REGINA v ZINDOGA 1980 ZLR 86 (A)

itself a mitigating factor, more particularly in the case of a first offender. Depending on the circumstances it may be a mitigating factor of very considerable _A weight: see S v Louw, AD 19/78 (unreported). Not only is it a mitigatory factor in itself but it does of course provide compelling evidence of contrition.

The principle of restitution is enshrined in section 337 (1) of the Criminal _B Procedure and Evidence Act [Chapter 59]. It also finds recognition in section 301 of the South African Criminal Code. In an article contained in Crime and Punishment in South Africa by Midgeley, Steyn and Grasner, Judge HIEMSTRA expresses regret that compensation or restitution to the victim of a crime, does not play a greater part in the _C : sentencing of offenders in South Africa. He says (at page 146): “Punishment must lose some of its retributive character and lean towards letting the criminal make good the damage he has done.” Although not specifically dealing with the aspect of restitution, it seems likely that current English practice is tending to the same end. Sir Rupert Cross in _D his book The English Sentencing System, 2nd edition, page 56 et seq notes that imprisonment as a punishment is on the decline, largely as a result of the system of suspended sentences which were brought into operation by the Criminal Justice Act, 1967. Restitution orders under section 28 of the (English) Theft Act, 1968, are quite common (see page 58). _E

The difficulty about accepting the offer made on behalf of the appellant is that it is difficult to reconcile it with the attitude of the Appellate. See the order which was made in S v Seedat, 1977

itself a mitigating factor, more particularly in the case of a first offender. Depending on the circumstances it may be a mitigating factor of very considerable _A weight: see S v Louw, AD 19/78 (unreported). Not only is it a mitigatory factor in itself but it does of course provide compelling evidence of contrition.

The principle of restitution is enshrined in section 337 (1) of the Criminal _B Procedure and Evidence Act [Chapter 59]. It also finds recognition in section 301 of the South African Criminal Code. In an article contained in Crime and Punishment in South Africa by Midgeley, Steyn and Grasner, Judge HIEMSTRA expresses regret that compensation or restitution to the victim of a crime, does not play a greater part in the _C : sentencing of offenders in South Africa. He says (at page 146): “Punishment must lose some of its retributive character and lean towards letting the criminal make good the damage he has done.” Although not specifically dealing with the aspect of restitution, it seems likely that current English practice is tending to the same end. Sir Rupert Cross in _D his book The English Sentencing System, 2nd edition, page 56 et seq notes that imprisonment as a punishment is on the decline, largely as a result of the system of suspended sentences which were brought into operation by the Criminal Justice Act, 1967. Restitution orders under section 28 of the (English) Theft Act, 1968, are quite common (see page 58). _E

The difficulty about accepting the offer made on behalf of the appellant is that it is difficult to reconcile it with the attitude of the Appellate. See the order which was made in S v Seedat, 1977

Courts should encourage restitution by making appropriate orders whenever there is the possibility that arrangements for it may conceivably be made.

Case information

T Ziyambi, for the appellant. _F

J B Colegrave, for the respondent. The money seems lost to the appellant’s employers. Whatever he may say in his notice of appeal, it seems clear from what he said in mitigation of sentence that his only hope of _G repaying this money is by securing other employment. Unhappily the stolen money has all been dissipated. Bearing in mind the ever­increasing need to deter others from committing this type of offence the following cases should be followed: R v Luke Deny, AD 51/67? R v Jabangwe, AD 143/68? R v Low, AD 184/66? S v Makwiramiti, AD 87/77 _H (all unreported).

The case of S v Tichana, AD 68/79 (unreported) is the clearest possible authority for the fact that our courts recognize that restitution is in

(1) RLR 102 Add.).  _F  In that case, the offer of repatriation of money could not be accepted so as to reduce the sentence because that was a fact which was not in existence at the time the magistrate passed sentence. This seems to be a duplication of the position in our case. It is only in exceptional circumstances that the Court will take cognizance of facts which arose _G? since trial: see S v Watungwa, 1976 (2) RLR 158 (AD), S v Drummond, 1978 R R 422 (AD). Having regard to Seedat’s case, it does not appear that the facts in this case constitute exceptional circumstances although the compelling and unusual circumstances of Tichana’s case certainly did. H

Judgment

MacDonald CJ: The appellant was convicted of theft by conversion. He had pleaded guilty and was sentenced to two years’ imprisonment with labour, nine months of which were conditionally suspended. He now appeals against sentence.

1980 ZLR p88

MacDonald CJ

The appellant, while employed as a cashier, stole $1 686,05 from his employer over a period of five months. The appellant converted money to his own use on 29 occasions and the thefts only ceased when they were _A discovered in the course of an audit. This was the appellant’s first conviction. He is married man with two children and was earning $350 per month.

The thefts involved a large sum of money and a breach of trust and the magistrate very properly imposed a severe sentence. _B

At the trial the appellant expressed a wish to repay his employer, but was obliged to admit in answer to questions put by the magistrate that he was not in a position to do so. Since the trial, relatives have offered to help and the possibility now exists that all or some of the money can _C be repaid.

In crimes such as theft, restitution is always a mitigating factor. Its exact weight will, of course, depend upon the surrounding circumstances. Generally speaking, it will be given considerable weight where the _D accused is a first offender. The weight to be given to it, however, must be carefully balanced against the need in the public interest for deterrent sentences. If too much weight were to be given to the fact of restitution and in the result very light or wholly suspended sentences were to be habitually imposed, crimes against property would almost certainly increase sharply. _E

There can be no doubt that the magistrate would have suspended an even greater part of the prison sentence had he been satisfied that the appellant was in a position to make restitution. Restitution would, of course, have been made a condition of such suspension. A court, however, does not have to be satisfied of the ability of an accused person to _F make restitution before making appropriate provision in its sentence for such an eventuality. Nothing is lost by making appropriate provision for the possibility of restitution, even where the prospects of this appear to be remote. Thus, for example, courts not infrequently suspend a _G portion of a prison sentence on condition that restitution is made where there is a suspicion that the accused person is still in possession of all or part of his ill gotten gains and even where in such a case the accused expresses an actual intention not to make restitution. _H

The courts rightly attach greater weight to restitution now than in the past, and this being so it is to be hoped that criminal courts will encourage restitution by making appropriate orders whenever there is the possibility that arrangements for it may conceivably be made.

1980 ZLR p89

MacDonald CJ

In the absence of restitution, the sentence imposed by the magistrate in the present case was wholly appropriate and all that is required is to _A make provision for the possibility of restitution in whole or in part of the money stolen. The sentence imposed by the magistrate is confirmed, but the following addition is made:

“and a further period of eight months is suspended on the same condition and on the further condition that the appellant repays to his former employer B the sum of $1 686,05 on or before the 31st May,

1980.”

.