IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)

                                                                                   CA NO:  90/07

In the matter between:

THE STATE 

and

SEAKGWE TUMELO

REVIEW JUDGMENT

PAKO AJ:

[1]	The accused, a 17 year old boy, was charged with eleven counts of housebreaking with intent to steal and theft in the Magistrate’s Court.  He pleaded guilty on all eleven counts.  He was convicted on the strength of his plea of guilty on nine counts of housebreaking with intent to steal and theft, and two counts of theft.  He was sentenced to one year imprisonment in respect of each of the nine counts of housebreaking with intent to steal and theft, and to six months imprisonment on each count of theft.  The effective sentence which the accused must serve is ten years imprisonment.  In terms of Section 103(2) of the Firearms Control Act 60 of 2000, the accused was also declared unfit to possess a firearm.  The matter is now before me by way of automatic review.  I am satisfied with the order declaring the accused unfit to possess a firearm.

[2]	The matter first came before Leeuw J who had serious misgivings about the cumulative effect of the sentence which the accused has to serve.  Accordingly, the Magistrate was requested to motivate the imposition of a cumulative effect of the sentence of ten years imprisonment on a 17 year old boy.  I have received the Magistrate’s response to a query directed to her by Leeuw J.  The Magistrate’s view is that in terms of Section 9(1)(a) of the Magistrate’s Courts Act 32 of 1944 she is entitled to impose a sentence of three years imprisonment on the accused in respect of each of the eleven counts and not to order them to run concurrently.  She therefore implies that the cumulative effect of the sentence of ten years imprisonment is not harsh.  In paragraph 9 of her response to a query raised, she stated the following:-

“I was of the opinion that 10 (ten) years, out of a possible 33 years, is a balanced sentence.”

[3]	In terms of Section 280(1) of the Criminal Procedure Act 51 of 1977 when an accused person is convicted of two or more offences the court may sentence him to such several punishments for such offences as the court is competent to impose.  However, in those instances the cumulative effect of sentences must always be born in mind.  The reason being that the cumulative effect of sentence imposed on more than one count may be such that the combination of the two sentences can be shocking.  If the cumulative effect of the sentences induces a sense of shock, the court will be justified to interfere with the sentences.  See S v Koutandos and Another 2002 (1) SACR 219 (SCA) at 221 g;  S v Kwenamore 2004 (1) SACR 385 (SCA) at 386 – 387 [7].

[4]	The accused is still a juvenile.  He pleaded guilty to all counts and disclosed all what he did.  In some of the counts he admitted having committed the offences being alone.  This is an indication that he was honest to the court.  He admitted that what he did is morally and legally wrong.  This is a sign of genuine remorse.  The accused was incarcerated for six months awaiting trial of this case.  The accused contended that his youth has made him vulnerable to influence by his friends, in particular Boitumelo.  He contended that Boitumelo influenced him to commit some of the crimes in question.  Boitumelo, who is 23 years old, was a co-accused in this case but their trials were separated when the accused pleaded guilty.

[5]	I have no doubt in my mind that the offences in question deserve imprisonment.  These offences were committed over a period of about four months.  All were committed in the same village.  The offences in counts 2 to 4 were committed in July 2006.  The one in count 5 was committed in August 2006.  The one in count 6 was committed on 23 November 2006 and the one in count 7 was committed on 28 November 2006.  The offence in count 8 was committed on 17 December 2006.  The offences in counts 9 and 11 were committed on the same day, the 31st December 2006.  The offences in counts 1 and 10 were committed on 12 January 2007 and 13 January 2007 respectively.  The offences in counts 3 and 4 relate to one premise which belongs to one person and these offences were committed during the same night after a very short period of time after the initial theft.

[6]	It is quite clear that most of the counts are closely connected in time and place.  The learned Magistrate failed to take this into account.  Under these circumstances, the learned Magistrate should have considered giving an order that the sentence in some of the counts run concurrently.

[7]	The Magistrate, in justifying the sentence which she imposed on the accused stated that the accused has previous convictions.  The first previous conviction is for assault and the second one is for housebreaking with intent to steal and theft.  The fact that an accused person has previous convictions cannot prevent a trial court from dealing in another way with the sentence which will bring about a fair sentence and not a sentence which induces a sense of shock.

[8]	I am of the opinion that the learned Magistrate paid insufficient regard to the cumulative effect of all the sentences she imposed.  In the circumstances of this case the aggregate sentence of ten years imprisonment for such a young boy is startlingly inappropriate and it warrants interference.  I am of the view that the total effective period of the sentences imposed by the Magistrate should be reduces to four years.  The cumulative effect of these sentences can be lessened by ordering that the sentences in some of the counts run concurrently.

[9]	Deviating for a while from the main purpose of this judgment, I wish to register my concern regarding the chaotic and confusing state of the Magistrate’s record of the proceedings.  The annexures containing the charges are scattered and attached on different pages of the record.  One has to page through the pages of the record in search of an annexure relating to a particular count.  This causes unnecessary delay in finalising the review process.  The standard practice is to attach those annexures to the charge sheet (J15) following the sequence of the counts.  The record is also saturated with annexures pertaining to rights and procedures which the Magistrate explained to the accused.  Some orders are made on a printed form which is also attached to the record of proceedings.  In particular, the order declaring the accused unfit is a printed form which is not legible on some instances.

[10]	If the proceedings are recorded by hand no abbreviations must be used.  For instance in this case a person has been referred to as “B”.  In all the counts, except for counts relating to theft, the verdict is recorded as follows:-  “Guilty:  HBT”.  A Magistrate must always record the proceedings in full and must not use abbreviations.  If the recording of the proceedings by hand is cumbersome, it is advisable that the proceedings should be recorded mechanically.  If the recordings are recorded mechanically, there will be no need to have many annexures on the record.

[11]	Having found that the cumulative effect of the sentences imposed by the Magistrate induces a sense of shock and justify interference, the following order is added to the sentence of the trial court:-

“[1]	The sentences in respect of counts 1 and 10 shall run concurrently.

[2]	The sentences in respect of counts 2, 3, 4 and 5 shall run concurrently.

[3]	The sentences in respect of counts 6 and 7 shall run concurrently;  and 

[4]	The sentences in respect of counts 8, 9 and 11 shall run concurrently.”

O A  PAKO
ACTING JUDGE OF THE HIGH COURT

I agree.

A A  LANDMAN
JUDGE OF THE HIGH COURT

22 NOVEMBER 2007