South Africa: Supreme Court of Appeal

CASE NO. 21/83

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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between
GLEN EDWIN DONALD APPELLANT
and
THE STATE RESPONDENT

CORAM: WESSELS, HEFER JJA et ELOFF AJA

HEARD: 24 AUGUST 1984

DELIVERED: 6 SEPTEMBER 1984

JUDGMENT

ELOFF/
2. ELOFF, AJA
This is an appeal on sentence only. The appellant was convicted by a Regional Magistrate of contravening section 84(1)(a) of Act 73 of 1964, in that he on 16 July 1980 purchased one rough or uncut diamond of 6,13 carat with a value of R6 707. He was sentenced to a fine of R3 000 or 2 years' imprisonment and a further 12 months' imprisonment. He appealed unsuccessfully to the Transvaal Provincial Division, which then refused leave to appeal further. He was however granted leave by this Court to appeal against the sentence.

The conviction followed on a plea of

guilty/
3. guilty supplemented by a written statement by the appellant in which he inter alia stated that he purchased the diamond for R3 000 from a certain Andries Mohatla. After conviction the appellant's attorney presented an address in mitigation. He said that the appellant, who was at the time of the offence a licensed diamond cutter, was approached by a black man a few months before 16 July 1980 with an offer of a few diamonds. He declined to deal. A little later the appellant was again approached by two black men, who also showed him some diamonds. He again refused to do business. On a third occasion one of the black men returned and offered him the diamond which was the subject of the charge.

It/
4. It was a large diamond of very good quality. The appellant was so tempted that he agreed to pay the asking price. Once the money had been paid and the diamond received the appellant discovered that he had been the victim of a police trap.
It appears from the reasons given by the Regional Magistrate that in imposing the sentence under discussion he took the personal circumstances of the appellant, as outlined by his attorney, into account. He accepted that the appellant had found himself in financial straits which he thought might be alleviated by the profit which he thought he would make on the resale of the diamond. He seemed to assume the correctness

of/
5. of what appellant's attorney mentioned, that in consequence of the conviction the appellant lost both his employment and his license as a diamond cutter. And he took note of the fact that the appellant had a pregnant wife and a small child.
The Magistrate was however strongly motivated in imposing the sentence of one years' imprisonment - which is the main component complained of in this appeal - by the fact that on 21 October 1974, the appellant was convicted of the contravention of section 84(1)(a) of Act 73 of 1964, in that he was in possession of rough and uncut diamonds. That was just on six years before the commission of the offence now

under/

6.

under consideration. It appears that in consequence of that conviction the appellant lost the license which he then held as a diamond cutter, but it was restored to him some three years later. The Magistrate said that with the background of the warning which the appellant received, a serious view should be taken of the fact that he again violated the same Act. He accepted that the appellant was probably strongly tempted by the offer made to him on 16 July 1980 by the police trap, but he concluded that in the light of his previous experience the conduct of the appellant was inexcusable.

In argument before us appellant's

Counsel/
7. Counsel argued that the Magistrate did not seem to have considered the desirability of suspending the sentence of imprisonment. This point was not raised in appellant's notice of appeal, and was consequently not dealt with by the Magistrate. It is in any event reasonable to assume that the possibility of imposing a suspended sentence was present to his mind, for it was suggested by appellant's attorney in his mitigation plea. The fact that it was not expressly mentioned does not attract the inference that it was not considered. It seems to me to be plain that the Magistrate intended to impose an unsus-pended term of imprisonment.

Much was made by appellant's Counsel

of/

8.

of the fact that the Magistrate's reasons indicate that he was not inclined to accept the correctness of that part of what was put forward by appellant's attorney - apparently without challenge by the prosecuter -that is was only on a third offer to sell diamonds that the appellant succumbed to the temptation to buy.
I assume for the moment that the Magistrate was bound to accept as a fact that the appellant had on two previous occasions declined to purchase rough and uncut diamonds. Even then the paucity of information concerning the circumstances of those previous offers makes it impossible to conclude that a matter of importance was left out of account. Without

knowing/
9. knowing e g whether attractive diamonds were offered
and at realistic prices, one cannot assess the significance of the previous offers. This conclusion highlights the importance of what was said by Basson J in S v Gough 1980(3) S A (N C D) 785 at 786(H) -

"Dit is ook verkieslik dat sodanige getuienis (i e the submission of facts in mitigation) onder eed afgelê word. Dit het die voordeel dat die getuienis, indien nodig, deur kruis-verhoor getoets kan word en die voorsittende beampte verdere inligting wat hy nodig ag, kan bekom."

I accordingly consider that even if the Magistrate erred

in not assuming that the appellant had on two previous

occasions refused to deal in rough and uncut diamonds,

that/
10. that misdirection was not shown to be material.
In considering the sentence imposed in the present case it is necessary to have regard to the factor which was stressed by this Court in S v Tsochlas 1974(1) S A 565 (AD) at 575 (F) that by providing for a fine not exceeding ten thousand rand or imprisonment for a period not exceeding ten years, or to both such fine and imprisonment, Parliament has indicated the seriousness with which it views the offence of dealing in rough and uncut diamonds. That, no doubt, was because of the potential harm to the diamond industry. The factor of prevalence of the offence was alluded to in S v Seegers 1970(A) SA 506 (AD), and was a material consideration in

the/

11.

the decision to impose a fine and three years' imprisonment, half of which was suspended, on a first offender. In casu the Regional Magistrate drew attention to the prevalence of the offence in the Transvaal. To these considerations I would add a feature which to my mind is also relevant, viz that the offence under discussion involves the element of dishonesty. I further think it important that appellant, a man in the diamond industry, must have known of the implications of dealing in rough and uncut diamonds.
I think that in view of the appellant's previous conviction, and the fact that he did not heed the lesson of the past, the Magistrate was fully justified

in/
12. in imposing the sentence which he did, notwithstanding the personal circumstances of the appellant and all the consequences entailed by the sentence. There does not seem to me to be any ground for interference.

The appeal is dismissed.

ELOFF, AJA

WESSELS JA )

) CONCUR
HEFER JA )