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[2011] ZAGPJHC 86
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Vilakazi and Another v S (A70/2011) [2011] ZAGPJHC 86 (6 June 2011)
NOT REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT OF
SOUTH AFRICA
JOHANNESBURG
CASE NO
:
A70/2011
DATE
:
09/06/2011
In the matter between:
VILAKAZI,
JOSEPH
….................................................................
First
Appellant
NGOBO, BONGA
VINCENT
...................................................
Second
Appellant
a
nd
THE
STATE
.....................................................................................
Respondent
JUDGMENT
C. J. CLAASSEN
J
:
The appellants,
both members of the South African Police Service, stood trial in the
Regional Court in Alexandra on one count
of robbery, it being
alleged that on 1 May 2009 at Olifantsfonte
in
Main Road, Randburg, they assaulted Siphiwe Nqobo, and with force
and violence took from him R450 in cash. They were legally
represented and pleaded not guilty but were both found guilty as
charged on 20 October 2010. On 6 December 2010 both were sentenced
to ten years’ imprisonment, three years of which were
conditionally suspended.
Application was
made for leave to appeal the conviction and sentence, which was
refused. The petition addressed to the Judge President,
however,
succeeded and leave to appeal both the convictions and sentences for
both the appellants was granted by this court.
THE VERSION OF THE STATE
The State tendered
only the evidence of the complainant. He testified that he was about
to tak
e
the on-ramp to Pretoria from Olifantsfontein road. He was driving in
Olifantsfontein Road from west to east. He stopped at the
first pair
of robots. At that robot he then turned right into, what he called a
hairpin bend, to get onto the highway leading
towards Pretoria, when
suddenly he saw the lights flashing of a police motor vehicle.
He then stopped.
The second appellant approached him and asked to see his driver’s
licence. The second appellant also wanted
to know whether he was
drinking. He actually admitted that he had had a few drinks. At that
point he had already alighted from
the motor vehicle. He returned to
it to collect his wallet from the inside of his vehicle. As he
alighted, R450 was visibly sticking
out of his wallet. He was trying
to locate his licence, which was also in the wallet, when the second
appellant snatched the
R450 cash out of his wallet.
The complainant then argued with the
second appellant over the money. According to the complainant the
second appellant told him
that the money was not enough and he then
suggested to the complainant that they should go to an ATM so that
the complainant
could draw more money.
He continued to
remonstrate
with the second appellant who then threatened to take him to
Hillbrow for a blood test. The complainant demanded to know why
he
could not be taken to Midrand for a blood test as they were quite
close to Midrand. The second appellant then said he was
arguing a
lot and instructed him to get into the van. As he complied with this
instruction, the first appellant alighted from
the van. The first
appellant did not involve himself with the argument and did nothing
to the complainant. Second appellant was
the only one who dealt with
him.
It was then
decided to let him go and the complainant then went his way.
However, he decided to report the incident to the Midrand
police. He
proceeded to that police station and wanted to speak to a senior
officer. At the police station he only found a junior
officer and he
decided to return the following Monday to speak to a senior officer.
On that Monday he returned to the Midrand
police station but was
still unable to see a senior officer. He returned again the next
Thursday upon which occasion he was able
to speak to Captain Chetty.
He made a statement to Captain Chetty.
THE APPELLANTS’ VERSION
The versions of
the two appellants are mutually destructive of the complainant’s
version. In short
,
their version boils down to an allegation that the complainant
actually crossed over the first set of robots, crossed over the
main
road and then turned down towards his right into a one way road,
which is the offramp for traffic from Pretoria by way of
another
hairpin bend leading to Olifantsfontein Road.
They saw this
vehicle attempting to go down the one way road and then making a
U-turn. They stopped and shouted at the driver
to get out of his
vehicle. The first and second appellant alighted from their police
van simultaneously with the first appellant
alighting from his
vehicle. The first appellant allegedly took out his R5 rifle and
merely stood guard while the second appellant
walked towards the
complainant.
S
ome
discussion took place. The second appellant then wanted to inspect
the complainant’s licence. He took his torch, looked
at the
licence disc ands shone it into the motor vehicle. This conduct
apparently enraged the complainant. It caused an argument
and a
scuffle. According to the second appellant he became enraged when
the complainant insulted him by stating that police like
him are
criminals and take money unlawfully from people.
The second
appellant then grabbed the complainant by his clothes and told him
to stop it. Eventually the two policemen decided
to let him go and
each returned to their own vehicle.
At the police
station the appellants were interrogated as to what had happened.
They merely stated that they had “difficulty
with a driver”.
THE CASE AGAINST THE FIRST
APPELLANT
In my view, the
court
a
quo
misdirected itself in convicting the first appellant. On the State’s
own evidence the first appellant did not associate
himself in any
way with the conduct of the second appellant. The evidence supports
this conclusion. I quote from the court record:
“
COURT:
Was there a physical con
frontation
between you and him (the second appellant) ?
No, no, no, we did not
fight.
After he – you say
he grabbed your wallet – yes.
And
then did he take out the money? – Yes. It was in fact …
I reached out for my wallet my driver’s licence sits
in, it is
always kept there. As I was trying to pull it out he then grabbed my
wallet with my driver’s licence inside and
then – and
they took the money out and there was R450, and he said the money was
little for…[intervenes]
What did he then do with
the money?
He took the money. He
took the money with him.
Yes, after he took the
money what did he do with it?
He may have kept it in
his pocket. I did not…[intervenes]
You did not see what he
did?
No, I did not see what he
did with it.
Right, after he took it
did he gave you back the wallet?
Yes.
And what did you do with
it then?
That was after when he
was saying I must go.
No.
Then he was letting me
go.
No, no, where were you
when he grabbed the wallet?
I was standing there
because the wallet was in my hand.
So after he stopped you,
you got out of your vehicle.
Sorry?
After he stopped you, you
got out of your vehicle.
Yes, I did.
And
did you go
to the police vehicle?
When he asked for my
driver’s licence, I went back into my car.
Yes.
And?
Yes, my wallet stays
underneath my steering wheel so I reached for it. I was outside, I
reached for it. I then opened it to take
out the driver’s
licence, that is when he grabbed it.
And then?
After
that we argued a bit about it. He then ended up insisting that I must
get inside the van so they could take me to Hillbrow.
So I did
comply. That is when accused 2 came out. Then he decided to say, no I
must go.”
Now it is obvious from this quote
that on the complainant’s version the first appellant remained
in the vehicle and only
came out after the scuffle and after the
complainant was asked to get into the van.
Clearly this
evidence does not incriminate the first appellant at all. Even less
does it establish any kind of common purpose
with the conduct of the
second appellant. On the contrary, it is indicative that he totally
disassociated himself with the actions
of the second appellant. The
first appellant’s testimony that he got out of the motor
vehicle and stood guard with an R5
rifle, was an obvious attempt by
him to protect the second appellant. In so testifying, he
purportedly placed himself in a position
where he would be able to
confirm that he saw no money changing hands. Thus he would be able
to corroborate the second appellant’s
testimony in this
regard. As the junior officer, it is quite probable that he was
influenced by the second appellant, as the
senior, to adhere to this
untruthful version.
Of course,
the mere fact that an accused gives a false rendition of events does
not necessarily lead to a finding of guilt as being the
only
reasonable inference to be drawn. In this regard reference may be
made to
S
v Mtsweni
1985 (1) SA 590
(A) where the head note reads as follows:
“
Although
the untruthful evidence or denial of an accused is of importance when
it comes to the drawing of conclusions and the determination
of
guilt, caution must be exercised against attaching too much weight
thereto. The conclusion that, because an accused is untruthful,
he
therefore is probably guilty must especially be guarded against.
Untruthful evidence or a false statement does not always justify
the
most extreme conclusion. The weight to be attached thereto must be
related to the circumstances of each case. In considering
false
testimony by an accused, the following matters should,
inter
alia
,
be taken into account: (a) the nature, extent, and materiality of the
lies and whether they necessarily point to a realisation
of guilt;
(b) the accused’s age, level of development and cultural and
social background and standing insofar as they might
provide an
explanation for his lies; (c) possible reasons why people might turn
to lying, eg, because, in a given case, a lie might
sound more
acceptable than the truth; (d) the tendency which might arise in some
people to deny the truth out of fear of being
held to be involved in
a crime, or because they fear that an admission of their involvement
in an incident or crime, however trivial
the involvement, would lead
to the danger of an inference of participation and guilt out of
proportion to the truth.”
In my view, the
standing of the first appellant as the junior to the second
appellant and the latter’s influence over the
first appellant,
are sufficient reasons to doubt the veracity of the first
appellant’s version, and to reject it as not
being correct. In
light of the complainant’s evidence, it is obvious that the
first appellant had no role to play in the
commission of this crime.
In my view, the conviction and sentence against the first appellant
must therefore be set aside.
THE CASE AGAINST THE SECOND
APPELLANT
I now come to the
case against the second appellant. Both counsel for the State and
for the defence agreed that the State’s
version did not
establish a crime of robbery against the second appellant. Snatching
money from somebody’s hand
without warning does not establish robbery but theft. In my view,
this attitude is correct, and the conviction and sentence on
robbery
should be set aside. However, I am of the view that the State did
succeed in proving beyond a reasonable doubt that the
second
appellant committed theft of R450.
It was submitted
on behalf of the second appellant that t
he
whole incident occurred as a result of a U-turn allegedly made by
the complainant. In evidence the complainant denied making
a U-turn.
According to him his conduct gave no reason for the police to stop
him. He was supported in this version by the testimony
of the first
appellant who categorically stated that they did not stop him
because of a U-turn. According to the first appellant
they stopped
him to inspect the vehicle. In this regard the record stated the
following:
“
So that means you
never suspected the complainant was stealing the car, which means
that the reason you stopped him is that he was,
according to you,
making a U-turn on the barrier line, that is the reason.
No, that is not the
reason.”
A little later,
under cross-examination, the first appellant said the following:
“
Why did you stop
him?
Because we were
suspecting the motor vehicle.”
Th
is,
in my view, constitutes unambiguous evidence in support of the
complainant’s version that he did not make a U-turn.
However,
the statement he made to the police on the Thursday seems to
indicate that he told them that he did make a U-turn. He
was heavily
cross-examined as to this contradiction between his statement to the
police and his evidence in court. If one, however,
considers the
area where this incident took place then turning right at the point
where the complainant said he turned right,
meant that he would
first drive in a southerly direction towards Johannesburg and then
by means of the hairpin bend turn to a
northerly direction towards
Pretoria. It may very well have been that the “hairpin bend”
was translated as a U-turn
in the statement, and that in the
complainant’s mind when reading the statement, reference to
the U-turn in the statement
was a reference to the hairpin bend. It
is common cause that it is necessary to travel on this hairpin bend
to get onto the highway
leading towards Pretoria.
All in all, I am
of the view that the criticism levelled at the complainant in regard
to this so-called contradiction did not
justify a finding that his
credibility was dented. After heavy cross-examination he conceded
that reading the statement
ex
post facto
it does indicate that reference was made to a U-turn. However, as
explained above, that does not mean that it correctly recorded
his
version. He categorically stated it constituted an error. This
evidence remained uncontradicted as the officer who recorded
his
statement was not called to reject the complainant’s evidence
that the statement contained an error.
Furthermore taking
into consideration that he knows the road well, that he often
travels that road, one would not expect him to
have made an error in
regard to whether or not he made a U-turn on a one way road. In my
view, that contradiction is not a material
contradiction, if it is a
contradiction at all. The probabilities regarding the correct
interpretation of the complainant’s
statement favour the
State’s version.
Finally, the
second appellant himself did not state that the complainant
completed making a U-turn. His evidence was to the effect
that the
complainant “attempted” to make a U-turn but did not in
fact complete the U-turn. The second appellant’s
version that
an alleged U-turn executed by the complainant caused the incident
must therefore be rejected as false beyond reasonable
doubt. Once
the
causa
causans
for
the incident on the second appellant’s version is rejected,
his entire testimony lacks credibility. If indeed the complainant
did execute a U-turn, ond would have expected the second appellant
to mention that when he was questioned about the incident
by his
colleagues at the Midrand Police Station. Merely stating that they
had “difficulty with a driver” is a far
cry from stating
that the driver executed a U-turn when driving down a one-way road
in the wrong direction which led them to
suspect the car as having
been stolen.
THE PROBABILITIES
The evidence was
that the complainant actually went to
the police station three times; (i) later that evening; (ii) the
next Monday; and (iii) again on the following Thursday. Why
would
the complainant go to all that trouble if the police merely
inspected his vehicle and found his licence and licence disc
to be
in order? Why would he go to all that trouble if the second
appellant merely grabbed him by his clothes while there was
no
assault or attack of any kind? In my view, the only reasonable
answer to these questions must be that something more sinister
or
serious occurred than that to which the first and second appellant
testified.
Furthermore the
evidence of the first and second appellants conflicted in numerous
aspects. The second appellant even contradicted
himself in a number
of instances. I am not intending to d
eal
with each of these instances, because they are dealt with in the
judgment of the court
a
quo
.
I need only associate myself with the magistrate’s judgment
where the following is stated:
“
Now from both of
these accused’ evidence there is no way that they could have
and did have suspected that this man wanted
to make a U-turn. That
they have testified themselves they could not have. What is clear is
that they stopped this person and from
thereon they contradicted each
other on basically all the aspects that they have testified about,
and it is clear especially from
accused 2 that he was making up
his story how(sic) far (he) went in his testimony, and to this end
that he even allowed him
to make his U-turn to go away(sic) in a road
that he did not want to go in the first place. It is clear that these
versions by
both the accused are fabricated versions. It is one that
it is clear that it did not take place, and as said before the
probabilities
does(sic) not favour them in this case. The
probabilities are there that there is more than just a mere
altercation between two
people. So the court can safely say that the
accused's version as they have tendered it to this court is false and
should be rejected
as such."
I am therefore of the opinion that
the second appellant is indeed guilty of theft.
SENTENCE
As
I have already set aside the conviction and sentence for robbery,
this court is at large to sentence the second appellant afresh.
The
question is what would be the appropriate sentence in the
circumstances of this case? The second appellant is a 44-year old
man and married with children. He has been a member of the police
for a long time. This conviction would obviously cause him
to lose
his employment as a police officer. That of course is a punishment
in itself, for which of course he has only himself
to blame. He has
also been in custody awaiting trial for nine months, and according
to the authorities one must take into account
that such period of
incarceration amounts to almost double that time in prison because
of the poor treatment which awaiting trial
prisoners receive at the
hands of the Department of Correctional Services.
But on the other
hand, he was a policeman. He must h
ave
known better. This type of crime committed by police officers is so
prevelant that members of the public are afraid of the
police. They
often think it safer to avoid the police altogether. The concept of
a policeman being the friend of the public,
there to assist and
protect them, has become a distant dream unrelated to the reality on
the ground. The police service in South
Africa has been subjected to
a lot of justified criticism in the news and media. The public’s
trust which is supposedly
to repose in the South African Police
Services has been severely curtailed by the type of crime evident in
this case. It is therefore
this court’s duty to impose
sentences which reflect the public’s distrust in the honesty
and fidelity of police officers
such as the appellant in this case.
What then would be
a fit and proper sentence in this case? It is trite that a fit and
proper sentence should fit the crime, the
criminal, and also take
into consideration the needs and views of the community. It should
also have sufficient deterrent and
rehabilitative attributes,
blended with a measure of mercy.
Taking into consideration all of
these circumstances I am of the view that an appropriate sentence
would be two years’ imprisonment,
half of which is suspended
for a period of five years on condition that the accused is not
convicted of the crime of theft committed
during the period of such
suspension.
The following order is issued:
The appeal by the
first
appellant
against his conviction and sentence is upheld and the judgment of
the court
a
quo
is
set aside and substituted with the following:
“
The accused is acquitted and
discharged.”
The appeal by the
second
appellant
against his conviction and sentence is upheld and the judgment of
the court
a
quo
is
set aside and substituted with the following:
“
The accused
is found guilty of theft of R450-00 and sentenced to 2 (two) years’
imprisonment, half of which is suspended for
5 (five) years on
condition that the accused is not found guilty of theft committed
during the period of suspension.”
THUS DATED AND
SIGNED AT JOHANNESBURG THIS
12
th
DAY OF JULY 2011.
_________________________
C.J. CLAASSEN
JUDGE OF THE HIGH COURT
I agree:
________________________________
p/p R. STRYDOM
ACTING JUDGE OF THE HIGH COURT
Counsel for the Appellants: Mr J. C.
Kruger (Attorney)
Counsel for the State: Adv M. P.
Moleko