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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Not Reportable

A587/06

Delivered 5/6/06

Case No: 222/523/2006

Supreme Court Ref No: H33/06

THE STATE vs BUSISIWE MPULI

REVIEW JUDGMENT

ISMAIL, AJ

The accused was charged with the offence of theft the allegations being that on the 16 February 2006 and at Pretoria she intentionally and unlawfully stole a handbag belonging to Maria Botha.

The accused pleaded guilty to the offence and was questioned by the magistrate in terms of the provision of section 112(1) (b) of the Criminal Procedure Act. The questioning of the accused clearly indicated that she intended to plead guilty to the offence and the court correctly, convicted the accused of the offence.

The accused was a first offender who was 20 years old when she committed the crime she was convicted off. In addition thereto the bag which she stole together with the contents therein was recovered.

The court imposed a sentence of eighteen months direct imprisonment on the accused.

De Vos J addressed a query to the magistrate to the effect:

"Would a suspended sentence not have been more appropriate?"

The magistrate responded as follows:

"The parties’ interest must be protected. The complainant was sitting in a restaurant. The handbag of the complainant was on a chair and the accused went passed (sic), she just took the handbag, hung it over her shoulder and walker (sic) out of the shop! This was an easy target. The public have a right to be protected against the blatant and arrogant behaviour of criminals like the accused. I am still of the opinion that direct imprisonment was an appropriate sentence."

As a consequence of the magistrate's response I direct a query to the Director of Public Prosecutions regarding De Vos J's query and the magistrate's response thereto with the object of obtaining their views on the aspect of the sentence imposed.

The Director of Public Prosecutions expressed the view that is in the light of the circumstances of this matter a fine with an alternative to imprisonment suspended with certain conditions would have been a desirable sentence.

In S v Banda and Others 1991 (2) SA 352 (8) at 3558: Friedman J stated:

""What is necessary is that the court shall consider, and try to balance evenly, the nature and circumstances of the offence, the characteristics of the offender and his circumstances and the impact of the crime on the community, its welfare and concern."

The learned Judge then considered the principles applicable in sentencing an offender considering the well known triad referred to in S v Zinn 1969 (2) SA 537 (A) at 540 G-H.

It is trite law that 'imprisoning first offender should only be imposed in extreme cases' and where it cannot be legitimately avoided - See S v Shirindi 1974 (1) SA 481 (T); S v Fitswana 1974 (1) SA 479 (T) and R v Persadh 1944 NPD 357.

I am of the view that the sentence imposed by the court was excessive and hash and calls for its interference.

Accordingly the sentence is set aside and is substituted with the following sentence:

"The accused is fined R 1 500-00 or failing payment six months imprisonment which is suspended for three years on condition that accused is not convicted of theft or receiving stolen property, during the period of suspension.

M ISMAIL

ACTING JUDGE OF THE HIGH COURT

I concur

E M PATEL

JUDGE OF THE HIGH COURT

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