R v Kharwa

• Jurisdiction: South Africa
• Judge: Selke AJP and Fannin AJ
• Judgment Date: 07 October 1955
• Citation: 1956 (1) SA 5 (N)
• Hearing Date: 02 October 1955
• Court: Natal Provincial Division

Selke, A.J.P.:

This is an appeal from the regional court for H Pietermaritzburg, Durban. The appellant is an Indian man whose age is not stated in the papers, but Mr. Niehaus - who appeared for him in this Court - said he was 35 years old. He was charged in the court below with theft, it being alleged that, during the period 8th - 10th October, 1954, he stole from the lawful possession of the South African Railways, Durban, a bale of chrome suede splits, the property of the Maydon Slipper Factory, Durban. He pleaded not guilty, but was

Selke AJP

convicted and was sentenced to serve nine months' imprisonment with compulsory labour. In his notice of appeal, he purported to appeal against both the conviction and sentence, but Mr. Niehaus found himself unable to press the appeal against the conviction. With that attitude we entirely agree.

A As regards the sentence, Mr. Niehaus urged that the appellant, being a first offender, and the value placed upon the stolen leather being no more than £45, the sentence of nine months' imprisonment was so severe as to be unjust, especially having regard to the further facts that the appellant was, at the time of the commission of the offence, himself B in grave financial difficulties, and found himself unable to resist the temptation to steal from the possession of the South African Railways, which, in Mr. Niehaus' submission, it was notoriously easy to do.

In all the circumstances, however, we are unable to regard the offence otherwise than as meriting severe punishment, especially as the record C discloses that the appellant, who is, or was, a shopkeeper, associated himself with a native, or natives, in perpetrating the offence. We do not, therefore, regard the punishment as unduly severe.

In response to the appellant's notification of his intention to appeal, the Attorney-General gave notice that the Crown would, at the hearing, D submit that, on the facts as found by the magistrate, a verdict that the appellant was guilty of theft was not a competent verdict, and that the proper verdict was one of receiving stolen property well knowing it to have been stolen, and that that being so, in accordance with the provisions of sec. 329 (2) (a) read with Part II of the Third Schedule to the Criminal Procedure Act, 56 of 1955, the sentence should have included a whipping.

E The Court raised with Mr. Masters the question whether an application by the Crown to alter the verdict in this case...