REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Review No.: CU/2115/2011

In the matter between

and

Coram:	HLOPHE, JPet SAMELA, J

Judgment by:	SAMELA, J

Date of Review Judgment:	13 AUGUST 2012

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Before the Honourable Hlophe JP et Samela J 
Cape Town, Monday 13 August 2012

Review No.: CU/2115/2011
In the matter between

versus

REVIEW JUDGMENT

SAMELA, J

[1] This matter came before me in terms of section 304 of Criminal Procedure Act 51 of 1977 (as amended, hereinafter referred to as the Act). The Accused appeared in person in court having elected to represent himself. The allegations were that on the 20 August 2011 at or near Manenberg, the Accused unlawfully and intentionally stole 40 packets of yeast, each valued at R2.79, total value being R111.60, the property or in lawful possession of Pick h Pay stores.

[2] The Accused pleaded guilty. The court after questioning the Accused in terms of section 112 (1) (b) of the Act, found the Accused guilty as charged. He was sentenced to three years imprisonment. He has been in custody since 16 May 2012.

[3] After reading the court's record it became clear to me that justice and fairness had not been done in this case. To correct this I had to consider inter alia the following:

Reviewing court powers.

[4] The reviewing Court derives its authority from section 304 of the Act. Section 304 (2) (c) provides:
Such court, whether or not it has heard evidence, may, subject
to the provisions of section 312 -

(iv)generally give such judgment or impose such sentence or make such order as the magistrate's court sought to have given, imposed or made on any matter which was before it at the trial of the case in question; or

(vi) make any such order in regard to the suspension of the execution of any sentence against the person convicted or the admission of such person to bail, or, generally, in regard to any matter or thing connected with such person or the proceedings in regard to such person as to the court seems likely to promote the ends of justice. 
As it will be indicated hereunder, section 302 (c) (ii) of the Act is applicable in this matter.

The test to be applied in an unjust and unfair sentence.

Considerations to be taken into account regarding previous convictions by the sentencing court.

"1.       In terms of s271(4) of the Act the court is required to take previous convictions which have been proved against the accused into consideration when imposing a sentence.

3. Although s 271(4) requires the sentencing court to take previous convictions into account when determining the appropriate sentence, it does not take away the discretion of the sentencing court. The court is enjoined to exercise its discretion judicially when taking into consideration previous convictions.

[7]   In the present matter the Accused previous convictions record is as follows: (appeared in Accused SAP69 form).

Date	Offence	Sentence	
30/9/2002	Housebreaking
-Date committed 2002-05-10
-with intent to steal and theft	90 Dae G/S	
2003/02/11	Theft
-Date committed 2003-02-07	R600 of 2 maande G/S vonnis opgeskort vir 5 jaar, voorwaarde onbekend	
2003/09/22	Theft
-Date committed 2003-06-06	6 MNDE G/S	
2004/08/25	Theft
-Date committed 1997-04-11	R1000 of 3 maande G/S wat in die geheel opgeskort word vir 5 jaar op voorwaarde dat besek nie weer skuldig bevind word aan diefstal of poging daartoe gepleeg gedurende die tydperk van opskorting nie.	
2006/11/24	Housebreaking
-Date committed 1999-06-29
-With intent to steal and theft	Ingevolge art 276(1) (H) van die strafproseswet, wet 51 van 1997, word die besek gevonnis	
		tot 12 maande korrektiewe toesig.	1087/6/1999	
2008/01/11	Theft
-Date committed 2008-01-04	R1 500.00 or 90 days IMP suspended for 3 years on condition that Acc is not found guilty of theft, attempted theft or possession of stolen property during this period.	Nkoko Andiie 2008 Kan 192 Cape Town Central 294/1/2008	
2008/2/11	Theft
-Date committed 2008-02-10	R500.00 or 50 days IMP suspended for 5 years on condition that Acc not convicted of same or related offence.	Manono Andiie 2008KBH811 Cape Town Central 788/2/2008	
2008/04/04	Theft
-Date committed 2008-03-26	Count 1: R1 800.00 or 6 months IMP of which half is suspended for 4 years on condition Acc is not again convicted of theft or att theft committed during the period of suspension.	Khakaka Vuyo 2008 JJZ071 Ciaremont 625/3/2008	
2008/04/04	Theft
-Date committed 2008-03-26	Count 2: R600.00 or 60 days IMP which is suspended for 4 years on condition Acc is not again convicted of theft or att theft committed during period of suspension.	Khakaka Vuyo 2008 JJZ071 Ciaremont 625/3/2008	
2010/04/01	Theft
-Date committed 2010-03-25	Cautioned and discharged	Mdumane Andiie 2010 SOC607 Cape Town Central 1666/3/2010	
2010/04/22	Theft
-Date committed 2010-04-21	Cautioned and discharged	Mgenqe Xolani 2010 OKU 891 Cape Town Central 1235/4/2010	
2010/05/24	Theft
-Date committed 2010-05-22	Fined R3 000.00 or 30 days IMP which is wholly suspended for a period of 3 years on condition that accused is not convicted of theft or attempted theft committed during the period of suspension.	Mashaba Andiie 2010SJC323 Table Bay Harbour 344/5/2010	
2010/07/28	Theft
-Date committed 2010-07-27	R1 500.00 or 90 days IMP	Mkaka Andiie 2010IUL831 Cape Town Central 1583/7/2010	
2010/07/29	Theft
-Date committed 2010-07-28	R1 500.00 or 90 days IMP	Mpama Vuyo 2010 SOC186 Cape Town Central 1647/7/2010	
2010/10/11	Theft
-Date committed 2010-09-07	R600.00   or   60   days   IMP suspended   for  3   years  on condition that Acc not found guilty of theft or attempted theft committed   during   period   of	Matiwane Lubabalo 2010 JJN621 Cape Town Central 393/9/2010	
		suspension.	
2010/10/14	Theft
-Date committed 2010-10-11	R600.00 fine or 60 days IMP.	
2011/01/03	Theft
-Date committed 2010-12-31	Fined R1 500.00 or 3 months IMP wholly suspended for 3 years on condition that Acc is not convicted of theft or attempted theft committed during period of suspension.	

[8]   The Magistrate read every previous conviction that appeared in the SAP69 form and said the following:
"Right, now before the court proceed to sentence, the court has the record of the accused here and the accused has acknowledged when the prosecutor has read it out to him that it is his, but the court just for the sake of being complete and thorough wants to go through this record with the accused so that he can confirm indeed that it is his, because the court has noticed that on this record there is different names of different people or different names attached ,so the court wants to confirm indeed that we are dealing with the same person".

The Magistrate proceeded to read all 17 Accused previous convictions from the SAP 69 form and the Accused confirmed all of them.

[9]   The Magistrate placed further with the degree of emphasis the Accused previous convictions when he said:

Guidelines to be considered and applied (generally) when thinking of an appropriate sentence to impose. The "Ubuntu" principle is applicable.

[10] In arriving at an appropriate sentence Holmes JA (Rabie case para 5 above) provided a simple, easy to follow guidelines for general application at 861A - 862F. It is useful to set them in full:

However, in 1959 this Court pointed out that the punishment should fit

"Tereg word gese dat na skuldigbevinding die Regter in h ander sfeer verkeer waar die ople van die straf gepaard moet gaan met oordeelkundige genade en menslikheid ooreenkomstig die feite en omstandighede van die geval". 

(vi) The measure of the scope of mercy depends upon the circumstances of each case", (my own emphasis)

These guidelines are important and relevant in our legal system to-day as they were in the early nineteenth century.

[11] The correct approach regarding considerations to be taken into account before passing sentence was correctly stated by Corbett J.A. at 866 A-C (Rabie para 5 above) where he emphasised that:

The above relates in particular to the element of mercy when judicial officers are handing down their sentences.

[12] The offence the Accused committed is a serious crime and the interest of the society needs to be protected against offenders. At the same time, the interest of the society needs to be balanced against that of an offender and the seriousness of the offence. The question is whether a sentence of three years imprisonment is disproportionate to the Accused's conduct. From the Appellant's conduct, it is clear that his aim was to permanently deprive the owner of his property, which is an intentional, unlawful and wrongful conduct on his part. The Accused stole 40 packets of yeast, valued at R2.79 each, with total value of R111.60. All these items were recovered from the Accused before he left the shop. Accused personal circumstances were that he is 32 years old, unemployed with dependants (his children). He had serious injury that needs medical attention (bowel problems). The Accused pleaded guilty and apologised to court. In my view three years imprisonment is too severe.

[13] I am mindful of the pressures which the judicial officers in the lower courts encounter daily in the exercise of their judicial functions. However, it is not an excuse not to approach each case with passion and impartiality it deserves. In casu, the Magistrate when dealing with personal circumstances of the Accused seemed to have been very casual. He did not question the Accused inter alia, his educational standards, the number of his children and their ages and who was supporting them. The Magistrate failed to address the Accused socioeconomic circumstances. When exercising discretion on previous convictions, a judicial officer should bear in mind that very often the accused person/s appearing before him/her did serve fully sentence/s imposed on him/her on previous occasions like in this matter. Here it seems to me the Magistrate overlooked all these important considerations.

[14] In casu, the Magistrate had relied heavily on the Accused previous convictions and this was disturbingly inappropriate. His reliance on the previous convictions constituted a material misdirection which warranted interference. The accused was convicted of theft, 40 packets of yeast valued at R2.79 each totalling in value to R111.60, and was imprisoned for three years.

[15] One should not lose sight of the fact that the Accused appeared in the previous cases under different names, however, it is not difficult to establish the truth about one's previous criminal record through finger print technology. I am of the view that the Magistrate seemed to have approached this matter with anger, resulting in the failure of the Magistrate to balance between the crime, criminal and the interests of the society. It is unfortunate that the Magistrate lambasted the Accused behaviour as one of the causes for the lack of developments in some African townships in the Cape Flats, resulting in investors being driven away from the townships. Consequently the Magistrate's anger and frustration resulted in the Accused getting a severe and unfair punishment. The Magistrate in my view should have been alive of the Accused socio-economic background and applied the well-known principle of "Ubuntu" (humanity) in this matter taking into consideration inter alia, the Accused personal circumstances, and the reason for being unable to pay a fine and his sickly condition at time of sentencing.

[16] In the result, I would make the following order:

The Accused is cautioned and discharged and must be immediately released from prison.

SAMELA, J

I agree and it is so ordered

HLOPHE, JP