S v Arendse and Another

• Jurisdiction: South Africa
• Judge: Comrie J
• Judgment Date: 19 February 1999
• Citation: 1999 (1) SACR 454 (C)
• Hearing Date: 19 February 1999
• Court: Cape Provincial Division

Comrie J:

The two accused were convicted by a district magistrate of robbery. The evidence shows that using a knife, plus physical restraint, they went through the complainant's pockets and took R70. They were correctly convicted. They were sentenced to two years' imprisonment each. D

I queried the sentence on two grounds. The first was why no distinction had been drawn between the two accused. Accused No 1 has two previous convictions for dishonesty (a housebreaking and two thefts). Accused No 2 has two previous convictions relating to drugs, but none for dishonesty or violence. In 1994 E sentencing of accused 1 for the first theft was postponed for five years. In 1995 a short period of imprisonment (60 days) was suspended in respect of the second theft.

The magistrate replies:

'The court was also of submission that in view of fact that both of them worked together on that F day and in view of the seriousness of the offence, there should be not a severe distinction between their sentences. In this regard the court also took into consideration that the State would most probably apply for the suspended sentence to be put into operation and also that he might be called upon to appear before court in case E831/1994 for a proper sentence to be imposed.'

While it is true that accused No 1 has now exposed himself to additional G punishment, I nonetheless consider that the court a quo should have distinguished between the two accused by reason of the differences in their respective criminal records. Such additional punishment as may now be imposed on No 1, will be the result of his own doing, and of his failure to take full advantage of the postponed and suspended sentences. Even making some allowance for possible additional punishment, I am of the view that the need remains, in accordance with H established principle, for different sentences. I would therefore suspend half of accused No 2's sentence on appropriate conditions.

My second query was whether it was competent for the magistrate to have I imposed a sentence in excess of one year. The offence was committed on 26 July 1998. The accused pleaded two days later. The trial proper commenced and finished on 29 October 1998. The Magistrates' Courts Amendment Act 66 of 1998 came into force on 7 October 1998. By s 6 (amending s 92 of Act 32 of 1944) the district courts' general penal jurisdiction was increased from 12 months' J

Comrie J

A imprisonment to three years, and...