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[2017] ZAGPJHC 104
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Malatjie v S (A334/2016) [2017] ZAGPJHC 104 (22 March 2017)
REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
CASE
NO: A334/2016
In
the matter between:
MALATJIE,
MATHOME KINGSLEY
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
Headnote
Appeal
against conviction of two robberies and sentence of effectively 19
years’ imprisonment
As
to the conviction: evidence tying the appellant to bad snatchings
convincing – shortly after second robbery he was found
in
possession of property of both victims, the earlier victim having
been robbed a week earlier - defence that he had picked up
the items
in the street implausible – convictions confirmed.
As
to the sentence: 19 years’ imprisonment imposed –
inappropriate given the appellant was a first offender and 24 years
old – whilst correct to hold no substantial or compelling
circumstances existed not to impose the prescribed minimum sentence
of 15 years imprisonment, no justification advanced for the
additional four years nor were ant apparent from the record –
sentence of 19 years reduced to 15 years imprisonment.
Sutherland
J
Introduction
[1]
The appellant was convicted of two counts of robbery with aggravating
circumstances. The counts relate to two separate incidents
on 29
April and 8 May 2014. In those incidents, respectively, the
appellant used a knife and screwdriver to intimidate the
victims,
both women, walking alone in the street. He grabbed their bags and
thereby took the contents.
[2]
He was convicted on 27 August 2014, and sentenced to 19 years’
imprisonment on each count, the terms to run concurrently.
The
magistrate found no substantial or compelling reasons to impose less
than the prescribed minimum sentence as contemplated in
section 51(3)
of the
Criminal Law Amendment Act 105 of 1997
.
[3]
The appeal is against both conviction and sentence.
The
Convictions
[4]
I deal first with the common cause facts or facts not in dispute:
4.1.
On 29 April 2014, about 7h00, Gloria Mhlanga, a 44 year-old woman,
was robbed at knife point. The robber
took her handbag containing a
cellphone, toiletry bag, a wallet with R20 cash, and shopping and
bank cards.
4.2.
On 8 May 2014, about 16h00 Elizabeth Mbele, a 39 year-old woman, was
robbed by a man wielding a screwdriver.
The robber took her handbag
containing, clothes, keys and purse with money and cards.
4.3.
On 8 May 2014, in the evening, the appellant was arrested.
4.4.
He had in his possession a purse. The contents of the purse
included, money, keys. And credit
cards.
4.5.
The cards belong to Mhlanga and the keys belong to Mbele.
4.6.
On 9 May 2014, the two robbery victims were brought to the police
station where they identified certain
goods as their property and
also, upon been shown the appellant in a cell, claimed that he was
the person who robbed them.
[5]
The appellant’s version is that he was minding his own business
whilst walking home. Near a bridge, he saw a purse on
the ground. He
picked it up. He did not open it. He squeezed it and to him it seemed
empty. Shortly thereafter, a police car passed
by. The police
officers asked to search him. He consented. The purse was found in
his pocket, and upon its opening he saw money
and keys. He told the
police he picked it up. They disbelieved him. He was arrested.
[6]
The police version is that they were called about the robbery
perpetrated on Mbele. They responded quickly. Constable Selolo
estimates it to have been about 16h50 when they reached Mbele. Mbele
estimates it was about fifteen minutes after the robbery that
the
police arrived. Mbele, was in a state of shock. She gave a
description of her attacker as a man, dark in complexion,
wearing
green pants, perhaps addidas, because of the stripes on them, a
Bafana Bafana t-shirt, and a black tracksuit top. She also
described
the items robbed from her.
[7]
After taking her cell number, he and a colleague proceeded to search
in the direction that they were told the attacker had fled.
Asking
passers-by if they had seen such a person, they moved about. Sometime
after sunset, he saw a man who fitted the description.
He pursued the
man who ran away. He arrested the appellant. According to Selolo, the
appellant was found in possession of keys,
cars, money and was
wearing a female slip-on shoe. One of the cards bore the name of
Mhlanga.
[1]
[8]
At the police station, according to Selolo, it was then noticed that
the appellant was wearing a skirt under his clothes. When
asked about
the skirt the appellant denied knowledge of it.
[9]
Thereafter, Selelo got the complainants to call at the police
station.
[10]
Mhlanga came and identified some of her cards; ie from Clicks, Absa,
Jet and Milady that had between taken on 29 April.
Other cards
were not recovered, along with her cellphone and her purse. She
was shown the appellant. She claims to recognise
him as the attacker.
A notable feature was a swollen lip, still visible at the trial on 28
July 2014, some seven weeks later. Apparently,
the prominent lip is a
birth phenomenon.
[11]
Mbele was called the night of the robbery to come to the station the
next day when she was shown the appellant. She saw him
wearing one of
her slip-on shoes taken from her in the robbery. She also identified
the skirt supposedly found on the appellant,
and keys which it is
common cause were found on the appellant, as belonging to her.
[12]
As regards the place where the appellant claimed he picked up the
purse, near a bridge in the vicinity of Rand Airport, Mhlanga
stated
that she was nowhere near such place, and thus could not have dropped
her belongs there. Mbele, similarly was not ever at
such place. The
purse that the appellant says he found there, was not claimed by
either robbery victim.
[13]
What are the probabilities relevant to resolving the contestation in
these versions? First, property of both victims were found
in his
possession. Neither were ever in the vicinity he claims to have found
the purse. The purse, which is not the property of
either victim
contained their property. It must follow that the stolen items were
transferred to that purse. Second, the possession
of property taken
only a couple of hours earlier, at most, demands a plausible
explanation. Had the appellant possessed a purse
belonging to Mbele
with her property only in it, but no money, the proposition that the
robber had discarded it would require serious
interrogation. But the
purse had money in it too, which is wholly inconsistent with that
possibility. However, the presence of
items robbed 7 days earlier
renders that thesis wholly implausible. The explanation offered by
the appellant is incredible.
[14]
Moreover, if the appellant was not in possession of the shirt and the
slip-on shoes how did the police come to have them? The
only
alternative theory has to be a conspiracy to falsely implicate the
appellant. But if so, it was superfluous as the admitted
possession
of the cards and keys put the appellant on the spot to offer an
explanation.
[15]
The police action in showing the appellant to the victims was
inappropriate. The identification is unreliable for that reason.
However, the objective evidence, the time lapse and the recent
possession of items from two robberies within 7 days constitutes
sufficiently weighty evidence to seal the fate of the appellant.
[16]
The conviction is sound
The
Sentence
[17]
The magistrate found that there were no factors warranting a sentence
less that the prescribed 15 years. He then imposed a
term of 19
years.
[18]
The magistrate rightly accords weight to the trauma experienced by
both victims, faced with violence and threat of the use
of a knife or
screwdriver.
[19]
The appellant is a first offender. That is an important factor to
weigh. The judgment on sentence makes no attempt to address
its
significance or to explain why, in the particular circumstances, why
that factor should not be weighed at all. Oddly, the short
period in
custody, barely two months, is mentioned as a factor to be weighed
even though it is negligible. The age of the appellant,
24 years old,
is mentioned but no real assessment of its relevance is attempted.
[20]
In my view an assessment of the presence of substantial and
compelling circumstances does not imply a diminution of the
heinousness
of the crimes.
[21]
The evidence shows that the appellant is a serial robber,
concentrating on soft targets. Were this a single,
opportunistic
robbery there may have been material with which to work
to consider the presence of circumstances warranting a lesser
sentence
that the prescribed minimum. But as he demonstrates the
attributes of a professional criminal, in my view the finding that no
such
circumstances are present is correct.
[22]
However, why the minimum period of imprisonment should be exceeded is
not explained at all. I am unable to grasp why an additional
four
years is thought to be appropriate. A default approach which leans
towards lengthy sentences is not appropriate. The strictures
on the
court’s discretion by Act 105 of 1997 must be understood as
setting a norm and variations from the norm require substantiation
both for less or for more. There is none apparent in the judgment on
sentence.
[23]
In my view a term of 15 imprisonment, the prescribed minimum, is
appropriate.
The
Order
An
order is made thus:
1.
The appeal
against conviction is dismissed.
2.
The appeal
against sentence is upheld.
3.
The
sentence of 19 years’ imprisonment on each count is set aside
and substituted by a sentence of 15 years on each of the
two counts,
which terms shall run concurrently.
____________________
Sutherland
J
Judge
of the High Court,
Gauteng
Local Division, Johannesburg
I
agree.
____________________________
Shangisa
AJ
Acting
Judge of the High Court,
Gauteng
Local Division, Johannesburg
Hearing:
16 March 2017.
Delivered:
22 March
2017
For
the appellant:
Adv
A Mavatha,
Instructed
by Legal Aid South Africa.
For
The State:
Adv
N Serepo.
[1]
The record refers to
Nkana and Nkandla but the reference is to Mhlanga, a point cleared
up in Selolo’s evidence.