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CA NO: 40/2006

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

PETRUS SLEDGE RASEGWETE

REVIEW JUDGMENT

HENDRICKS J:

[1] The accused was charged with three counts of theft of stock or produce in contravention of Sections 11, 13 and 15 of the Stock Theft Act, Act 57 of 1959. It was alleged that he stole three donkeys on different occasions from three different complainants.

[2] He was convicted on all three counts and was sentenced to twelve (12) months imprisonment on each count: in total thirty six (36) months (3 years).

[3] When this matter initially came on automatic review before my sister Leeuw J, she queried inter alia whether a donkey is included under the definition of “stock” in terms of the Stock Theft Act, supra; and whether the sentence is not too harsh.

[4] The Magistrate in reply referred to the fact that a “mule” is included in the definition of “stock” in the Stock Theft Act. Though not expressly included in the definition of the Stock Theft Act, but by necessary inference, a donkey is included through the bilingual dictionary explanation of “mule” or “esel”.

[5] I am of the view that the Magistrate’s reasoning cannot be faulted. Although the legislature did not expressly include a donkey in the definition of stock, I can think of no specific reason why a horse and a mule are included but a donkey is excluded.

[6] Without any stretch of the imagination it can safely be accepted that if the legislature included a horse and a mule, a donkey is not so distinctly different that it should be excluded as “stock”.

[7] I am therefore in agreement with the Magistrate that a donkey should be included and can be defined as “stock” in terms of the Stock Theft Act, supra.

[8] I am of the view that the convictions are therefore in order and should be confirmed.

[9] As far as the sentence is concerned, I find myself unable to agree with the Magistrate that the imposed sentence does not induce a sense of shock.

[10] The personal circumstances of the accused are the following:- he is single, he has a minor child aged three (3) years, he had temporary employment and received an income of approximately R70-00 per day which he used to maintain his mother and his siblings, he is a first offender and the three donkeys have been recovered.

[11] Having regard to the abovementioned personal circumstances of the accused and especially the fact that the owners did not suffer a dead lost since their donkeys were recovered, I am of the view that the cumulative affect of the sentence is shockingly severe and excessive.

[12] In my view the Magistrate should have at least taken the three counts together for the purpose of sentence, alternatively, to guard against the cumulative effect of imposing a too severe sentence, the Magistrate should have suspended a considerable portion of the sentence imposed.

[13] I am of the view that the sentence imposed warrants interference.

[14] Therefore, I make the following order:-

[i] The convictions are confirmed.

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

“The three counts are taken together for the purpose of sentence. The accused is sentenced to twelve (12) months imprisonment of which half is suspended for the period of three (3) on condition that the accused is not convicted of Theft or Stock Theft committed during the period of suspension.”

[iii] In terms of Section 103 (1) of Act 60 of 2000, the accused is declared unfit to possess a fire-arm.

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

M M LEEUW

JUDGE OF THE HIGH COURT

4 MAY 2006

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