S v Seleke and Another (182/04) [2004] ZANWHC 28 (1 September 2004)

IN THE HIGH COURT

OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 182/04

In the matter between:

THE

STATE

AND

JOHN

SELEKE

LUCKY

MOSEBI

REVIEW

JUDGMENT

MOKGOATLHENG

AJ

JUDGMENT

MOKGOATLHENG AJ:

[1] This is a review in terms of section 304 of the Criminal Procedure Act 51 of 1977. The two accused were on 27 October 2004 convicted of housebreaking with intent to steal and theft. The accused pleaded guilty to the charge. The following facts appear from the record:

(a) entry into the complainant’s premises was gained through an open window.

(b) the value of the stolen property was R11 788.00.

(c) all the stolen property was recovered.

[2] The personal circumstances of the accused are as follows:

Accused 1 is 18 years old. He is not employed. He maintains a minor child. His left hand is paralysed. He receives a State disability social grant. He is a first offender. He showed remorse. He is unmarried.

Accused 3 is 21 years old. He is unmarried. He is an orphan and stays with his grandmother. He has a previous conviction of housebreaking with intent to steal and theft committed on 12 October 1998. He was sentenced to 2 (two) months imprisonment wholly suspended for a period of three years.

[3] The accused were both sentenced to three years imprisonment. The Learned Magistrate reasons for the sentence imposed are the following:

(a) The offence is prevalent in the district.

(b) The offence of this nature is pre-planned.

(c) The victims accumulate their property over a number of years only to lose it at the wink of an eye.

(d) The stolen property is seldom recovered.

(e) Where it not for the fact that the two accused pleaded guilty and that the property was recovered the Learned Magistrate would not have hesitated to refer the accused to the Regional Court for sentence.

(f) Under the circumstances the Court has no option but to impose the maximum sentence.

[4] The Learned Magistrate misdirected himself and adopted an incorrect approach in sentencing the accused. The sentences imposed are clearly not in accordance with justice and I have accordingly invoked the provisions of section 304 2(a) and consider it redundant to request the Learned Magistrate to furnish reasons for the sentences imposed.

In any case sufficient reasons which motivated the Learned Magistrate to impose the three years imprisonment are on record. The High Court has an inherent jurisdiction to interfere with the sentence of a lower court if there is a patent irregularity or misdirection in the proceedings of the case under review.

[5] The Learned Magistrate did not as required by law consider other sentencing options. The Learned Magistrate did not request a probation officer’s report to have appropriate information regarding the accused family and social background to enable him to properly determine and individualise the appropriates sentence. The Learned Magistrate overemphasised the prevalence of the offence and the interest of society without properly taking into consideration the personal circumstances of the accused and the rehabilitative aspect of sentence.

The Learned Magistrate misdirected himself when he opined that he had no option but to impose the maximum sentence. Accused no. 2 has a previous conviction for a similar offence and is older than accused no. 1 who is a first offender and only 18 years old.

“The interests of society cannot be served by disregarding the interests of the juvenile, for a mistaken form of punishment might easily result in a person with a distorted personality being eventually returned to society”.

S v Jansen and Another 1975 (1) SA 425 (A) at 427-428A.

In S v Z en Vier Ander Sake 1999 (1) SACR 427 (E) at 430 F Erasmus J stated:

“Die oogmerk van straf by jeugdiges

Besondere omstandighede geld by die bestrawwing van jeugdige oortreders, juis vanweë die feit van hul jonkheid. Die jeug is kenlik van kosbare waarde vir die gemeenskap.”.

In the premises the sentence of three years imprisonment in respect of the accused is set aside and substituted with the following:

“Accused no. 1 John Khehla Seleke is sentenced to 1 (one) year imprisonment wholly suspended for a period of five years on condition that he is not convicted of the offence whereof dishonesty is an element.

Accused no. 3 Lucky Mpho Mosebi is sentenced to 1 (one) year imprisonment.”.

_____

R

D MOKGOATLHENG

ACTING

JUDGE OF THE HIGH COURT

I agree

______

A

A LANDMAN

JUDGE

OF HIGH COURT

DATED : ___NOVEMBER 2004