- A woman who stole chocolates to buy electricity and a man who stole perfume after being mocked by his girlfriend had their prison sentences set aside.
- The court found they were sentenced without being allowed to present mitigating circumstances.
- The judgment also criticised reliance on previous convictions that were never formally proved or admitted.
A woman who stole two chocolate slabs so she could sell them and buy electricity, and a man who stole a bottle of perfume after his girlfriend told him he would smell like a “bergie”, have had their prison sentences set aside.
The court confirmed their theft convictions but ruled that the sentencing process in the Mitchell’s Plain Magistrate’s Court was constitutionally unfair because the accused were not allowed to present mitigating circumstances before sentence was imposed.
In South African usage, particularly in the Western Cape, the word “bergie” is an informal and often insulting term used to describe a homeless person or someone living on the streets.
Chocolates sold to buy electricity
Candice Daniels pleaded guilty to stealing two Dairy Milk chocolate slabs worth R93.98 from Pick n Pay Promenade in Mitchell’s Plain.
During questioning by the magistrate, she admitted taking the chocolates and explained why. Asked what she intended to do with the items, Daniels replied, “I was gonna sell the items and buy electricity at home.”
She also told the court that she knew her conduct was “wrong and unlawful and punishable in a court of law.”
Perfume stolen after girlfriend’s remark
Nohesi Themba Templern pleaded guilty to stealing an Uzzi perfume worth R420 from Truworths at Promenade Mall. When the magistrate asked why he stole the perfume, he replied, “So, I stole to clean myself because my girlfriend said I will end up a bergie.”
Asked what he intended to do with the perfume, he answered, “I was gonna use it for myself.” Both accused were convicted under Section 112(1)(b) of the Criminal Procedure Act.
Prison terms imposed immediately
After conviction, Daniels was sentenced to 24 months’ imprisonment or a R3,000 fine, while Templern received 36 months’ imprisonment or a R5,000 fine.
The magistrate also ordered that both accused remain in custody until their sentences had been fully complied with. The reviewing judges found that the record showed almost no sentencing proceedings.
In Daniels’s case, the prosecutor informed the court that she had 19 previous convictions, and sentence followed immediately.
In Templern’s case, the prosecutor said he had 26 previous convictions, and the magistrate remarked that there was “no element of stopping theft but propensity for theft” before imposing the 36-month sentence.
Court says accused were never heard
Judge S Yake, with Judge D Thulare concurring, found that the record did not show that either accused was allowed to present personal circumstances, explain their situation, or ask for a lesser sentence. “There is no indication that the accused were allowed to present mitigating factors, nor that the prosecution was invited to advance aggravating considerations,” the judge wrote.
The court held that sentencing an accused without hearing evidence or submissions in mitigation and aggravation constitutes “a gross irregularity” and infringes the constitutional right to a fair trial.
Previous convictions not proved
The judges also found that the previous convictions were never formally proved or admitted. Judge Yake said the court was “inclined to conclude that the prior convictions were the decisive factor that persuaded the presiding magistrate to impose the sentences ultimately handed down, particularly when viewed against the relatively minor nature of the offences committed.”
Relying on unproven convictions, the court said, undermines the fairness and transparency of the sentencing process.
Fresh sentencing ordered
The prison terms were set aside, and both matters were sent back to the same magistrate for sentencing proceedings to begin afresh.
The State was ordered to bring both accused before court within 10 days of receiving the judgment. While the convictions remain in place, the court said justice requires that sentence be imposed only after the accused have been properly heard.
Judge Yake concluded that the irregularities were “not merely technical but amount to gross irregularities that vitiate the sentencing process.”
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