Two judges of the North Gauteng High Court have severely criticised a Benoni magistrate for implying that South Africa would, before too long, be like Zimbabwe with “no economy” because of Zimbabweans coming here to steal.
Judge Motsamai Makume and acting Judge N Nkosi set aside the 15-year jail term the magistrate imposed on a Zimbabwean truck driver, Fortune Dube, 34, for stealing a trailer and groceries worth over R2 million.
They replaced Dube’s sentence with one of 10 years’ imprisonment, backdated to March 2015, and also set aside the magistrate’s ruling that Dube must be handed to immigration when released on parole.
“The magistrate stated Dube was the third Zimbabwean she had seen that day, that it was ‘forever housebreaking and theft or theft’ and that it was probably because circumstances in their own country were dire and there was no economy left.”
Judge Makume said the magistrate seemed to show bias on facts that had nothing to do with the case before her, generalised about Zimbabweans and had no right to utter those words. The statement might be understood in certain quarters to be promoting xenophobia.
He said the case demonstrated that the magistrate might have developed “judge’s disease”, the symptoms of which were pomposity, irritability, talkativeness and proneness to “obiter dicta” (making remarks in passing).
The judge said there was no factual or legal basis for the magistrate’s order that Dube, who was according to his legal representative legally in South Africa, must be handed to the immigration department when paroled.
He also criticised the magistrate for concluding that Dube had acted in furtherance of a common purpose with a group without any such evidence and for casually dismissing Dube’s personal circumstances as playing no mitigating role.
He said Dube, who supported a wife, two children and six other children of his deceased siblings, had pleaded guilty and showed remorse.
The magistrate also did not take into account that the stolen goods were recovered in full virtually within hours of the theft, that Dube had spent seven months in jail prior to his conviction, had not benefited from the theft and there was a likelihood that his truck might be forfeited to the state.