S v Mandela (207/04) [2004] ZANWHC 45 (23 December 2004)

IN THE HIGH COURT

OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO.: 207/04

In the matter between:

THE STATE

AND

JOHN

MANDELA

REVIEW JUDGMENT

MOKGOATLHENG AJ:

[1] This is a review of case A532/04 emanating from the Magisterial District of Vryburg. This case was heard before Magistrate S C Meyer.

[2] The accused was convicted of two counts of theft and sentenced on count 1 to three years and in respect of count 2 18 months imprisonment respectively.

[3] The accused was charged in respect of count 1 of theft of the following:

(a) one Panasonic video machine;

(b) one Siemens cell phone;

(c) one M-Net decoder;

(d) one Pair of shoes;

(e) one Bottle of Bell Whisky;

(f) one Bottle of White Satin Perfume; and

(g) one Suite case.

The total value being R4 485.00.

In respect of count 2 the accused was charged with the theft of one lawnmower valued at R1 500.00.

[4] On the evidence adduced the accused was correctly convicted. The goods recovered in respect of count 1, are:

(a) the Panasonic video machine

(b) a Lido suite case

(c) a pair safeway binoculars

(d) a remote control machine for the decoder

(e) M-Net decoder

(f) a sansui remote control for video machine.

In respect of count 2 the lawnmower was recovered.

[5] All this property was recovered as a result of the co-operation of the accused.

[6] The learned Magistrate misdirected himself in the consideration of the imposition of an appropriate sentence by stating that:

“Die twee klagtes in die eerste plek waaraan die beskuldigde skuldig bevind is, is ernstige aangeleenthede en dit is bloot omstandighede wat gemaak het dat beskuldigde, veral ten opsigte van die eerste klagte, nie aangekla was vir huisbraak nie maar net van diefstal.

Die tweede klagte was dit duidelik uit die getuienis van mnr Robin dat die een deur van the motorhuis oop gestaan het en dat toegang tien teen een daar verkry is ….. ons het ʼn tendens in beweeg waar persone, huis eienaars ensovoorts nie net meer hulle huise kan toe trek en uitstap en iewers heen gaan nie of slegs net kan sluit of ʼn venster te kan toe knip nie.

Jy moet alarm stelsels installeer, jy moet diefwering installeer.”.

[7] It is patent that the learned Magistrate for purposes of sentences misdirected himself and treated the offences for which the accused was charged with as housebreaking with intent to commit theft.

[8] In my view, the sentences imposed by the learned Magistrate were not in accordance with the stipulations of section 304 (a)(ii), that is not in accordance with justice.

[9] The learned Magistrate did not adequately take into consideration the cumulative effect of the two sentences, more especially when balancing same with the fact that all the property was recovered, that the complainants sustained no loss.

[10] The learned Magistrate further misdirected himself by taking into account the accused’s previous record in respect of housebreaking with intent to commit theft for an offence committed on the 28th November 1991, more than ten years before the commission of the present offence.

[11] The accused spent five months in custody awaiting trial, he is 48 years old, he suffers from tuberculosis, had three children all school going.

[12] In the premises the sentences of 3 years imprisonment in respect of count 1 and 18 months imprisonment in respect of count 2 are set aside and substituted by the following sentence:

“The counts of theft are taken as one for the purpose of sentence. The accused is sentence to two years imprisonment.”.

_______

R

D MOKGOATLHENG

ACTING

JUDGE OF THE HIGH COURT

DATED : 23 DECEMBER 2004