S v Medupe (205/04) [2004] ZANWHC 46 (23 December 2004)
- Citation
- [2004] ZANWHC 46
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North West High Court, Mafikeng
- Panel
- R D Mokgoatlheng
- Case number
- 205/04
More details
- Court
- North West High Court, Mafikeng
- Panel
- R D Mokgoatlheng
- Case number
- 205/04
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Magistrate misdirected himself by failing to properly consider the accused's remorse and personal circumstances, and by relying on extraneous remarks not supported by evidence. The sentence of 30 months imprisonment was unduly severe for a first offender who showed remorse and assisted in the recovery of stolen items. The reviewing judge found that the sentence was not in accordance with justice and substituted it with a more appropriate sentence, taking into account the accused's youth, lack of prior convictions, family responsibilities, and employment status.
Court disposition
The sentence of 30 months imprisonment imposed by the Magistrate is set aside and substituted with six months imprisonment, three months of which are suspended for three years on condition that the accused is not found guilty of theft during the period of suspension.
Orders
- The sentence of 30 months imprisonment is set aside.
- The accused is sentenced to six months imprisonment, three months of which are suspended for three years on condition that the accused is not found guilty of theft committed during the period of suspension.
02
Material facts
Parties
The State
ApplicantAbel Pogisho Medupe
RespondentAmounts and remedies
- Cash Stolen: ZAR 2,000
- Cash Recovered: ZAR 700
03
Procedural history
Posture
Review Application / Review of Sentence Imposed by Magistrate Under Section 304 of Act 51 of 1977
04
Questions and positions
Legal issues
- 01
Whether the sentence imposed by the Magistrate was appropriate and in accordance with justice.
- 02
Whether the Magistrate properly considered the accused's remorse and personal circumstances.
- 03
Whether alternative forms of punishment were adequately considered.
Party arguments
- Applicant
- The State did not advance specific arguments in the review; the review was initiated by the High Court under section 304 of Act 51 of 1977.
- Respondent
- The accused expressed remorse, admitted guilt, and provided information leading to the recovery of stolen items. He is a first offender, 24 years old, single, with a three-month-old child, and does part-time work. The sentence imposed was unduly severe and did not consider his personal circumstances or alternative sentencing options.
05
Court’s reasoning
Legal principles
- 01
Criminal Procedure Act 51 of 1977, section 304
A sentence that is not in accordance with justice may be reduced or altered by the reviewing judge under section 304(2)(a) and (c)(ii) of Act 51 of 1977.
- 02
S v Zinn 1969 (2) SA 537 (A)
Sentencing must consider the personal circumstances of the accused, the nature of the offence, and the interests of society. A severe sentence that induces a sense of shock is not appropriate for a first offender with mitigating circumstances.
06
Ratio, limits and disposition
Ratio decidendi
The Magistrate misdirected himself by failing to properly consider the accused's remorse and personal circumstances, and by relying on extraneous remarks not supported by evidence. The sentence of 30 months imprisonment was unduly severe for a first offender who showed remorse and assisted in the recovery of stolen items. The reviewing judge found that the sentence was not in accordance with justice and substituted it with a more appropriate sentence, taking into account the accused's youth, lack of prior convictions, family responsibilities, and employment status.
Obiter and limits
- Magistrates must ensure that sentencing remarks are based on evidence presented during the proceedings and not on extraneous or unsupported statements.
- Alternative forms of punishment should be considered, especially for first offenders with mitigating circumstances.
Court disposition
The sentence of 30 months imprisonment imposed by the Magistrate is set aside and substituted with six months imprisonment, three months of which are suspended for three years on condition that the accused is not found guilty of theft during the period of suspension.
- The sentence of 30 months imprisonment is set aside.
- The accused is sentenced to six months imprisonment, three months of which are suspended for three years on condition that the accused is not found guilty of theft committed during the period of suspension.
Source and reliance status
North West High Court, Mafikeng
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North West High Court, Mafikeng
Judgment
IN THE HIGH COURT
OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
CA NO.: 205/04
In the matter between:
THE STATE
AND
ABEL
POGISHO MEDUPE
REVIEW JUDGMENT
MOKGOATLHENG AJ:
[1] This is a review of case no. 586/2004 referred in terms of section 304 of Act 51 of 1977 emanating from the Magisterial District of Ottosdal. This case was heard before Magistrate P N Coetzee.
[2] The accused was convicted of theft in that on or about the 28th August 2004 and at Ottosdal Buiteklub in the district of Lichtenburg the accused wrongfully and unlawfully stole a wallet, a chequebook, a firearm license and cash in the amount of R2000.00 the property of J Parkin.
[3] On the 29th October 2004 the accused was convicted and sentenced to 30 (thirty) months imprisonment.
[4] On the evidence the accused was correctly convicted.
[5] In sentencing the accused, the Magistrate misdirected himself. This is obvious from the following remarks made by the Magistrate:
âBeskuldige het deurentyd geen berou getoon nie. Hy het ure die hof leuens vertel en die hof se tyd gemors. Hy het gesteel van sy werkgewer in die golfsak se lid. Die klaer het aan my gese hy sal nie weer n kaddie huur nie.â.
[6] The accused did show remorse in addressing the court. Accused states that:
âEk is wel skuldig. Want ek het dit opgetel.â.
The complainant did not in his evidence inform the Magistrate that he will never again hire a caddie. These remarks are extraneous to the proceedings. The accused did not steal from his employer. The accused was employed by the complainantâs golf partner Bernie Nel as a caddy.
[7] The complainant stated that the amount of money he had in his purse was between R1500.00 to R2 000.00 plus minus, he did not count the amount. The amount of R700.00, the wallet and the cheque book were retrieved by the police officer O S Morwe after the accused volunteered the information.
[8] The Magistrate did not adequately consider alternative forms of punishment. The sentence imposed by the Magistrate is severe and induces a sense of shock having regard to the personal circumstances of the accused. The accused is 24 years old, a first offender, single, has one child who is three months old and he does part time work.
[9] It is trite law that in terms of section 304 (2) (a) when a judge is of the opinion that the sentence imposed is clearly not in accordance with justice the judge in terms of section 304 (2) (c) (ii) may reduce or alter the sentence.
[10] In the premises the sentence of 30 (thirty) months is set aside, and is substituted with the following:-
âSix (6) months imprisonment, three (3) months thereof is suspended for a period of three (3) years on condition that the accused is not found guilty of the offence of theft committed during the period of suspension.â.
____
R
D MOKGOATLHENG
ACTING
JUDGE OF THE HIGH COURT
DATED : 23 DECEMBER 2004
3
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