S v Ncube (A574/17) [2017] ZAGPPHC 796 (8 November 2017)

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG DIVISION,

PRETORIA

DATE: 8/11/2017

HIGH COURT REF. NO.: 172/2017

CASE NO: B222/264

MAGISTRATE'S SERIAL NO: H23/2017

IN

THE

MATTER BETWEEN:

THE

STATE

Vs

THANDI

NCUBE

REVIEW JUDGMENT

TOLMAY, J:

[1] This matter came before me in terms of sec 304 of the Criminal Procedure Act, 51 of 1977.

[2] The accused stood trial at Hatfield, Pretoria magistrate's court and was convicted pursuant to pleading guilty of theft of an Apple I-Pad valued at R5 000-00. She was sentenced to 12 months' imprisonment. No order was made in terms of section 103 of Act 60 of 2000.

[3] On a perusal of the record the it transpired that on two occasions the record submitted for review was incomplete, when it was finally re-submitted the magistrate was requested to comment on the following:

"1. In this matter the record submitted for review was incomplete on two occasions. This caused an inordinate delay. Did the aforesaid not result in prejudice for the accused, which could impact in the fairness of the procedure?

2. Is the direct imprisonment of 12 months not shockingly inappropriate, considering that the accused is a relatively young first offender with a young child? Should alternative sentencing not have been considered?"

[4] The magistrate when requested to comment on the aforesaid, merely stated that the transcriber did not transcribe everything and thereafter there was a misfiling by the clerk of the Court.

[5] Pertaining to the question regarding sentence the magistrate states that the following was taken into account:

a) The fact that the accused pre-meditated the offence;

b) The value of the items stolen; and

c) The fact that imposing a fine would not have served any purpose, due to the accused's inability to pay and that a suspended sentence would serve no purpose.

[6] The OPP was requested to provide an opinion on the matter. Such opinion was provided and the Court is grateful for the assistance.

[7] Sec 303 of the Criminal Procedure Act 51 of 1977 compels the clerk of the Court to forward a copy of the record of the proceedings to the Registrar of the High Court having jurisdiction within one week of the determination of the case.

[8] It was pointed out by the OPP, and correctly so, that the expeditious dispatch of records on review intimately concerns the fundamental rights of the accused person. The High Courts have often expressed great concern at delay in submitting review matters. The submitting of an incomplete review record on two occasions is totally unacceptable and the fundamental rights of an accused have been eroded by administrative bungling. It is clear that the accused was seriously prejudiced by delay in submission of the record of proceedings to the Reviewing Judge. In State V Manyonyo 1997(1) SACR 298 (E) it was held that: "The reason for the statutory insistence on the expeditious dispatch of records on review is generally to promote the speedy and efficient administration of justice, but in particular to ensure that an accused is not detained unnecessarily in cases where the Court of review set aside conviction or reduces the sentence."

[9] The reasons given by the magistrate, namely that "there was a delay in obtaining a complete record due to the fact that the

transcriber did not transcribe everything and there was a misfiling by the clerk of the Courf' frustrate the proper administration of justice and do not constitute a proper and acceptable explanation.

[10] The magistrate ought to have reconstructed· the record, before the matter was sent on review with all parties present, i.e. the prosecutor, the accused and the interpreter. Magistrates should ensure that the rights of accused people are not infringed on due to what can only be called administrative incompetence.

[11] Despite the aforesaid there is no irregularity regarding the conviction itself as the accused pleaded guilty.

[12] With regards to sentence the DPP submitted that the sentence imposed is harsh in the circumstances. I agree with this view.

[13] The Court a quo did not sufficiently consider the personal circumstances of the accused. It was correctly argued by the OPP that the accused was sacrificed on the altar of deterrence. In S v Sparks and Another 1972(3) SA 396 (A) it was held that:

"Wrongdoers must not be visited with punishments to the point of being broken."

[14] I am of the view that the sentence of 12 months' imprisonment is not fit to the crime, the criminal and is not blended with a measure of mercy.

[15] In assessing an appropriate sentence regard must be had to the main purpose of punishment, namely deterrence, prevention, reformation and retribution. The Court should have taken into account that the accused is a first offender, she pleaded guilty and is the mother of a 4 year old.

[16] In the light of the aforesaid the sentence should be set aside.

[17] I make the following order:

1. The conviction is confirmed;

2. The sentence is set aside and substituted with the following:

"The accused is sentenced to a fine of R2 000-00 or 6 months imprisonment wholly suspended for 5 years on condition that the accused is not convicted of theft during the period of suspension."

______

RG

TOLMAY

JUDGE

OF THE HIGH

COURT

I agree

C PRETORIUS

JUDGE OF THE HIGH

COURT