S v Didloft (CA&R No 296/2012) [2012] ZAECGHC 77 (17 September 2012)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

DAMBUZA, J:

On 11 August 2011 the accused appeared before the Magistrate, Hankey, on a charge of theft. He pleaded guilty to the charge and was convicted accordingly. He was sentenced to 12 months imprisonment and the sentence was wholly suspended for five years on two conditions; firstly that he is not, again, convicted of theft committed during the period of suspension of the sentence and, secondly, that he compensate the complainant in the amount of R1,000.00 before 16h00 on the day the sentence was imposed. He was also declared unfit to possess a firearm.

On review, Eksteen J inquired from the magistrate whether the second condition (of suspension of the sentence) was not inappropriate as the accused had not been convicted of malicious injury to property. In response, the magistrate wrote:

“2. Verskoning vir die tydsverloop sedert navraag en die antwoord aangebied. My vader se afsterwe, velof van vyf weke en werksdruk het die ophoud veroorsaak.

Ten opsigte van die navraag: Die rekenaar is gebruik in die proses van die diefstal en ’n opsetlike saakbeskadiging klagte sou dalk meer suiwer gewees het …….

3. Ten opsigte van Arftikel 300 van die strafproses wet Artikel 297 (van) Wet 51/77 maak daaroor voorsiening dat ’n opskortende voorwaarde van die aard (wel deel) van die vonnis kan uitmaak en dit verlig die administratiewe plig van hofbeamptes.

Dit laat ook ’n (verdere) (swaard) oor die beskuldigde se kop hang. Dit verhoed ook dat die respek wat die gemeenskap vir Wet en orde het, in diskrediet verval.

4. In die (onderhawige) geval is die belange van die gemeenskap, die aard en erns van die misdryf en die persoonlike omstandighede van die beskuldigde in ag geneem sonder om die een of die ander, oor of onder te beklemtoon. Die doelstellings van Straf naamlik voorkoming, vergelding, afskriking en hervorming is ook in ag geneem en toegepas.

5. Getuienis is aangebied en die klaagster (wou) vergoeding gehad het eerder as wat sy die beskuldigde in die tronk wou sien nie. Die hof het aan haar wens voldoen.

6. Ek laat die aangeleentheid egter in Sy Edele, die agbare Hersieningsregter se bekwame hande.”

It seemed to me that the magistrate had not understood the query raised by Eksteen J. Moreover it was not clear from her response whether she had sentenced the accused in terms of section 300 or section 297 of the Criminal Procedure Act, 51 of 1977 (the Act). I was concerned that certain procedural steps applicable under both sections of the Act might not have been complied with.

I, again sent a query to the magistrate, drawing her attention to these issues and pertinently referred her to S v Van Rensburg.1 The query was as follows:

“The magistrate’s response to the previous query is noted. However it appears from the record that the person who gave evidence in aggravation of sentence and made the application for compensation is the complainant’s son. Further, it appears that the computer in respect of which compensation was ordered, is not the item which was stolen. It also seems that the computer was damaged during recovery of the stolen item (rather than at the time of theft). (Compare with section 300 of Act 51 of 1977, in particular Du Toit et al, Commentary on the Criminal Procedure Act at 29-3).

The magistrate is invited to comment.

Further was early notice given to the parties that an award may be considered? S v Van Rensburg 1974 (2) SA 243 (T).”

The magistrate responded by admitting that she had “erred in the sentence to it being altered an objection to it being altered”.

Although the meaning of the response by the magistrate remained unclear to me, I considered it best to proceed further with the review process as the matter had already been unduly delayed. The record reveals that the accused was sentenced on 12 September 2011; the record was received by the office of the Registrar in this court, for the first time, on 11 November 2011; the query raised by Eksteen J was forwarded to the magistrate on 15 November 2012; the response from the magistrate was received on 4 April 2012 (although dated 28 February 2012; I directed the second query to the magistrate on 4 April 2012 and the response, dated 28 May 2012, was received by the office of the Registrar on 14 June 2012. I then invited submissions from the Office of the National Director of Public Prosecutions on the concerns I had and any implications of setting the compensatory order aside, given that compensation would have long been paid by the accused and expended by the complainant.

I have since received submissions from Ms Moodley and Ms Bakker of the Office of the National Director of Public Prosecutions, for which I am grateful. Briefly, the submission is that the appropriate section of the Act in terms of which the accused may be properly sentenced is section 297 (1). The submission is further that, the second condition of suspension of the sentence should be set aside and substituted by the following, that:

“The accused is ordered to pay compensation to the complainant, Phumlani Mahlaba, in the amount of one thousand rands (R1000) in terms of the provisions of section 297 of the Criminal Procedure Act 51 of 1977 before 16h00 on 12 September 2011”.

Section 297 (1) of the Criminal Procedure Act provides that:

“(1) Where a court convicts a person of any offence, other than an offence in respect of which any law prescribes a minimum punishment, the court may in its discretion—

(a) …………..

(b) pass sentence but order the operation of the whole or any part thereof to be suspended for a period not exceeding five years on any condition referred to in paragraph (a)(i) which the court may specify in the order; or

(c) ………..”

Section 300 of the Criminal Procedure Act provides that:

“Where a person is convicted…..of an offence which has caused damage or loss of property (including money) belonging to some other person, the court in question may, upon application of the injured person or of the prosecutor acting on the instructions of the injured person, forthwith award the injured person compensation for such damage or loss.”

I do agree that the appropriate section of the Act in terms of which the accused should have been sentenced is section 297. According to the record the person who gave evidence in aggravation of sentence and made the application for compensation was the complainant’s son, (and not the complainant). Further, the item in respect of which she (the magistrate) had ordered compensation had been damaged during the recovery of the stolen goods, when the accused threw it at someone. Even further, it seemed to me that the accused had not been afforded an opportunity to make representations on the contemplated compensatory order. The accused had not been charged with or convicted of malicious injury to property. The loss which the magistrate sought to compensate was not caused by the offence of theft of which the accused was convicted. Further there is no evidence on record that the application for compensation was brought by the complainant or by the prosecutor at the instance of the complainant.

The charge against the accused had been that of theft of a Dixon Karaoke amplifier valued at R2,500.00. Before the magistrate the accused admitted, during an enquiry conducted in terms of section 112 (1) (b) of the Act, to having

stolen the amplifier with the intention of using it at a disco. In aggravation of sentence the complainant’s son, Phumlani

Mahlahla2 gave evidence that he had contacted the police (presumably on discovery of the theft). In this regard the following appears from the record:

“Staatsaanklaer roep: Pumlani Mahlahla

Ek is familie van Pumlani, is haar seun dis haar tavern waar die amplifier gesteel is. Ek het polisie gekontak en beskuldigde het gaan wys waar dit weggesteek is. In die dag is dit weggesteek. Dit was nog reg. Ek wou dit terugtrek, want beskuldigde sou betaal vir ’n rekenaar wat in die stoeiery gebreek is, R1000.00 betaal om herstel. Ek sal liewer die R1000.00 wil hȇ as om beskuldigde in die tronk te sien. Toe die amplifier gesteel is was die beskuldigde dronk toe ons hom wou vang het hy baklei en die rekenaar geneem en ’n ander outjie gegooi en dit het gebreek….”

I can therefore only conclude from the record that the computer was not broken during the theft.

Regarding compensatory orders in general, the writer Terblanche, in Guide to sentencing in South Africa;3 says:

“When the court considers imposing payment of compensation, it should inform the offender of this fact so that the offender can address the court on the practicality, the extent of the loss and so on……The means of the offender are very important and have to be investigated by the court. This factor determines whether compensation will be a reasonable option. The idea is not, however, that the offender should find it easy to pay compensation, since part of the purpose is to punish him”.4

According to the record, after Pumlani Mahlahla had testified regarding sentence the accused was afforded the opportunity to cross-examine

Mahlahla and he replied that he had no questions to ask. Thereafter the prosecutor made his submissions on sentence, mainly advocating

for a suspended sentence in terms of which the accused would be ordered to pay the R800,00 that had been paid for his bail and

R200,00 which he could borrow from his employer as compensation to the complainant. The magistrate never inquired from the accused as to whether or how the accused would afford this payment; or even whether the bail money had been paid from his own finances.

The guidelines applicable when determining the propriety of a compensatory order sought under section 300 of the Act include the

following: that the court must give early notice to the parties that such an award is considered;5 the relevant facts emanating from an inquiry conducted by the court on ability of the accused to pay compensation should be recorded; and the accused must be afforded opportunity to address the court on the matter and to lead evidence. I cannot find any reason why such a guidelines should not be applicable when similar orders are considered under section 297(1)(b). Such an inquiry would not only serve to determine the amount of compensation to be ordered, but would also fulfill the duty of the court to assist an undefended accused.

It does not appear that the court had regard to these considerations. And although the order aimed at benefiting the complainant may be commendable, I am unable, in the context of the imposition thereof in lieu of fundamental sentencing principles, find that the proceedings were in accordance with justice. The compensatory order falls to be set aside.

The following order is granted:

(a) The conviction and sentence are confirmed, but the second condition for suspension of the sentence is set aside.

______

N DAMBUZA

JUDGE OF THE HIGH

COURT

EKSTEEN, J:

I agree.

J W EKSTEEN

1 1974 (2) SA 243 (T)

2 It appears that the complainant’s son has the same names as the complainant.

3 2nd ed; at 363

4 At 364 to 365; see also the authorities cited therewith.

5 S v Van Rensburg 1974 (2) SA 243 (T) at 244 H - 245; S v Baadjies 1977(3) SA 61 (E) at 63.