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[2018] ZAGPJHC 132
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Ramokone and Others v S (A339/2017) [2018] ZAGPJHC 132 (3 May 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number:
A339/2017
(1)
REPORTABLE:
YES /
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
______________________
______________________
DATE
SIGNATURE
In
the matter between:-
RAMOKONE:
TLOTLO JOHANNES
Appellant
1
PHUMANE:
SOLLY MALEFETSANE
Appellant
2
BALOYI:
ANTON
Appellant
3
and
THE
STATE
Respondent
JUDGMENT
INGRID
OPPERMAN J
INTRODUCTION
[1]
The appellants were arraigned in the
Kempton Park Regional Court on 2 counts of robbery with aggravating
circumstances. They were
legally represented and pleaded not guilty
to all the charges. They were convicted and each sentenced to 10
years imprisonment,
both counts having been taken together for
sentencing purposes. All the appellants were declared unfit to
possess fire-arms in
terms of section 103 of Act 60 of 2000.
[2]
The court
a
quo
granted the appellants leave to
appeal against both their convictions and sentences.
ISSUES IN DISPUTE
[3]
Identity is the key issue in dispute in
relation to their conviction.
BRIEF OVERVIEW OF THE FACTS AND
EVIDENCE
[4]
Count 1 relates to an incident, which had
occurred on a plot in Pomona, Kempton Park. Ms Caroline Masanganje
(‘
Ms Masanganje’
)
who runs a tuck shop from her room on the plot, was sitting outside
this room on 16 October 2016, when 2 robbers approached her,
one
wielding a gun and the other a knife. Altogether there were
approximately 8 assailants. After some attempts by her and her
sister-in-law, Ms Letta Musibudi (‘
Ms
Musibudi’
), to prevent their
entry into the room by obstructing the entrance with a fridge, the
robbers (or some) gained entry. They took
R 2000 in cash, 2 litres of
cold drink, a cellular phone, about 200 cigarettes and airtime
vouchers. Count 2 relates to events
which had occurred at about the
same time. Mr Cassim Mohale (also referred to as Cassim Harry ‘
Mr
Cassim Har
ry’) was assaulted and
a Golf motor vehicle (‘
the Golf’
),
the property of Mr David Dube (‘
Mr
Dube’
) was taken. The Golf was
used as a get away car by 5 of the robbers in respect of Count 1.
[5]
The state’s case rested on the
evidence of Ms Masanganje, Ms Musibudi, Mr Cassim
Harry, Mr Dube and Sergeant
Nikodimus Delamo (‘
Sgt
Delamo’
) whose evidence dealt
with an identification parade
(‘ID
parade’
).
[6]
The substantive and procedural fairness of
the ID parade were not disputed. The results are thus common cause.
All three appellants
participated in the ID parade where Ms
Masanganje and Ms Musibudi identified all three appellants, Mr Cassim
Harry identified appellant
2 and Mr Dube, appellant 3.
[7]
In court and during evidence: Ms Masanganje
identified appellants 2 and 3 only (it is important to note that
there were only 3 accused
who stood trial in the court
a
quo
being the 3 appellants); Ms
Musibudi identified appellants 1 and 3 only and Messrs Cassim Harry
and Dube, appellants 2 and 3.
[8]
All 3 appellants testified, denied
participation in the offences and that they were present at the scene
of the crimes.
ASSESSMENT OF EVIDENCE
[9]
In
S v
Hadebe
,
1997 (2) SACR 641
the court re-emphasised the following principles at
645e:
‘
Before
considering these submissions it would be as well to recall yet again
that there are well-established principles governing
the hearing of
appeals against findings of fact. In short, in the absence of
demonstrable and material misdirection by the trial
Court,
its
findings of fact are presumed to be correct
and will only be disregarded if the recorded evidence shows them to
be clearly wrong. The reasons why this deference is shown by
appellate Courts to factual findings of the trial court are so well
known that restatement is unnecessary.’ (emphasis provided)
[10]
It is
common cause that all the identifying state witnesses had seen
appellant 2 selling ice cream on the plot prior to the incident.
Similarly, appellants 1 and 3 were known by sight as they attended
soccer matches on Sundays, appellant 3 used to sell dollars
and he
was known for this. One of the factors w
hich
are of great importance in the case of identification is the witness’
previous knowledge of the person sought to be identified.
[11]
Although
it can hardly be said that the identifying witnesses knew the
appellants, the fact that they had seen the appellants in
the context
described and that these activities, ie the selling of ice cream,
dollars and the attendance at soccer matches, was
not disputed during
cross-examination of the relevant witnesses, is of considerable
significance.
[12]
In
my view, one looks in vain for a misdirection on the part of the
court
a
quo
on the findings of reliability in respect of the identification
evidence. The court
a
quo
very carefully analysed the opportunities and circumstances
pertaining to the identification. His conclusion that they had
sufficient
time to observe the robbers whose faces were not covered,
cannot be faulted. His conclusion that the area was sufficiently lit
can similarly not be faulted.
[13]
The
one contradiction emphasized during argument before the learned
magistrate was that Ms Masanganje testified that only 1 robber
had
entered her room whereas Ms Musibudi had testified that 4 robbers had
entered the room. The learned magistrate, quite rightly
in my view,
had regard to the fact that the evidence demonstrated that the room
had been partitioned so that Ms Masanganje’s
view of the door
would have been obstructed. One should also bear in mind that the
situation was fluid ie the robbers were walking
around in addition to
the fact that the two witnesses had different vantage points in the
room. In my view, the contradiction (insofar
as it might be construed
to be one which I do not find), is not material. In this regard, the
learned magistrate relied, quite
aptly, on the dicta in
S
v Bruiners and Another
,
1998 (2) SACR 432
(EC) at 435 a - b and
S
v Mafaladiso and others
,
2003 (1) SACR 583
(SCA) at 584 i – j and 585 a – d where
the well recognised principle was restated that the consequence of
the existence
of a contradiction is not necessarily the rejection of
the state’s version. The evidence must be viewed as a whole.
[14]
The
contradictions between the identification at the ID parade and the
identifications in court are of no consequence. The incident
occurred
on 16 October 2016. Appellants 1 and 2 were arrested on 22 October
2016 and appellant 3 on 23 October 2016. The ID parade
was held on 1
March 2017. The trial was started on 17 May 2017. All the appellants
were pointed out to the police by Ms Masanganje
shortly after the
incident. It was by virtue of this identification that they were
arrested.
[15]
It
would have been very easy for Ms Masanganje to make a dock
identification of appellant 1. She did not and this should count in
her favour. Ms Musibidi met appellant 1 outside and he had struck her
with a firearm on her left ear. She had ample opportunity
to see him
and because of his specific interaction with her, left a significant
impression on her.
[16]
Ms
Masanganje further testified that appellant 3 slapped her and that
during these assaults she witnessed the tattoos on his hand.
The
existence of the tattoos on the hand of appellant 3 was never
disputed.
[17]
The
finding that the identifying witnesses were both honest and reliable
is, in my view, unassailable. The reliability of identification
depends on various factors, such as lighting, visibility, eyesight,
the proximity of the witness, the opportunity for observation,
both
as to time and situation, the extent of the witness’s prior
knowledge of the accused, the mobility of the scene, corroboration,
suggestibility, the accused's face, voice, build, gait and dress,
see
S v
Jochems
1991
(1) SACR 208
(A) at 212 a – e.
[18]
In my
view, the learned magistrate evaluated the evidence correctly. He was
clearly conscious of the principles formulated in
S
v Hadebe and others
,
1998 (1) SACR 422
(SCA) at 426 F to H in which the importance to
adopt a holistic approach to the evaluation of the evidence was
emphasized. Due
regard was also had to the principles formulated in
S
v Shackell
,
2001 (4) SA 1
(A) at para 30 in which the correct approach to the
role of probabilities in criminal matters was formulated and the
importance
to have regard to each piece of evidence as emphasized by
Nugent JA in
S
v Van der Meyden
,
1999 (2) SA 79
(W) at 82 D – E and
S
v Chabalala
,
2003 (1) SACR 134
(SCA) at 15, was stressed.
[19]
Although
the learned magistrate did not say so expressly, he was, in my view,
correct to find that the versions of the appellants
were, having
regard to the conspectus of evidence, not reasonably possibly true
and that such versions were, beyond reasonable
doubt, false.
SENTENCE
[20]
Both
counts attracted minimum sentences of 15 years imprisonment in terms
of section 51 and schedule 2 of the
Criminal Law Amendment Act 105 of
1997
, as amended. Without identifying the substantial and compelling
circumstances in respect of each appellant, the learned magistrate
sentenced each appellant to 10 years imprisonment in respect of each
count and ordered the sentences to run concurrently thus sentencing
each appellant to an effective term of 10 years imprisonment as
opposed to 30 years imprisonment each. It appears as though the
learned magistrate was acutely aware of the cumulative effect of the
sentences and concluded that the sentence imposed was appropriate.
[21]
The
principles underpinning the power of a court on appeal to interfere
with the sentence imposed by the trial court are well established
in
our law. In
S
v Romer
2011 (2) SACR 153
(SCA), at paras [22] and [23] they were discussed
as follows:
‘
[22]
It has been held in a long line of cases that the imposition of
sentence is pre-eminently within the discretion of the
trial court.
The appellate court will be entitled to interfere with the sentence
imposed by the trial court only if one or more
of the recognised
grounds justifying interference on appeal have been shown to exist.
Only then will the appellate court be justified
in interfering. These
grounds are that the sentence is ‘(a) disturbingly
inappropriate; (b) so totally out of proportion
to the magnitude of
the offence; (c) sufficiently disparate; (d) vitiated by
misdirections showing that the trial court exercised
its discretion
unreasonably; and (e) is otherwise such that no reasonable court
would have imposed it.’ See
S
v Giannoulis
;
S
v Kibido
;
S
v Salzwedel & others
.
[23]
In
S
v Matlala
it
was held that, in an appeal against sentence, the fact that the
sentence imposed by the trial court is wrong, is not the test.
The
test is whether the trial court, in imposing it, exercised its
discretion properly or not. Consequently, the circumstances
in which
an appellate court will interfere with the exercise of such
discretion are circumscribed. In
S
v Sadler
Marais JA, writing for a unanimous court, had occasion to re-state
them when he said the following:
‘
The
approach to be adopted in an appeal such as this is reflected in the
following passage in the judgment of Nicholas AJA in
S
v Shapiro
1994
(1) SACR 112
(A) at 119j-120c:
“
It
may well be that this Court would have imposed on the accused a
heavier sentence than that imposed by the trial Judge. But even
if
that be assumed to be the fact, that would not in itself justify
interference with the sentence. The principle is clear: it
is
encapsulated in the statement by Holmes JA in
S
v Rabie
1975
(4) SA 855
(A) at 857D-F:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal ─
(a)
should be guided by the principle that punishment is ‘pre-eminently
a matter for the discretion of the trial Court’,
and
(b)
should be careful not to erode such discretion: hence the further
principle that the sentence should only be altered if the
discretion
has not been ‘judicially and properly exercised’.
2
.
The test under (b) is whether the sentence is vitiated by
irregularity
or
misdirection or is disturbingly inappropriate”.’
(footnotes omitted)
[22]
The
state did not cross-appeal against the sentences imposed. Had it done
so the outcome of this appeal might have been different.
I mention
this simply because in my view, the sentences imposed were too
lenient. Such a finding in and of itself would however,
not, on its
own, have justified interference by this court. It was argued that
the sentences imposed were shockingly inappropriate
and unjustifiably
harsh. As already intimated, such a conclusion is totally
unwarranted. To the contrary, the opposite conclusion
might even be
warranted. Be that as it may, there certainly exists no reason to
interfere with the discretion exercised by the
learned magistrate.
CONCLUSION AND ORDER
[23]
I
cannot fault the learned magistrate’s reasoning nor his finding
and accordingly make the following order:
23.1 The appeal is
dismissed.
___________________________
Ingrid
Opperman
Judge
of the High Court
Gauteng
Local Division, Johannesburg
I
agree
_____________________________
MB Mahalelo
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Heard:
23 April 2018
Judgment
delivered: 3 May 2018
Appearances:
For
Appellant: Ms Y.J. Britz
Instructed
by: Legal Aid South Africa
For
Respondent: Mr MT Ntlakaza
Instructed
by: Office of the DPP