S v Rossouw (109/2001) [2001] ZANWHC 45 (1 November 2001)

CA NO. 109/2001

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

BOIKANYO

ROSSOUW

REVIEW

NKABINDE J:

[1] The accused was convicted of housebreaking with intent to steal and theft. The Magistrate sentenced him to a fine of R1800.00 or 8 months imprisonment.

[2] When considering the matter brought before me on automatic review I asked the Magistrate to indicate the reasons upon which an imposition of a fine was based. All what the Magistrate says, in response to the query, is that the sentence is harsh. He explains that the offence, in question, which is often committed by young offenders, is rife in the district of Taung. [3] The general guidelines developed when an imposition of a fine is considered include, among others, whether the accused is able to pay the fine. (S v SCHEEPERS 1977 (2) SA 154 (A) at 160; S v SITHOLE & ANOTHER 1979 (2) SA 67 (A)). There is general support to the view that even if the accused is unable to pay the fine the presiding officer would still be correct in affording the accused at least the opportunity of trying to avoid gaol if he/she can avail himself or herself of

such an opportunity as a matter of course. (See S v MLALAZI & ANOTHER 1952 (2) SACR 673 (W)). Fines outside the ability of the accused are at times imposed where the particular offence is prevalent and serious. In this case the music system which was one of the stolen items was recovered. Even though the trousers, pillow case and two CD’s were not recovered, the fine of such magnitude would defeat the objective of avoiding gaol. The accused is an unemployed young man and he is a first offender. The Magistrate conceded that the fine is exorbitant and suggested a lesser fine. I agree with the Magistrate. [4] In the circumstances, the conviction is confirmed but the sentence is set aside and the following is substituted therefor:

[2] When considering the matter brought before me on automatic review I asked the Magistrate to indicate the reasons upon which an imposition of a fine was based. All what the Magistrate says, in response to the query, is that the sentence is harsh. He explains that the offence, in question, which is often committed by young offenders, is rife in the district of Taung.

[3] The general guidelines developed when an imposition of a fine is considered include, among others, whether the accused is able to pay the fine. (S v SCHEEPERS 1977 (2) SA 154 (A) at 160; S v SITHOLE & ANOTHER 1979 (2) SA 67 (A)). There is general support to the view that even if the accused is unable to pay the fine the presiding officer would still be correct in affording the accused at least the opportunity of trying to avoid gaol if he/she can avail himself or herself of

such an opportunity as a matter of course. (See S v MLALAZI & ANOTHER 1952 (2) SACR 673 (W)). Fines outside the ability of the accused are at times imposed where the particular offence is prevalent and serious. In this case the music system which was one of the stolen items was recovered. Even though the trousers, pillow case and two CD’s were not recovered, the fine of such magnitude would defeat the objective of avoiding gaol. The accused is an unemployed young man and he is a first offender. The Magistrate conceded that the fine is exorbitant and suggested a lesser fine. I agree with the Magistrate.

[4] In the circumstances, the conviction is confirmed but the sentence is set aside and the following is substituted therefor:

“R1 200.00 (One thousand two hundred rand) or 8 (eight) months imprisonment.” B.E.

NKABINDE

REVIEWING

JUDGE I agree M.M.

LEEUW

JUDGE OF

THE HIGH COURT DATED: 01 NOVEMBER 2001

“R1 200.00 (One thousand two hundred rand) or 8 (eight) months imprisonment.”

B.E.

NKABINDE

REVIEWING

JUDGE

I agree

M.M.

LEEUW

JUDGE OF

THE HIGH COURT

DATED: 01 NOVEMBER 2001

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