Court name
High Court Main Division
Case number
CRIMINAL 75 of 2013

S v Tumuna (CRIMINAL 75 of 2013) [2013] NAHCMD 327 (08 November 2013);

Media neutral citation
[2013] NAHCMD 327
Smuts J
Unengu AJ






Case no: CR75/2013


In the matter between:





REVIEW REF NO.: 1564/2013)

Neutral citation: S v
Tumuna (CR 75/2013) [2013] NAHCMD 327 (8 November 2013)


Delivered on: 8 November


That the conviction is
confirmed but, not the sentence. The Registrar is directed to provide
a copy of this judgment to the office of the Prosecutor-General.


SMUTS, J.: [1]
This matter has come before me by way of automatic review. The
accused was charged with theft of N$16 483 on 28 December 2012 at
Marina Toyota, Otjiwarongo. On 16 October 2013 the accused pleaded
guilty in the magistrate’s Court, Otjiwarongo but stated that
he ‘only stole N$9000 and not the amount stated’. The
State then accepted the plea of theft in the amount of N$9000.

In the course of questioning by the magistrate under s112(1)(b) of
Act 51 of 1977, the following was,
, stated:

Were you forced or influenced to plead guilty?

A: No

Q: Why do you plead
guilty what did you do wrong?

A: Because I took the
money without permission because of the problem that I was having as
my mother was sick and in the hospital and my daughter was also
operated on.

Q: Was that on 28th
December 2012?

A: Yes.

Q: Was that or near
Marina Toyota Otjiwarongo in the district of Otjiwarongo?

A: Yes it was at Marina
in the store.

Q: It is alleged that you
stole money the property of or in the lawful possession of Van Wyk
Andreas Bathlomeus or Marina Toyota. Do you admit or dispute that?

A: I admit that.

Q: How much money did you

A: I took N$9000.

Q: How did you take the

A: I was working at the
till and the people used to come and pay at my till and then I took
it from there.

Q: Did you have owner’s
permission to take the money?

A: I had no permission.

Q: What did you want to
use the money for?

A: I used that money for
the treatment of my mother and my daughter and I took it for myself
and was not having the intention to take it back.

Q: It is alleged that you
intentionally stole the money?

A: Yes, I had the
intention to steal the money because those things were pressuring me
as I was the only one who was working at home.

Q: Did you know that what
you were doing was wrong?

A: Yes I knew that but I
was trying to save the life of those people.

Q: Did you also know that
it was unlawful to do so?

A: Yes I knew that.’

[3] The accused thus
admitted the elements of the crime and the presiding magistrate
correctly convicted him of theft.

[4] The prosecutor
thereafter stated that the accused had no previous convictions and
requested that the matter be finalised. After the accused’s
rights were explained to him, he stated in mitigation that he is 42
years of age, single and a father of 5 children and also looking
after 2 children of his brother. He stated that he was unemployed and
made a living by doing part-time work. He asked the court to sentence
him to a fine of N$300 and further stated that he was sorry for what
he had done and said that it was because of problems he experienced
at the time.

[5] The presiding
magistrate sentenced the accused to a fine of N$3000 or twelve months
imprisonment of which an amount of N$2000 or six months imprisonment
were suspended for a period of 3 years on condition that the accused
was not again convicted of the offence of theft during the period of
suspension. In passing the sentence, the court referred to the fact
that the accused was a first offender and had shown a degree of
remorse for his action. But the magistrate correctly acknowledged
that the offence was serious and correctly referred to the
aggravating feature of the offence being ‘that the accused
stole the money from his employer which action is tantamount to
biting the hand that feeds you’. The presiding magistrate
thereby clearly acknowledged that the theft had occurred in
circumstances where the accused was in a position of trust in the
context of his employment. The magistrate further referred to the
fact the amount of N$9000 had not been recovered. The magistrate also
referred to the accused’s version that the amount was used to
assist his ailing mother and daughter but further noted that the
accused had not taken the court to do his confidence in placing
evidence before the court to demonstrate that the money was used for
that purpose.

[6] Despite the fact that
the accused was a first offender and the mitigating factors raised by
him with reference to his personal circumstances, (being the father
of 5 children and also looking after two children of his brother), I
find that the sentence is startling inappropriate in the
circumstances by failing to properly take into account the
seriousness of the offence and interests of society.

[7] The magistrate had,
as I have already pointed out, correctly acknowledged that the crime
had been perpetrated by the accused who was in a position of trust to
his employer. It would also appear from the record, as was also
acknowledged by the magistrate, that the money had not been
recovered. These are aggravating factors. Insufficient weight was
given to them. The magistrate also did not investigate the ability of
the accused to pay a fine and repay what he had stolen. This should
have occurred.

[8] Despite the
acknowledged aggravating features, the magistrate proceeded to impose
a fine. The fine itself does not in my view accord sufficient weight
to the seriousness of the crime. The accused admitted stealing an
amount of N$9000 from his employer. The effective fine imposed upon
him is N$1000, given the suspension of the balance. Despite being a
first offender and taking into account his personal circumstances,
this is a shockingly inappropriate sentence. What message does it
send out? Theft of N$9000 – not recovered – resulting in
an effective fine of N$1000 without any compensatory order, is
plainly hopelessly disproportionate. I accordingly find myself unable
to confirm the sentence and I decline to do so.

[9] The conviction is
confirmed but I decline to confirm the sentence. The Registrar is
directed to provide a copy of this judgment to the office of the

DF Smuts


I agree

EP Unengu, AJ