S v Ngutshane

• Jurisdiction: South Africa
• Judge: Bertelsmann J, Tlhapi AJ
• Judgment Date: 03 November 2009
• Docket Number: A1007/09
• Hearing Date: 03 November 2009
• Court: Transvaal Provincial Division
• Citation: 2009 JDR 1173 (GNP)

Bertelsmann J

The accused were convicted in the Magistrates' Court for the Nsikazi of housebreaking with the intention to steal and theft and were sentenced to two years imprisonment.

They spent about four months in detention before the trial was concluded.

The complainant testified that on the 16th December 2008 he found that his house was broken into and that a chain saw, a cell phone and an item described either as a warning light of a "breth carvana", (a term unknown to the reviewing judge who associates "Carvana" with film stars), had been stolen. He met both the accused who offered to sell a chainsaw and a cellphone to him. He told them to bring the items to his house but when they failed to do so, he established that the accused had taken the loot to the

2009 JDR 1173 p2

Bertelsmann J

home of one Bulunga. He alerted the police who received the items from the latter.

The police confronted the accused, who incriminated one another. This evidence was clearly not admissible, but even when it is excluded, as it should have been, the accused were correctly convicted on the evidence of Bulunga and the complainant. Bulunga paid a deposit of R500, 00 to the accused for the items that were sold for R1 000,00.

The accused are first offenders aged 21 and 19. The presiding magistrate failed to comply with his duty to investigate their personal circumstances properly. After the most superficial evidence was placed before him – he did not enquire about their family background, their qualifications, their experience or lack thereof, the reasons why the offence was committed, did not investigate the period they spent behind bars as awaiting trial detainees because they were apparently too poor to afford R1 000.00 bail and did not comment upon the fact that the stolen goods were recovered – the magistrate imposed a prison sentence of two years.

It has been emphasized over and over again that the sentencing process is as important as any other part of the criminal trial and magistrates must ensure that all relevant facts are on record before proceeding to...