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A 27-year-old woman will be released from prison after the KwaZulu-Natal (KZN) High Court in Pietermaritzburg overturned her three-year theft conviction.
Nomvula Buthelezi had been sentenced by the Dundee Magistrates’ Court for stealing two Nivea roll-ons valued at R75.
Buthelezi appeared in court on 29 July 2024, with a record of three prior theft convictions.
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Her first conviction was in 2016, where she was cautioned and discharged.
In 2018, she was fined R300 or sentenced to 30 days imprisonment.
Most recently, on 18 July this year, she was fined R500 or sentenced to 30 days imprisonment, with the sentence suspended for five years on the condition of no further theft.
However, on the same day of her third conviction, the 27-year-old woman stole the Nivea roll-ons and was arrested again.
On 30 July, Buthelezi appeared in court, pleaded guilty, and represented herself.
The accused requested a “small sentence,” citing her 11-year-old child as her primary concern.
Buthelezi claimed to be without parents, unemployed, and reliant on a grant and an additional R350 for support, though she did not specify the grant’s source or amount.
She mentioned that her child was likely with neighbors since her arrest on 18 July.
The 27-year-old mother also noted that her father had left when the child was an infant.
The state, however, sought a harsh sentence due to Buthelezi’s serious history of theft convictions.
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They contended that the accused only considered her child when facing legal consequences and emphasised that the shop owners expected the courts to deliver justice for the theft.
The Dundee Magistrates’ Court questioned why Buthelezi stole the items despite receiving a grant and an additional R350.
The magistrate suggested that if she lacked the funds, she should have waited until she could pay.
Agreeing with the state, the magistrate found Buthelezi lacked remorse and had not learned from her previous convictions.
Consequently, the presiding officer imposed a three-year prison sentence.
In a court judgment delivered on Friday, September 6, Acting Judge Mahendra Chetty stated that the sentence imposed by the magistrate was “disproportionate”.
He noted that the presiding officer had placed “undue weight” on Buthelezi’s previous convictions for similar offenses.
Chetty, referencing a prior judgment, highlighted that the magistrate needed to take into account, among other factors, the sentence for the current offence when determining the accused’s punishment.
“A thief who steals a loaf of bread should not have to go to gaol for 10 years because he has stolen countless loaves of bread, one at a time, in the past.
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“His sentence should never escalate with the passage of time from a few weeks for initial offences, to a few months, eventually to years, and then to many years; the offence remains a petty offence no matter how often it is repeated,” the judgments reads.
“It is my view that the magistrate misdirected himself when he imposed sentence of three years direct imprisonment.
“Furthermore, that this is not a case where society needs to be protected from the accused by removing her altogether.
“The sentence imposed by the court is unduly harsh and inappropriate in the circumstances. The sentence will be set aside and replaced with an alternative sentence,” the judge said.
Chetty also found that is my view that the magistrate did not consider the child’s “best interest” when he sentenced Buthelezi to a term of direct imprisonment.
“Insofar as the child’s well-being is concerned, the magistrate directed the prosecutor to inform the investigating officer to contact social development and trace the whereabouts of child.
“Aside from this, the magistrate did not consider any further factors regarding the child. The accused is the primary caregiver of the child.
“Now that she is incarcerated, she herself is uncertain as to the whereabouts of the child. Clearly, the court did not consider the interests of the child when sentencing the accused.”
The judge instead recommended a 30-day prison sentence for Buthelezi, suspended for five years.
This suspension was contingent on Buthelezi not being convicted of theft or any attempted theft during the suspension period.
The sentence is retroactive to 30 July.
“The accused would have by the time this judgment is handed down, completed serving thirty days’ imprisonment,” he continued.
Chetty, therefore, set aside Buthelezi’s three years and order that she be released from prison.
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