S v Mahuma (38/01) [2001] ZANWHC 29 (14 June 2001)

CA NO : 38/01

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

THE

STATE

vs

SHIMMY

MAHUMA

R E V I

E W J U D G E M E N T

LEEUW J:

The accused was convicted of Robbery and sentenced to an effective ten (10) months imprisonment.

The conviction is in order but the sentence is inappropriate because of the following:

The accused is seventeen (17) years old, a first offender and is not employed. Although he was assisted by his mother during the proceedings, it was not established from her as to whether she would be in a position to pay a fine for him. The value of the bicycle stolen is given as R450-00.

The Magistrate, in response to my query, submits that the fine had to be paid by the accused himself and not someone else on his behalf because the accused would not feel the punishment and also that it would be tantamount to punishing a third party and not the accused. This is a misdirection on the part of the Magistrate because imprisonment and a fine are not the only types of sentences provided for in the Criminal Procedure Act. Not fixing a fine for an accused person who is unemployed and has no other means of income, is in itself not a valid reason for denying an accused person a fine. See S v Molefe 1989 (2) SA 88 (B). This is a misdirection. Furthermore, in his reasons for sentence, the Magistrate expressed a doubt with regard to the age of the accused by stating the following: “In sentencing the accused the court did take into account the fact that he is seventeen (17) years of age though his physic indicates to the court that he might be older than that and the fact that the mother was given a chance to come with accused’s birth certificate but could not bring it and instead brought a copy of proof of accused age as deposed by someone where accused started schooling.” It is evident from the above remarks that the Learned Magistrate did not seriously take into consideration the fact that the accused was indeed 17 years of age. In the absence of any evidence to gainsay the given age of the accused, it is a serious misdirection on the part of the Learned Magistrate to disregard this fact.

The Magistrate, in response to my query, submits that the fine had to be paid by the accused himself and not someone else on his behalf because the accused would not feel the punishment and also that it would be tantamount to punishing a third party and not the accused.

This is a misdirection on the part of the Magistrate because imprisonment and a fine are not the only types of sentences provided for in the Criminal Procedure Act.

Not fixing a fine for an accused person who is unemployed and has no other means of income, is in itself not a valid reason for denying an accused person a fine. See S v Molefe 1989 (2) SA 88 (B). This is a misdirection.

Furthermore, in his reasons for sentence, the Magistrate expressed a doubt with regard to the age of the accused by stating the following:

“In sentencing the accused the court did take into account the fact that he is seventeen (17) years of age though his physic indicates to the court that he might be older than that and the fact that the mother was given a chance to come with accused’s birth certificate but could not bring it and instead brought a copy of proof of accused age as deposed by someone where accused started schooling.”

It is evident from the above remarks that the Learned Magistrate did not seriously take into consideration the fact that the accused was indeed 17 years of age. In the absence of any evidence to gainsay the given age of the accused, it is a serious misdirection on the part of the Learned Magistrate to disregard this fact.

I am satisfied that the sentence imposed is not in accordance with justice. In view of the misdirections mentioned above, I am at liberty to interfere with the sentence, which in the circumstances of this case is inappropriate and very severe for a 17 year old first offender. Although the mother to the accused has indicated in her representations on behalf of the accused, for the purpose of review, that she is prepared to pay a fine, it will be difficult to determine, at this stage, a suitable fine without having assessed her ability to pay. The accused has been incarcerated from the 4th May 2001. I will in the result confirm the conviction, set aside the sentence and substitute the following therefor: “Six (6) months imprisonment of which four (4) months imprisonment is suspended for a period of three (3) years on condition accused is not convicted of Robbery or competent verdicts thereof for which the accused is sentenced to imprisonment without an option of a fine.”

M

M LEEUW

JUDGE

OF THE HIGH COURT I agree.

M

T R MOGOENG

JUDGE

OF THE HIGH COURT 14 JUNE 2001

I am satisfied that the sentence imposed is not in accordance with justice. In view of the misdirections mentioned above, I am at liberty to interfere with the sentence, which in the circumstances of this case is inappropriate and very severe for a 17 year old first offender.

Although the mother to the accused has indicated in her representations on behalf of the accused, for the purpose of review, that she is prepared to pay a fine, it will be difficult to determine, at this stage, a suitable fine without having assessed her ability to pay. The accused has been incarcerated from the 4th May 2001.

I will in the result confirm the conviction, set aside the sentence and substitute the following therefor:

“Six (6) months imprisonment of which four (4) months imprisonment is suspended for a period of three (3) years on condition accused is not convicted of Robbery or competent verdicts thereof for which the accused is sentenced to imprisonment without an option of a fine.”

M

M LEEUW

JUDGE

OF THE HIGH COURT

I agree.

M

T R MOGOENG

14 JUNE 2001