South Africa: North West High Court, Mafikeng

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S v Mfana (172/04) [2004] ZANWHC 31 (18 November 2004)

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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO.: 172/04


In the matter between:


THE STATE


AND


VUSI BEN MFANA


REVIEW JUDGMENT


MMABATHO


MOKGOATLHENG AJ

JUDGMENT


MOKGOATLHENG AJ:


[1] This is a review case no 21/04 referred in terms of Section 304 of Act 51/1977 emanating from the Magisterial district of Molopo. The case was heard before magistrate L P Maseng at Mmabatho District Court.


[2] On the 17 August 2004, the accused was convicted of the offence of housebreaking and theft, and was sentenced to two years imprisonment.


[3] When this matter was submitted for review, Nkabinde J, enquired from the Learned Magistrate whether he took into account the following factors when considering an appropriate sentence:

(a) that the accused pleaded guilty and has showed remorse;

(b) that the accused was a first offender and is 19 years old;

(c) that no damage was visited on the property as entry was procured through an open door; and

(d) some of the stolen items a t-shirt were recovered.


[4] The Learned Magistrate was asked whether he should not have suspended part of the sentence, despite the fact that the prevalence of housebreaking with intent to steal and theft was on the increase.


[5] The Learned Magistrate conceded that the sentence is severe and suggested that of the period of two (2) years, half should be suspended for a period of three years.


[6] The Learned Magistrate overemphasised the prevalence of the offence, and the deterrent aspect of sentence, and in the process lost sight of the fact that a partially suspended sentence could achieve the same objective.


[7] The Learned Magistrate erred in failing to attach sufficient weight to the facts enumerated in paragraph [3] above.


[8] In the premises the conviction is confirmed and the sentence is set aside and substituted with the following:

“Two years imprisonment half of which is suspended for a period of five years on condition that the accused is not convicted of an offence of which dishonesty is an element and of which he is sentenced to a term of imprisonment without the option of a fine committed during the period of suspension.”



__________________

R D MOKGOATLHENG

ACTING JUDGE OF THE HIGH COURT



I agree



__________________

A A LANDMAN

JUDGE OF THE HIGH COURT






DATED : 18 NOVERBER 2004







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