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[2013] ZAWCHC 143
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Williams v S (A369/2013) [2013] ZAWCHC 143 (20 September 2013)
[Reportable]
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: A369/2013
In the matter between:
NICOLEEN WILLIAMS
Appellant
And
THE STATE
Respondent
JUDGMENT DELIVERED ON 20 SEPTEMBER 2013
HENNEY, J:
Introduction
[1] The appellant in this matter is a 40 year old domestic and farm
worker who was in the employ of the complainant, an 86 year
old
woman, and was charged with the theft of two rings, which belonged to
her employer, the value of which was R219 000,00.
[2] The offence was committed on 13 April 2013 at Strand. The
appellant was arrested on 16 April 2013 and arraigned before the
local Magistrate’s court on 17 April 2013. She was granted
legal representation and assisted by an attorney in the employ
of
Legal Aid South Africa.
The Facts
[3] On 26 April 2013 the appellant pleaded guilty to the charge of
theft. In a Statement in terms of Section 112(2) of the Criminal
Procedure Act 51 of 1977 (“CPA”) in which the appellant
admitted the allegations against her, she admitted that on
the day in
question she was at the complainant’s home. She was busy
cleaning the complainant’s room and came across
two rings in a
jewellery box. In a moment of weakness and desperation, she removed
the rings and stole the items. She went home
and sold one of the
rings the next day at Cash Crusaders for an amount of R500,00. She
kept the other ring in her cupboard at home.
[4] The following Monday she was phoned by the complainant who asked
her to come and work for her. She was confronted about the
rings that
were stolen and immediately confessed to the complainant that she
stole the rings. The appellant thereafter took the
complainant to
Cash Crusaders as well as her home and both rings were retrieved.
[5] The appellant was correctly convicted and after giving evidence
under oath and an address by her legal representative as well
as the
prosecution she was sentenced to three (3) years imprisonment.
Leave to appeal the sentence was dismissed by the court a quo.
[6]
Leave to Appeal
The appellant thereafter sought leave from this Court.
Salie-Samuels,
AJ
and myself were seized of this application and granted Leave
to Appeal and immediately ordered that the appellant be released from
prison. This was done due to the manner in which the proceedings were
conducted by the Magistrate who presided over the matter.
This court
also ordered that upon release the appellant make an appearance
before another Magistrate and ordered that the appellant
appear
before the Regional Court, to avoid that the appellant appear before
the same district court.
[7] The Judge President directed that the appeal be heard on an
urgent basis before myself and
Salie-Samuels, AJ
due to the
fact that we were already seized of this matter. The reason for
having taken this unusual course of action is evident
from a reading
of the manner in which the proceedings were conducted by the
Magistrate.
Consideration of the Appeal
[8] During the sentencing phase, the appellant testified in
mitigation of sentence. This evidence was not disputed by the State.
From this evidence it emerged that the appellant is a 40 year old
single mother of two children. The appellant stayed at a farm
outside
Stellenbosch where she lived with her two children, a girl aged 12
years old and a boy aged 16 years old and where she
worked in the
vineyards. From the facts of this case, it further emerged that she
also worked as a domestic worker to supplement
her income. Both her
children attended school. The older child attends school in Tulbagh
and is in Grade 11. He also stayed in
the hostel attached to the
school. The younger child is still at primary school. During the
appellant’s evidence it emerged
that her son had not attended
school since the beginning of the year, due to the fact that she did
not work and did not have any
money to send him back to Tulbagh.
[9] She was booked off by the doctor and could not continue working
on the farm due to the fact that she is HIV positive and also
suffers
from tuberculosis. This prompted her to steal the rings and sell one
of them so that she could get money to send her child
back to
boarding school. Based on the record of the proceedings, it becomes
clear that the sentence that the Magistrate imposed
was grossly
inappropriate and disproportionate. Furthermore, the conduct that she
had displayed towards the appellant during the
sentencing proceedings
as well as thereafter was totally unbecoming of a person holding
judicial office. I will now deal with some
of the worrisome aspects
of the proceedings.
[10] During her evidence, the appellant expressed regret and remorse
for her actions. When she was cross-examined by the prosecutor,
she
once again expressed her remorse. To this the Magistrate made the
following remarks (page 38):
Hof: “
Nee, dit is baie goed gestel. Ek bedoel net dit is nou
formele woorde maar dit beteken in plein Afrikaans, die mense in die
Strand,
Gordonsbaai, almal, sê nou die saak kom nou in die
koerant – ek dink hy was al in die koerant – nou dat ons
daarvan
praat – sê nou hulle sien nou volgende Donderdag
as daai koerantjie uit kom, hierdie vrou het weggekom met ‘n
opgeskorte vonnis, moet dit net nie weer doen nie, ag siestog, wat
dink jy gaan hulle voel? Dink jy hulle gaan dink dit is ‘n
gepaste vonnis?”
In answer to this the appellant retorted that she knew it was wrong.
She added that she did ask the complainant to lend her some
money so
that she could send her child back to school, but she refused.
[11] When the prosecutor further put it to the appellant in
cross-examination that notwithstanding her circumstances, her conduct
cannot be justified, the court interjected and made the following
remarks towards the appellant (page 48):
Hof: “Ja maar dit is nou – antwoord die vraag –
u dink nou net oor me, myself and I, maar voel u rêrig u
is die
enigste persoon wat in so ‘n situasie is? As almal wat in u
situasie is gaan steel van hulle werkgewer, waar dink
jy gaan hierdie
land eindig?”
[12] These remarks of the Magistrate clearly show a disregard and a
lack of respect and compassion towards the plight of the appellant.
The Magistrate it seems was more concerned about what other
like-minded persons would think as well as what would be reported in
the local newspaper about this case than the exercise of a judicial
discretion based on humanity and decency towards a fellow human
being, as expected in a constitutional democracy. During the
sentencing judgment the Magistrate remarked that “
Die feit
dat u hierdie ringe van u werkgewer gesteel het grens nou ook aan
gulsigheid – greed.
” Loosely translated, “
The
fact that you stole these rings from your employer borders on greed.”
This clearly was not the case because the evidence paints a
different picture.
[13] Then she further remarked that the appellant should have known
that the rings were valuable and definitely not costume jewellery.
She further remarked that when the appellant went to Cash Converters
and was given R500,00 must have known that the ring must be
worth
something and nonetheless proceeded. Then the Magistrate made the
following remarks: “
Tipiese me, myself and I situasie.
Tipiese me, myself and I wat steel van my werkgewer en net bekommerd
is oor my en my kinders
se omstandighede.
” How the
Magistrate could have come to such a conclusion is once again not
borne out by the facts.
[14] The Magistrate further remarked that too much emphasis was
placed on the offender and the children of an offender without
having
due regard to the interest of society and the offence. Then she
concluded that it was for these reasons that crime in this
country
was out of control.
[15] After she sentenced the appellant she made the following remark
as to why she did not order otherwise than that prescribed
in terms
of Section 103(1) of Act 60 of 2000 (the Firearms Control Act),
whether or not the appellant should be declared unfit
to possess a
firearm.
“
Ek vertrou nie ‘n huiswerker met
‘n vuurwapen nie. Die volgende stap is moontlik ‘n
huisrofing.”
[16] Then she further stated that society has had enough and that the
court could not only consider the appellant and her children.
In
relation to the decision of
S v M
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) she
made the following remark:
“
Die hof kan nie net hamer op die arme
beskuldigde en haar kindertjies nie. Die hof neem in ag wat die S v M
beslissing sê,
maar as die hof elke woord daarvan letterlik
opneem, met die grootste respek aan my kollegas wat die beslissing
gemaak het, word
– ons sal die vraag vermy as iemand dan ‘n
paar moorde gepleeg het en hy het kinders by die huis en dit is ‘n
primary caregiver, moet daardie persoon ook nie tronk toe gaan nie?
Dit is nie te sê almal kan met moord wegkom nie.”
[17] The Magistrate it seems felt that she was not obliged to apply
and follow the decision of
S v M (Centre of Child Law as Amicus
Curiae)
(supra) because she did not agree with the decision. She
concludes that this decision paved the way for parents who are
primary
caregivers not to accept responsibility for their crimes and
it even means that where a primary caregiver has committed murder,
such caregiver may not be sent to prison, because he or she might use
their children to escape an appropriate sentence. Firstly,
it must be
said that the Magistrate’s view regarding the Constitutional
Court decision, is disturbing. The Magistrate’s
interpretation
clearly shows a lack of a proper understanding of the
S v M
case. It is exactly an understanding which the court in
S v M
(supra) warned against at paragraphs [34] and [35] where the
following was said by
Sachs J
:
“
[34] In this respect it is important to
be mindful that the issue is not whether parents should be allowed to
use their children
as a pretext for escaping the otherwise just
consequences of their own misconduct. This would be a
mischaracterisation of the interests
at stake. Indeed, one of the
purposes of s 28(1)(b) is to ensure that parents serve as the
most immediate moral exemplars
for their offspring. Their
responsibility is not just to be with their children and look after
their daily needs. It is certainly
not simply to secure money to buy
the accoutrements of the consumer society, such as cellphones and
expensive shoes. It is to show
their children how to look problems in
the eye. It is to provide them with guidance on how to deal with
setbacks and make difficult
decisions. Children have a need and
a right to learn from their primary caregivers that individuals make
moral choices for
which they can be held accountable.
[35] Thus, it is not the sentencing of the primary caregiver in
and of itself that threatens to violate the interests of the
children. It is the imposition of the sentence without paying
appropriate attention to the need to have special regard for the
children's interests that threatens to do so. The purpose of
emphasising the duty of the sentencing court to acknowledge the
interests
of the children, then, is not to permit errant parents
unreasonably to avoid appropriate punishment. Rather, it is to
protect the
innocent children as much as is reasonably possible
in the circumstances from avoidable harm.”
[18] The Magistrate in this instance had a total disregard for the
dignity of the appellant and the dire situation in which she
found
herself. She had no regard to the following:
That the appellant pleaded guilty and showed remorse;
That she went to show her employer where she sold her one ring and
assisted to recover the other one;
That the appellant is an HIV and tuberculosis sufferer;
That she is a decent human being who despite her poor,
socio-economic circumstances still tried to ensure that her children
attended school; and
That she stole one of the rings to get money, not out of greed as
the Magistrate incorrectly found, but to assist her older child
to
get back into boarding school in Ceres.
[19] In dealing with the plight of the appellant, she made the
sarcastic, dismissive and demeaning remarks like “
siestog
”
and “
die arme kindertjies
”. These remarks
infringed upon and had no regard to the dignity and humanity of the
appellant, and in making such remarks
the Magistrate transgressed the
bounds of appropriate behaviour and conduct as expected of a judicial
officer. I also find the
remark that she does not trust a “
huiswerker
met ‘n vuurwapen
” (a domestic worker with a firearm)
unnecessary and inappropriate. This further display the lack of
respect the Magistrate
exhibited towards the appellant and the less
said about it the better.
[20] Judicial officers should not regard people that have fallen foul
of the law, as unworthy of being treated with dignity and
respect.
Especially where an accused person has taken full responsibility and
surrenders him or herself to the mercy of the court.
It is under
those circumstances that a sentencing court in applying the values of
the constitution should act with dignity and
compassion especially in
dealing with the poor and vulnerable such as the appellant. The
administration of justice will be brought
into disrepute if genuine
and sincere appeals to mercy and compassion, as happened in this
case, are scoffed and ridiculed at by
Magistrates who has taken an
oath in terms of Section 9(2)(a) of the Magistrate’s Court Act
32 of 1944 to uphold and protect
the constitution and human rights
entrenched in it.
In
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC)
at
753
para [230]
by
Langa J
(as he then was) held:
“
The protection afforded by the
Constitution is applicable to every person. That includes the weak,
the poor and the vulnerable.
It includes others as well who might
appear not to need special protection; it includes criminals and all
those who have placed
themselves on the wrong side of the law.”
[21] The particular role of a judicial officer in a criminal trial in
a constitutional democracy was spelt out in
S v Thebus and Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) at 367
Yacoob J
at
[109]
held that:
“
The over-arching role of a judicial
officer in a criminal trial is to ensure that the trial is fair.
There is a duty on the
judicial officer to respect, protect, promote
and fulfil all fundamental rights. In the exercise of the duty to
ensure a fair trial,
it would become necessary to balance the rights
of the accused, the rights of the victim and society at large.”
[22] The Magistrate, in any event as pointed out earlier, totally
disregarded and was dismissive of the fact that the appellant
is a
primary caregiver and clearly misdirected herself when she failed to
have regard to this aspect during the sentencing of the
appellant.
She clearly overemphasized the seriousness of the offence and the
interest of society and sacrificed the appellant on
the altar of
deterrence.
[23] In lieu of the above reasons, the appeal must succeed. In the
result I make the following order:
“
The sentence imposed by the Magistrate
is set aside and replaced with the following:
Six (6) months imprisonment which is suspended for a period of
five (5) years on condition that the accused is not convicted of
theft or fraud or any attempt thereto and which is committed during
the period of suspension.
The Registrar is directed to send a copy of this judgment to the
Magistrate’s Commission for its consideration.”
________________________
HENNEY, J
Judge of the High Court
I agree.
________________________
SALIE-SAMUELS, AJ
Acting Judge of the High Court
For
the Applicant : Adv P J Burgers
Instructed by : Legal
Aid South Africa
For the Respondent :
Adv C. Teunissen
Instructed by : Director
of Public Prosecutions: Western Cape
Date(s)
of Hearing : 18 SEPTEMBER 2013
Judgment delivered on
: 20 SEPTEMBER 2013