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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: A0123/2019

In the matter between:

JEKEQA: ANDILE ARNORD                                                             APPELLANT

AND

THE STATE                                                                                        RESPONDENT

                                                                                                        

JUDGMENT

 

TWALA J

[1] Central to this appeal is the issue whether or not the sentence of 9 years imprisonment imposed by the Regional Court Magistrate, Protea, for the theft of 6 pairs of shoes worth R1 846 in value is shockingly inappropriate.

[2] It is common cause that the appellant was convicted of theft of 6 pairs of shoes to the value of R1 846 by the District Court when he pleaded guilty to the charge. He was then referred to the Regional Court for sentencing proceedings due to his list of 15 previous convictions on the same offence. At the time the appellant was serving a 3 year term of imprisonment for a subsequent offence.

[3] It is apparent from the record that a number of the previous convictions of the appellant carry suspended sentences which may be put into effect. Apart from the suspended sentences that may be put into effect, the personal circumstances of the appellant were that he was 45 years old with three children ages 16, 9 and 4. The mother of the children died some time ago and he is the bread winner. He committed the offence with the intention to sell the shoes in order to buy food for his children.

[4] It is contended by counsel for the appellant that 9 years imprisonment is shockingly in appropriate in this case. The Court a quo failed to take into account the value of the items that were stolen and the fact that they were recovered and the complainant did not suffer any loss. The appellant, so the argument goes, has not been declared a habitual offender and the sentence imposed is more than that imposed on habitual offenders. At the very least the Court a quo should have taken into account that the appellant was already serving 3 years on a subsequent offence and order the 9 years sentence to run concurrently with the 3 year sentence.

[5] It is trite that sentencing is pre-eminently the domain of the trial Court. The Court of appeal may only interfere with the sentence imposed by the trial court if it is of the view that the trial Court did not exercise its discretion judiciously and correctly. Put differently, if the Appeal Court is of the view that the sentence imposed is disturbingly inappropriate.

[6] In the case of S v MALGAS 2001 (1) SACR 496 (SCA) the Supreme Court of Appeal stated the following:

“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it was the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing of the trial Court.”

[7] I am unable to agree with counsel for the appellant that the Court a quo misdirected itself by imposing a 9 year imprisonment sentence when the value of the stolen goods is R1846 and when no loss has been suffered by the complainant since the goods were recovered. It is true that the goods were recovered. However, it is the diligent work of the security guard that caused the perpetrator of theft to be apprehended. It is not through the good heart of the appellant that the stolen goods were recovered.

[8] However, I am unable to agree with the Court a quo in that since its experience is that suspended sentences are rarely put into effect, therefore the appellant must be sentenced in the manner in which he was sentenced. It is a trite principle of our law that punishment must fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstances.

[9] In S v Qamata 1997 (1) SACR 479 (E) 483a the Court stated as follows:

“An appropriate sentence actually means a sentence in accordance with the blameworthiness of every individual offender. The punitive sanction should be proportionate in severity to the degree of blameworthiness or seriousness of the conduct.”

[10] In S v Mhlakaza 1997 (1) SACR 515 (SCA) the Supreme Court of Appeal stated the following:

“The object of sentencing is not to satisfy public opinion but to serve the public interest. A sentencing policy that caters predominantly or exclusively for public opinion, is inherently flawed. It remains the court’s duty to impose fearlessly an appropriate and fair sentence even if the sentence does not satisfy the public.”

[11] I am of the respectful view therefore that the Court a quo misdirected itself in not taking into account that the appellant has previously been handed suspended sentences which may be put into effect now that he is serving a prison sentence. Further the Court a quo failed to take into consideration the cumulative effect of the present sentence the appellant was serving, the sentence being imposed and the suspended sentences that may be brought into operation. The sentence imposed in this case is, in my respectful view, disproportionate to the offence of theft for goods valued at R1846. It is my considered view therefore that the Court a quo misdirected itself in this regard.

[12] In the circumstances, I make the following order:

I. The appeal against the sentence is upheld;

II. The sentence of 9 years imprisonment is set aside and replaced with the following sentence:

I. The appellant is sentenced to 4 years imprisonment.

 

 

 

 __________________

TWALA M L

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

 

I agree

 

_________________

 

KEKANE P

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

 

 

Date of hearing: 27^th May 2019

Date of Judgment: 11^th June 2019

For the Applicant: Adv. S Simpson

Instructed by: Legal Aid SA

Tel: 011 870 1480

For the Respondents: Adv.  V H Mongwane

Instructed by: National Director of Public Prosecutions

Tel: 011 220 4228

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