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[2015] ZAGPJHC 214
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Ramatsetse v S (A95/2015) [2015] ZAGPJHC 214 (10 September 2015)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A95/2015
DATE:
10 SEPTEMBER 2015
In
the matter between:
RAMATSETSE
RONNY
..........................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MUDAU
AJ:
[1]
The appellant Mr Ronny Ramatsetse was convicted by the regional
court, Kempton Park, of one count of robbery. Consequently,
he was
sentenced to a period of 6 years direct imprisonment. He appeals
against both his conviction and sentence with leave of
the trial
court. The issue in this appeal is whether the identity of the robber
was properly established and if so, whether the
trial court did not
misdirect itself in its sentencing discretion.
[2]
The salient features in this matter are briefly as follows. On 17
June 2014 and at about 08:52 the complainant, Ms Chitambala,
had
stopped her motor vehicle at a robot controlled intersection under an
overhead bridge as the traffic light was red. She was
on her way to
work. A man, whom she identified as the appellant, approached and
opened the front passenger door and reached for
her bag which was on
the floor. There was a struggle that followed between her and the
appellant for possession of the bag which
took about 2 to 3 minutes.
As she had fastened her seatbelt, the appellant manage to get hold of
the bag and ran away with it.
She alighted from her car and chased
after him to the top of the bridge.
[3]
She was joined in the chase by two other motorists from where she had
stopped her motor vehicle. The appellant ran towards a
car, a Mazda
323, which had pulled over. He then threw her handbag inside the car
that had its passenger door already open. The
Mazda sped off. The
appellant continued running away with the two men still chasing after
him. At that stage, she gave up the chase
and returned to her car
where she found a traffic official. She explained to the officer what
had just happened. A few minutes
later, the appellant was brought to
the scene by the two men who had joined her in the chase. She
confirmed that the appellant
was the man who had robbed her. The
appellant was taken inside the officer’s van. She thereafter
drove to the police station
to lay a charge. During
cross-examination, she maintained that she was not mistaken about the
identity of the robber as she
had sufficient time to observe him.
[4]
In his testimony, the arresting civilian, Mr Peter Leinane,
corroborated the complainant’s testimony with regards to the
robbery, the disposal of the handbag and the chase that ensued. He
too and a passenger, were stationary at the traffic light when
they
witnessed the robbery. After pulling over and joining the chase, he
and his companion continued chasing after the appellant
until they
apprehended him. It is his evidence that he and his companion never
lost sight of the appellant. The chase was made
easier as the
appellant was slowed down by traffic. They handed over the appellant
to the traffic officer who had joined them.
He too went to the police
station and submitted a statement regarding the matter.
[5]
The evidence by the traffic officer, Mr Ellen, which is formal by
its nature, confirmed the version by the previous state witnesses
in
as far as he was affected thereby.
[6]
The appellant testified in his defence and denied the allegations of
robbery. It is his version that he was arrested was on
his way from
work that morning. He was walking alongside a road leading to
Shoprite premises where there is a taxi rank. There
he would have
caught a taxi to go home. Whilst at the premises, it was there that
he was approached by the witnesses on allegations
of robbery. After
being handed over to the police, it was only at the police station
that he saw the complainant. During cross-examination,
it is his
evidence that the incident surrounding his arrest occurred on a sunny
day.
[7]
It
is trite that in a criminal trial, the State bears the onus to prove
the guilt of an accused beyond reasonable doubt. There is
no onus on
the part of an accused to prove his innocence (see
S
v Shackell
[1]
)
.
I
t
is further trite that in determining the accused’s guilt or
otherwise, the court is enjoined to consider the totality of
the
relevant
facts
in
the light of the inherent probabilities and improbabilities of the
case (see
S
v Van Aswegen
[2]
;
S
v Chabalala)
[3]
.
[8]
In
S
v Mthethwa,
[4]
Holmes
JA made the following observation regarding identity:
'Because
of the fallibility of human observation, evidence of identification
is all approached by the Courts with some caution.
It is not enough
for D the identifying witness to be honest: the reliability of his
observation must also be tested. This depends
on various factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation;
both as to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice, build, gait and dress; the result E of identification
parades, if any; and, of course, the evidence
by or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case,
are not individually
decisive
. . .'
[9]
In this matter, n
o
valid criticism can be levelled at the respective versions of the
state witnesses when the evidence of the appellant is taken
into
account. The trial court was correct when it accepted the evidence of
the state witnesses. The offence was committed in broad
daylight and
the appellant arrested within minutes and in circumstances where
there were no confusion regarding all the role players.
[10]
I turn to deal with the appeal on sentence.
It
is trite that the imposition of sentence is a matter that falls
pre-eminently within the judicial discretion of the trial court.
The
test for interference by an appeal court is whether the sentence
imposed by the trial court is vitiated by irregularity or
misdirection or is disturbingly inappropriate (see
Director
of Public Prosecutions, KwaZulu-Natal v P
[5]
.
[11]
At the time of sentencing, the appellant, then 32 years old was
engaged to be married and a father to two minor children. He
was
gainfully employed but the nature of his job remains not clarified.
The level of his education was never canvassed. He however
admitted
to two previous convictions of robbery in respect of which he was
sentenced to 3 years direct imprisonment on each offence
in 2003 and
2007 respectively. He also admitted to a previous conviction of theft
as well as malicious damage to property in 2005
for which she was
sentenced to 4 years imprisonment in respect of both counts. In
sentencing the appellant to 6 years direct imprisonment,
the trial
court took into consideration the appellant’s personal
circumstances, the seriousness of the offence as well as
the
interests of society.
[12]
The presence of a getaway vehicle as well as other role players who
fled the scene with the bag on the overhead bridge shows
that offence
had been pre-planned. The targeted victims were quite clearly
occupants of slow-moving vehicles on the road below
the bridge. In
this case the complainant’s bag and its contents were never
recovered. It is trite that where particular incidents
of crime are
not only serious but rife, the interests of an offender are
considered less than the interests of the community.
[13]
It accordingly follows that there is no misdirection by the trial
court. The sentence imposed is commensurate with the seriousness
of
the offence. The circumstances of the appellant as well as the
interests of society were properly considered.
[14]
In the result the following order is made:
1.
The appeal against the conviction and sentence is dismissed.
MUDAU
AJ
I
Agree, and it is so ordered
MAKUME
J
[Judges
of the High Court,
Gauteng
Local Division
Johannesburg]
Appearances
For
the Appellant S Hlazo
Instructed
By Legal Aid South Africa
For
the Defendant L Makoko
Instructed
By The Director of Public Prosecutions
Date
of hearing 10 September 2015
Date
of judgment 10 September 2015
[1]
2001
(2) SACR 185 (SCA)
[2]
2001
(2) SACR 97 (SCA)
[3]
2003
(1) SACR 134 (SCA)
[4]
1972
(3) SA 766
(A) at 768A - C
[5]
2006
(1) SACR 243
(SCA)