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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Reportable: NO

Of Interest to other judges: NO

Revised: NO

CASE NO: 204/19P

 

In the matter between:

 

SIBUSISO SIBEKO                                                                                                       Appellant

 

and

 

THE STATE                                                                                                                   Respondent

JUDGMENT

MAKHUBELE J

Introduction

[1]          This appeal, with leave of the trial court, is against the sentence imposed on the appellant by Magistrate Mr Knight ('the Magistrate') in the District of Ekurhuleni South East, sitting at Brakpan where he was arraigned on one count of theft .

[2]          According to the charge sheet and charges put to him, the State alleged that on or about 10 June 2018 and at or near Brakpan, the appellant did unlawfully and intentionally steal two aluminium step ladders and one screw driver, valued at R2620.00, the property of Paul Van Eck.

[3]          He pleaded guilty. His attorney, Ms Majola, confirmed the plea of guilty and proceeded to read into the record his prepared statement in terms of Section 112 (2) of the Criminal Procedure Act, No. 51 of 1977. In the statement the appellant acknowledged that he understood the nature of the charges , that his plea of guilty was made freely and voluntarily and that he was in his sound and sober senses. I will deal with the contents of the statement in the subsequent paragraphs.

[4]          Initially, the Magistrate was not satisfied that the appellant admitted all elements of the offence. The statement was amended to address the issues that he had raised. The appellant was then found 'guilty as charged' and sentenced to three (3) years imprisonment.

[5]        The appellant made an application for leave to appeal the sentence, which was duly granted.

[6]          In granting him leave to appeal, the Magistrate indicated that he was satisfied that a custodial sentence was appropriate, however, due to the fact that he had imposed a maximum sentence that he could , and 'the fact that the State has applied to put a suspended sentence of direct imprisonment into operation another court may come to the conclusion that a lesser sentence should be imposed'

[7]          The appeal before us is only against the three years direct imprisonment .

 

Relevant background facts leading to the conviction and sentence

[8]          The events leading to the appellant's arrest and arraignment on a charge of theft appear from his guilty plea explanation statement. The relevant parts of the statement read as follows:

"4.       I admit that on the 10'h of June 2018 at Brakpan and within the jurisdiction of the honourable court, I did unlawfully and intentionally steal the following items, to wit: 2x aluminium step ladders and 1 x screw driver.

4.1               On the day in question I went inside the yard and called out for anyone from the house to come out. The complainant owed me money for a painting job that I had done for him. Nobody came outside. I did not have money for transportation to go back home so I decided to take the step ladders so I could go and self them at the scrapyard to get myself money for transport. The nighbours saw me while I was taking the step ladders and started shouting and calling out to the complainant. The complainant came out and asked me what I was doing. I told him I'm taking the step ladders so I can sell them to replace the money he owes me. The nighbou called the police and I was arrested.

4.2               I admit that I had the necessary intention to appropriate and permanently deprive the owner of his lawful possession to the items. The lawful owner being Paul Van Eck and the value of the items being R2 620.00 '

4.3               I understand the seriousness of the offence and I am remorseful for my actions and would like to apologise to the owner.

4.4               I admit that my actions were wrongful and unlawful as I was not given permission to take the step ladders and screw driver. "

 

[9]          The State accepted the guilty plea and indicated that it was in accordance with its version.

 

Conviction

[10]      The Magistrate was initially not satisfied that the appellant had the necessary intention to appropriate and permamnently deprive the owner of his property because, although he admitted to have the requisitite intention in paragraph 4.1, he then appear to raise a ground of justification for taking the property in paragraph 4.2. In this regard, the Magistrate requested the appellant's attorney to canvas this issue because it appeared from a holistic reading of his statement that paragraph 4.2 could also be understood as a ground for mitigation of sentence if he accepted that his actions were wrongful and unlawful, which he did not acknowledge.

[11]       The appellant's attorney added a paragraph (4.4) in the statement to address the issues raised by the Magistrate. The paragraph reads as follows:

' I admit that my actions were wrongful and unlawful as / was not given any permission to take the step ladders and the screw driver".

[12]       The appellant was made to sign the newly added paragraph 4.4. There is no indication in the record of proceedings that his attorney raised the Magistrate's concerns with him or whether the Magistrate questioned him further with regard to the newly added paragraph in terms of which he acknowledged that his actions were wrongful and unlawful.

[13]       The appellant pleaded guilty, and in the absence of an irregularity in the manner that he was found guilty, which is not an issue here, this court is only empowered to adjudicate on the appeal before it, namely, whether a sentence of three years direct imprisonment is an appropriate sentence.

 

Reasons for Sentence

[14]       The Magistrate took into account the usual factors such as his age, which was indicated as 36 years and that he was single with two children. He passed Grade 10 and survived by doing odd jobs, earninng about R250.00 per week. He also took into account the seriousness and prevalence of the offences of this nature around the area.

[16]       His record of previous convictions, with six relevant to the circumstances of this case were also taken into account. These are:

(a)          In 2000 he he was sentenced to 12 months imprisonment for being found in possession of house breaking and car breaking instrument. Three months were suspended for five years.

(b)          In 2002 he was convicted of robbery and sentenced to three years imprisonment.

(c)          In 2009 he was convicted of theft and sentenced to nine months, wholly suspended for five years.

(d)          In 2010 he was convicted of robbery and sentenced to four years imprisonment in the regional Court. He was placed on correctional supervision on 07 November 2011 until 30 November 2014.

(e)          Before the expiry of his correctional supervision he was found guilty of theft on 20 July 2012 and sentencedd to three years imprisonmnet.

(f)           He was again convicted of theft on 02 September 2016 and sentenced to 18 months imprisonment, wholly suspended for five years.

[17]       He committed the current offence during the period of suspension, on 10 June 2018.

[18]       The Magistrate noted the fact that the various detentions, correctional supervision and suspension of his sentences did not have any deterrent effect on the appellant.

[19]      He also considered referring the appellant to the Regional Court for sentencing but did not proceed with this because the State indicated its intention to make an application to put into effect the 18 months suspended sentence.

[20]      A fine was considered an inappropriate sentencing option , regard being had to the previous convictions and his ability to pay any kind of fine.

[21]      After taking into account all relevant factors, including the purpose of sentence, the Magistrate ruled that an appropriate sentence was direct imprisonment and that the maximum sentence that he could impose was justified. Accordingly, the appellant was sentenced to three years imprisonment and also declared unfit to possess a firearm.

 

Grounds of appeal

[22]       In his heads of argument and oral submissions counsel for the applicant argued that the trial court misdirected itself in failing to consider adequately or at all the circumstances under which the offence was committed. He provided the following instances of factors that were not properly considered.

(a)           the fact that the appellant's actions were motivated by what he referred to as 'severe economic pressure' because he needed the money for transport to go home. He referred to the judgment in the matter of S v Thethe [2002] JOL 9464 (T).

(b)           the complainant owed him money for services rendered and he ignored the appellant's call to come out as he wanted to avoid paying him.

(c)           the appellant did not resist arrest, he explained his motivation for appropriating the items immediately when he was confronted by the neighbours.

(d)           the impact that the failure to pay his money had on his life. For instance, on his ability to sustain his children.

[23]      Counsel for the appellant acknowledged the fact the appellant has multiple previous relevant offences and as such he is a repeat offender. However, he argued that the Magistrate should have taken into account the fact that there are periods when he he was not convicted of any offence, such as the period between 2002 and 2009 as well as between 2012 and 2016.

[24]      He also argued that the Magistrate should have enquired whether the money that the complainant owed the appellant was due and payable or not.

[25]      The Magistrate was also criticised for not asking whether at the time of the commission of the offence the appellant was in 'actual ongoing and permant employ of the complainant as an employee or whether the appellant was simply appointed as an independent contractor for a single task'. Apparently this would have made a difference because if he was not a permamnt employee, the Magistrate was wrong to emphasize the seriousness of the theft as if it was committed in a workplace situation. The 'personality of who the complainant was should have been a neutral factor' , so the argument continued.

 

The respondent's response

[26]      Counsel for the respondent referred to all the factors that the the Magistrate has taken into consideration to advance his argument that the sentence was appropriate under the circumstances.

 

The law

[27]       It is trite that the appeal court can only interfere with the discretion of the lower courts to impose sentences only if:

[27.1]   There was an irregularity during the trial or sentencing of an accused person.

[27.2]   The lower court misdirected itself in respect of the imposition of the sentence.

[27.3]   The sentence imposed by the trial court could be described as disturbingly or shockingly inappropriate.

[28]       The question is not whether the sentence is right or wrong, but rather whether the lower court exercised its discretion properly and judicially.[1]

 

Discussion and conclusion

[29]      Most of the appellant's arguments are pure speculation because they were not canvassed in the trial court,

[30]       There is no evidence that the appellant was under severe economic conditions or poverty. The Magistrate took into account the fact that he was owed money, but at the same time he cautioned against overemphasizing this fact because the court cannot allow persons to resort to self-help and this would create chaos in the justice system.

[31]       The fact that he pleaded guilty was taken into account. He balanced this with the interest of society, which expects courts to impose appropriate sentences for serious offences, particularly where persons resort to self-help.

[32]       It is common cause that the appellant was still under a suspended sentence when he committed the offence in question. His previous convictions clearly indicate his propensity to commit similar offences. He was given several opportunities to rehabilitate himself, but he did not turn his life around.

[33]      The record is clear that the appellant was not an employee of the complainant but only did a specific job, painting. The Magistrate also indicated during sentencing that the appellant survived by doing odd jobs. The criticism that he should have enquired whether their relationship was employer­ employee is not justified. The identity of the complainant was mentioned in the charge sheet because it must be mentioned. The appellant brought the issue of the work that he did which he was not paid for

[34]      I cannot see any misdirection that would entitle this appeal court to interfere with the discretion of the sentencing court. ACCORDINGLY, the appeal stands to be dismissed.

 

Order

[35]      Consequently, I make the following order.

[35.1]   The Appeal against sentence is dismissed

 

 

 

TAN MAKHUBELE

Judge of the High Court

 

 

 

I agree and it is so ordered

 

 

 

AC PRINSLOO

Acting Judge of the High Court

 

 

 

 

 

APPERANCES:

Appellant:                 Mr Suleiman Ebrahim

Attorney

Instructed by Legal Aid South Africa

 

 

The State:                 Advocate K Germishuis

On behalf of the Office of the Director of Public Prosecututions, Pretoria.

 

 

Date heard:               26 February 2020

Date delivered:         08 April 2020

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