IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) REVIEW JUDGMENT

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) CA125/05 In the matter between: THE STATE and MOSIMANEGAPE PHADI REVIEW JUDGMENT ZWIEGELAAR AJ: [1] The Accused, who conducted his own defence was convicted in the Magistrates Court for the district of Lehurutshe held at Lehurutshe on a count of housebreaking with the intent to steal and theft and sentenced to Seven Hundred rand (R700 00) or fourteen (14) months imprisonment wholly suspended for five (5) years on condition that that he is not convicted of housebreaking with intent to commit an offence committed within the period of

2 2 suspension. [2] The Accused pleaded guilty to the count of housebreaking with intent to steal and theft. [3] During questioning in terms of Section 112 (1) (b) of the Criminal Procedure Act Number 51 of 1977, the Accused admitted amongst others that he broke into the house of the complainant by pushing a window that was slightly ajar open and climbed through it whereafter he removed a pair of boots, two blankets and two shirts the value of which amounted to approximately One Thousand Rand (R ) without the permission of the complainant well knowing that what he was doing was wrongful and unlawful. [4] No previous convictions has been proven against the Accused by the State. [5] In mitigation of sentence the Accused placed the following on record, namely that he is 22 years of age, not married, having a child aged five years who is living with the mother and in respect of whom he is paying maintenance in the amount of R per month, the mother of the child is not employed, he is employed by a bricklayer earning R per month, he never attended school, but had taught himself how to construct houses which is the only work that he knows how to do, he is prepared to compensate the complainant and would do so by paying her R per month.

3 3 [6] The Accused averred that poverty caused him to commit the offence and that all of the stolen items were recovered after it was found at the house of one of his former co accused. [7] On review in pursuance of the provisions of Section 302 of the Criminal Procedure Act, Number 51 of 1977, the presiding Magistrate was requested to set forth reasons for the following, to wit: 6.1The imposition of the maximum period of suspension provided for in Section 297 (1) (a) of the Criminal Procedure Act, Number 51 of 1977, ie. five (5) years in view of the judgment in S v Ndaba 1993 (2) SACR 633 (A); 6.2 The imposition of the condition of suspension which reads as follows: on condition not committed of housebreaking with intent to commit an offence committed within a period of suspension ; and 6.3 Whether the condition of suspension should not be amended to read: on condition that the Accused is not convicted of housebreaking with the intent to steal and theft committed during the period of suspension. [8] The presiding Magistrate s response to the issue raised in

4 4 my query (paragraph 6.1 (supra)) reads as follows: I venture to opine that if accused understands the implication of the suspended sentence. If he comprehends that should he be convicted again of housebreaking with intent to commit an offence committed within a period of suspension, that the present sentence might be put into operation, chances are that if he behaves or refrain from doing so for a significant period, he shall not begin again in later life. He is still 22 years old. He has a child he has to look after. If the suspended sentence is short, it is my opinion that he will not have had sufficient opportunity to have folded his arms and not to break and steal people s property. I gave him a suspended sentence for 5 years. I believed that this period is sufficient to curb accused: given his age and circumstances from giving into temptations and receiving another conviction. [9] It was held in S v Ndaba 1993 (2) SASV 633 (A) at 639 B to G that: Vonnisoplegging is weliswaar geen eksakte oefening nie en die besondere omstandighede van iedere individuele geval verg spesifieke opweging. Daarom kan daar geen allesomvattende of rigiede stel reëls vir die vasstelling van opskortingstermyne

5 5 neergelê word nie. Tog behoort daar by die oorweging daarvan, veral waar negetiewe voorwaardes, byvoorbeeld die nie pleging van ʼn misdaad, opgelê word, rekening gehou te word met die erkende oorwegings wat daarop betrekking het. Dié is nuttig saamgevat in S v Ndlovu 1982 (3) SA 51 (ZH) te 53 H 54 D:

6 6 (a) The nature of the offence and the circumstances surrounding its commission. Was it carefully planned and premeditated, or was it committed in the heat of the moment or as a result of sudden temptation? (b) Has the offender exhibited a propensity to commit that type of offence? For instance, where over a long period of time he has converted money to his own use, or where he has a relevant previous conviction but the effect of a partly suspended prison sentence has not been tried upon him. (c) The personal character of the offender. Is he a person of advanced age who has led a blameless life, or has he shown by genuine penitence or by the shock and disgrace of his trial that the chance of another similar transgression is entirely remote? (d) Are the offences to which the suspension will relate those which can be easily committed in circumstances of emotional distress or discomposure? (e) Is the offender to be sentenced to undergo a lengthy period of effective imprisonment? That, in itself, should have the required rehabilitative effect and a suspension of a further term for the maximum period could be too onerous. (f) Where the offence does not merit a custodial sentence, it might be unfair if a time within as long a period as five years the offender has to undergo the full sentence for a crime which would carry its own punishment.

7 7 ʼn Bykomende faktor is die trefwydte van die opskortings voorwaardes. As inwerkingstelling kan geskied vanweë die pleging van ʼn verskeidenheid misdade, veral dié met betreklik beuselagtige verskyningsvonnis (soos aanranding, wat natuurlik ʼn blote bedreiging met geweld omvat) kan dit ʼn verkorte termyn regverdig. [10] In casu the housebreaking was not carefully planned and premeditated. [11] It appears that the Accused in a opportunist way when he found the window to be slightly ajar decided to commit the offence. [12] It is also possible that he had done so as a result of sudden temptation in view of his averment that he had committed the offence out of poverty. [13] The Accused has not exhibited any propensity to commit housebreaking. [14] The Appellant pleaded guilty to the count and he offered to compensate the complainant for whatever loss she might have suffered. [15] In view of the aforesaid I am of the opinion that to impose the maximum period of suspension is too onerous in the circumstances of the present matter.

8 8 [16] I am further of the view that by imposing a period of three years of suspension the same objectives referred to by the presiding Magistrate in his reasons would be achieved. [17] I therefore propose to substitute the five years period of suspension with one of three years. [18] As regards the issue raised in my query (paragraph 6.2 (supra)) the presiding Magistrate indicated that it was brought about by a typing error. [19] If regard is had to the handwritten notes of the presiding Magistrate then it appears to be indeed the position. [20] As regards the issue raised in my query (paragraph 6.3 (supra)) regarding the condition of suspension it appears that the presiding Magistrate is agreeable that it be substituted with a condition which reads as follows, to wit: on condition that the Accused is not convicted of housebreaking with the intent to steal and theft committed during the period of suspension, but that he is of the view that the following has to be added thereto, namely: for which the Accused is not sentenced to less than six (6) months imprisonment without the option of a fine

9 9 [21] I am of the view that it is not necessary to define the offence any further than to refer to housebreaking with the intent to steal and theft. [22] I therefore make the following order: 1. The conviction of housebreaking with the intent to steal and theft is confirmed. 2. The order regarding sentence made by the presiding Magistrate is set aside and substituted with the following: The Accused is sentenced to a fine of Seven Hundred rand (R700) or fourteen (14) months imprisonment wholly suspended for a period of three (3) years on condition that the Accused is not convicted of the offence of housebreaking with the intent to steal and theft committed during the period of suspension. C.J. ZWIEGELAAR ACTING JUDGE OF THE HIGH COURT I agree A.A. LANDMAN JUDGE OF THE HIGH COURT

10 DATED: 01 DECEMBER