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IN THE KWAZULU-NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH AFRICA

Case No: AR103/10

In the matter between:

THANDUKAZI SELBY MAKHAYE …......................................................................Appellant

and

THE STATE …............................................................................................................Respondent

J U D G M E N T

SEEGOBIN J

[1] The appellant was convicted by the regional court magistrate Mr. ZP Nkosi on a charge of theft of a motor vehicle and was sentenced to five (5) years imprisonment. His appeal before this court is with leave of the court a quo.

[2] The appellant, who was legally represented, pleaded not guilty and elected to remain silent. In the course of the trial however, his defence appeared to be that the only reason why he was arrested was because the police had found him in a road which was in close proximity to the house where the stolen vehicle was found. In order to prove its case against the appellant, the State relied mainly on circumstantial evidence. The conviction of the appellant was based upon certain inferences drawn by the learned magistrate as reflected by the following passage from his judgment:

“The doors and the ignition of the vehicle had been tampered with, and in the absence of any credible explanation of his presence there on the premises and his working on the vehicle an inference is irresistible that he had been involved in it’s theft, or knew of it’s recent theft and was perpetuating this theft in view of items that were found stolen from the vehicle and had no business to be there”.

[3] When the appeal was argued, Mr Howse, for the appellant indicated that the appellant was prepared to withdraw his appeal against the conviction

“to the extent that he abides by the conviction of theft based on the third inference drawn by the Learned Magistrate”. In view of this limited concession by the appellant, it is necessary to briefly examine the evidence relied on by the State.

[4] The vehicle in question, a maroon Nissan Sabre with registration number CSZ349FS, belonged to the complainant a Mrs Johanna Aletta Els. During the evening of 4 April 2008 she parked her vehicle at the Pick ‘n Pay Mall in Scottburgh where she and her husband went for supper. She emerged about 2 hours later to find that her vehicle was missing. The theft was reported to the Scottburgh Police Station. On 15 April 2008, she was requested to come to the police pound at Scottburgh where she positively identified her vehicle. The vehicle was in fact recovered by the police from House 513, G Section, Umlazi Township on 10 April 2008 by Inspector Nyidi and certain other policemen who proceeded to the house in question after receiving information from Supt. Gumbi. When Insp. Nyidi entered the premises of House 513 he found the appellant standing next to vehicle with two registration plates bearing numbers CSZ 349 FS in his hands. The appellant denied that the plates belonged to him. Not being satisfied with this explanation, Inspector Nyidi confirmed via radio that the vehicle in question had in fact been reported stolen at Scottburgh under Cas 44/04/08. The appellant was then arrested.

[5] Supt. Gumbi tesfied that on 10 April 2008 he received information about a suspected stolen motor vehicle which was parked at a house in Umlazi Township. He proceeded to the house and observed the appellant busy working on the vehicle. He immediately proceeded to the Umlazi Police Station and made a report. Following upon this report he accompanied Inspector Nyidi to G Section, Umlazi and pointed out the house to him. He waited in the road while Inspector Nyidi and other policemen entered the premises. A short while later they emerged with the appellant. They also had two registration plates in their possession. The numbers were checked over the police radio and it was confirmed that they belonged to a stolen vehicle.

[6] The appellant testified and called a witness in his defence. Essentially his version was that he was standing outside his motor vehicle on the side of the road opposite the house in question. He had gone to fetch the son of his taxi box. While waiting there a boy by the name of Thamo approached him and they chatted for a while. Police vehicles suddenly approached and Thamo ran away. Supt. Gumbi chased after Thamo but returned without him. When Supt. Gumbi returned, he had registration plates in his possession. The appellant denied that he knew anything about the stolen vehicle. The witness called by the appellant did not assist him in any way. His evidence was to the effect that he merely assisted the appellant by removing his vehicle from the scene when the appellant was arrested.

[7] In my view, the learned magistrate correctly rejected the appellant’s version as being improbable in the circumstances. The appellant’s presence near the vehicle with the registration plates in his possession justified the inferences that were drawn. Although there was no evidence that he was directly involved in the theft of the vehicle, his possession of the vehicle and its registration plates a mere six days after it’s theft, for which he was unable to provide a satisfactory explanation, rendered him guilty of theft. It follows that the appellant was correctly convicted.

[8] Insofar as the issue of sentence is concerned, it is clear that the Learned Magistrate paid particular attention to the appellant’s previous conviction in the present matter. The appellant had only one previous conviction for an offence described as “possession of housebreaking and for car theft implements and not being able to justify such possession”. This offence was committed on 15 October 1998 and the appellant was sentenced on 1 October 1999. He was sentenced to a fine of R3000,00 or 6 months imprisonment, half of which was suspended for 5 years on condition that he was not convicted of a similar offence or theft or attempted theft during the period of suspension.

[9] In S v Muggel ¹, Ngcobo J (as he then was) set out the extent to which it is permissible to take previous convictions into account when imposing sentence to be the following :

“1. In terms of s 271(4) of the Act the court is required to take previous convictions which have been proved against the accused into consideration when imposing a sentence.

2. In terms of s 271A previous convictions automatically fall away as previous convictions after the expiration of a period of ten years from the date of conviction unless the previous conviction relates to an offence for which the punishment may be a period of imprisonment exceeding six months without the option of a fine or the person has been convicted of an offence for which punishment may be a period of six months’ imprisonment without the option of a fine during that period. This section does not merely provide that such previous convictions should not be taken into consideration when sentence is imposed, but it specifically provides that they fall away as previous conviction. S v Zondi 1995 (1) SACR 18 (A) at 23g-j. In terms of s 271A the sentencing court has no discretion. It cannot take into consideration any previous convictions which fall within the purview of the section. S v Zondi (supra).

3. Although s 271 (4) requires the sentencing court to take previous convictions into account when determining the appropriate sentence, it does not take away the discretion of the sentencing court. The court is enjoined to exercise its discretion judicially when taking into consideration previous convictions.

4. In the exercise of its discretion, the sentencing court is required to have regard to the nature, the number and the extent of similar previous convictions and the passage of time between them and the present offence. The relevance and importance of those convictions depends upon the element they have in common with the offence in question. S v J 1989 (1) SA 669 (A) at 675C – D.

5. Previous convictions, which bear no relationship whatsoever to the crime, are relevant in a limited sense only and simply with a view to determining to what extent, if any, the form of punishment imposed for those crimes served as effective deterrents for the person in his or her career of crime and also to indicate the extent to which the person has an uncontrollable urge to lawlessness which reduces the chance of reform. S v J (supra at 675).

6. The tendency of taking everything that appears on the form SAP69 into consideration, regardless of the passage of time, must be avoided. It must also be borne in mind that even a criminal is entitled to ask that the lid on the distant past should be kept tightly closed. S v Mqwathi 1985 (4) SA 22 (T).

7. The degree of emphasis to be placed upon previous convictions is a matter which is within the discretion of the trial court. Where the degree of emphasis is disturbingly inappropriate, in that it cannot be said that the sentencing court exercised its discretion judicially, the court of appeal will interfere”.

[10] The present offence was committed by the appellant on 10 April 2008 (the date of his arrest) which is almost 10 years after the commission of his previous offence and for almost 9 years since he was sentenced in that matter. It is apparent from the judgment of the trial court that it considered the previous conviction as particularly relevant with a view to determining the extent to which the previous punishment had served to act as an effective deterrent on the appellant. This is apparent from the Learned Magistrate’s comment that “it does not look like the type of sentence deterred you”. In my view, the previous conviction and sentence seemed to have deterred the appellant sufficiently because he was not convicted of any offence during the 5 year period of suspension, least of all one involving theft. In fact, he was not convicted of any crime for a total period of almost 9 years. The reliance by the trial court on the previous conviction and its over-emphasis thereon, were disturbingly inappropriate and constitutes a material misdirection on its part which warrants interference by this court. Additionally, bearing in mind that it was never established that the appellant was the actual thief and given his personal circumstances, the trial court ought to have considered other appropriate sentencing options. It was not disputed that the appellant was gainfully employed and is responsible for the support of a large extended family. While there is no doubt that the appellant was convicted of a very serious offence, the undue emphasis of one factor over another would constitute a misdirection. Clearly, in this case the choice of 5 years direct imprisonment was based largely on the previous conviction.

[11] In light of these misdirections on the part of the trial court, Mr Howse submitted that one of the options open to us was to refer the matter back to the court a quo to obtain a pre-sentencing reports to consider the imposition of correctional supervision given the fact that the appellant is gainfully employed and does support a large family. I do not consider this to be a reasonable option. The fact remains that the appellant has been convicted of a serious offence and the imposed sentence while allowing him to rehabilitate himself, must also serve as a sufficient deterrence not to engage in this type of conduct in the future. I am accordingly of the view that a suitable sentence would be one that is subject to the provisions of Section 276(1) (i) of the Criminal Procedure Act 51 of 1977.

[12] I accordingly make the following order:

(a) The conviction is confirmed.

(b) The appeal against the sentence is upheld.

(c) The sentence imposed by the Court a quo is substituted with the following:

“The accused is sentenced to Five (5) years imprisonment of which a period of one year of imprisonment is suspended for three (3) years on condition that the accused is not convicted of theft or attempted theft during the period of suspension. The accused may be placed under correctional supervision in the discretion of the Commissioner in terms of the provisions of the Section 276(1)(i) of the Criminal Procedure Act 51 of 1977.”

Seegobin J

I agree.

Balton J

For the Applicant : Adv. J.E Howse

Instructed by : B.T Dlamini Mbadu & Associates

For the Respondent : Adv. M.V. Mcanyana

Date of hearing : 14 February 2011

Date of Judgment : 03 March 2011

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