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2015
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[2015] ZAGPJHC 312
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Moeketsi v S (172/2015) [2015] ZAGPJHC 312 (30 November 2015)
THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
172/2015
DATE OF HEARING:
30 NOVEMBER 2015
DATE
OF JUDGMENT: 30 NOVEMBER 2015
In
the matter between:
TSHUPANE
BENEDICT
MOEKETSI
...................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:
Mphahlele
J and Avvakoumides AJ
J
U D G M E N T
AVVAKOUMIDES, AJ
[1]
The Appellant was charged along with two other accused of robbery
with aggravating circumstances. He pleaded not guilty to the
charge
but was convicted and sentenced to 15 years’ imprisonment on 7
February 2013. The facts are briefly that the Appellant
and his co
accused held up and hi-jacked a male person in a Toyota Yaris motor
vehicle, whilst using toy guns. All three were arrested
within hours
of the hi-jacking, whilst being in the motor vehicle.
[2]
The appeal is based on mistaken identity by the complainant who could
not identify the Appellant and his co-accused because
of the
darkness. The policeman however who arrested the three males noted
their names in his pocket book, in the register and in
the SAP 14
form. This was not disputed by the Appellant. The complainant and the
owner of the vehicle were able to identity the
vehicle the next day.
[3]
I find that the trial court exercised its discretion properly and
judicially under the circumstances and the conviction must
subsequently stand. All the relevant circumstances were taken into
account by the trial court and in my view there is nothing that
warrants the attention of this court to the extent that we need to
interfere with the conviction.
[4]
On the sentence the Appellant submitted that the crime is not of the
worst kind and the fact that the Appellant and his co accused
used
toy guns should count in their favour because the complainant was the
only one who believed that the guns were real. I find
this submission
to be without any legal or other foundation and non-sensical. The
sentence imposed is in accordance with the provisions
of section 51
(2) of the Minimum Sentences Amendment Act 105 of 1977, and in the
absence of substantial and compelling reasons
to deviate from the
prescribed minimum sentence, I find that there is no reason to
interfere with the sentence as well.
[5]
In the premises the appeal is dismissed.
G. T.
AVVAKOUMIDES
ACTING JUDGE OF
THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree:
S. S. MPHAHLELE
JUDGE OF THE HIGH
COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Representation
for Appellant:
Counsel:
J. L. Kgokan
Instructed
by: Legal Aid SA Johannesburg
Representation
for the Respondent:
Counsel:
S. D. Mgimeti
Instructed by:
Director of Public Prosecutions