Thieves get lighter sentences as Supreme Court reinstates shorter jail terms

Two men were given a reprieve when the Supreme Court of Appeal (SCA) reinstated their original — and lower — sentences on Wednesday.

The pair, Nhlanhla Kubheka and Armstrong Ngidi, were each convicted by the Randburg regional court of one count of theft of a cellphone and an iPod from a motor vehicle in October 2017.

They had jammed the locking signal on the remote control of a Mercedes-Benz that had been parked adjacent to their car in the parking area of the Randburg magistrate's court, and had stolen the two devices.

In January 2018, the regional court sentenced Kubheka to four years' imprisonment, of which two years were suspended for five years. Ngidi was sentenced to four years' imprisonment.

But the two applied for leave to appeal against both conviction and sentence to the high court in Johannesburg — and the court dismissed their application for leave to appeal in 2019.

It also set aside the sentences passed by the regional court and substituted them with increased sentences of five years' direct imprisonment for Kubheka and eight years' imprisonment for Ngidi.

This, the court said, was based principally on the prevalence of the offence and that the crime had been carefully planned and executed. The high court concluded that the regional court had downplayed the interests of society and overemphasised the interests of the appellants when giving the lower sentences.

Kubheka and Ngidi then petitioned the SCA, which granted them leave to appeal against the sentences only. The full bench heard the appeal in February and passed its judgment on Wednesday.

Judge Thokozile Mbatha said it was common knowledge that the power of an appellate court to interfere with a sentence imposed by a lower court was limited. She said it was clear that the regional court took into account all relevant factors in considering an appropriate sentence for the appellants.

Mbatha said the regional court took into account that Kubheka was 44 when the crimes were committed, that he was a BCom and BSc Engineering graduate and a registered professional engineer. 

She said the trial court also noted he was a director of his engineering company, which is based in KwaZulu-Natal and has a staff component of 21, that he is the father and sole provider to eight children, and he was a first-time offender.

His company consisted of a main office in Durban and satellite offices in Pietermaritzburg and Umhlanga. He employed seven professional engineers.

Mbatha also said the regional court noted Ngidi was 46 years old at the time when he was sentenced. She said the regional court noted Ngidi was a married father of two, who are dependent on him for financial support, and that his company employed four permanent staff members.

Ngidi has two previous convictions for fraud and theft, though they had happened more than 17 years prior to sentencing in the theft case.

Mbatha said the high court failed to demonstrate that the regional court had not exercised its sentencing discretion at all or exercised it improperly or unreasonably.

“The high court itself was guilty of over-emphasising the seriousness of the offence and without due regard to proportionality,” Mbatha said.

She said in the present case, there was no basis to interfere with the sentences imposed by the regional court and doubling the sentences of direct imprisonment was unwarranted.

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