---

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO: 042/2004

PARTIES: X LINDANI

and

THE STATE

REFERENCE NUMBERS:

• Registrar: CA&R 482/2004

DATE HEARD: 19 OCTOBER 2004

DATE DELIVERED: 21 OCTOBER 2004

JUDGE(S): JONES and CHETTY JJ

LEGAL REPRESENTATIVES –

Appearances:

• for the State/Applicant(s)Appellant(s): E THERON

• for the accused/respondent(s): JP ENGELBRECHT

Instructing attorneys:

• Applicant(s)/Appellant(s): LEGAL AID BOARD

• Respondent(s): DPP

CASE INFORMATION –

• Nature of proceedings: Sentence – declaration as habitual criminal - whether discretion properly exercised – analysis of previous convictions

Possibly reportable

In the High Court of South Africa

(Eastern Cape Division) Case No CA&R 482/02

Delivered: 25/10/04

XOLISILE LINDANI ` Appellant

and

THE STATE Respondent

Summary: Sentence – declaration as habitual criminal – whether discretion properly exercised – analysis of previous convictions

JUDGMENT

JONES J:

The appellant, aged 40 years at the time of trial, was charged in the district court, Uitenhage with contravening s 36 of Act 62 of 1955, that is of being found in possession of property suspected of having been stolen (a television set, a video recording machine, a mini hi-fidelity set and a watch) without being able to give a satisfactory account of his possession. He was not represented by an attorney at his trial. He pleaded guilty, but a plea of not guilty was entered on his behalf. Evidence was led and he was duly convicted.

After proof of previous convictions the district magistrate referred the appellant to the regional court for sentence. The appellant sought and was given legal representation at that stage. After hearing an address in mitigation, the regional magistrate declared the appellant an habitual criminal in terms of section 286(1) of the Criminal Procedure Act No 51 of 1971.

He now appeals against sentence only.

Section 286(1) of the Criminal Procedure Act 51 of 1971 provides that a superior court or a regional court may, if it is satisfied that the accused person habitually commits offences and that the community should be protected against him, declare him an habitual criminal. The regional magistrate came to the conclusion that the appellant habitually commits offences and that the community should be protected from him solely because of the previous convictions which were proved against him. In view particularly of the extremely serious consequences to the appellant of being declared an habitual criminal (S v Niemand 2002 (1) SA 21 (CC)) it is necessary to subject the regional magistrate’s analysis of the previous convictions to careful scrutiny to see whether he has exercised his discretion properly. This was the approach of this Court in S v Mdliva 1981 (2) SA 475 (E). It becomes apparent, if the same kind of critical investigation into the previous convictions is done, that the magistrate’s analysis does not pass muster, and the conclusion is inevitable that he cannot have exercised his discretion on sentence properly.

A criminal record, or the lack of one, forms an important part of the personal circumstances of an offender at the sentence stage. Of importance is the nature and frequency of criminal conduct in the past, the kind of punishment metered out, and its apparent effect. The list of previous convictions which the appellant admitted shows that between 1986 and 1994 he was brought before the courts on 6 occasions and was convicted in all of 9 counts of theft, stock theft and housebreaking with intent to steal and theft. On the first two occasions, housebreaking and theft and then theft, he was treated as a juvenile offender and given corporal punishment. From then on he felt the full weight of the law. In 1987 he was given 3 years’ imprisonment for housebreaking, and then, in 1989, 4 years’ for housebreaking and 5 years’ for stock theft. In 1994 he was convicted of 4 counts of housebreaking with intent to steal and theft, and given a sentence of 15 months’ imprisonment on each count, which is a total of 5 years’ imprisonment.

Though not on the previous convictions list, it appears to have been common cause that there was a further conviction or perhaps convictions for the unlawful possession of arms and ammunition, for which a total of 86 months’ imprisonment (just over 7 years’) was imposed. It would also seem to be common cause that the present offence (the contravention of s 36) was committed on 25 May 2000 at a time when the appellant was given compassionate leave of absence from prison in order to attend a funeral.

The previous convictions show a propensity towards serious crimes of dishonesty. That they are aggravating and justify a severe sentence goes without saying. But the magistrate should have asked the same kind of questions that were asked by Eksteen J in Mdliva’s case. In considering the convictions and sentences he should have paid more than cursory attention to the nature of the punishment previously given. He should have pondered over its effect on the appellant. He should have pondered over whether the bad record may have been the result of despair at the harsh sentences the appellant had received during his adult life. He was never given the opportunity of extra-custodial rehabilitative punishment. He was never sentenced to short-term imprisonment. He was never given the inducement to behave himself offered by suspended or partially suspended sentences. In short, he was never given a real chance by the courts to show that he is capable of redeeming himself. He has never been shown compassion, and, in the circumstances, the present sentence of being declared an habitual criminal is, like in Mdliva, ‘singularly lacking in compassion and amounts to insufficient weight having been given to his personal circumstances’ (p 487D).

Another question to be asked and debated is whether the appellant’s career in crime really justifies the inference that he commits offences of dishonesty habitually to the point that the community must be protected from him on that account. He has now committed 10 crimes of dishonesty over a period of 18 years. This does not begin to compare with the bad record of the accused, for example, in Mdliva or S v Van Eck 2003 (2) SACR 563 SCA) where the inference of habitually committing crime can be justified by sheer weight of numbers. In Van Eck, for example, offences were committed and repeated, not from poverty or from the hard fact of life that recidivists find it difficult to come by honest work, but habitually in the sense that the accused committed offences ‘whenever the occasion presented itself or whenever he found himself hard-pressed financially or unable to afford something he wanted’. Furthermore, this offence of dishonesty – the possession of property suspected of being stolen without being able to account for it – is less serious than theft, stock theft, or housebreaking. Does declaration as an habitual criminal fit this crime? It seems to me not.

The magistrate seems to have used the convictions for the unlawful possession of firearms to justify the conclusion that the community must be protected against the appellant. But the issue here is the protection of society against crimes of dishonesty, and not against the use of unlawfully possessed weapons.

In all the circumstances, the conviction must be confirmed but the sentence is set aside and will be replaced with a sentence of 4 years’ imprisonment of which 2 years’ is conditionally suspended for a period of 5 years on condition that the accused is not convicted of housebreaking with intent to commit an offence, or theft, or a contravention of s 36 or s 37 of Act 62 of 1955, or any attempt to commit any of the above, committed during the period of suspension, for which he is sentenced to imprisonment without the option of a fine. This sentence is backdated to 25 July 2001.

RJW JONES

Judge of the High Court.

CHETTY J: I agree.

D CHETTY

Judge of the High Court

---