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CA NO: 16/06

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

SAMUEL KALAMANE

REVIEW JUDGMENT

HENDRICKS J:

[1] The accused Samuel Kalamane pleaded guilty of theft of two speakers to the value of R800-00 (eight hundred rand). Upon conviction, he was sentenced to pay a fine of R1 800-00 or in default of payment, to an imprisonment term of six (6) months,

[2] When this matter initially came as an automatic review in front of my sister Nkabinde J (as she then was), she queried whether the fine imposed was proportionate to the imprisonment term and shouldn’t a suspended sentence have been imposed alternatively that a part of the sentence imposed be suspended, having regard to the personal circumstances of the accused.

[3] In response to this query, the Magistrate states:-

“The mere fact that accused pleaded guilty doesn’t mean that he is remorseful. Whether accused is sincerely remorseful and not simply sorry for himself for having been caught, is a factual question which is often determined from the surrounding actions of the accused rather than from what he says in court,”

[4] With the greatest of respect I cannot agree with the Magistrate. A plea of guilty may well be a sign of remorse or contrition as it appears to be the case in the matter.

[5] As to whether the fine is proportionate to the imprisonment term, the Magistrate replied as follows:-

“The court followed the guideline given by Van Dijkhorst J in S v Tsatsinyana 1986 2 SA 504 T that alternative imprisonment is having two functions to wit:

1. To ensure payment of the fine. The imprisonment, therefore, has to be long enough to ensure that the offender would rather pay the fine.

2. Punishment, if the fine is not paid. This implies that the term should correspond to the term which would have been imposed had imprisonment been the only punishment

The court therefore, still maintains that the fine imposed is proportionate to the imprisonment term.”

[6] I am of view that the fine is indeed disproportionate to the imprisonment term. In my view a fine of R1 200-00 is more proportionate to a term of six (6) months imprisonment, not that such a sentence will be appropriate in this case.

[7] If regard is had to the personal circumstances of the accused and especially the fact that he is a first offender at the age of 23 years, he is self-employed and earn approximately R55-00 per month and he is also a sickly person coupled with the fact that the property were recovered, I am of the view that the sentence imposed is shockingly severe and excessive.

[8] It stands to reason that the accused is incarcerated since the 21^st November 2005 because he cannot afford to pay this exorbitant fine with the miserly income he earns.

[9] When the accused is given an opportunity to stay out of prison by imposing a fine upon him, that fine should be reasonable, affordable and appropriate to the alternative term of imprisonment.

[10] In my view, this is a typical case where the accused should have been kept out of prison by imposing a wholly suspended sentence upon him especially in the light of the circumstances of this case.

[11] Consequently, I make the following order:-

[i] The conviction is confirmed.

[ii] The sentence is set aside and substituted with the following:-

“R1 200-00 or six (6) months imprisonment which is wholly suspended for a period of three (3) years on condition that the accused is not again convicted of theft committed during the period of suspension.”

[iii] The immediate release of the accused is ordered.

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

A A LANDMAN

JUDGE OF THE HIGH COURT

09 MARCH 2006

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