In a case that presents an Ubuntu conundrum for the State, a man spent 18 months in jail for stealing a shower gel and body wash valued at just R160.50.
Nicolas Osmond would have served the three-year term he was handed by magistrate TF Kekana of Secunda District Court in June last year had the new Mpumalanga High Court not intervened.
A widowed and unemployed father of two teenage girls, Osmond pleaded guilty to the theft. He had no money to pay an unspecified fine.
Acting Judge Takalani Ratshibvumo set aside the district court’s sentence but confirmed the conviction. He handed down a new sentence of 18 months imprisonment, backdated to June 22, 2018. This meant Osmond was free to go home, as he had already spent 18 months behind bars.
Judge Ratshibvumo found fault with the magistrate’s failure to ascertain if Osmond was the primary caregiver to his children. His wife died in 2013.
Responding to Judge Ratshibvumo’s question if her court was not supposed to find out if Osmond was the primary caregiver, Kekana said she passed her sentence with this factor in mind. But the judge was less than impressed with the reply.
“She failed to deal with the direct question on whether she was not supposed to inquire if the accused was a primary caregiver or not,” Judge Ratshibvumo said.
“The record reflects that even after the accused indicated that he has two minor children, the court displayed no interest whatsoever about the children.
“It is not known who resides with the children; whether they are attending a school or not and most importantly, whether the accused was their primary caregiver or not.
“If he was the primary caregiver, the court clearly failed in its duty to give proper attention to the interests of the children while the accused was incarcerated,” the judge said.
“In imposing such a sentence, the court should first take care of the best interests of the children under his or her care”.
Kekana also took Osmond’s previous convictions into consideration in her sentence. But previous convictions “should not subject the offender to double jeopardy as he/she has already received due punishment for those previous convictions”, the judge said.
He drew parallels to the matter of Xolani Matiwane, a father of two children who was sentenced to three years’ imprisonment for stealing 40 packets of yeast valued at R111.
Matiwane, who pleaded guilty to stealing from Pick n Pay in Manenberg, was released after spending three months in jailed in 2012 following an appeal.
“He had a record of 17 previous convictions of theft and housebreaking with the intention to steal and theft,” Judge Ratshibvumo said.
“On appeal, the sentence of three years’ imprisonment was replaced with caution and he was discharged with the court emphasising that an offender should not be sentenced for his past wrongdoings.”
In its 2012 judgment, the Western Cape High Court said the magistrate seemed to have approached the matter with anger.
“It is unfortunate that the magistrate lambasted the accused’s behaviour as one of the causes for the lack of developments in some African townships in the Cape Flats, resulting in investors being driven away from the townships,” Judge Monde Samela said.
“Consequently, the magistrate’s anger and frustration resulted in the accused getting severe and unfair punishment.
“The magistrate, in my view, should have been alive of the accused’s socio-economic background and applied the well-known principle of ubuntu (humanity) in this matter, taking into consideration (Matiwane’s) personal circumstances, and the reason for being unable to pay a fine and his sickly condition at the time of sentencing,” Judge Samela said.