CASE NO.: CA 39/03

SUMMARY

DEON AMALOVU

COLLIN KUZATJIKE

versus

THE STATE

MAINGA,
J et VAN NIEKERK, J

28
June 2005

MOTOR
VEHICLE THEFT ACT, NO. 12 OF 1999

Previous convictions of motor
vehicle theft proved against both appellants - such sustained after
the commission of the offence for which appellants sentenced in
casu - such convictions are not "previous convictions"
for the purposes of sentence - magistrate erred in regarding himself
bound to impose the mandatory sentence under section 15(1)(c)(ii) of
the Act - should sentence under section 15(1)(c)(i) of the Act.

CASE
NO. CA 39/03

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

DEON
AMALOVU 1^ST APPELLANT

COLLIN
KUZATJIKE 2^ND APPELLANT

versus

THE
STATE RESPONDENT

CORAM: MAINGA,
J. et VAN NIEKERK, J.

Heard
on: 2005.03.31

Delivered
on: 2005.06.28

_______________________________________________________________

JUDGMENT

MAINGA,
J.: Appellants were convicted in the Regional Court on two
counts of theft of motor vehicles (the white/Green Golf motor
vehicles) and were each sentenced to nine years on each count and
this appeal lies against both those convictions and sentences.

The
ground of attack by Mr Boesak for the appellants (who appeared amicus
curiae and to whom this Court is indebted) was that the Court a
quo erred and misdirected itself, by simply joining together the
accused persons in the commission of the respective offences without
proper foundation and that there was no basis for the Court to have
relied on the common purpose theory, except that of the dubious sale
contract on which both appellants appear to have co-signed as
witnesses. Mr Boesak nevertheless conceded that the first appellant
was properly convicted of the theft of the Golf CTI green in colour,
Reg no N29852W, count 2 and the second appellant of the theft of the
Golf 1300, 1993 model, white in colour, with Reg no BBN 172 EC, count
1. His main contention was that the first appellant should not have
been convicted on count 1 and the second appellant should not have
been convicted on count 2 as there was no evidence to support the
convictions. Ms Dunn for the respondent also conceded that there was
no evidence to support the conviction of the first appellant on count
1 and the second appellant on count 2. I agree. The Court a quo
must have fallen into error in its reasoning when it accepted the
contract of sale of the white Golf (count 1) bearing the names of the
appellants as witnesses as evidence that appellants jointly or in
common purpose stole the vehicles and when the Court accepted the
evidence of Sergeant Morgan that Feris, the owner of the green Golf
(count 2), identified the seat covers, the seats on which the seat
covers were, the wheels and tyres on the white Golf (count 2) which
was parked next to the green Golf, as the accessories

of
the green Golf. In as much as Feris did not testify to identifying
the items and/or parts on the white Golf to be items or parts of his
stolen vehicle, Sergeant Morgan’s evidence is hearsay on that point
and the Court a quo could not have relied on that evidence to
find that appellants jointly or had a common purpose to steal the
vehicles nor the fact that the first appellant’s signature or name
appeared on the contract of sale of the white Golf (count 2) when
there was no evidence linking the first appellant’s name or
signature to the contract. Had the prosecution or the court recalled
Feris to confirm the testimony of Sergeant Morgan on the accessories
of the green Golf which Feris must have identified on the white Golf,
unless there was a reasonable explanation how the accessories
exchanged hands, I would have had no doubt that appellants jointly
operated to steal the vehicles. Ms Dunn wisely conceded on this
point. ‘The essence of the doctrine of common purpose is that,
where two or more people associate in a joint unlawful enterprise,
each will be responsible for any acts of his fellows which fall
within their common design or object’ (Whiting R, 1986 SALJ, vol
103; Joining In at 38). The effect is that, where certain conditions
are satisfied, the act of one person is attributed also to others, so
that it is for legal purposes just as if the others too had committed
it (Whiting, supra, see also S v Malinga & Others 1963 (1)
SA 692 at 695B; S v Khoza 1982 (3) SA 1019 A at 1036 F-G, S
v Daniels en ‘n Ander 1983 (3) SA 275 at 323 E-F; S v Shaik
& Others 1983 (4) SA 57A at 65A.)

In
the absence of a prior agreement or proof of an implied agreement to
steal the vehicles in question, appellants can only jointly be held
liable for the theft of the vehicles on the basis of the decision in
S v Safatsa and Others 1988 (1) SA 868 A only if certain
prerequisites adopted in murder cases are satisfied and I find it
unnecessary to labour this judgment with the said prerequisites.
Suffice to say the Court a quo misdirected itself when it
applied considerations of common purpose when there was no basis to
do so. The totality of the evidence amounts to each appellant being
liable for the theft of the one vehicle. Appellants’ contentions
in their grounds of appeal which they personally filed that the State
did not prove the charges against them beyond reasonable doubt has no
merit. As stated earlier, Mr Boesak wisely conceded that the State
proved the theft of the green Golf (count 2) against the first
appellant and the theft of the white Golf (count 1) against the
second appellant. The complainants Henri Francois Feris and Marco
van Jaarsveld without doubt positively identified their respective
vehicles. Feris gave the engine number of his green Golf (count 2)
as OX 161775 and the chasis number as AAVZZZ172 PUO 21462. Feris
further noticed that the rims, tyres, front and back seats were
changed which is the evidence Sergeant Morgan testified to that Feris
identified the said accessories and the seat covers on the white Golf
(count 1) which was parked next to the green Golf which evidence
Feris did not testify to. Feris further identified his vehicle by
the scratch mark on the left side door and he gave the reason why
that scratch was made, the little hole

in
the left side indicator, and a crack in the corner or edge of the
front bumper and when cross-examined by the first appellant he gave
the reason how the crack was obtained, i.e. he ran against a wall.
Van Jaarsveld identified his vehicle on (i) the driver seat sunviser
which had a glue mark which was on the seat sunviser when he bought
the vehicle; (ii) the black insulation tape which he personally used
to hold the broken wires from the front of the car into the front
doors where the speakers are; (iii) in the back speakers the screws
which he used to hold the extra small speakers; (iv) the underwear
with his name on, which was still in the boot of the vehicle and (v)
the back bumper had a sticker which read ‘Protyre’ which was on
the vehicle when he bought it. He also noticed that the rims and
tyres, the driver’s seat, the demister were different and the grid
which previously, had two lights then had four lights. The chassis
number given by Feris was confirmed by Johan Nico Green who is
attached to the Scene of Crime Unit and worked hand in hand with the
Motor Vehicle Theft Unit, helping to restore original engine numbers
on stolen vehicles. He examined the chassis number and observed that
the number was ground away and was covered with spray paint which
paint was different from the original paint of the vehicle. He
etched the chassis number of the vehicle in order to restore the
original engine number and after the etching process the chassis
number as provided by Feris became visible. The Court a quo
in my view correctly accepted the identification evidence of the
vehicles. The evidence of John Kuzatjike who according to the
contract of sale ‘Exhibit C’

allegedly
bought the white Golf from one Burger Kandjii for N$18 000.00 which
transaction was allegedly witnessed by the first and second
appellants refutes the version of the second appellant as to
ownership of the vehicle and the Court a quo correctly
accepted that the second appellant stole the vehicle. John
Kuzatjike, who is the father of the second appellant, not only denied
ever buying a white Golf from Burger Kandjii, but he denied knowledge
of the contract of sale. That evidence alone was sufficient to
convict the second appellant for the theft of the white Golf (count
1). In his explanation of the plea, the second appellant stated that
‘I know nothing about the green Citi Golf. With regard to the
white Golf I have documents pertaining to ownership, because it is my
car” and yet the documents he refers to, i.e. the contract of sale
and the certificate of registration of the said vehicle are not in
his name but that of his father John Kuzatjike which he fraudulently
masterminded by using the identity number of his father. The second
appellant, either out of sheer stupidity or being an unrepentant
thief or a callous liar, in his notice of appeal states that the
vehicle belongs to his brother Whespesien Kazatjike who was studying
in Brazil at the time. An extract from the notice of appeal reads:-

“There
was no prove in court that the motor that was found in my possession
was stolen.

There
was no prove in court that the car in my possession was register in
my name nor did my identification number appear on the registration
papers.

The
only thing that was proved was on the receipt of the cash sign where
the chassis was bought my signature appear. That was because my
brother was not at home when the people deliver the chasse to our
place. I only sign for receipt of the chassis not for buying it.

My
brother travels a lot and therefore I receive the chassis for him. I
was taken in to custody on February 1999, when my brother left the
car in my position where he went to Brazil for studies.

He
built up the car with his own money and time before that he is a
mechanic and do a lot of the work himself.”

Sergeant
Ilongo testified that after the second appellant had been arrested by
911 and the white Golf was parked at the Motor Vehicle Theft Unit, he
opened the bonnet of the vehicle and the engine number appeared
original but the chassis number appeared welded on and he thus became
suspicious that the vehicle could have been stolen. He therefore
opened a case of possession of suspected stolen

motor
vehicle. When he interrogated the second appellant, the second
appellant informed him that the vehicle belonged to his father (John
Kuzatjike). The latter denied ownership of the vehicle. Second
appellant provided Sergeant Ilongo with the receipt of the chassis
(number AAZZZ17ZEUO12249) which he purchased from Spare Centre, which
receipt and chassis number Joseph of the Spare Centre sold and issued
to the second appellant, which evidence Joseph also confirmed. The
second appellant also provided Sergeant Ilongo with the certificate
of registration of the vehicle and the contract of the sale. Second
appellant did not cross-examine Joseph on the fact that he personally
purchased the chassis number from the Spare Centre which chassis
number was found welded to the white Golf. Sergeant Morgan
confronted the second appellant as to what happened to the original
chassis number and he informed Sergeant Morgan that he did not know
anything about the vehicle and that the vehicle was bought by his
father.

Regarding
the Green Golf, Sergeant Morgan testified that he was called by the
Okahandja Police who asked him to assist them in their investigation.
The Okahandja Police took him to Mandume Flats in Wanaheda and they
searched from room to room until they came upon the first appellant,
one Pendukeni Emvula and Shaningua. They were arrested and taken to
Katutura Police Station. In the course of this investigation the
identity of the Green Golf came up and first appellant said it was
his vehicle and he led them to his mother’s place where the vehicle
was parked. When he inspected the vehicle, Sergeant Morgan could see

that
the chassis plates were refitted, the ignition wires were cut off,
the door locks were damaged, the petrol cap was replaced and a type
of a plastic was put in. Except for saying the vehicle was bought
for him by his sister the first appellant declined to give the
particulars of his sister and thus Sergeant Morgan failed to obtain a
statement from the first appellant’s sister. The version of the
first appellant that the vehicle was bought by his sister was
correctly rejected by the Court a quo. The first appellant,
instead of calling his sister who allegedly bought the vehicle for
him, called one Iyambo whose evidence was hearsay.

As
I have already stated, I am satisfied on the totality of the evidence
that the first appellant was correctly convicted on the second count
and the second appellant was correctly convicted on the first count.
In actual fact there is a very strong suspicion that appellants
jointly operated to steal the vehicles in question. The modus
operandi is the same. The first appellant registered the green
Golf in the name of his sister, one S Amalovu and the second
appellant registered the white vehicle in the name of his father,
John Kuzatjike and it is possible that the signature of Amalovu in
the sale agreement of the white Golf is that of the first appellant
and they possibly swapped the accessories of the vehicles to make the
identification of the vehicles difficult. Consequently the State
proved the theft of the Green Golf (count 2) against the first
appellant and the theft of the white Golf (count 1) against the
second appellant beyond reasonable doubt and the convictions will be
confirmed.

In
actual fact when the matter was argued before us, since Mr Boesak was
appearing amicus curiae for the appellants, he was given the
opportunity in the presence of the Court to confirm with the
appellants on the concessions he made regarding the convictions which
he did and appellants confirmed that the concessions were well
founded and all they wished was to have their sentences ordered to
run concurrently.

This
brings me to the sentences imposed on the appellants. We found that
the appellants should not have been convicted on the second offence
which means the second sentence of nine years each automatically
falls away and will be set aside. As far as the judgment on the
remaining sentence is concerned, my sister Van Niekerk, J, and I
agreed that she would prepare that part of the Court’s judgment. I
have read her judgment and concur in it.

Accordingly
the following order is made:

1. The
appeal partly succeeds and partly fails.

2. The
conviction of the first appellant on count 2 and that of the second
appellant on count 1 are confirmed but the sentences of nine years
each are set aside and a sentence of seven years each is imposed.

3. The
conviction of the first appellant on count 1 and that of the second
appellant on count 2 and the respective sentences of nine years each
are set aside.

4. The
sentence of seven years each imposed by this Court runs consecutively
to the sentences being served by the appellants.

MAINGA,
J.

I
concur in the judgment by MAINGA, J. We agreed that I would prepare
this Court’s judgment on sentence, which follows below.

Mr
Boesak on behalf of the appellants did not make any
submissions regarding sentence, except to inform the Court, as my
brother MAINGA, J, stated in his judgment, that the appellants
instructed him to repeat the requests they made in the court a quo
that their sentence should run concurrently with the sentence they
are serving. The first appellant’s notice of appeal also includes
the magistrate’s failure to so order as a ground for appeal. The
short answer to this is that the magistrate did not commit an
irregularity by ordering that the sentences run consecutively, as

section
15(4), read with section 16(3), of the Motor Vehicle Theft Act, 1999
(Act 12 of 1999) (hereinafter “the Act”), expressly provides that
such a sentence shall not run concurrently with any other sentence of
imprisonment.

There
is however another matter with which requires this Court’s
attention. During the sentencing stage in the court a quo the
prosecution proved a conviction against each of the appellants. In
respect of the first appellant a J14 form was handed in which
reflects that in case no. R/C 02/2001 he was convicted on 4 April
2001 on a charge of theft of a motor vehicle. On the same date he was
sentenced to eight years imprisonment. In respect of the second
appellant a J14 form reflected that this appellant was convicted on 8
February 2001 in case no. R/C 244/2000 on a charge of theft of a
motor vehicle. On the same date he was sentenced to eight years
imprisonment of which two years were suspended for five years on
condition that he is not convicted of motor vehicle theft committed
during the period of suspension.

In
the matter before us the offences for which the appellants were tried
and convicted were committed during August 2000, i.e. before the date
of the conviction proved against each of the appellants.

It
is clear that both the prosecutor and the trial magistrate regarded
the convictions proved against each of the appellants as a “previous
conviction.” The magistrate

clearly
regarded the convictions which he pronounced on 16 January 2002 as
“second or subsequent convictions” within the meaning of section
15(1)(b)(ii) of the Act, and therefore regarded himself/herself bound
to impose a mandatory minimum sentence of not less than seven years
without the option of a fine on each of the counts of theft on which
he/she convicted the appellants.

When
the appeal was argued before us we mero moto raised the
question whether the magistrate’s approach was correct. Counsel
were requested to file written heads of argument on the matter, which
they undertook to do. Ms Dunn for the respondent in due course
provided us with helpful heads, for which we express our
appreciation. Mr Boesak for the appellants failed to file any
heads and offered no explanation. We have decided to proceed without
his input on this aspect.

Essentially
the question troubling this Court was whether the proved conviction
must be a “previous conviction” as the expression is normally
understood, namely “one which occurred before the offence under
trial” (per HOLMES, A.J.A., in R v Zonele and Others 1959
(3) SA 319 (AA) at 330D). If this is so, the magistrate erred in
regarding section 15(1)(c)(ii) as being applicable in this case. On
the other hand, the question went further, did the legislature not
intend by using the words “second or subsequent conviction” that
any first or prior conviction for the same offence, regardless of the
time when it occurred, would bring the provisions of

section
15(1)(c)(ii) into effect? It was not possible to make any inference
from the magistrate’s judgment on sentence whether he/she merely
overlooked the fact that the proved convictions were not “previous
convictions” or whether he/she realized this but interpreted the
provisions of section 15 as obliging him/her to take these
convictions into account, as he/she did not mention this aspect at
all.

The
definition of a previous conviction as set out in the Zonele
case (supra) is in accordance with the general principle of
the common law that when determining an appropriate sentence for an
offence, only those convictions incurred by the accused before the
commission of the particular offence ought to be taken into
consideration (R v Vos; R v Weller 1961 (2) SA 743 (AA) at
747C; see also R v Kolibele 3 EDC 125; r v Abrahamson 13
CTR 1140 (SC); R v Matlala 1927 TPD 411).

Interpreting
the words “previously sentenced” and other similar expressions in
section 334 ter (prescribing the compulsory sentence of
corrective training), section 334 quat (prescribing the
compulsory sentence of imprisonment for the prevention of crime) and
section 335 (prescribing the compulsory sentence of declaring the
accused an habitual criminal) of the Criminal Procedure Act, 1955
(Act 56 of 1955), as amended, the Appellate Division in R v Vos
(supra) held that the expressions should, in the absence of
express provisions to the contrary, be

interpreted
in a manner consonant with the common law principle set out above. It
upheld (at p749E) other decisions to the same effect in R v Hough
1960 (2) SA 287 (T); R v Wilson 1960 (1) PH H166 (OKA); R v
Butelezi 1960 (1) SA 659 (N); R v Nxumalo 1960 (3) SA 231
(N); and R v Potgieter and Others 1960 (2) PH H281 (C).

Ms
Dunn referred in her heads of argument to R v Nyengola 1960
(4) SA 666 (O), a decision of the Full Bench of that Division. In
that decision the Court acknowledged the general common law
principle, but stated that this principle is usually adopted by the
Courts when imposing sentences left to their discretion. The Full
Bench interpreted the provisions of sec 334 ter and the Fifth
Schedule of Act 56 of 1955 as being compulsory and held that the
Legislature did not have the common law principle in mind when
enacting those provisions. In this regard the Full Bench said (at
p670B-C):

“These
provisions indicate that the Legislature was not concerned with the
deterrent effect of a conviction nor the reformative effect any
sentence may have had on an accused, otherwise it would not have
treated convictions of more offences than one on the same day or of
offences on separate counts as separate convictions for the purpose
of taking into account previous convictions. The Legislature seems to
have been concerned more with the type of criminal the accused person
is, judging by the nature and seriousness of the offences he has
committed so that he can receive treatment to suit his criminal
propensities.”

The
Full Bench came to the conclusion that –

“…….
a previous conviction must be taken into account when imposing a
sentence in terms of sec. 334 ter although the offence in
respect of which the accused was so convicted and sentenced was
committed subsequently to the one for which he has now to be
sentenced.”

Relying
in part on Nyengola’s case, Ms Dunn urged that this
Court should follow the same approach and find that any earlier
conviction, regardless of whether it occurred after the commission of
the offence for which an accused must be punished under Act must be
taken into consideration for the mandatory sentence in section
15(1)(c)(ii) to be imposed.

It
must immediately be pointed out that Nyengola was overruled by
the Appellate Division in the Vos case when the Court came to
the opposite conclusion, namely that the relevant legal provisions
relied on by the Full Bench did not indicate clearly that the
existing law (i.e. the common law principle regarding previous
convictions) had been changed (see p749A-D).

It
remains for this Court to decide whether the common law in regard to
previous convictions has been amended by the Motor Vehicle Theft Act.
In this regard I bear in mind the rule of statutory interpretation
that a Court “…… cannot infer that a statute intends to alter
the common law. The statute must either explicitly say it is the
intention of the legislature to alter the common law, or the
inference

from
the ……..[statute] must be such that we can come to no other
conclusion than that the legislature did have such an intention.”
(Casserley v Stubbs 1916 TPD 310 at 312). There is also the
further rule that, in the absence of an express provision, the
existing law can only be amended by necessary implication: a possible
implication is not sufficient (Kent NO v South African Railways
and Another 1946 AD 398 at 405).

Apart
from section 15 the only other relevant section in the Act is section
19, which provides that “[O]n a conviction for an offence under
this Act, a previous conviction for a similar offence under any other
law shall be deemed to be a previous conviction under this Act.”
There are no provisions in the Act which expressly amend the common
law. There are furthermore no provisions which indicate that the Act
is to apply retrospectively, an interpretation against which there is
also a presumption (Steyn (supra) at 96 a.f.). In this regard
it is important to bear in mind the provisions of Article 12(3) of
the Namibian Constitution, which provides:

“No
persons shall be tried or convicted for any criminal offence or on
account of any act or omission which did not constitute a criminal
offence at the time when it was committed, nor shall a penalty be
imposed exceeding that which was applicable at the time when the
offence was committed.” [my underlining]

These
provisions are an expression of the principle of legality in holding
persons liable for crimes and punishing them for committing those
crimes. Underlying this principle is “the policy consideration that
the rules of criminal law ought to be as clear and precise as
possible so that people may find out, with reasonable ease and in
advance, how to behave in order to avoid committing crimes (Snyman
Criminal Law (4^th ed) at p41; p49-50). Although
these provisions obviously strike at the retrospective operation of
penal provisions, they also apply to my mind in the situation under
discussion. At the time the appellants committed the offences for
which they were punished in this matter, i.e. August 2000, they had
no convictions against them. Therefore, at that time the only penalty
which was mandatory against them was the penalty contained in section
15(1)(c)(i), i.e. they were liable to be punished not less than 5
years imprisonment. If the convictions dating 4 April 2001 and 8
February 2001 after the commission of the offences in this case are
held against them in such a way that the mandatory provisions of
section 15(1)(c)(ii) are applied, they are liable to sentence of not
less than 7 years imprisonment. This is a penalty which exceeds the
penalty which was applicable in their case at the time they committed
the offences.

At
this stage it is apposite to refer to the principle that where a
difference in punishment relates to the different times at which the
offence is committed and tried, the time of the offence is the
determining factor. (See R v Vos ) (supra) at

748H).
In this regard STEYN, JA, said in R v Mazibuko 1958 (4) SA 353
(AA) at p357:

“Hoewel
ons strafwette lui dat die oortreder by skuldigbevinding binne die
perke van die aangewese maksimum strafbaar sal wees, is dit nie die
skuldigbevinding nie maar die misdryf waaruit bedoelde strafbaarheid
ontstaan. Sodra die misdryf gepleeg is, is die dader aanspreeklik nie
slegs vir die sivielregtelike gevolge van sy daad nie maar ook vir
die strafregtelike. Hy word onmiddellik aanspreeklik vir ‘n straf
binne die perke van die strafsoort of strafsoorte waarmee sy daad
alsdan beteuel word.”

[my
translation follows:]

“Although
our penal laws state that the offender shall upon conviction be
punishable within the limits of the indicated maximum, it is not the
conviction but the offence from which the intended liability
originates. As soon as the offence is committed, the perpetrator is
liable not only for the civil law consequences of his deed but also
for those of the criminal law. He becomes immediately liable for a
punishment within the limits of the type or types of penalty with
which his deed at the time is controlled.”

Although
this statement was made in the context of deciding whether a
statutory amendment increasing a penalty applies retrospectively, the
principle is in my view also applicable here. (See R v Vos (supra)
748H-749A; R v Rainers 1961 (1) SA 460 (AA) at
p465E-466A).

Having
regard to the above mentioned authorities it is my view the
provisions of section 15(1)(c)(ii) of the Act must be interpreted in
such a manner that they remain in conformity with the common law.

Ms
Dunn referred to the following statement by HOLMES, AJA, in
the Zonele case:

“Generally
speaking, previous convictions aggravate an offence because they tend
to show that the accused has not been deterred, by his previous
punishments, from committing the crime under consideration in a given
case. One knows, from practice and from thousands of review cases,
that judicial officers usually confine their attention, as far as
convictions are concerned, to previous convictions. But I can see
no reason why a judicial officer, in deciding what particular form of
punishment will fit the criminal as well as the crime, should not be
informed of subsequent convictions, because of the light they may
throw on the form of sentence which will be the most appropriate.”

[my
underlining]

She
then appears to submit, in effect, that the approach underlined in
the passage above cannot be taken if the provisions of section
15(1)(c)(ii) are interpreted to mean that the “second or subsequent
conviction” must be a second or subsequent conviction in the sense
as consonant with the common law principle. She submits in her heads
of argument:

“4.
…..[I]t is Respondent’s respectful submission that the
Legislature did not want the normal principles applicable in taking
previous convictions into account when sentencing an accused, to
apply when sentence is considered for a second or subsequent
conviction in terms of section 15 of the Act.

5.
Respondent submits that in the wording of Smit A.J.P. in the matter
of R v Nyengola ibid, that the Legislature intended
that the matter at hand indeed falls within the category of certain
circumstances in which the court may be justified in looking at
subsequent convictions because of the light they may throw on the
form of punishment which will best suit the criminal as well as the
crime, regardless of the fact that the offence for which the
conviction and sentence was imposed, was committed after the current
offence before court.

6.
Respondent respectfully submits that if this was not the intention of
the Legislature, it would be unnecessary to include s.15(1)(c)(ii)
which prescribes what type of sentence is to be imposed for a second
or subsequent conviction.”

I
do not agree with this submission. The approach set out in the
underlined part of the passage in Zonele’s case does not
stand in the way of the interpretation of section 15(1)(c)(ii) which
I favour. It would appear as if learned counsel for respondent is
confusing the taking into consideration of a (“true”) previous
conviction for the purposes of triggering the mandatory provision in
section15(1)(c)(ii) (or the ignoring of a conviction which is not a
(“true”) previous conviction, thereby not triggering the
mandatory provisions of section

15(1)(c)(ii)),
on the one hand, with, on the other hand, what I may refer to as the
Zonele approach, i.e. the taking into consideration of
convictions subsequent to the commission of the offence for which the
offender is to be punished. The two approaches are not mutually
exclusive. Although, in the case, as here, where a certain mandatory
minimum sentence of imprisonment of not less than a certain number of
years without the option of a fine is prescribed by law, there is
perhaps not much room for the Zonele approach, because the
Court’s discretion is restricted in the sense that the form of
punishment is pretty much decided by the statute itself. However,
there is still the possibility, subject to section 15(5), of
suspending part of the sentence in accordance with section 297(4) of
the Criminal Procedure Act, 1977 (Act 51 of 1977).

To
sum up, the conclusion I have reached is therefore that the learned
magistrate should not have regarded the convictions proved against
the appellants as previous convictions and should therefore not have
sentenced the appellants in terms of section 15(1)(c)(ii). He/she
should have regarded them as first offenders and imposed a sentence
in terms of section 15(1)(c)(i) of the Act. The magistrate was,
however, entitled to have regard to the convictions proved against
the appellants in order to determine the issues like the appellant’s
good or bad character, their apparent reformability and the like, in
order to determine an appropriate punishment within the confines of
section 15(1)(c)(i) (See Zonele’s case; R v Owen 1957
(1) SA 458 (AD) at p462F-G).

The
appellants now have to be sentenced afresh. In my view there is
sufficient information on record for this Court to impose sentence,
instead of referring the matter back to the magistrate. The
appellants were both young persons when they committed the offences
and when they stood trial, about 21/22 years of age. The first
appellant informed the court a quo that he was serving a
sentence of 10 years imprisonment. If this is so, he must have
sustained some other conviction in addition to the one proved against
him. The second appellant was also serving the sentence imposed on
him earlier. Both appellants were studying at NAMCOL at the time and
it is hoped that they will continue. The second appellant had a girl
friend with whom he had a child who was a baby. On the other hand it
also clear that both appellants displayed, in spite of their youth, a
marked level of cunning in their dealings with the motor vehicles in
question. Both cars were changed in material respects, obviously in
an attempt to disguise their original appearance. First appellant had
the green Golf registered in his sister’s name, apparently to
divert the attention from himself. The second appellant produced a
false sales document in respect of the white Golf. He thought nothing
of dragging his innocent father into the matter by pretending that
his father had bought the white Golf and falsely registering the
vehicle in his father’s name. Each of them is serving a sentence
for the same offence, which indicates that the offence for which they
are to be sentenced is not a once-off indiscretion. Fortunately for
the appellants, due to an oversight by the prosecution during the
trial, the evidence

which
would have conclusively shown that they were actually operating
together and would have led to this Court confirming the conviction
on the second count against each of them, was not led. The
circumstances surrounding the crimes in my view require that, the
appellants ought to be punished longer than the mandatory minimum
sentence of 5 years in terms of section 15(1)(c)(i) of the Act. In my
view a sentence of seven years imprisonment for each of the
appellants is an appropriate sentence. The cumulative effect of this
sentence running consecutively after the sentences they are already
serving is, in my view, not too harsh.

The
order of this Court is set out at the end of the judgment of MAINGA,
J.

____________________

VAN
NIEKERK, J.

ON
BEHALF OF THE APPELLANTS Mr Boesak

Instructed
by: Amicus Curiae

ON
BEHALF OF THE RESPONDENT Ms L Dunn

Instructed
by: Office of the Prosecutor-General