA
199
(B)].
11
In the present matter the accused was sentenced after he had given
evidence in mitigation. At the end of the judgment on sentence
the Magistrate
simply declared that the appellant's interests in the car (used to convey the
Skotis to the vicinity of the complainants
camp) and the bakkie (used to
transport the stolen sheep to the appellant's house) were forfeited to the State
in terms of Section
35 of Act 51 of 1977.
I have a number of difficulties with this order.
Section 35 (1) provides that
(1) "A court which convicts an accused of any offence may, without notice
to any person declare -
(a) any weapon, instrument or other article by
means whereof
the offence in question was
committed or which was used in the
commission
of such offence; or
(b) if the conviction is in respect of an offence
referred to
in Part 1 of Schedule 2, any-
vehicle, container or other article
which was
used for the purpose of or in connection
with
the commission of the offence in question or
for
the conveyance or removal of the stolen
property,
and which was seized under the provisions of this Act, forfeited to the
State: ....."
12 1. According to the record, the appellant was not
made aware that the Magistrate was considering a forfeiture order in respect
of
these vehicles so as to afford the appellant an opportunity of being heard on
this issue. A declaration of forfeiture in terms
of Section 35 (1) is permissive
and not mandatory. It potentially affects an accused person adversely. The audi
alteram partem should
therefore have been applied. [
S v Hlangothe en '
Ander
(supra) at 202 C;
S v Khunong
1989 (2) SA 218
(W) at 222;
S
v Dedekind
1960 (4) SA 263
(T);
S v Xhosa
1991 (2) SACR 22
(7);
Hiemstra:
Suid-Afrikaaanse Strafproses
5th ed. J.C. Kriegler 66]. 2.
There was no enquiry into and no sufficient facts on the record to determine
what impact any forfeiture
order in respect of the vehicles
13 would
have on the appellant. All that was known about the bakkie was that it belonged
to the appellant's deceased father. What
its objective value was, what the
appellant's interest therein was, and what its use or value was to the appellant
in his business
was never established. The same applies to the car. It was known
that it belonged to Stannic, and that the appellant had paid ten
monthly
installments. There was no investigation of its value, the amount still
outstanding on the purchase price or the effect of
a forfeiture of this vehicle
on the appellant's business or finances. This kind of information was necessary
to enable the Magistrate
to exercise what is a judicial discretion in terms of
Section 35 (1) of Act 51 of 1977 [
S v Hlangothe
(supra) at 202 C - D; S v
Moodley and Another
14
1962 (1) SA 842
(N); Du Toit:
Commentary on the Criminal Procedure Act
page 2 - 16] In my view the
declaration of forfeiture made by the Magistrate cannot therefore be justified.
It is accordingly ordered
that -
1. The conviction of the appellant the
sentence of
imprisonment imposed by the
Magistrate and the order of
compensation
made by him in terms of Section 300 of
Act
51 of 1977 are confirmed.
2. The declarations of forfeiture made by the
Magistrate in terms of Section 35 of the Act are set
aside.
I. MAHOMED
J. HEFER JA )
F.H. GROSSKOPF JA ) Concur