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[1994] ZASCA 122
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S v Davids (488/93) [1994] ZASCA 122 (20 September 1994)
Case No 488/93 /mc
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
Between:
MARK DAVIDS APPELLANT
-and-
THE STATE RESPONDENT
CORAM: BOTHA, VIVIER et HOWIE JJA.
HEARD: 12 September 1994.
DELIVERED: 20 September
1994.
JUDGMENT
2
VIVIER JA:
The appellant pleaded guilty in the Cape Town
Regional Court to a charge of stealing 2000 new, unmarked number
plates
from a firm called C A Number Plates and Signs and was duly
convicted on this charge. One Bhamjee, who appeared with him, pleaded
guilty to
the alternative charge of contravening sec 37(1) of Act 62 of 1955 and was found
guilty on that charge. Both were sentenced
to three years' imprisonment, such
imprisonment to be subject to the provisions of
sec 276(l)(i)
of the
Criminal
Procedure Act No 51 of 1977
("the
Act"). Both
appealed against their sentences
to the Cape Provincial Division. The appellant's appeal was dismissed but
Bhamjee's sentence was
altered to three years' corrective supervision in terms
of
sec 276(l)(h)
of the
Act. With
the necessary leave the appellant now appeals
to this Court against his sentence.
3
Little appears from the record about the circumstances in which the
number plates were stolen as neither accused testified before
sentence was
passed. From the appellant's statement in terms of
sec 112(2)
of the
Act, the
report of Lieutenant Germishuis of the Department of Correctional Services and
other information placed before the trial Court, only
the following is known.
The appellant, who worked for the said firm as a storeman, removed the number
plates, valued at R16 800,
from the firm's premises over a period of four months
from the beginning of December 1990 to the end of March 1991, and handed them
to
Bhamjee, a fellow employee, who sold them to an outside person. Bhamjee pocketed
all the cash proceeds of the theft.
The appellant was 19 years old when the crime was committed and he has no
previous convictions. He passed standard 8 at school and
at the time of the
trial he worked as a labourer and
4
earned R200 per week. Germishuis found both the appellant and Bhamjee to
be suitable for correctional supervision and he recommended
that a sentence of
correctional supervision in terms of
sec 276(1)(h)
of the
Act be
imposed in
respect of both. Bhamjee was 34 years old when the crimes were committed and he
also has no previous convictions.
In the case of Bhamjee the Court a quo held that the regional magistrate
had misdirected himself in regarding Bhamjee's role as that
of a thief instead
of a statutory receiver. It went on to impose a sentence of correctional
supervision upon him. In the appellant's
case the Court a quo found no
misdirection and confirmed his sentence of imprisonment. The result was a
disturbing disparity between
the sentences. There are clearly no personal
factors warranting the disparity because a sentence of correctional supervision
had
been recommended for the appellant as well. The
5
Court a quo tried to justify the disparity solely on the ground that
Bhamjee was a receiver and the appellant a thief. It has, however,
often been
pointed out that it is not possible to lay down anything like a hard and fast
rule when it comes to assessing the respective
blameworthiness of the receiver
and the thief; in any particular case the crime of the thief or the crime of the
receiver may be
more serious than that of the other. (R v Sonday
1954 (4) SA 487
(A) at 489D-490B.)
In the circumstances of the present case it would be quite wrong to pass
a heavier sentence upon the thief than upon the receiver.
It seems to me that
their blameworthiness is about on a par, and that is the way they were treated
by the regional magistrate who
gave them the same sentence. Both Bhamjee and the
appellant worked for the complainant firm. Bhamjee was older and clearly wiser
than the appellant. It is highly probable that Bhamjee not
6
only knew that the number plates were stolen but that he was fully
involved in the whole operation. The degrees of participation of
the two were
thus more or less equal. Moreover, Bhamjee was the only one to gain financially
from the theft. Once Bhamjee's sentence
was altered, therefore, the appellant's
sentence could not stand.
The appeal against sentence succeeds. The sentence is set aside and the
matter remitted to the regional magistrate for the imposition
of a sentence of
correctional supervision in terms of
sec 276(l)(h)
of the
Act, unless
, as a
result of a change in the appellant's circumstances this is no longer a proper
sentence.
W VIVIER JA.
BOTHA JA) HOWIE JA) Concur.