S v Choma

• Judge: Webster J, Pretorius J
• Judgment Date: 04 February 2009
• Docket Number: 66/2008, A 70/09
• Hearing Date: 04 February 2009
• Court: Transvaal Provincial Division

Webster J:

1.

The accused, aged 22 years, was convicted in the Magistrate's Court, Pretoria, on a count of theft of "three iron bars", and sentenced to three (3) years' imprisonment. The matter is before this court on automatic review.

2.

The everyday by the State is that at some stage in the past the premised of the complainant had a fence that was secured with metal poles that were sunken in cement in the ground. Over time part of the fence had been "stolen" leaving only the metal pipes in the ground. Some of those pipes had, with time, also been broken off from the ground and removed. On the date in question in this case the accused was found breaking off one of the metal pipes: there were two other pipes close bye on the ground. The evidence is further that when confronted about the pipes his response was that he was going to sell the pipes to a scrap-yard.

3.

The accused's defence was a denial of the above allegations.

2009 JDR 0060 p2

Webster J

4.

The trial Magistrate duly convicted the accused. The conviction is in order.

5.

In sentencing the accused the Magistrate states that he "… considered everything, all the possible sentence options also your submission on a fine as a suitable sentence". He states further that he even considered transferring the matter to the regional court for sentence where "… a long term imprisonment is not uncommon for these kind of offences".

6.

The value of the poles was estimated at R500.

7.

The accused was arrested on 3 October, 2008. Despite bail having been fixed at R500 there is no receipt for the payment of the bail. It is safe to assume that he never paid it. He was convicted on 27 November 2008. The record was remitted to this court on 19 January, 2009 and received by the Registrar of this court on 22 January, 2009. The accused has been in custody for over 90 days since arrest or 56 days since sentence was imposed.

8.

The primary reasons advanced by the Magistrate for the sentence are that "theft places the infrastructure of the country at risk" and the court deals on a daily basis with the theft of iron poles, copper cables, fences, netball poles or anything that is "iron".

9.

My reaction to the sentence imposed in this case is that it induces a sense of utter shock particularly given the facts of the case, the accused's age and the fact that he had a clean record. The procedure in such a case is to invite the trial Magistrate to furnish reasons for...