IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
CA NO.: 145/05

In the matter between:

THE STATE

AND

SAMMY RANKOA
TSHEPISO AMOS THEBANE

REVIEW JUDGMENT

TLHAPI AJ:

1.	The accused were charged and convicted with housebreaking with intent to steal and theft.   Accused no. 1 was sentenced to a term of imprisonment of 2 years without the option of a fine.  Accused no.2 was sentenced to 12 months imprisonment wholly suspended for a period of three years.

2.	The following query was raised by Gcabashe AJ:
“Accused No. 1 was convicted and sentenced to 2 years imprisonment without the option of a fine or suspended sentence.
Accused No. 2 was convicted for the same offence and sentenced to a term of imprisonment of 12 months, which term was wholly suspended.

Not only do I find the sentence of Accused No. 1 rather severe and inappropriate (as the music system was returned), but I find it disappropriate to the sentence of his co-accused.

I acknowledged a judicial officer’s discretion in passing sentence.  This discretion must, however, conform with notions of fairness and justice.

It is my view that the learned Magistrate placed too much weight on the fact that Accused No. 1 had a previous conviction for housebreaking, committed during 1998.  I refer the learned Magistrate to the judgment of His Lordship Ngcobo J in S v Muggel 1998 (2) SACR 414 in this regard.

Your comments hereto are requested.”  
 
3.	The Magistrate responded as follows:

“1.	I have carefully studied the authority referred to by his (sic) Lordship, especially at page 418-419 pertaining to the extent to which it is permissible for the sentencing officer to take previous conviction into account when a punishment is imposed.
2.	I did take into account the accused’s previous conviction, however, my main emphasis was that the type of sentence imposed did not have any deterrent effect on the accused, it didn’t rehabilitate him and in my view his militated strongly against his position.  It was for that reason that I considered a direct imprisonment as a suitable punishment under the circumstance.
3.	I conceded that the sentence to impose is to certain extent severe and disappropriate and recommend that it be reduced to twelve months imprisonment, of which half the sentence be suspended accordingly.”
4.	The Magistrate having conceded that the sentence of accused no. 1 was severe, the sentence of 2 (two) years is accordingly set aside and substitute with the following:
	
	(i)	In the premises the convictions are confirmed.
(ii)	The sentence imposed on accused no. 2 as reflected in the record, is confirmed.
(iii)	Accused 1 is sentenced to 12 (twelve) months imprisonment half of which is suspended for a period of 3 (three) years on condition that the accused is not convicted of the offence of housebreaking with intent to steal and theft committed during the period of suspension.

____________
V V TLHAPI
ACTING JUDGE OF THE HIGH COURT

I agree

_____________
A A LANDMAN
JUDGE OF THE HIGH COURT

DATED				:	08 December 2005