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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

PRETORIA

CASE NO: PR27/2008/CP

HIGH COURT REF NO: 858

In the matter between:

THE STATE APPELLANT

versus

MANDLA PAT NGWENYA RESPONDENT

JUDGMENT

MAKHAFOLA, AJ:

INTRODUCTION:

[1] This matter comes before me by way of review from the Magistrate Court Pretoria. After reading the record I sent a query to Magistrate in the following terms:

1. Why would a fine or correctional supervision be not appropriate for a first offender who is employed, married and has 2 children?

2 What is the value in money of the stolen cable?

3. Is the sentence of 3 years imprisonment not shockingly harsh in the circumstances of this case?

[2] The learned Magistrate answered the query in a long 4 paged document quoting a authorities to bolster the court's sentence, but the answers did not directly deal with the 3 Questions raised. A submission relating to the third question is that this is not the type of offence that warrants the imposition of a fine or correctional supervision,

[3] I referred the query and the answers thereto together with the record of proceedings to the office of the Director of Public Prosecutions for their attention and reply. I received the reply from the said Directorate which mas signed by two Advocates who differed on the Sentence, I thank that office for the helpful comments.

[4] It has to be noted that the sentencing powers are solely the duty of the presiding officer who tries and convicts the accused.

|5] A wide discretion is allowed to a trial court In the assessment of punishment except in the case where a minimum sentence is set by statute. The imposition of punishment has long been considered to be "pre-eminently a matter for the discretion of the trial court," Vide: RV MAPUMULO 1920 AD 56

[6] The discretion must be exercised in a judicial manner. Vide: RV MYBURG 1922 AD 249

RV RAMANKA 1949 (1) SA 417 (A)

SV LETSOLO 1970 (3) SA 476 (A) And at the same time a wider discretion is accorded to the court to individualise the sentence which discretion is guided by authority and precedent of the past decisions of higher courts which leads to consistency The Zinn triad has not gathered dust and any sentencing court over-emphasising any portion of the triad would issue an injust and unfair sentence. There should not be any over-emphasis of the interests of the offender, the victim or the community.

Vide: SV OOSTHUIZEN EN 'N ANDER 1996 (1) SACR 475 (0)

[7] In SV SCHEEPERS 1977 (2) 154 (A) It was staled that imprisonment is not the only punishment which is appropriate for retributive and deterrent purposes. Imprisonment should not be lightly imposed if the objective of punishment can be met by another form of punishment. The imposition of a fine is a particularly appropriate punishment in a case where the accused's unlawful conduct was directed towards monetary gain. Where materialism as motive plays a big part in the unlawful conduct it is usually a hard blow to the offender if he has to part with his illegally gained profits or if that which he held out as a prospect to himself is converted to a loss. This complies with the requirements of retribution as well as deterrence (at 155 H).

[8] In casu the value, sounding in money. of the cables is unknown to the trial court. The appeal court will not interfere in a sentence where no misdirection was committed by a lower court because this may tend to restrict a presiding officer's exercise of discretion to impose a reasonable and fair sentence. Where there is overemphasis of circumstances of the Zinn triad or an omission to consider all the circumstances required to be considered for sentencing the best interests will not be served because there would be no balance,

[9] The period of imprisonment must be reasonable in relation to the seriousness of the crime. I am of the view that during sentencing the trial court overemphasized the seriousness of the offence without balancing it with the money value of the cable, the personal circumstances of the offender and the first offendership. The trial court made casual reference to the alternative punishments, and did not weigh them properly against the interests of the offender, the victim and society before rejecting them,

[10] This court is entitled to interfere in the sentence because the trial court misdirected itself by finding that the only appropriate sentence, for a first offender, where no money value of the cables is known, and where there is overemphasis of the seriousness of the offence, was direct imprisonment without an option of a fine. The sentence is shockingly harsh and inappropriate in the individual circumstances of the accused.

[11] In the result, I suggest that the conviction be confirmed and the sentence imposed by the trial court by set aside and be substituted by the following:

ORDER:

The accused is sentenced to a fine of R500.00 or 12 months imprisonment antedated in terms of section 282 of Act 51 of 1977 to the date when the sentence was Imposed by the trial court.

K. MAKHAFOLA

ACTING JUDGE OF THE HIGH COURT

I agree, and it is so ordered

L. MOLOPA

JUDGE OF THE HIGH COURT

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