A judge has ordered the immediate release from prison of a shoplifter — a single mom — who was sentenced to serve three years for stealing two roll-on deodorants, worth R75.
Pietermaritzburg high court acting judge Mergen Chetty, with judge Elsje-Marie Bezuidenhout concurring, said he had not asked the magistrate who sentenced Nomvula Buthelezi for reasons “given the urgency” of the matter.
“Any delay will further prejudice the accused and her minor child,” he said.
Buthelezi was a repeat offender when she was arrested in July. In fact, on the very day she stole the Nivea deodorants she had been given a wholly suspended sentence for shoplifting.
On two previous occasions, in 2016 and 2018, she had also been convicted of theft. Once she was cautioned and discharged and on the second occasion she was sentenced to a fine of R300 or 30 days' imprisonment.
In the matter before Chetty, which came to him as an automatic review, the record of the proceeds before the Dundee magistrate’s court showed Buthelezi had pleaded guilty and had conducted her own defence.
She admitted she had put the deodorants in her pocket.
She was kept in custody throughout the proceedings which ultimately ended on July 30 when the magistrate imposed the three-year sentence.
In mitigation of sentence, Buthelezi said she had an 11-year-old child who she believed was “by her neighbours” since she had been in custody.
She said the child’s father had “run away” when her baby was young. She had no parents, was unemployed and she supported herself and her child with social grants.
She asked for a “little sentence”.
In aggravation, the prosecutor said the offence was serious and prevalent.
She was a repeat offender and her last conviction was on July 18 when she was given a wholly suspended sentence on the very day she committed the same offence again.
The prosecutor submitted she had not learnt from her past mistakes and only thought about her child “when she was caught”.
Due to her conduct — and the conduct of others — businesses suffered losses and had to spend money to upgrade their security.
The magistrate, in considering an appropriate sentence, said while the value of the items was small, it was a “huge amount for the owner of the shop and did not detract from the seriousness of the crime”, which was prevalent to the extent that courts deal with such offences daily
The sentence imposed is unduly harsh and inappropriate. In my view the magistrate did not consider the child’s best interests.
— Acting judge Mergen Chetty
Chetty said: “The magistrate took into consideration the accused has an 11-year-old child. The magistrate was of the opinion the accused did not love her child because if she did, she would have thought of the child before committing the offence.”
The magistrate had commented that the pace at which Buthelezi was committing crime was very alarming and that Buthelezi was receiving grant money and could have paid for the deodorants.
Chetty said the sentence was “disproportionate” and this was not a case where society needed to be protected from Buthelezi.
“The sentence imposed is unduly harsh and inappropriate. In my view the magistrate did not consider the child’s best interests.
“Insofar as the child’s wellbeing is concerned, the magistrate directed the prosecutor to inform the investigating officer to contact social development and trace the whereabouts of the child. Aside from this, the magistrate did not consider any further factors. The accused is the primary caregiver. Now she is incarcerated she herself is uncertain as to the whereabouts of the child,” he said.
The magistrate had clearly not applied his mind to the duties of a court to establish the impact on the child and to ensure that the child would be taken care of if the primary caregiver was sent to prison. “ He only considered the prevalence of the crime, the seriousness of the crime and the interests of society,” Chetty said.
He set aside the three-year sentence, and sentenced Buthelezi to 30 days, suspended for five years, meaning she would be immediately released.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.