S v Naidoo

• Jurisdiction: South Africa
• Judgment Date: 17 September 2009
• Citation: 2010 (1) SACR 499 (GSJ)

S v Naidoo
2010 (1) SACR 499 (GSJ)

2010 (1) SACR p499

Citation	2010 (1) SACR 499 (GSJ)
Case No	A309/2009
Court	South Gauteng High Court, Johannesburg
Judge	Mathopo J and Robinson AJ
Heard	September 17, 2009
Judgment	September 17, 2009
Counsel	B Madondo for the appellant.; Ms Kok for the State.

Flynote : Sleutelwoorde

Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 (Act) — Whether s 51(2) of Act finding application — Word 'amounts' referred to in Part II of Schedule 2 C of Act only referring to 'the theft of money' and not to value of stolen item — To extent that English dictionary interpretation of word could incorporate value, some indicators within Part II of Schedule 2 reflecting contrary — Use of word 'value' with regard to Drug Trafficking Act, and use of word 'amounts' with regard to theft, clearly indicating that legislator had intended to differentiate between two instances — Provisions of s 51 of Act not applicable to facts in casu — Appeal succeeded.

Headnote : Kopnota

The appellant was convicted in the magistrates' court, Kempton Park, of the D theft of a vehicle, being a truck, the value of which was in excess of R500 000. The appellant was sentenced to a period of imprisonment of 15 years, in terms of s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997 (the Act). The appellant appealed against the sentence. Counsel for the appellant submitted in limine that the court a quo erred in holding that s 51(2) of the Act found application. He submitted that the word 'amounts' referred to in Part II of Schedule 2 of the Act only referred to 'the theft of E money' and not to the value of the item stolen. The court,

Held, that no authority was found on the issue. It was res nova and the issue had to be considered, applying the ordinary rules of statutory interpretation. The intention of the legislature had to be determined by looking at the ordinary grammatical meaning of the word 'amounts'. According to the F Concise Oxford Dictionary, 'amount' meant 'the total of something in number, size, value or extent'. The Afrikaans version of the Act referred to 'bedrae'. According to the dictionary HAT, the word 'bedrag/bedrae' as noun meant a 'geldsom'. (Paragraphs [11] and [12] at 501g–502a.)

Held, further, to the extent that the English dictionary interpretation of the word could incorporate value, that there were some indicators within Part II of G Schedule 2 reflecting the contrary. The use of the word 'value' with regard to the Drug Trafficking Act, and the use of the word 'amounts' with regard to theft, clearly indicated that the legislator had intended to differentiate between the two instances. This was also underscored by the use of the eiusdem generis rule of interpretation, which meant that the meaning to be given to the word 'amounts' was to be equated to a situation of financial H crime. The class of words, in casu, all related to financial crimes, and, whilst 'theft' was a word of general application, in casu and interpreting it in context, it had a restricted meaning. (Paragraphs [14], [16] and [17] at 502c, 502g–h and 502i–j.)

Held, accordingly, that the provisions of s 51 of the Act were not applicable to the facts in casu. (Paragraph [20] at 503f–g.) The appeal against sentence I succeeded. Sentence reduced.

Annotations:

Cases cited

Reported cases

Hoban v ABSA Bank Ltd t/a United Bank and Others 1999 (2) SA 1036 (SCA) ([1999] 2 All SA 483): compared J

2010 (1) SACR p500

R v Venter 1907 TS 910: compared A

S v M (Centre for Child Law as amicus curiae) 2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312): compared

S v Shaik and Others 2007 (1) SACR 247 (SCA) (2007 (1) SA 240; [2007] 2 All SA 9): compared

Van Heerden and Another v Joubert NO and Others 1994 (2) SACR 597 (A) B (1994 (4) SA 793): compared

Van Lochen v Associated Office Contracts (Pty) Ltd and Another 2004 (3) SA 247 (W): referred to.

Legislation cited

Statutes

The Criminal Law Amendment Act 105 of 1997, s 51(2) and Part II Schedule 2: see Juta's Statutes of South Africa 2008/9 vol 1 at 2-538 and C 2-546.

Case Information

Appeal from a decision of a magistrates' court. The facts appear from the judgment of Robinson AJ, in which Mathopo J concurred.

B Madondo for the appellant.

D Ms Kok for the State.

Judgment

Robinson AJ:

[1] The appellant, an adult 34-year-old male, was convicted in the magistrates' court for Kempton Park on 8 May 2006, of the crime of E theft of a motor vehicle, and was sentenced on that day to a period of imprisonment of 15 years, in terms of the provisions of s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997 (the Act).

[2] The appellant now appeals against the sentence imposed, with the special leave of this court having been granted on 3 April 2009.

F [3] It is apposite to point out that, at the hearing in the court a quo, the appellant was represented by counsel who, after sentence had been imposed and upon the instructions of the appellant, applied for leave to appeal against the sentence alone. In the application for leave to appeal submitted to this court, the appellant also applied for leave to appeal G against both the conviction and the sentence imposed.

[4] As stated, the appellant was convicted of the theft of a vehicle, being a truck, the value whereof was purportedly in excess...