Staff Reporter
The Supreme of Appeal (SCA) has set aside a ruling by the South Gauteng High Court in which it increased sentences against two men convicted of theft.
Nhlanhla Arthur Kubheka, who is the first appellant, and Armstrong Ngidi, the second, were each convicted in the Randburg Magistrates Court on 12 October, 2017, on one count of theft of a cellular phone and an iPod out of a motor vehicle.
On January 23, 2018, Kubheka, who is an engineer by profession, was sentenced to four years’ imprisonment, of which two years were suspended for a period of five years on condition that he was not convicted of theft or any offence involving an element of dishonesty during the period of suspension.
He was 44 years old when the crimes were committed.
Ngidi, then 46, was sentenced to four years’ imprisonment – he has qualifications in the hospitality industry.
The appellants were also declared unfit to possess a firearm in terms of section 103(1) of the Firearms Control Act 60 of 2000.
Aggrieved by the outcome, the pair approached the High Court in Johannesburg to appeal against both conviction and sentence.
When the matter was heard on May 22, 2019, the High Court called upon the appellants to provide reasons why each of their sentences should not be increased on appeal in the event that the appeal against conviction was dismissed.
Evidence before court indicated that the pair had jammed the locking signal on the remote control of a Mercedes-Benz vehicle that had been parked adjacent to their motor vehicle, a Chevrolet Aveo, at the parking area of the Randburg Magistrates Court, and had stolen the cellular phone and an iPod.
There was also undisputed evidence from a security officer at the court, Winnie Mutavhatsindi, who observed the appellants through CCTV monitors leaving their motor vehicle and opening the door of the Mercedes-Benz.
This was further supported by more uncontested evidence that the iPod belonging to Anthony James Batistich, the complainant, was found in the backseat of the Chevrolet one of the appellants had hired, and in which they had travelled to the Randburg Magistrates Court.
One of the appellants had also demonstrated to the police officers how they used the remote jammers to prevent the locking of the doors of a motor vehicle.
However, the High Court set aside the sentences imposed by the regional court and substituted them with the increased sentences of five years’ and eight years’ direct imprisonment, respectively.
The High Court based its decision principally on the prevalence of the offence and that the offence had been carefully planned and executed.
It concluded that the regional court had downplayed the interests of society and overemphasised the interests of the appellants.
This forced the duo to launch a new appeal at the SCA.
The Bloemfontein-based court found that the trial court took into account all relevant factors, including personal circumstances, in considering an appropriate sentence for the appellants.
The court heard that Kubheka is a bachelor of commerce and bachelor of science engineering (cum laude) graduate who is a member of the Professional Engineers of South Africa.
He is a director of his own engineering company, which is based in KwaZulu-Natal with a staff component of 21 employees.
It also heard that he draws a net income of R1 million per annum; he is the father and sole-provider to eight children and that he was a first offender.
Ngidi told the court that he is married and a father of two children, who are dependent on him for financial support.
He said after completing matric he acquired the relevant certificates in the hospitality industry and he runs a marketing and catering company together with his wife.
His gross drawings totalled R69 000 per month and his company employed four permanent staff members.
He has two previous convictions for fraud and theft which happened more than 17 years prior to the time of sentencing in the latest case.
In aggravating the sentences, the regional court took into account the nature and seriousness of the offence, the value of the items stolen from the motor vehicle, the prevalence of the offence and that it required a skilled person to commit the offence.
“The individual sentences imposed by the regional court were appropriate as they took into account the purposes of punishment, which are aimed at rehabilitation, preventative deterrence and retribution,” read part of the judgment delivered by Justice Yvonne Mbatha on Wednesday.
The SCA ruled that the sentences imposed by the regional court should stand as they are appropriate to the offence committed by the appellants.
“. . . it is clear that having regard to the prevalence and seriousness of the offence and that the appellants could not have been motivated by need but rather by greed, there is no room for concluding as suggested on behalf of the appellants that correctional supervision was a viable sentence. The regional court can thus not be faulted for imposing direct imprisonment,” the SCA ruled.
Kubheka was therefore sentenced to four years’ imprisonment of which two years are suspended for five years on condition that the accused is not convicted of theft or any offence involving an element of dishonesty during the period of suspension.
Ngidi was sentenced to four years’ imprisonment.
The two were each declared unfit to possess a firearm.