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IN THE HIGH OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Case No: A344/2021

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: YES

11 NOVEMBER 2022

 

In the matter between:

B CHIMUTANGA                                                                                     Appellant

and

THE STATE                                                                                             Respondent

 

JUDGMENT

 

NEUKIRCHER J:

 

1]                  The Appellant was arraigned in the Regional Court at Vereeniging on one count of theft read with section 155(2) and section 264 of the Criminal Procedure Act. 108 of 1997 (CPA), as amended. read further with section l of the Criminal Matters Amendment Act, 18 of 2015, read further with part 2 or part 4 of schedule 2 of the Criminal Law Amendment Act, l 05 of 1997 for theft of ferrous and or non-ferrous metal forming part of the essential infrastructure.

2]                  On 14 August 2020 he plead guilty in terms of section 112(2) of the Criminal Procedure Act, l 08 of 1997 CPA and was subsequently convicted. He was represented throughout the trial.

3]                  On 16 October 2020 he was sentenced to 13 (thirteen) years imprisonment of which 3 (three) years were suspended for 5 (five) years.

4]                  Leave to appeal was sought and granted against sentence only.

AD SENTENCE

5]                  In S v De Jager[1], Holmes JA stated the following principle as regards the discretion of a court of appeal to interfere with the sentence imposed by a lower court:

"It would not appear to besufficiently recognised that a Court of appeal does not have a general discretion to ameliorate the sentences of trial Courts. The matter is governed by principle. It is the trial Court which hos the discretion, and a Court of appeal cannot interfere unless the discretion was not judicially exercised, that is to soy unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard on accepted test is whether the sentence induces a sense of shock, that is to say if there is a striking disparity between the sentence passed and that which the Court of appeal would have imposed. It should therefore be recognised that appellate jurisdiction to interfere with punishment is not discretionary but, on the contrary, is very limited.''

6]                  And in S v Pieters[2] it was held that the general approach of a court of appeal, when considering an appeal against sentence, should be: "Met betrekking tot appelle teen vonnis in die algemeen is door herhaaldelik in talle uitsprak van hierdie Hof beklemtoon dot vonnisoplegging berus by die diskresie van die Verhoorregter. Juis omdat dit so is, kan en sol hierdie Hof nie ingryp en die vonnis van 'n Verhoorregter verander nie, tensy dit blyk do thy die diskresie wat aan hom toevertrou is nie op 'n behoorlike of redelike wyse uitgeofen het nie. Om dit ondersom te stel: door is ruimte vir hierdie Hof om 'n Verhoorregter se vonnis te verander alleenlik as dit blyk dot hy sy diskresie op 'n onbehoorlike of onredelike wyse uitgeoefen het. Dit is die grondbeginsel wat a/le appelle teen vonnis beheers."

7]                  It is common cause that the minimum sentence in respect of the charge was 15 years[3]. A pre-sentencing report was filed in which the appellant's personal circumstances were detailed and the recommendation made that the correctional supervision should be imposed as:

"...it aims to provide a means of rehabilitation within the community, thus preserving the important links which the offender may have with his family or community structure. The probation officer is of the opinion that this is a suitable sentence as it will allow the accused to be able to provide for his family while participating in rehabilitation programmes

that will encourage him to take steps towards correcting his criminal behaviour."

8]                  In rejecting this recommendation, the court took into account several factors which include the prevalence of the crime and the theft of fuel from Transnet's pipelines, the damage that is caused to essential infrastructure, the cost of repairing the damaged fuel pipes, the cost of employing enough security guards to guard against these crimes and the fact that these losses and costs have to be recovered from South Africa's overburdened tax payers. The Court also took into account that the appellant's role was to transport the stolen fuel from the scene to its destination and when he was contacted to ask to provide transport, he knew full well that a crime was going to be committed.

9]                  The Magistrate also took into account the fact that the truck used to transport the fuel belonged to the appellant, that he was 44 years old and married with 2 young children and the sole breadwinner: that since his arrest his family have suffered financially[4], that his truck had been impounded and that he had previously been (by all counts) a model citizen and that he plead guilty at the outset and so obviated the necessity and the costs of a trial.

10]    The Court found that to impose a sentence of correctional supervision would send the wrong message to others intent on committing such a crime, but found sufficient mitigating circumstances to deviate from the minimum sentence of 15 years.

THE "NEW EVIDENCE"

11]              Appellant argues however that the fact that appellant's truck had been impounded by the police was "either disregarded or the Honourable Regional Magistrate failed to consider it properly or at all as a relevant factor in sentencing."[5] He argues that the Magistrate also failed to consider that the truck may well be forfeited to the State and this issue was not investigated prior to sentencing.

12]              In his heads of argument, appellant's attorney then proceeds to provide this court with information regarding the forfeiture of the truck and the value of that truck and submits that these are "of paramount importance and factors which play a direct rote in determination of an appropriate sentence when the imposition of a sentence is considered."[6] He has attached to his heads firstly, the preservation order granted on 19 December 2020 and secondly the forfeiture order which was postponed by Kumalo J on 17 January 2022.

13]              In argument, the attempt to place new evidence before the court was abandoned, however, it is necessary to point out that whilst it is certainly possible to place further evidence before a court of appeal, in my view the manner in which appellant attempted to do so is to be discouraged

- information is only elevated to the level of evidence when stated under oath. This is why affidavits are placed before court and witnesses at trial are administered an oath or affirmation. Submissions in vacuo in Heads of Argument are of no use, and attaching documents to those Heads to support a new submission that does not appear from a transcript, are equally meaningless.

14]       It is important to note that the Magistrate did take into account the fact that the appellant's truck had been impounded - this he did when weighing up the personal circumstances of the appellant[7]. He also took into account the fact that the stolen fuel had been recovered[8].

15]              The appellant argues that the Magistrate failed to take into account the possibility that he would not re-offend and that this is a material factor when considering sentence. However, what this argument loses sight of is the following:

15.1  firstly, the Magistrate had the benefit of a pre-sentencing report which ultimately recommended correction supervision. The Magistrate took into account all the factors mentioned therein;

15.2   secondly, one must not lose sight of the fact that this is an appeal on sentence only - the question to be asked is whether the sentence induces a sense of shock or whether there was a material irregularity or misdirection:[9]

15.3   thirdly, the theft of infrastructure is a prevalent and seriouscrime in this country so much so that the Legislature has determined that conviction on this charge carries a minimum sentence of 15 years for a first offender; and

15.4   fourthly, were one to impose a sentence of correctional supervision in respect of a serious crime of this nature, the message that would be sent to the public at large is that the crime is not a serious one - which would be in diametric opposition to the message the Legislature is sending.

16]              In my view the Magistrate took all relevant factors into account. He already determined that it was appropriate to deviate from the minimum prescribed sentence of 15 years and in so doing I am of the view that he did so judiciously taking all relevant factors into account and affording them the appropriate weight.

17]              There is therefore no basis upon which this court can interfere with the sentence imposed and I am thus of the view that the appeal cannot succeed.

ORDER

18]              The order that is made is:

The appeal is dismissed.

 

B NEUKIRCHER

JUDGE OF THE HIGH COURT

I agree

C SARDIWALLA

JUDGE OF THEHIGH COURT

 

Delivered: This judgment was prepared and authored by the Judges whose names are reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be 11 November 2022.

 

Appearances:

 

For the Appellant                            : Mr JP Fourie

Instructed by                                   : Fourie Attorneys

For the Respondent                        : Advocate PW Coetzee

Instructed by                                   : The NDPP

Date of hearing                               : 8 November 2022

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