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[2014] ZAGPJHC 168
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Siphoro v S (A399/2012) [2014] ZAGPJHC 168 (14 August 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A399/2012
DATE:
14 AUGUST 2014
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
BRYAN
SIPHORO
............................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
J
U D G M E N T
RATSHIBVUMO
AJ:
1.
Mr. Siphoro, the appellant was convicted by
the Orlando Regional Court on five criminal charges. Three of these
were charges of
robbery with aggravating circumstances, one of
attempted murder and another of possession of one live ammunition
without a licensed
firearm capable of discharging it, in
contravention of section 90 of Act 60 of 2000. He was sentenced to a
cumulative sentence
of 30 years imprisonment. He appeals against the
convictions and the ultimate sentence with leave of the trial court.
2.
It was common cause that the appellant and
his two companions took part in a spree of robberies on the 6
th
of August 2008 at around 22h00. The robberies were perpetuated within
a short radius in Dube but in three different spots. The
spree was
over in just a few minutes following the arrest of the appellant by
two Metro police officers after they saw him and
another person
dragging the last victim of robbery towards a railway line. This was
after robbing her of her belongings.
3.
The first victim Mr. Seloane Bongani was
robbed of a cell phone and a wallet containing R327 in cash and cards
after he was pointed
with a firearm. Moments later and just a short
distance away, the next victim, Mr. Lucky Hadebe was robbed of a cell
phone and
R300 in cash. The last victims were Mr. Mandla Skenjana and
his partner Ms. Monica Dlamini. Robbery of these two was formulated
into one charge in which two cell phones, a watch and R300 in cash
were robbed. Mr. Skenjana was also shot twice, on his right
heel and
on his right knee. It was from this that a charge of attempted murder
emanates.
4.
It was also common cause that when Mr.
Skenjana and Ms. Dlamini were attacked; Mr. Skenjana crossed the
street and was pursued by
one of the three assailants, leaving the
appellant and another with Ms. Dlamini. It was at the stage that Ms.
Dlamini was being
dragged towards the railway line that Mr. Skenjana
was shot while being pursued on the other side of the road. When the
Metro police
officers arrived shortly thereafter, the appellant and
his companion who were still dragging Ms. Dlamini fled. The police
officers
gave chase but they focused on the appellant because it was
easy to follow him since it was dark and he was wearing a white top;
unlike his companion whose dark clothes made him to vanish in the
dark. The appellant got tired as he ran up the hill and the police
apprehended him. He was thus the only one of the three who was
arrested.
5.
The appellant’s admission that he was
part of the three only came out late in cross examination of the
first State witness.
One of the victims, Mr. Seloane pointed the
appellant at an identification parade while another, Mr. Hadebe
pointed him out through
a photo parade. The last victims of robbery,
Mr. Skenjana and Ms. Dlamini confirmed the identification of the
appellant after he
was brought back to them by the police officers
moments after they gave chase. The first two victims testified that
the man who
pointed them with a firearm was the appellant whereas his
two companions simply searched and took their belongings. The
appellant
denied this saying his role was merely to search the
victims. The police officers also testified that when they arrested
the appellant,
he had with him a firearm and a cell phone. This cell
phone was later identified by Mr. Hadebe as his. The appellant denied
he
had any of these items with him when he was arrested.
6.
The
version of the appellant was to the effect that he too was a victim
of robbery by his companions who he claimed he did not know
them.
When they found he had only R20 with him they demanded that he should
join them in a spree of robberies. They had promised
to release him
only after making R800 in loots that night. He testified that his
participation in robberies was as such under duress.
7.
It is
a well-known principle of our law that the factual findings of a
trial court are presumed to be correct unless a misdirection
on the
part of the trial judge can be pointed to in order to justify
interference with those findings on appeal. For instance,
in
Santam Bpk v Biddulph
2004 (5) SA 586
(SCA) at para 5, Zulman JA expressed the approach as
being that while an appeal court 'is generally reluctant to disturb
findings
which depend on credibility it is trite that it will do so
where such findings are plainly wrong' – see
Roux
v Hattingh
2012 (6) SA 428
(SCA).
8. The appellant’s
version was rejected as being improbable and the court
a quo
accepted the State’s version of events. The appellant’s
version was found to be irreconcilable with the undisputed
version of
events by the learned magistrate. With the improbabilities
highlighted in the judgment by the court
a quo
, I cannot find
any misdirection on its part in accepting the State’s version.
The appellant’s version leaves much to
be desired. If his
version is to be accepted as true, there would not be an explanation
as to where the police officers found the
firearm and the cell phone
which was robbed from its owner, moments earlier. While the State’s
version gives clear answers
to this question, the appellant’s
version does not offer any.
9.
The conviction of the appellant on a charge
of attempted murder was further challenged on the basis that the
appellant was not warned
at any stage of the trial of the State’s
intentions to rely on the doctrine of common purpose. In the
alternative, it was
submitted that the appellant should have been
convicted of assault with the intent to do grievous bodily harm given
the fact that
the victim was shot on the leg.
10.
The later argument lacks legal or medical
basis and cannot take the matter any further. One is guilty of
attempted murder irrespective
of what happens to the person he aims a
gun at and shoots. Even if he misses, as long as there is an
intention to kill, the crime
would be completed. There are several
cases wherein suspects were convicted of attempted murder after the
victims were shot in
the leg – see for example
S
v Tombe
[2003]
JOL 11678
(E). While an injury to a leg may not be as risky as an
injury to the upper part of the body, both can be fatal if one
receives
no immediate medical assistance.
11.
Charge sheet silent on State’s
intention to rely on common purpose
.
The
charge sheet made no mention of the State’s intention to rely
on the doctrine of common purpose on the charge of attempted
murder.
The first time that the common purpose was ever mentioned in relation
to the charge of attempted murder was when judgment
was being
delivered. Although the appellant was legally represented, there is
no basis upon which it could be suggested that his
legal
representative could have anticipated that there would be such
reliance. In fact from the evidence of the first witness –
a
Metro police officer, he testified that when they took the appellant
to where Mr. Skenjana was, he told them the appellant personally
fired a shot that injured him.
The defence
throughout the trial and in its closing argument focused on
disproving this.
12.
In
S v
National High Command
1963 (3) SA 462
(T) at p. 464 the court held,
“
Now
it is clear that where a common purpose is alleged, the State has to
supply particulars of the facts on which it will rely in
order to ask
the Court to draw the inference that each and every one of the
accused was a participant in the conspiracy, or party
to the alleged
common purpose.”
In
S v Mphetha and Others
(1)
1981 (3) SA 803
(C), the court ordered the State to furnish
further particulars to the accused adhering to the set of guidelines
it ordered. It
went on to quote with approval from
R
v Adams and Others
1959
(1) SA 646
(SCC) at
656F:
“
It
is a well-known principle in our law that an accused person is
entitled to such particulars as he properly requires for the purpose
of preparing his case before he is called upon to plead and enter
upon his defence, and he is entitled to such particulars even
if it
entails a disclosure of Crown evidence.”
13.
In
S v Ndaba
2003 (1) SACR 364
(W) at para 102, Labe J said,
“
I
am satisfied that the allegation of common purpose has to be made by
the State in the indictment, or at least in the summary of
substantial facts furnished in terms of s 144 (3) (a) of the Act.”
At
least in
Ndaba
,
the State realized that the accused was not properly informed of the
charge he faced and immediately brought an application to
have the
charge sheet amended to reflect its intention to rely on the doctrine
of common purpose. In
casu
,
the Public Prosecutor’s one line closing argument in asking for
a conviction had nothing to do with the shortcomings of
the charge
sheet in not appraising the accused of his intentions. It can also be
noted that the reason the appellant was acquitted
on a charge of
possession of prohibited firearm was because the State did not hand
in an affidavit prepared in terms of sec 212
of Act 51 of 1977 by an
expert who examined the said firearm. Upon questioning by the
magistrate, the Public Prosecutor admitted
that the said statement
was in the docket, but by then it was too late to hand it in.
14.
Whereas the appellant conducted his defence
to the end under the impression that the allegation was that he
pulled the trigger and
attempted to kill Mr. Skenjana, the finding to
the effect that he was guilty based on the doctrine of common purpose
must have
come as a surprise to him. I am of the view that failure to
inform the appellant of the charge he faced adequately and the
possibility
of conviction on the doctrine of common purpose
prejudiced him and resulted in an unfair trial in respect of that
charge and the
resultant conviction.
15.
The sentence
.
It
was also submitted that the learned magistrate failed to take into
account the cumulative effect of the sentence. The court
a
quo
acknowledged that the minimum
sentences were applicable as provided in sec 51 (2) of Act 105 of
1997. It proceeded to impose the
sentences as follows: on each of the
three counts of robberies, “eight years in terms of section 25
(1) (a) Act 105 of 1977,
five years in respect of the attempted
murder and one year in respect of possession of ammunition.” I
suppose the learned
magistrate meant sec 51 (2) of Act 105 of 1997.
16.
Section 51 (2) & of Act 105 of 1997
provides,
“
51
Discretionary minimum sentences for certain serious offences
(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall sentence a person
who has been
convicted of an offence referred to in-
(a)
Part II of Schedule 2, in the case of-
(i)
a first offender, to imprisonment for a period not less than 15
years;
…
(c)
Part IV of Schedule 2, in the case of-
(i)
a first offender, to imprisonment for a period not less than 5 years.
Sec 51
(3) of the same Act provides,
“
(3)
(a) If any court referred to in subsection (1) or (2) is satisfied
that
substantial and compelling
circumstances
exist which justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections,
it shall enter those
circumstances on the record
of the
proceedings and must thereupon impose such lesser sentence: Provided
that if a regional court imposes such a lesser sentence
in respect of
an offence referred to Part 1 of Schedule 2, it shall have
jurisdiction to impose a term of imprisonment for a period
not
exceeding 30 years.” [
own
emphasis
]
17.
It is not clear from the record as to why
the learned magistrate deviated from the prescribed sentence of 15
years imprisonment
per each count of robbery. From Act 105 of 1997,
the only inflexible way through which to deviate from the prescribed
sentences
is if there are substantial and compelling circumstances
that justify such deviation and the same should be recorded. No
circumstances
were recorded by the learned magistrate in this case,
although he deviated from the prescribed sentences. There has been
since
clear interpretation of what substantial and compelling
circumstances are by the courts – see
S
v Malgas
2001 (1) SACR 469
(SCA).
18.
The learned magistrate mentioned the 45
years imprisonment the appellant would have to serve if he was to
impose the prescribed
sentences as being excessive. If this was the
concern that led him to not imposing the prescribed sentences, he
could have achieved
this within the legislative framework. If the
court finds that the cumulative sentence would be disproportionate to
the crime convicted
of, it can enter the same as substantial and
compelling circumstances and then impose such a lesser sentence –
see
S v Madikane
2011 (2) SACR 11
(ECG). Another alternative was for the court a quo
to order portions of the sentences to run concurrently in terms of
sec 280 of
Act 51 of 1977.
19.
Failure to adhere to the legislative
framework was a serious misdirection on the part of the court which
calls on the court of appeal
to also interfere with the sentence.
20.
Although the court
a
quo
verbalised that serving 15 years
per each count (totalling 45 years) would be shocking; a cumulative
sentence of 30 years imprisonment
for crimes that took place within
few minutes of each other in which the appellant appears to have
benefitted just one cell phone,
is in my view still excessive. In
S
v Dlamini
2012 (2) SACR 1
(SCA), the
SCA confirmed that there was no duplication in the conviction of the
suspect of three counts of robberies even though
they were committed
at the same time since three different victims were each robbed of
their motor vehicles. Whereas the trial
court had imposed a sentence
of 15 years imprisonment per count totalling 45 years, the court of
appeal ordered the sentences in
the two counts to run concurrently
with the first. I think this is what should have been done in this
case.
21.
In the result I would make the following
order:
1.
Appeal is upheld in respect of the
conviction on count 2.
2.
The accused is acquitted in respect of
count 2 (attempted murder).
3.
The sentence of one year imprisonment in
respect of count 4 (possession of ammunition) is confirmed.
4.
The sentence in respect of counts 1, 5 and
6 (robbery with aggravating circumstances) is set aside and replaced
with the following:
5.
Accused is sentenced to 15 years
imprisonment per count (counts 1, 5 and 6).
6.
The sentences in counts 5 and 6 to run
concurrently with the sentence in count 1.
7.
The effective sentence to be served is 16
years imprisonment.
8.
The sentence is antedated to 25 January
2011.
9.
No order is made in terms of section
103
(1) Act 60
of 2000 (accused is unfit to possess a firearm
_____________________
TV RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered.
_______________________
M VICTOR
JUDGE OF THE HIGH COURT
FOR THE
APPELLANT : ADV M BOTHA
INSTRUCTED BY : JOHANNESBURG JUSTICE CENTRE
JOHANNESBURG
FOR THE
RESPONDENT : ADV P FUTSHANE
INTRUSCTED
BY : DIRECTOR OF PUBLIC
PROSECUTIONS
JOHANNESBURG
DATE HEARD
: 11 AUGUST 2014
JUDGMENT
DELIVERED: 14 AUGUST 2014