THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  454/10
In the matter between:

JOHANNES HENDRICUS TRUYENS                                                    Appellant

v

THE STATE                                                                                        Respondent

Neutral citation:   Truyens v The State (454/2010) [2011] ZASCA 110 (1 June
2011).

Coram:
Cloete and Cachalia JJA and Meer AJA
Heard:
26 May 2011
Delivered:
1 June 2011

Summary:  Foreman on a farm convicted of theft of 48 cattle in terms of
s 11 of the Stock Theft Act, 57 of 1959. The motive for the theft was to sell
the cattle for money to pay for medical expenses related to the terminal
illness of the appellant’s children. A magistrate imposed a sentence of four
years’ imprisonment under s 276(1)(i) of the Criminal Procedure Act 51 of
1977, which was increased on appeal to an effective sentence of eight
years’ imprisonment by a provisional division. The Supreme Court of
Appeal set aside the sentence imposed by the high court and reinstated the
sentence originally imposed by the magistrate.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: North West High Court, Mafikeng (Hendricks and Gura JJ
sitting as court of appeal):

The following order is made:

(1)
The appeal is upheld;
(2)
the order of the court below is set aside;
(3)
the sentence imposed by the regional magistrate is reinstated.

________________________________________________________________

JUDGMENT
________________________________________________________________

CACHALIA JA (Cloete JA and Meer AJA concurring):

[1] The appellant, Mr Johannes Hendrikus Truyens, was convicted for the
theft of 48 head of cattle in contravention of section 11 of Act 57 of 1959 by a
Regional Court, sitting at Koster in the North West Province. He initially tendered
a plea of not guilty, but changed his plea to guilty after three state witnesses had
testified. After considering the testimony and a pre-sentencing report prepared by
a forensic criminologist, Dr Irma Labuschagne, the trial court (Mr C P Nel),
sentenced the appellant to four years’ imprisonment in terms of s 276(1)(i) of the
Criminal Procedure Act 51 of 1977 (the Act). This meant that he would have to
serve a minimum period of eight months’ imprisonment before being considered

for placement under correctional supervision.1 He appealed to the North West
High Court, Mafikeng.

[2] The judges to whom the matter had been allocated (Hendricks and Gura
JJ) notified counsel for both the state and the appellant that they were
considering increasing the sentence. After hearing argument, they increased his
sentence to 12 years’ imprisonment and suspended four years. The appellant
was therefore sentenced effectively to eight years’ imprisonment.2 The high court
refused him bail and leave to appeal further, but this court granted the necessary
leave. The appellant has been in custody for just over two years since he began
serving his sentence on 30 April 2009.

[3] There were three grounds upon which the appellant sought leave to
appeal against the sentence. First, that the high court committed an irregularity
by failing to ask the magistrate for additional reasons for the sentence that he
imposed, before it decided to increase the sentence. Second, that it was irregular
for the court not to have informed the appellant personally in writing that the court
was considering increasing the sentence. In this regard the appellant sought to
lead further evidence before this court to show that had he been so informed, he
would have sought advice with a view to bringing a formal application to withdraw
his appeal. Third, that the effective sentence imposed on the appellant was
excessively harsh.

[4] Ms Zwiegelaar, who appeared for the appellant, did not press either of the
first two grounds with any confidence. Regarding the first ground, it has long
been the law that though it is desirable for an appeal court, before increasing a
sentence, to request reasons from the magistrate for having imposed the
sentence, this is not a hard and fast rule and a failure to do so does not in any

1 Section 73(7)(a) of the Correctional Services Act 111 of 1998.
2 Unreported case no. CA 95/07.

case amount to a misdirection.3 In this case the learned magistrate had given a
detailed and carefully reasoned judgment on sentence. So it would not have
served any purpose for the high court to have asked for further reasons to be
furnished. In any event, the learned magistrate at the request of this court did
respond by stating briefly that in retrospect he would have imposed the same
sentence, but without reference to s 276(1)(i) of the Act.

[5] The second ground, that the appellant should have been informed
personally that the high court was considering increasing the sentence, also has
no merit. The appellant’s counsel and attorney of record were informed, albeit not
in writing, of the high court’s view. They were given sufficient time to, and did,
prepare submissions on this question. Once the appellant appointed legal
representatives to conduct his defence and his appeal, it would have been
irregular for the court or state counsel to communicate directly with him without
reference to his lawyers. If the appellant has any complaint, it is with his lawyers
– not the court – who he says did not properly advise him that the sentence could
be increased.

[6] I turn to consider the merits of the appeal. The facts are these. The
appellant was employed as the foreman on a cattle farm and thus occupied a
position of trust. He stole his employer’s cattle – 48 in total – valued at the time at
between R105 000 and R120 000. The theft occurred on three occasions
between April and May 2005. He thereafter sold the cattle for a total amount of
R83 000.

[7] The appellant’s personal circumstances were set out comprehensively in
the pre-sentencing report. In summary, the appellant’s age was 46 when he
committed the offences and 48 when he was sentenced. He is now 51. He is
married with four children born of the marriage, respectively in 1986 and 1989
(both sons) and twin girls in 1990. At the time of his trial he was employed as a

3 R v Swanepoel 1945 (AD) 444 at 451.

contractor in Iraq at a salary, in rand terms, of R43 000 per month. His wife
earned R12 000 per month as a credit manager at a commercial bank.

[8] The older son and the twin girls suffer from a rare condition called cystic
fibrosis, which is a genetic disease that attacks the lungs. The family has been
advised that the life expectancy of the ‘children’ affected is only between 25 and
30 years, although some patients have been known to live longer with proper
medical care. The older son was, at the time of the trial, on a waiting list for a
heart and lung transplant. When the matter was argued before us we were
informed that he was 25 years old and had been admitted to hospital to undergo
the operation.

[9] The children are unable to live normal lives and are largely dependent
upon their parents. The family is thus under great stress, which is exacerbated by
the considerable medical costs that treatment of this condition demands. The
family has medical aid, but it does not cover all their costs. The family is therefore
also under severe financial pressure.

[10] The learned magistrate found that the motive for the theft was to meet
these medical costs and to ameliorate the difficult circumstances of the children.
The money was not spent on luxuries. In this regard he accepted the
criminologist’s assessment that this crime was one of need and not of greed.

[11] It must be emphasized that the motive for the crime – what the accused
believed and intended – is the central enquiry when deciding, for the purposes of
sentence, whether the moral blameworthiness of an accused has been reduced.4
The learned magistrate found, correctly in my view, that the circumstances here
provided a compelling case for such a reduction.

4 S v Ferreira 2004 (1) SACR 454 (SCA) para 44.

[12] I should mention that the trial court was aware, and took account of dicta
in this court to the effect that personal economic necessity, including having to
meet the costs of high medical expenses, cannot condone theft or fraud of some
magnitude when committed by design over a period.5 It is however, a mitigating
factor in reducing the extent of censure that may be appropriate for the
commission of a crime.6

[13] Also counting in the appellant’s favour, the trial court considered, was that
the appellant was contrite. In this regard the learned magistrate said that even
though the appellant initially pleaded not guilty and conducted his own defence,
when he was able to obtain legal assistance after three witnesses had testified
for the state, he changed his plea to guilty. More importantly, he did not put up a
false version in an attempt to evade responsibility, which indicates contrition. On
the contrary, in a letter to his employer before first appearing in court, he
confessed fully to the charges and expressed the hope that he now had a chance
to change his life. He also promised to compensate his employer for his loss.
Between December 2005 and January 2006 he paid R20 000 in two instalments
of R10 000 each. The first was paid before his arrest on 22 December 2006.
Dr Labuschagne observed that this conduct is consistent with remorse because it
demonstrated the appellant’s insight into the damage he had caused.

[14] The trial court correctly considered that the appellant was employed in a
position of trust, which he abused by committing the crime, as an aggravating
factor. Furthermore, it observed, the crime was planned and took place on three
occasions over two months. He could have stopped after the first, or even the
second time, but he persisted. In effect, said the trial court, he committed three
separate crimes but was charged with only one.

5 S v Lister 1993 (2) SACR 228 (A) at 233e-f.
6 Cf S v Kearns 1999 (2) SACR 660 (SCA) at 663g-h.

[15] The appellant had three previous convictions for theft, housebreaking and
fraud. These had occurred almost 30 years ago. The trial court took them into
account, but properly accorded little weight to them.

[16] The pre-sentencing report ruled out direct imprisonment for the appellant
because of the strong mitigating factors in this case. However, the difficulty with a
sentence of correctional supervision, Dr Labuschagne said, was that it could not
be properly monitored because the appellant worked overseas. She thus
recommended a fine together with a suspended sentence. This sanction would
allow him to work so that he can provide for his family and would also have a
deterrent effect.

[17] From his judgment it is apparent that the learned magistrate grappled with
the difficult question of what an appropriate sentence would be in the unusual
circumstances of this case. The appellant’s financial circumstances, the
magistrate said, was not a matter about which the court could do anything. And
even though the magistrate expressed sympathy for the appellant’s personal
circumstances, especially the severe health needs of his children, he came to the
view that a wholly suspended sentence did not commend itself. In this regard the
abuse of the employer’s trust weighed heavily with him. He thus decided that a
sentence of four years’ direct imprisonment would be appropriate, but considered
that he should impose it in terms of s 276(1)(i) of the Act.7

[18] In deciding to employ this provision the learned magistrate relied on two
recent decisions of this court. The first was S v Scheepers,8 which held that:
‘When the sentencer considers that a custodial sentence is essential, but the nature of
the offence suggests that an extended period of incarceration is inappropriate’ the
s 276(1)(i) option ‘should always be in the foreground.’
The second was S v Oosthuizen,9 which reiterated this approach.

7 Cf S v Wimpie Barnard 2004 (1) SACR 191 (SCA) where this court imposed a sentence of five
years’ imprisonment under s 276(1)(i) for the appellant’s theft of R30 069 from his employer over
a period of 15 months. The appellant had abused his position of trust.
8 S v Scheepers 2006 (1) SACR 72 (SCA) para 10.

[19] Against this background the question that arises is whether the court
below was correct to have interfered with the sentencing magistrate’s exercise of
his discretion. In S v Wimpie Barnard10 this court cautioned that:
‘A Court sitting on appeal on sentence should always guard against eroding the trial
court’s discretion in this regard, and should interfere only where the discretion was not
exercised judicially or properly. A misdirection that would justify interference by an
appeal Court should not be trivial but should be of such a nature, degree or seriousness
that it shows that the court did not exercise its discretion at all or exercised it improperly
or unreasonably.’11

[20] Where there is no clear misdirection by the trial court to justify interference
by an appeal court, the remaining question, as this court said in S v Whitehead,12
is:
‘. . . (W)hether there exists such a striking disparity between the sentences passed by
the learned trial Judge and the sentences which this Court would have passed – or, to
pose the enquiry in the phraseology employed in other cases, whether the sentences
appealed against appear to this Court to be so startlingly or disturbingly inappropriate –
as to warrant interference with the exercise of the learned Judge’s discretion regarding
sentence.’(Internal references omitted.)13

[21] The court below felt itself at liberty to interfere on two grounds. First, the
appellant’s previous convictions, ‘though it happened long before, indicates that
he has a propensity to steal’. Second, it compared the sentence the court
imposed in S v Hendrik Tiro Lephoro14 – also involving stock theft – with this
case and concluded that the sentence of four years under s 276(1)(i) was
‘shockingly light and totally disproportionate to the gravity of the seriousness of
the offence . . .’.15 In Lephoro several accused were sentenced to 10 years’

9 S v Oosthuizen 2007 (1) SACR 321 (SCA) para 11.
10 469/2002.
11 2004 (1) SACR 191 (SCA) para 9.
12 1970 (4) SA 424 (A).
13 Ibid at 436C-E.
14 Unreported case no CA 28/2006 (Bophuthatswana Provincial Division).
15 See n1 above para 22.

imprisonment, three of which were suspended, making the effective term of
imprisonment seven years.

[22] With regard to the first ground, the previous convictions, it is difficult to
understand how the high court came to this conclusion in the face of the careful
reasoning by the learned magistrate. Some of those offences were committed
during the appellant’s adolescence, and others when he was 21 years old. The
appellant committed the present offence as a middle aged adult, under unique
circumstances. This is hardly evidence of a predatory predilection.

[23] Concerning the second ground – the reliance on the Lephoro case – there
were fundamentally different circumstances present there. Several accused,
working in concert, stole eight head of cattle valued at R21 000. They committed
the crime in the Taung area where the population relies on their livestock as their
main source of income. Most importantly, that case involved a crime of greed, not
one of need, as was the case here. And there was no suggestion that the
accused had shown any sign of remorse. Again, this is an important difference.

[24] There is another reason why the reliance on a case or cases involving
stock theft is not appropriate here. Stock theft is a sensitive issue in many
farming communities. This is because it is difficult for farmers to prevent the
crime and equally difficult for perpetrators to be apprehended and prosecuted.
Cattle farmers are therefore particularly vulnerable to this type of crime. The
courts have reflected these concerns by progressively imposing tougher
sentences – usually direct imprisonment – on offenders.

[25] But I do not think that the circumstances of this case warrant comparison
with typical stock theft cases. The appellant is not a cattle rustler. He stole his
employer’s cattle so that he could raise money to meet the desperate medical
needs of his children. Furthermore, his employer is not reliant on his cattle as his
main source of income and that is why he did not seek a compensatory order. In

this regard, his employer testified that the main reason that he pressed charges
in this case was because he wanted to see justice done.

[26] So, it is not surprising that Mr Jacobs, who appeared for the state, had
difficulty defending the reasoning of the court below. This brings me to whether
there was any proper basis to interfere with the sentence imposed by the trial
court. In my view once the learned magistrate came to the view that custodial
sentence was the only appropriate sentence, but that a sentence in excess of
five years was not called for, he was not only entitled to apply the s 276(1)(i)
sentencing option but, on clear authority from this court, obliged to consider
whether its application was suitable. Whether direct imprisonment – not in terms
of s 276(1)(i) – was too lenient a sentence in these circumstances is a matter on
which there may well be divergent views. But it would not be justified for an
appeal court to interfere with the sentence imposed by the trial magistrate after
his sensitive and careful reasoning. In my view, the sentence of four years’
imprisonment in terms of s 276(1)(i) was in any event ‘not shockingly
inappropriate’. The fact that the learned magistrate in retrospect is of the view
that a sentence of four years’ direct imprisonment may have been more
appropriate does not detract from my conclusion, or his, that the original
sentence was not unduly light.

[27] I should add that there is a misconception that a sentence under
s 276(1)(i) of the Act is a softer option than an ordinary sentence of direct
imprisonment. It is not. It merely grants the Commissioner the latitude to consider
an early release under correctional supervision – after a sixth of the sentence is
served – and only if the personal circumstances of the offender warrant it. The
Commissioner in any event has the authority under s 276A(3)(a) of the Act to
apply to the sentencing court to reconsider a sentence not exceeding five years’
imprisonment, or exceeding five years’ imprisonment where the date of release is
no more than five years hence.

[28] For these reasons I would set aside the sentence imposed by the court
below and reinstate the sentence of the trial court.

The following order is made:

(1)
The appeal is upheld;
(2)
the order of the court below is set aside;
(3)
the sentence imposed by the regional magistrate is reinstated.

_________________
A CACHALIA
JUDGE OF APPEAL

APPEARANCES

APPELLANTS:

C J Zwiegelaar
Instructed by Grobler Levine Soonius, Mafikeng
Naudes Inc, Bloemfontein

RESPONDENT:

D G Jacobs
Instructed
by
Director
of
Public
Prosecutions,
Mafikeng
Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

1 June 2011

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Truyens v The State (454/2010) [2011] ZASCA 110 (1 June 2011).

The Supreme Court of Appeal (SCA) upheld an appeal by Mr Johannes
Hendrikus Truyens against an effective sentence of eight years’ imprisonment
which the North West High Court, Mafikeng imposed upon him two years ago.
Truyens was convicted in the regional court of the theft of 48 head of cattle in
contravention of section 11 of the Stock Theft Act 57 of 1959. The magistrate
initially imposed a sentence of four years’ imprisonment under s 276(1)(i) of
the Criminal Procedure Act 51 of 1977. This meant that the appellant would
have to serve a minimum period of eight months’ imprisonment before being
considered for placement under correctional supervision. On appeal the high
court increased his sentence.

The appellant was employed as the foreman on a cattle farm and thus
occupied a position of trust. The appellant is the father of four (4) children,
three (3) of whom suffer from a rare condition called cystic fibrosis, which is a
genetic disease that attacks the lungs. This has led to considerable medical
costs which has placed the family under severe financial pressure. The court
accepted that the appellant’s motive for the crime was to raise money for his
childrens’ desperate medical needs. In this regard the learned magistrate
accepted the criminologist’s assessment that this crime was one of need and
not of greed.

The SCA found that the magistrate grappled with the difficult question of what
an appropriate sentence would be in the unusual circumstances of this case.
The appellant’s financial circumstances, the magistrate said, was not a matter
that the court could do any about. And even though the magistrate expressed
sympathy for the appellant’s personal circumstances, especially the health
needs of his children, he came to the view that a wholly suspended sentence
did not commend itself. In this regard the abuse of the employer’s trust

weighed heavily with him. He thus decided that a sentence of four years’
direct imprisonment would be appropriate but considered that he should
impose it in terms of s 276(1)(i) of the Act, so that Mr Truyens could be
considered for release on correctional supervision after serving eight months.

The question before the SCA was whether the high court was correct in
interfering with the sentencing magistrate’s exercise of his discretion. The
court held that an appeal court should only interfere with this discretion where
there was a clear misdirection by the trial court or where the sentences
appealed against appear to the trial court to be so startlingly or disturbingly
inappropriate as to justify interference.

The SCA held that once the learned magistrate came to the view that
custodial sentence was the only appropriate sentence, but that a sentence in
excess of five years was not called for, he was not only entitled to apply the s
276(1)(i) sentencing option but, on clear authority from the SCA, obliged to
consider whether its application was suitable. In the circumstances of this
case the SCA thus found no reason to interfere with the learned magistrate’s
sensitive and careful reasoning and ordered the high court’s sentence to be
set aside and the sentence imposed by the regional magistrate to be
reinstated. The effect of the judgment therefore is that Mr. Truyens may be
considered for immediate release under correctional supervision.