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South Africa Judgment

North Gauteng High Court, Pretoria

S v Ncube (A798/16) [2016] ZAGPPHC 1174 (21 November 2016)

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Research organized from the available case record

Source document

01

Holding and result

The court found that the sentence imposed by the magistrate was shockingly inappropriate given the accused's personal circumstances, the remoteness of the previous conviction, and the recovery of the stolen goods. The reviewing judge held that a wholly suspended sentence was appropriate and that there was no cogent reason to declare the accused unfit to possess a firearm. The conviction was confirmed, but the sentence was set aside and substituted with a wholly suspended sentence.

Court disposition

Conviction confirmed; sentence set aside and substituted with a wholly suspended sentence.

Orders

  • The conviction is confirmed.
  • The sentence is set aside and substituted with: The accused is sentenced to 8 months' imprisonment wholly suspended for 3 years on condition that he is not found guilty of theft during the period of suspension.
  • The declaration of unfitness to possess a firearm is set aside.

02

Material facts

Parties

The State

Respondent

Mbuyiselo Ncube

Appellant

Amounts and remedies

  • Original Sentence Imprisonment (months): ZAR 24
  • Substituted Sentence Imprisonment (months): ZAR 8

03

Procedural history

  1. Posture

    Criminal Review / Review Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The accused pleaded guilty to theft. His previous conviction was from 2007, over seven years prior, and should be considered a limited aggravating factor. He and his wife are unemployed with two young children, and the stolen goods were recovered. The sentence imposed is excessively harsh given these circumstances.
Respondent
The magistrate conceded that the sentence was unduly harsh and agreed that the previous conviction should play a limited role. There was no cogent reason to declare the accused unfit to possess a firearm.

05

Court’s reasoning

  1. 01

    S v Mvelase 1958(3) SA 126 (N) 127 D

    A previous conviction that is remote in time should play a limited role in sentencing and may be considered a mitigating factor.

  2. 02

    S v Motaung 1959(1) SA 799 (T)

    The appropriateness of a suspended sentence must be assessed in light of all relevant circumstances, including the recovery of goods and the personal circumstances of the accused.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the sentence imposed by the magistrate was shockingly inappropriate given the accused's personal circumstances, the remoteness of the previous conviction, and the recovery of the stolen goods. The reviewing judge held that a wholly suspended sentence was appropriate and that there was no cogent reason to declare the accused unfit to possess a firearm. The conviction was confirmed, but the sentence was set aside and substituted with a wholly suspended sentence.

Obiter and limits

  • A plea of guilty should be considered in the broader context of all relevant circumstances, including the accused's personal situation and the recovery of stolen goods.
  • The declaration of unfitness to possess a firearm should be reserved for cases where cogent reasons exist.

Court disposition

Conviction confirmed; sentence set aside and substituted with a wholly suspended sentence.

  • The conviction is confirmed.
  • The sentence is set aside and substituted with: The accused is sentenced to 8 months' imprisonment wholly suspended for 3 years on condition that he is not found guilty of theft during the period of suspension.
  • The declaration of unfitness to possess a firearm is set aside.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2016] ZAGPPHC 1174

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

A798/16

DATE: 21/11/16

HIGH COURT REF. NO. : 293/16

CASE NO

: A268/16

MAGISTRATE'S SERIAL NO: 24/16

IN THE MATTER BETWEEN:

THE

STATE

Vs

MBUYISELO

NCUBE

REVIEW

JUDGMENT

TOLMAY, J:

[1] The accused, a 28 year old male, was convicted in the magistrate's court, Pretoria North on a charge of theft after a plea of guilty. He was sentenced to 24 months imprisonment half of which is wholly suspended for 3 years on condition that the accused is not convicted of theft during the period of suspension. He was declared unfit to possess a firearm in terms of section 103 of Act 60 of 2000.

[2] The reviewing judge questioned the appropriateness of the sentence and the magistrate conceded that the sentence is unduly harsh.

[3] The accused's previous conviction was committed during 2007, more than 7 years ago. I am of the view that the previous conviction should play a very limited role. Although it might not be as such an indication of remorse, it should at least be considered as a possible mitigating factor [1]. The plea of guilty must also be looked at in the broader context of all the relevant circumstances of the case. This will also include the fact that he and his wife were unemployed and have 2 children aged 4 and 2 years old and the goods were recovered. In the light of all the circumstances of the case the sentence is shockingly inappropriate and the Court should intervene.

[4] I am of the view that a suspended sentence is appropriate under the circumstances and I am of the view that no cogent reason exist to declare him unlawful to possess a firearm.

[5] Consequently I make the following order:

The conviction is confirmed and the sentence is set aside and substituted with the following:

"The accused is sentenced to 8 months' imprisonment wholly suspended for 3 years on condition that he is not found guilty of theft during the period of suspension."

______

R

G TOLMAY

JUDGE

OF THE HIGH COURT

I agree

C

PRETORIUS

[1] S v Mvelase 1958(3) SA 126 (N) 127 D; S v Motaung 1959(1) SA 799 (T)

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S v Mvelase 1958(3) SA 126 (N) 127 D

Case cited

S v Motaung 1959(1) SA 799 (T)

Case cited

section 103 of Act 60 of 2000

Legislation

Legislation referenced in the available case record.

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