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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: A512/2017

22/7/2020

In the matter between:

Clement Nkosinathi Nkosi                                                                                   First Appellant

Bongani Bethuel Magasela                                                                                  Second Appellant

and

The State                                                                                                               Respondent

JUDGMENT

Mogale AJ

Introduction

[1]        The appellants were convicted on one count of theft in the Regional Court, Springs. On 11 July 2017 the appellants were sentenced to 5 (five) years’ imprisonment.

 

[2]        This appeal is with the leave of the trial court and lies only against sentence. The appellants were legally represented during the trial and are out on bail pending the outcome of this appeal.

 

[3]          The appellants pleaded guilty in terms of Section 112(2) of the Criminal Procedure Act 51 of 1977 (‘ The Act’) and made the following admissions:

3.1         That they unlawfully and intentionally stole 1000 meters x 10 millimetres SWA copper cable to the value of ± R60 000, 00

3.2         That the property belonged to Ekurhuleni Metro Municipality

 

The Issue

[4]        Counsel for the appellants submitted that the sentence imposed by the trial court should be upheld and substituted with a non-custodial sentence in terms of Section 276(1) (h) of the Criminal Procedure Act 51 of 1977, coupled with a term of imprisonment, which is wholly suspended on appropriate conditions on the basis that the sentence is disproportionate to the crime. Counsel for the appellants further submitted that the trial court misdirected itself by not having due regard to the appellants personal circumstances, by failing to take into account that the appellants were remorseful. Pertinently, the trial court over emphasised the seriousness of the offence  for example the  trial court stated that if  the appellants were charged with the  ‘Criminal Law Amendment Act 18 of 2015 and were found guilty for stealing  copper cable that had been meted out by that Act, the sentence  of  ± 30 years’ imprisonment would have been an appropriate sentence to be imposed.’ Counsel for the respondent submitted that the trial court did not misdirect itself and a sentence of 5 years’ imprisonment is an appropriate sentence.

Principles guiding Appeal Courts dealing with appeals against sentence

[5]        It is trite that a Court when sentencing an accused person must have regard to the triad of factors[1] namely an accused persons  personal circumstances, the seriousness of the offence and the interest of the community. The sentencing court must bear in mind  the main purpose of sentence which is deterrence, retribution, reformation and prevention.

 

[6]        In S v Rabie 1975 (4) SA 855-857 (A) Holmes, JA, as he then was, said:

“In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court hearing the appeal-

(a) should be guided by the principle that punishment is “pre-eminently a matter for   the discretion of the trial Court, and

(b) should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been “judicially and properly exercised”

 

[7]        In S v Salzwedel and Others 2000 (1) SA 786 (SCA) at 790 D_F Mahomed CJ said:

“An appeal court is entitled to interfere with a sentence imposed by the trial court in a case where the sentence is “disturbingly inappropriate” or totally out of proportion to the gravity or magnitude of the offence, or sufficiently disparate, or vitiated by misdirections of a nature which shows that the trial court did not exercise its discretion reasonably. It has also been held that:

“the over-emphasis of the effect of the appellant’s crimes and the underestimation of the person of the appellant, constitute….a misdirection and in the result, the sentence should be set aside”. This must be equally true when there is an over-emphasis of the personal circumstances of the accused an under-estimation of the gravity of the offence.”

 

[8]        It was also pointed out by the court in the case of R v Karg 1961 (1) SA 231 (A) at 236A-B “that while the deterrent effect of punishment has remained as important as ever, the retributive effect, whilst by no means absent from the modern approach to sentencing, has tended to yield ground to aspects of prevention and correction. . . .  If sentences for serious crimes are too lenient the administration of justice may fall into disrepute and injured persons may incline to taking the law into their own hands.”

 

[9]        Counsel  for the State during sentencing proceedings led the evidence of Mr  Hunt,  the Chief Engineer   employed at the Ekurhuleni Municipality for the past 33 years. He has known the appellants for approximately 6 years.  He said that the appellants are electricians and at times would serve as foreman.  The  stolen cable  was placed in the first appellant’s custody for safekeeping.  Mr Hunt said that the value of the stolen cable was approximately

             R 60,0000,some of which was recovered. He said that  cable theft is prevalent in Ekurhuleni and  it is difficult to apprehend the perpetrators. The Municipality spends approximately R3 million a month on security services. Over and above this costs,  is the loss of millions of rands as a result of theft of equipment and the labour costs for re- installation. Mr Hunt  conceded that a large part of  theft from the Munipality relates to copper conducting cables which have been removed.

 

[10]      Mrs Zikalala, a probation officer employed by the Department of Social Development submitted two reports regarding the appellant’s personal circumstances. In respect of the first appellant she recommended correctional supervision but in her supplementary report, she recommended a suspended sentence.  Mrs Zikalala also prepared a report on behalf of the second appellant wherein  she recommended correctional supervision.

 

 [11]     Mrs Diphoko  is the school principal of Tsakane Adult Care Centre. She  testified in mitigation of sentence on behalf of the second appellant. She said since 2009,  the second  appellant  offered  extra   Mathematics and Science lessons  to the grade 12 learners at her schoo. This was done on a voluntary basis.  Mrs Vilakazi  is a school principal at Michael Zulu Primary School. She confirmed that  the second appellant  voluntarily bought  uniforms for  learners from her school who were   in need.

 

First Appellant’s personal circumstances

[12]     According to the probation officer’s report the first appellant was born on 10 April 1974. At the time of the sentencing proceedings he was 46 years’ old. He   was raised by his  parents where  he grew up in a secure and happy family.  He completed his matric and went on to study Electrical Engineering at Isidingo Technical College. During  the period 1999 until  2009 he was employed by the Department of Correctional Services as a Correctional Officer. In  2009 he was employed at Emalahleni Municipality as an electrician and is currently employed as a supervisor at  Ekurhuleni Municipality. He is married with four children which he supports.The first appellant also supports his late sister’s children financially and emotionally. He is a  first offender who pleaded guilty to the charge.  He spent  four months in prison until he was released on  bail pending petition. 

 

Second Appellant’s personal circumstances

[13]     According to the  probation officer’s report the  second appellant was born on the 21 August 1982. At the time of sentencing proceedings he was 34 years’ old.  He is the eldest child in his  family  and has two siblings. The  second appellant grew up in a secure and stable  family and was further supported  by his maternal grandmother and uncle.  After completing grade 12, he registered with the University of Pretoria to study towards a  Bachelor of Science and Statistics Degree.  Unfortunately because of  a lack of finances, he was forced to deregister during  his second year of study. In 2006 he enrolled  for a 3 year Learnership Program at the Ekurhuleni Municipality where he obtained a Diploma in Electrical and Mechanical Engineering. He is currently registered for a Bachelor of Science in Operational Research at the University of South Africa. He  is also in the  process of obtaining a certificate of compliance in Electrical Engineering. The appellant is  married with three minor children aged twelve, seven and two which he supports. He is the  breadwinner in the family. He  tutors Mathematics and Science to grade 12 learners  and purchases uniforms for disadvantaged learners. The appellant pleaded guilty to the offence and takes responsibility of his wrong doings. He has no previous convictions. The appellant spent four months in prison before he was released on  bail pending petition.

 

The interests of the community

[14]      The trial court found that the offence committed was serious and prevalent   not only in the courts  jurisdiction but in South Africa. The trial  court had regard to the impact the theft of cables has not only on the Municipality but on communities itself. The trial court strongly emphasised that the Municipality spends at least R3 million a month on security services alone.The theft of copper cables conducting electricity to homes also has a negative effect on the economy and lives of those who pay for and expect an uninterrupted supply of electricity. The trial court emphasised that  the Ekurhuleni Municipality suffers huge losses because of this type of criminality and the message should be sent out that such conduct will be severely punished by the Court.

 

The time spent  in custody awaiting trial

[15]     Counsel for the appellants submitted that the  appellants have  served four (4) months in custody  which should be taken into account, Counsel further submitted  that correctional supervision coupled with a suspended sentence would be an  appropriate sentence  and would portray a more balanced sentence.  .

 

Remorse

[16]     Counsel for the appellants submitted that the appellants  pleaded guilty.  Counsel for the appellants  further submitted that the trial  court   misdirected itself by failing to  give due weight  to the fact that the appellants pleaded guilty, that they did not  plan the crime and further that they showed remorse. It is common cause that the cable was stolen from a warehouse and  not from the ground. From a careful reading of the trial court’s judgment on sentence there was no basis for the comment  made by the trial court that the money realised from the theft was used to buy the school uniforms.

 

[17]     The trial court on the other hand was not persuaded that the appellants were remorseful of their actions to the extent that the appellant’s did not explain why they comitted the crime and what prompted them to plead guilty (see S v Matyityi 2011 (1) SACR 40 (SCA).   The appellants’ plea explanation is silent on this. However, according to the probation officer’s report the second appellant wished that he could rewrite his wrongs and in retrospect would not have committed the crime. Pertinently the trial court stated during the hearing that the offence attracted a sentence of 30 years’ imprisonment in terms of the minimum sentence legislation. This is unfortunate. The appellants were not charged in terms of the minimum sentence legislation and the fact that the trial court was minded that a sentence of 30 years was applicable, is in itself a serious misdirection on the part of the trial court.

 

[18]     It appears that the appellants obtained leave to submit further evidence on sentence after  being  sentence. Further evidence was by way of affifdavit. The nub of their submissions is that they remained employed in the same supervisory postions that they enjoyed prior to their conviction.The first appellant has two children that are in a tertiary institution. The second appellant has completed his studies and has become a father again.

 

[19]     In our view the trial court misdirected itself by over emphasising the seriousness of the offence. The trial courts comments that the offence attracted a sentence of 30 years’ imprisonment was a further serious misdirection on the part of the trial court. There is no explanation from the appellants employer why it elected not to terminate the appellants contract of employment. The appellants are still  gainfully employed.  Both appellants were sentenced  three years’ ago and have remained  employees of the complainant and have been promoted. It will not serve the appellants or society  well to incarcerate the appellants after all this time . Both  have served 4 months in custody prior to been released on bail. It bears mention that some of the stolen cable was recovered.

 

[19]     There is no indication on the record that the trial court considered correctional supervision. It is trite  that  correctional supervision is regarded as a severe punishment even for serious offences and it is not a lenient sentence. The severity of the sentence can be increased by combining the sentence with another sentence such as a suspended sentence or even a fine. Theft of cable does not only have a  negative effect on the Municipalty itself but on South Africa. The economic loss on the Municipality is huge as Mr Hunt’s evidence indicated. The regional magistrate correctly held that the offence is serious and prevalent. But a sentencing court must always guard against over-emphasizing any one of the factors set out in S v Zinn supra.

 

[20]      In our view a sentence of 3(three) years’ imprisonment, wholly suspended for  a period of three years’ on condition the appellants are not found guilty of theft  within the period of suspension and a further 24 (twenty-four) months of correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977,  is an appropriate sentence as it fits the criminal, the crime and society. It also meets the purpose of punishment being deterrent, preventive, reformative and retributive.

 

Order

In the result, i would make the following order:

1.   The appeal against sentence in respect of  the first and second appellant  is upheld.

2.   The sentence of 5 (five) years’ imprisonment imposed on both the Appellants is set aside and replaced with the following sentence:

2.1. Both appellants are sentenced to three years’ imprisonment, wholly suspended for a period of three years on condition  the appellants are not convicted of theft or similar offences within the period of suspension which sentence is antedated to 11 July 2017.

2.2. Both appellants are sentenced to 24 (twenty-four) months of correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977, during which period the following conditions shall apply:

2.3. Both appellants must report to the Clerk of Court, Springs Magistrate’s Court, which is located at Welgedacht Road (R555), Springs on the 3^rd August 2020. The Clerk of Court must facilitate with the Head of Modderbee Correctional Services which is located at Modderbee Road, Modderfontein 76-Ir, Benoni for the implementation of Correctional Supervision. Thereafter, the appellants must be admitted into the system of Correctional Services at the office of Administration and Liberation under the management of the designated official;

2.4. Both Appellants will be subjected to monitoring at a place and at times as determined by the National Commissioner of Correctional Services. The appellants will be placed in the high risk management category;

2.5. Both Appellants will be subjected to house detention for the duration of the correctional supervision periods at times decided upon by the National Commissioner of Correctional Services (or an official with delegated authority) taking the following into account:

2.5.1 Employment;

2.5.2 Religious activities;

2.5.3 Consultations with medical practitioners; and

2.5.4. Free time to attend to personal matters (including any matters incidental or related to the minding of the minor child);

2.6. The first appellant is to reside at 13 Cormonent Street, Crystal Park, Benoni and the second  appellant is to reside at 2717 Mashize Street, Tsakane, Benoni for the duration of their correctional supervision sentence. Should there be a need to move from the address on record they will be expected to inform the Commissioner of Correctional Services in writing about such a change of address;

2.7. Both appellants are to be restricted to the Magisterial District of Ekhuruleni. Should the appellants need to leave the Magisterial District for any reason, they must apply for such in writing with the National Commissioner of Correctional Services (or an official with delegated authority);

2.8. Both appellants must perform 16 hours of community service per month for the duration of their correctional supervision sentence;

2.9 The appellants must subject themselves to an assessment with a social worker who may prescribe a program or intervention deemed appropriate;

2.10 Both appellants must provide proof of their employment on a quarterly basis;

2.11 Both appellants are prohibited from committing any offence similar or related to theft;

2.12 Both appellants are precluded from consuming intoxicating liquor and drugs not prescribed by a medical practitioner;

2.13 Both appellants must comply with any reasonable instruction issued by the

Commissioner of Correctional Services in the administration of the sentence imposed.'

2.14 The sentence imposed in paragraph 2 is not antedated.

 

 

 

 

                   MOGALE, AJ

                                                                                 Acting Judge of the High Court

 

 

I agree and it is so ordered

 

 

                 CARELSE, J

                                                                                        Judge of the High Court

 

 

 

Appearance:

 

Attorney for the First and Second  Appellants:                 Mr L.U Vorster

                                                                                                071 364 3662

 

Counsel for the Respondent:                                               Adv P.W Coetzer

                                                                                                082 730 2668

 

 

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