Manamela v S (19/09) [2009] ZANWHC 16 (21 May 2009)

IN THE

HIGH COURT OF SOUTH AFRICA

(NORTH WEST, MAFIKENG)

HIGH COURT REF: 19/09

In the matter between:

THE

STATE

and

ELEKIA

EZEKIEL MANAMELA

_________________

REVIEW

JUDGMENT

KGOELE AJ.

[1] This matter initially came before Justice Nkosi-Thomas AJ on review who send the following query to the presiding officer.

May you kindly furnish reasons why the sentence imposed on the accused, which prima facie appears to be shockingly excessive, was the appropriate sentence in the circumstances, regard being had to the following factors, namely:

the accused is first offender;

the accused pleaded guilty to the charge, thereby showing remorse;

1.3 the accused is gainfully employed, which makes him a useful member of the society.

Did the learned Magistrate consider the imposition of other forms of punishment other than the sentence imposed by him? If so, then:

what were these forms of punishment?; and

what were the reasons that militated against the imposition of such alternative forms of punishment?

3. Did the learned Magistrate give consideration to the fact that the fine as imposed might be beyond the means of the accused?

[2] The presiding officer’s response was as follows:

The court imposed the said sentence for the following reasons.

The offence took place at a Tuck Shop. Obviously, the owner bought the said Plasma TV to entertain his guests and to entice customers, in order to increase his monthly income – which indeed is good business!

The accused then stole this asset from the owner, during broad daylight. He acted selfishly and purely out of stinginess. Considering that it is a Tuck Shop, one can draw the inference that it is visited by many people, regularly. The accused therefore, couldn’t commit this offence on the spur of the moment, but had to plan it in detail.

He did not steal because he was starving or that he was in needs. He stole a luxurious item and not to sell, but to use at home, to satisfy his own needs.

Whether accused pleaded guilty as a sign of remorse or whether he did that because the State is having overwhelming evidence against him, is debateable. (S v Labuschagne 1997 (2) SACR 6 – The mere fact of a plea of guilty does not necessarily show remorse; S v Martin 1996 (2) SACR 378 (W) – it may simply show that the accused is realistic).

These factors are definitely aggravating.

Bearing in mind that accused is a first offender and only 26 years old, the court did consider a suspended sentence or correctional supervision.

Weighing up all the factors, the court decided against a suspended sentence. People consider it in the same light as being cautioned and discharge. They walk out of the court and forget about it the moment they leave. One of the reasons may be the fact that this court is not supported by its administration section. Clerks do no file the cases correctly, they do not enter it in registers and dispose of the cases incorrectly. By the time the accused is re-offending, in most cases the State can not bring an application in terms of section 297 (6) Act 51 of 1977, as the records can’t be traced. The system is failing the court and limiting its sentence options.

Correctional Supervision in terms of section 276(1)(h) has been considered, but considering the merits of this case, the court is of opinion that it’s also not suitable, as accused is not addicted to any substance, he doesn’t need programmes to try and rehabilitate him. He is employed and doesn’t need to look for employment.

He indicated that he is in a position to pay a fine. Considering the fact that he caused the complainant financial loss (for not having access to his asset for which he is or has been paying) the court deemed it fit to let him suffer financially.

Indeed R4000.00 is a lot of money, but surely accused must realize that what he did was wrong and he must feel/experience the inconvenience that he caused the complainant.

[3] The accused was charged and convicted of theft of a Plasma Television set valued at R7000 – 00 (seven thousand rand). He was sentenced to R4000 – 00 (four thousand rands) or 8 (eight months) imprisonment. He pleaded guilty to the charge. He was 26 yrs of age when he committed the offence. No previous convictions were proven against him. He was employed doing piece jobs and earned ± R460 – 00 per month. According to him the Television set was recovered.

[4] It has frequently been decided by our courts that the purpose of imposing a fine is to keep the offender out of jail. In S v Lekgoale 1938(2)SA 175 (B) at 176 – D it was further held that

“A fine is also seen as a concession to the offender”.

[5] It has also been generally accepted in our law that a fine should not be imposed if the offender cannot reasonably afford it. See S v Van Rooyen 1994 (2) SACR 823 (A) at 827 e-f; S v Sithole 1979 (2) SA 67 (A) at 69-G and many other reported judgements.

[6] The presiding officer also admits that R4000 – 00 is a lot of money. The principle as first established in R v Frans 1924 TPD 419 by Fection J that:

“where a fine is imposed as an alternative to imprisonment it should, I think, bear some relation to the probable resources and earnings of the person on whom it is imposed”

is equally relevant and applicable in the circumstances of the present matter.

[7] Whilst not loosing sight of the seriousness of the offence the accused was convicted of in this matter and the fact that this offence is rife in our country, I am of the view that the fine imposed by the presiding officer is beyond the means of the accused. A reduced amount of fine can still serve the intended purpose of sentencing in this regard.

[8] Consequently the following order is made:

The sentence imposed by the trial court is set aside and

substituted by the following:

Four thousand rands (R4000 – 00) or eight (8) months imprisonment half of which is suspended for three (3) years on condition the accused is not found guilty of Theft committed during the period of suspension.

______

A.M

KGOELE

ACTING JUDGE OF

THE HIGH COURT

I agree

___

R.D HENDRICKS

JUDGE OF THE

HIGH COURT

DATED: 21 MAY 2009

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