A MAN convicted of stealing two tins of shoe polish has had his six-month jail sentence significantly reduced by the KwaZulu Natal High Court.
Nhlakanipho Mtshali's case drew the attention of Judge Robin Mossop, who deemed the initial penalty excessively harsh for the minor offence of shoplifting items worth R170.
Mtshali, who was previously handed a conviction by the Newcastle Magistrates court after pleading guilty, faced the option of paying a R500 fine or serving a six-month prison term if he failed to do so. With this predicament highlighting the plight of those unable to afford fines, Judge Mossop intervened. He expressed the need for careful consideration when imposing sentences that align penalties with the nature of the offence.
The matter came under automatic review before the KwaZulu Natal High Court, sitting in Pietermaritzburg. Judge Robin Mossop expressed his concern about the case - not only because of the harsh jail sentence, but also because the magistrate was rude to Mtshali, who had represented himself in court.
The judge pointed out that although the accused did have an option to pay the fine, not everyone is financially able to do so and they then have no choice but to opt for the jail sentence.
Mtshali stole the shoe polish from a Spar store in Madadeni. He was sentenced to pay a fine of R500 or, in default of payment, to undergo six months imprisonment.
Judge Mossop confirmed Mtshali’s conviction of theft, as he had freely admitted to shoplifting.
While he could not find fault with the conviction, Judge Mossop remarked that the disquieting aspect of what occurred is the nature of the sentence imposed upon Mtshali.
“Fines that are imposed are not always paid and the consequence is that the term of imprisonment must be served. Care must thus be taken to ensure that two sentences are in balance with each other,” he said.
The judge noted that the proper sentence should have been a fine of R500 or an alternative period of incarceration of 30 days.
Judge Mossop commented that he has no way of knowing whether Mtshali paid the fine imposed upon him or chose to undergo the sentence of imprisonment.
“It is possible that he did not pay and with that in mind this judgment has been prepared in some haste,” he said.
But what is disturbing is the aggressive attitude by the magistrate during the proceedings, Judge Mossop said.
He highlighted several moments during the proceedings where the magistrate acted unacceptably. These included when she abruptly told him to look at her when she talked and not to look down.
She questioned whether he is a “fool” and asked him about his level of schooling. He also referred to her “unpalatable outburst” during which she accused Mtshali of lying to her.
“I am not a sangoma and I’m not a prophet,” she told him. Shortly before sentencing him, she told the accused: “I can tell that you are the worst of the worst.”
Judge Mossop said a judicial officer is expected to behave courteously to all people appearing before him or her. “All are human beings and are entitled to be treated politely and respectfully,” he said.
“To describe Mr Mtshali as being a liar and being the ‘worst of the worst’ was unjustified and intemperate. He was charged with shoplifting, not a crime against humanity. He had recognised the error of his ways…,” the judge said.
He added that this form of conduct is unbecoming of a civilised legal system, should not be permitted to take root and must be stopped now.
He meanwhile replaced the prison part of Mtshali’s sentence to 30 days and ordered the registrar of the court to find out whether he is in jail. If so, he must immediately be released if he has already served his 30 days. Additional reporting by Lungani Zungu
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