S v Lungu
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Zilwa AJ |
| Judgment Date | 02 May 2023 |
| Citation | 2023 JDR 1400 (ECM) |
| Hearing Date | 24 April 2023 |
| Docket Number | CA&R89/22 |
| Court | Eastern Cape Division |
Zilwa AJ:
The Appellant, together with his co-accused, were convicted in the Regional Court, Mount Frere on 13 July 2022 after having pleaded guilty to the charge of contravening the provisions of Section 2, read with the provisions of Section 1,
2023 JDR 1400 p2
Zilwa AJ
Sections 11, 12, 14 and 15 of Stock Theft Act [1] . He was found in possession of stolen 15 sheep valued at +- R22 500.00.
They were each sentenced to undergo eight (8) years imprisonment and were also declared unfit to possess a firearm in terms of Section 103 of the Firearms Control Act [2] . The Appellant has appealed against sentence only.
Leave to appeal was applied for which was refused by the court a quo on 08 September 2022. The Appellant was granted leave to appeal by this Court on 14 November 2022. The Respondent has opposed the appeal.
The grounds of appeal relied upon by the Appellant, have been couched as follows:
The Learned Magistrate erred and misdirected itself by hot giving consideration at all to my personal circumstances as the Applicant, to my age (67), my illness (High Blood Pressure, HIV positive status, Diabetic), sole breadwinner to my unemployed wife and two children, using the same confiscated vehicle bought cash with my pensions from mines, a year ago and first time offender.
The Learned Magistrate further erred in not taking into consideration facts of the case, that is my involvement on the matter went as far as my vehicle being hired by accused No. 3 who pleaded not guilty and yet still to be tried and separation application of trials was granted as a result of us pleading with my driver, who is my co-accused herein.
The Learned Magistrate blatantly disregarded other sentencing options like, sentence with fine, part sentence, suspended or wholly suspend sentence over above the direct term of imprisonment as if such sentence
2023 JDR 1400 p3
Zilwa AJ
options do not exist or are not deterrent especially on this type of offence. He exercised his unfettered discretion arbitrarily.
The Learned Magistrate over emphasized the prevalence of offence over my personal circumstances, and seriousness of the offence in present case in total disregard of circumstances of the offence as if its personal to the Magistrate and more so that he is also from same region and having stock also, which I submit is totally misguidance in the mind of the Magistrate herein.
The Learned Magistrate even on the decision to dismiss the Leave to Appeal further misdirected himself by saying sentence is not shockingly inappropriate if one takes into account seriousness and prevalence of offence in the Region, which he happened also to be from same region and has livestock also, I am reliable informed."
It is apposite to highlight in this judgment some of the Learned Magistrate's comments [3] that appear to support grounds number 3 and 4 as follows:
". . .This is the dagger into the lives of the poor farmers of this community of this Court's jurisdiction. The poor farmers of this area, instead of taking the money to invest in other forms of business, they have invested in stock farming. When their stock gets stolen in this fashion, the following thing is their death. They die because of [indistinct] because of this kind of an offence and if you look around this offence is very high. It is not longer . . . [indistinct] it is business now. People are . . . [indistinct] situation or formation and they are doing business with other people's stock. Look how in the manner how this offence was committed. . .
. . .People's kraal, stock kraals are empty in this area of this Regional Court's jurisdiction because if your stock is stolen, the next minute it is in Queenstown or Bloemfontein."
2023 JDR 1400 p4
Zilwa AJ
Having gone through the record of proceedings in the court a quo, no basis is apparent for the abovesaid finding by the Learned Magistrate who appears to have considered information extraneous to the record which the parties had no opportunity to deal with. This constituted a serious misdirection. Nonetheless, the Learned Magistrate also seems to have taken judicial notice of the reality that throughout the country, this is an offence that is prevalent. However, the Court should be careful not to over-emphasize this aspect and should be mindful of the regional incidence of the offence as indicated by as Wessels J in S v Ndhlovu [4] , namely that :
"one should not overlook the fact that all things being equal one is likely to find that stock theft is committed more frequently in an area where farmers farm mainly with stock or poultry."
In order to reach a conclusion on whether the trial court imposed an appropriate sentence, it is important to have regard to what is commonly known as Zinn's triad as enunciated in the case of S v Zinn [5] . Owing to the trite known limits on an appeal court's power to interfere with a trial court's sentencing discretion, the issue on appeal is mainly is whether the Court a quo misdirected itself in any material respect. One of the enquires is whether the sentence that would have been imposed by the Appeal Court differs so substantially from that imposed by the Court a quo as to justify the sentence imposed being classified as shockingly or startlingly or disturbingly inappropriate, these being the only bases upon which an Appeal Court may interfere with a trial court's sentencing jurisdiction. [6]
It is this Court's view that the Magistrate's approach of over-emphasizing the impact of stock theft (which, in any event, was not based on the evidence led or part of the submissions made) constituted a misdirection.
2023 JDR 1400 p5
Zilwa AJ
The following dicta in the case of S v Pillay [7] are apposite:
"[n]ow the word 'misdirection' in the present context simply means an error committed by the Court in determining or applying the facts for assessing the appropriate sentence . . ....
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