A Johannesburg generator technician who stole 200 litres of diesel from an MTN cellphone tower has had his sentence reduced from 12 years to six.
The sentence was reduced after the Gauteng High Court found the original punishment disproportionate to the crime committed.
Clinton Smith, 41, was convicted in the Roodepoort Regional Court on two counts: tampering with infrastructure under the Criminal Matters Amendment Act and theft of diesel valued at R2 950 from generator site T8570.
The convictions stemmed from an incident on 11 November 2024 when Smith, employed by Bresan Civils, visited the site with a colleague who has since died.
Appeal court overturns sentence
Judges Dario Dosio and Sandiswa Mfenyana upheld Smith’s conviction for infrastructure tampering but concluded the 12-year sentence was excessive given the specific circumstances of the case.
“The appellant’s action cannot even remotely be compared with the cases supra, in that the appellant’s action did not cause actual damage to the generator or a suspension of service in any way,” the judges noted.
“The only damage caused is the actual loss of 200 litres of diesel valued at an amount of R2 950.”
The court emphasised that, unlike comparable cases involving infrastructure damage worth millions of rand, Smith’s actions left the generator fully operational.
“When Mr Meyntjies arrived at the site two days after the theft of the diesel, the generator was still working,” the judgment stated.
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Conviction upheld despite appeal
Smith had challenged his conviction on count one, arguing he could not tamper with infrastructure he was authorised to repair.
The court rejected this defence, ruling that he exceeded his authority when he siphoned diesel for personal gain.
“Once diesel is siphoned for personal gain, the appellant exceeded the authority he had to work on this generator,” the judges found.
They noted that fuel removal can cause malfunctions and damage, especially without proper follow-up to maintain fuel levels.
The Criminal Matters Amendment Act defines “tamper” broadly to include any unauthorised interference with infrastructure.
“If the theft of the diesel involves interference with the generator by manipulating the fuel levels, thereby potentially disabling or compromising the functionality of the generator, then this does amount to tampering,” the court stated.
Absence of actual harm considered
The appeal court criticised the regional court for insufficient attention to mitigating factors.
Unlike previous infrastructure tampering cases involving exposed wires, open trenches and public safety risks, Smith’s crime resulted in no service disruption or community impact.
Furthermore, the court referenced similar cases where actual infrastructure damage ran into millions of rand with devastating community impacts affecting homes, hospitals and businesses.
The absence of such consequences in Smith’s case constituted substantial and compelling circumstances justifying departure from the prescribed 15-year minimum sentence.
“The court a quo did not give sufficient attention to the fact that the appellant’s conduct did not cause actual harm to the generator, or that there was a devastating impact on the community,” the judgment stated.
Personal circumstances weighed
Smith is a first-time offender, father of two minor children, and sole breadwinner for his family, including his mother. He was dismissed from his employment following the conviction.
However, the court noted aggravating factors, including Smith’s position of trust with his employer, which he abused, and his lack of remorse. The stolen diesel was never recovered.
The judges concluded that while direct imprisonment was justified, the original 12-year term was “shockingly inappropriate” given the totality of circumstances.
The concurrent five-year sentence on the theft charge remains unchanged, and the overall sentence is antedated to 30 May 2024, when the trial court originally imposed punishment.
Smith has also been declared unfit to possess a firearm under the Firearm Control Act.
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