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[2019] ZAGPJHC 194
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Kubheka and Another v S (08/36380; A176/18) [2019] ZAGPJHC 194 (20 June 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number:
08
/36380
Case
number:
A176/18
In
the matter between:
Kubheka,
Arthur
Nhlanhla First
Appellant
Ngidi,
Armstrong Second
Appellant
and
The
State Respondent
JUDGMENT
Vally J
Introduction
[1]
The appellants were convicted in the
Regional Division of North Gauteng, sitting in Randburg, on a charge
of theft out of a motor
vehicle. The count of theft related to a
cellular phone and an Ipod. The first appellant was sentenced to 4
(four) years imprisonment
of which 2 (two) years were suspended for 5
(five) years, whilst the second appellant was sentenced to 4 (four)
years imprisonment.
The present appeal by the appellants is directed
at both conviction and sentence and is with the leave of the court
a
quo.
The facts and findings
of the court
a quo
[2]
The count of theft related to the event
that occurred on Monday the 20
th
of October 2014. It was not in dispute that the appellants were at
the parking area of the Randburg Regional Court (the Randburg
Court)
on the day when certain electronic devices were stolen from the
complainant’s vehicle, which was parked adjacent to
the
appellants’ vehicle. Not much of what followed was in dispute.
[3]
It was agreed that the appellants were in a
motor vehicle, a Chevrolet Aveo (Chevrolet), when they were arrested.
The first appellant
hired the motor vehicle from a car rental firm,
Hertz. Upon being arrested their vehicle was searched and the
following items were
found:
“
One
grey and black Nokia cell-phone;
One black Nokia
cell-phone;
One Blackberry
cell-phone;
One black Hauwei
cell-phone;
One white and silver Ipod
Eleven CD players;
One white Hauwei wi-fi
modem;
One white Vodacom wi-fi
modem with small cable
USB;
One black and silver
Garmin sealed in a forensic bag PW 4000542162;
Three keys with remote
sealed in the same forensic bag;
Car keys with keyholder;
and
One
silver-grey Ipod in the Pouch sealed in forensic bag PW 4000542142
”
The evidence adduced
by the State
[4]
Mr. Anthony James Batistich (Mr Batistich),
the complainant, testified that he had parked his motor vehicle, a
Mercedes Benz, on
the sand lot in the vicinity of the parking area of
the Court as the parking area was full. He proceeded to the second
floor of
the court building and later observed from the window of the
court that there was a commotion in the parking area. He decided to
go and check what was going on there. On his way he came across the
security guard who had a piece of paper with his car registration
number written on it. The security guard informed him that someone
had been caught stealing from the vehicle. On arrival at the
parking
lot he discovered that his car doors were unlocked and an Ipod, as
well as a BlackBerry cell phone, were missing from his
car. The
police told him to search the appellants’ vehicle, a Chevrolet,
which was parked adjacent to his vehicle. Upon searching
the
Chevrolet he found his missing Ipod amongst other electronic devices
on the front seat. However, he could not find the Blackberry
phone.
He further testified that the value of his Ipod was about R3000, 00
whilst that of the Blackberry was about R1000,
00. Thereafter, he
immediately went to the police station where he made a statement. The
statement was handed in as evidence and
he was cross-examined on it.
In his statement he categorically stated that:
“
On
Monday 2014/10/20 at about 09h30 I parked my car Mercedes Benz …
at Randburg Court at the parking area. I used the remote
to lock the
door and all windows were closed and I left it with items inside.
”
[5]
During cross examination he testified that
the Blackberry belonged to his daughter who had put it in the console
in the middle of
the vehicle together with the Ipod. He also revealed
that the police had handcuffed the two gentlemen who were
apprehended. At
the police station he was instructed to look for the
missing items again in the Chevrolet. He did so and noticed
that all
the items were now placed on the backseat of the Chevrolet.
He was cross-examined about a contemporaneous statement he made and
which was admitted as evidence where he said:
“
On
Monday 2014/10/20 at about 09h30 I parked my car Mercedes Benz Reg
[…] GP silver in colour C180 model at Randburg Court
at the
parking area. I used the remote to lock all the door [sic] and all
windows were close [sic] and I left it with items inside.
”
The
cross-examination focussed on whether he was sure he locked the
vehicle. He stated that his vehicle normally makes a beep noise
when
he locked it, but that he did not verify if it was indeed locked when
he left it at the parking lot.
[6]
The State also called five other witnesses,
namely Ms Winnie Mutavhatsindi (Ms Mutavhatsindi), Mr Elmo Khota (Mr
Khota), Constable
Theresha Edgar Moloto (Constable Moloto), Constable
Eugene Mahlashela (Constable Mahlashela) and Constable Jane Malinga
(Constable
Malinga).
[7]
The evidence of Ms Mutavhatsindi was that
she was employed by the Fidelity Company as a security officer
stationed in the Randburg
Court premises. On the day in question she
was working in the control room operating a CCTV. She was watching
the monitors of the
CCTV cameras, as members of the public had
complained about incidences of cars being “
jammed
”
and their cell phones and other devices stolen from their vehicles
after they had left believing that their cars were locked.
She
noticed the appellants’ Chevrolet, going into an open veld. It
was not the first time she had seen the vehicle and became
suspicious. She alerted her colleagues about the suspicious vehicle.
While still in the control room and within five minutes of
alerting
her colleagues, she saw a man alighting from the Chevrolet and
opening the Mercedes Benz. Mr Khota and another colleague
Ms Zondi
were called for backup. Mr Khota and Ms Zondi and a court orderly,
named Mr Lebese, arrived at the parking area, where
they confronted
the appellants. Ms Zondi handcuffed the second appellant. Ms Zondi
and Ms Mutavhatsinidi then took him to the security
room to observe
the CCTV footage of what had happened in the parking area. Thereafter
they all returned to the parking area. Ms
Mutavhatisnidi met with the
owner of the Mercedes Benz which was parked next to the Chevrolet. He
pointed out the Ipod on the back
seat of the appellants’
vehicle. The remote and other items were taken to the police station
together with the appellants
who were arrested. Later Ms
Mutavhatsindi went to the same police station where she made a
statement.
[8]
The evidence of Constable Moloto was to the
effect that she saw a security lady running towards the overflow
parking area. At the
parking area they found the Chevrolet with
occupants seated inside. The driver of the adjacent Mercedes Benz was
also present and
he reported that he was missing some items –
an Ipod and a Blackberry- from his vehicle. They told him to look in
the Chevrolet
for the missing items. He did so and recovered the Ipod
but not the Blackberry. There were other items on the back seat of
the
vehicle. He stated that the appellants were asked to demonstrate
how they prevented the vehicles from being locked (i.e. “
jammed
”
the locks) by the drivers who alighted therefrom. The second
appellant took the remote that was found in the Chevrolet and
pressed
it to show how they could prevent a vehicle from being locked. They
took the Chevrolet together with the appellants to
the police station
and booked the items on the SAP13. Ms Mutavhatsindi, too, made a
contemporaneous statement that was admitted
as evidence. The
following averment is particularly pertinent:
“
I
ask the suspect [sic] how did they get the Ipod out and they
demonstrated to me how it works and they told me that they used a
small remote to unlock the car. I arrested them for possession of
stolen property and took them to the Randburg Crime Intelligence
to
profile them.
”
Her
statement goes on to record that she found twenty previous reported
cases where the crimes were similar to the one in this case
but which
had not resulted in successful convictions.
[9]
Mr. Khota, a security officer stationed at
the court’s entrance, testified that he received information
via radio from the
controller about people opening cars at the
parking area. He ran and found the two appellants seated in the
Chevrolet. He confronted
them about what he had heard from the
control room. At that moment his colleague, Ms Zondi, arrived at the
parking area. He instructed
her to take the second appellant to view
the CCTV footage showing himself and the first appellant opening the
Mercedes Benz after
the driver of that Mercedes Benz had left the
parking area.
[10]
Constable Mahlasela testified that a
recording of the footage was downloaded onto a USB stick. He told the
court that they had a
problem in viewing the footage, and as a result
they never brought it to court again.
[11]
Constable Jane Malinga’s evidence
related to the handling and safe keeping of the exhibits.
The appellants’
versions
[12]
The version of the first appellant was to
the effect that he was coming from Durban to attend his cousin’s
bail hearing in
the Magistrates’ Court of Randburg. On arriving
at OR Tambo airport he hired the Chevrolet from Hertz and picked up
the second
appellant in Sandton. They waited for the attorney at the
parking area of the court’s premises. Prior to finding a
parking
spot they drove around the area twice looking for a parking
space. Eventually they ended up parking on the overflow parking on
the gravel side. Whilst the second appellant was busy phoning the
attorney he jumped out of the vehicle and took some documents
from
the boot of his car in order to do some work. While working he heard
a knock on the window, and noticed that it was a security
guard. The
security guard asked to see the car keys and he obliged. The security
guard accused him of opening the Mercedes Benz.
Shortly after the
security guard was joined by other people and the police. The
appellants were placed at the back of the Chevrolet
and handcuffed.
In the meanwhile, the police and security personnel searched the
Chevrolet. He had two phones on him, a Nokia and
Huawei, an Ipad and
an Ipod. He observed that the car next to them was a Mercedes Benz
and had its left passenger door opened.
The complainant was asked to
look into the Chevrolet. It was then that the complainant said
he saw his Ipod in the Chevrolet.
He denied having seen the Ipod
before.
[13]
The second appellant confirmed the version
of the first appellant and denied having seen the complainant’s
Ipod. He testified
that the police informed him about it when they
opened the car. He claimed that he had no knowledge of the Ipod being
on the back
seat of the Chevrolet, even though he was sitting inside
it all the time. He further denied stealing the Ipod or playing any
role
in the theft of the Ipod.
[14]
The court
a
quo
found that the evidence presented
by the State was sound, reliable and uncontradicted in any material
respect. It further found
that it was highly unlikely that some
person other than the appellants could have opened the Mercedes Benz,
taken the Ipod, opened
the Chevrolet while the appellants were inside
and placed it there. The court
a quo
also rejected any suggestion that someone placed the Ipod in the
Chevrolet whilst the appellants were outside it and were being
placed
under arrest. This was on the basis that it was overly speculative,
unreasonable and irrational. On this reasoning
the court
a quo
convicted the appellants.
The question for this
court
[15]
The appellants challenged the finding of
the court
a quo
on the basis that it failed to give sufficient credence to some
contradictions in the evidence of the various witnesses of the
State.
[16]
The question for determination is whether,
in light of all the evidence adduced at the trial, the guilt of the
appellants was proved
beyond reasonable doubt. To this end, the
splitting of the entire evidence into its component parts may serve a
useful purpose
in trying to make sense of events and in establishing
the facts. This is what the appellants did and implored this court to
do
as well. It is, however, important to remember that in splitting
the entire evidence into its component parts, one must guard against
a tendency to focus too intently upon a separate and individual
aspect of the evidence without regard to the whole. Focus on an
individual piece of evidence without regard to the whole may cause
doubt to creep in and may result in a failure to establish (a)
fact(s) that would otherwise be established when the evidence was
evaluated as a whole. For this reason it is important to
see
the entire evidence as a complex mosaic. The evidence must be
assessed in its totality.
[17]
A key element of the State’s case
rests on the direct evidence of the security officer, Ms
Mutavhatsindi. She was in the control
room ‘patrolling’
the parking area through CCTV monitors when she noticed the
Chevrolet. She observed that the occupants
(who she later learnt were
the appellants) come out of the Chevrolet and open the Mercedes Benz,
which was adjacent to the Chevrolet,
and then returned to the
Chevrolet. The State’s case was advanced further by the
uncontested evidence that the Ipod belonged
to the complainant; was
left by the complainant in his Mercedes Benz before he exited
therefrom to enter the court building; that
the Mercedes was locked
by the complainant soon after he exited from it; that the appellants
were seen on the CCTV monitors opening
the doors of the Mercedes Benz
and thereafter returning to the Chevrolet; that the Ipod was
discovered on the back seat of the
Chevrolet, and was there while the
appellants were inside it; that a remote was found in their
possession; and finally, they utilised
the remote to demonstrate to
all the security personnel and the police officers present how they
used this device to prevent the
locking of other vehicles by their
drivers upon alighting them. Despite the State establishing all these
facts before the court
a quo
,
the appellants denied any wrongdoing and pleaded ignorance of how the
Ipod came to be on the back seat of the Chevrolet. When
confronted
with the irrationality of their case both appellants claimed that
somebody else placed it there. Their claims are certainly
not
reasonably possibly true.
[18]
In our view the evidence presented before
the court
a quo
demonstrates beyond any shadow of doubt that both appellants are
guilty of stealing from a motor vehicle. There can, therefore,
be no
quarrel with their respective convictions by the court
a
quo
. The convictions are safe and
warrant confirmation by this court.
[19]
Accordingly, the appellants’ appeals
against their respective convictions are dismissed.
Sentence
[20]
Prior to sentencing the appellants the
court
a quo
entertained evidence from each of them and from an employee of the
Department of Correctional Services (the department). The evidence
of
the latter concentrated on the issue of whether the department is
capable of monitoring the two appellants should the court
a
quo
decide to impose a sentence of
correctional supervision. His testimony was unequivocal in this
regard. He stated that should the
court
a
quo
impose a sentence of correctional
supervision the department had the capacity to give effect to it.
However, he would remain
neutral as to what the appropriate sentence
for each of the appellants should be. As far as what an appropriate
sentence ought
to be in these circumstances, his evidence was of no
value.
[21]
The first appellant testified. He furnished
the court with details of his personal circumstances. These were: he
was 44 years old
at the time of sentencing. He was married, lived in
Durban, had eight children, holds two degrees, a BCom (Marketing) as
well as
a BSc (Civil Engineering). He owned his own company
consisting of a main office in Durban and two satellite offices, one
in Pietermaritzburg
and one in Umhlanga. He employed seven
professional engineers and got contracts from “the
municipalities” and from
the Department of Transport in KZN. He
had three three-year contracts on the go and drew an annual salary of
R1m per annum from
the company. He supported his children, with
handsome amounts given to the mothers of the children with whom they
live, as well
as to his own mother who takes care of those children
that do not live with their biological mothers. He had fathered
children
with many women, some of whom are his employees, but he was
not specific about each of the children. He informed the court that
if he was incarcerated the business would collapse and all his
employees would be rendered unemployed. Finally, he maintained
that he was innocent and therefore was not able to show any remorse
for the deed for which he was convicted.
[22]
The second appellant too testified. He
informed the court that he was born on 3 March 1971. He was married
with two children, one
of whom is nine years old and therefore still
school-going, while the other is studying psychology at an
institution in Cape Town.
He lived in the suburb of Northcliff
together with his wife and nine year old child. Both he and his wife
were responsible for
the upkeep of the children. He completed Matric,
and presently, together with his wife, owned his own private company,
Hapa Productions
(Hapa), which sold the services of “
hospitality
branding, PR Marketing and catering
”.
Both he and his wife worked for the company. His wife is also
employed as an Executive for Communications and Marketing
at Proudly
South African. Hapa employed 30 persons. He drew a gross salary of
R69 000.00 per month from Hapa. He was responsible
for all the
day-to-day activities of Hapa. He has two previous convictions –
one of theft which was committed in 2001 and
one of fraud, plus
eleven counts of “
contravention of
Ordinance 92 of 1989
”. He paid an
admission of guilt fine of R500 for the theft. He claimed that the
theft was really a mistake by his daughter
who was “
3
or 4
” years old at the time and
had accompanied him to a supermarket where “(s)
he
happened to find a packet with hair bands and then she picked one or
two from there,
(a)
nd
then unaware of that when we went to pay we were then stopped by the
security that she took something from there
.”
As the parent he was arrested for her misdemeanour and before being
charged agreed to pay an admission of guilt fine of
R500.
Unfortunately no details were furnished about the conviction and
sentence of the other offence, save for saying that it consisted
of
fraud. He asked that he be required to undergo correctional
supervision rather than be imprisoned as his business would suffer
should he be imprisoned.
[23]
After receiving the aforesaid evidence and
hearing the parties the learned magistrate sentenced the first
appellant to 4 (four)
years imprisonment, two of which were suspended
for five years on condition that he was not convicted of theft, and
the second
appellant to 4 (four) years imprisonment. In terms of s
103(1) of Act 60 of 2000 both appellants were declared unfit to
possess
a firearm. The difference in the two sentences was justified
on the ground that the first appellant had no previous convictions
while the second appellant did.
[24]
In this Court the appellants were informed
that should their convictions be confirmed there was a possibility
that their respective
sentences would be increased. The matter was
postponed to allow them to make submissions as to why their
respective sentences should
not be increased. They both took full
advantage of the opportunity to present further written submissions
in this regard.
[25]
This
Court will interfere, however, where the trial court exercised its
discretion improperly or unreasonably or where there is
material
misdirection on the part of the court
a
quo
,
or where the disparity between the sentence of the trial court and
the sentence which this Court would have imposed had it been
the
trial court is so marked that it could properly be described as
“
shocking,
startling or disturbingly inappropriate.
”
[1]
[26]
In our view, the sentence imposed by the
magistrate is firstly, not sufficiently appreciative of the interests
of society as well
as the gravity of the offence for which the two
appellants are guilty; and secondly, unduly and overly generous in
assessing the
interests of the appellants. Accordingly, in our view
the sentences imposed are too lenient. We say so for the following
reasons:
[26.1]
The offence for which the two appellants were convicted is very
serious. It involved a carefully planned and executed operation.
The
two appellants saw an opportunity to steal from unsuspecting
individuals attending court who harboured the false consciousness
that, as they left their motor vehicles and locked their belongings
therein, these were safe. The appellants were aware that such
individuals harboured these false beliefs and preyed upon them. And
they did so by employing a sophisticated method of jamming
the
locking mechanisms of the motor vehicles of these unsuspecting
persons. It is a grave offence. Yet for the persons who are
sophisticated enough to be able to execute it, it is one that can
yields substantial rewards. Often the loot that can be obtained
from
a vehicle is significantly more than that which can be obtained from
stealing from a person simply walking in the street.
[26.2]
Crime generally is exceptionally rife in our society. Theft, in
particular, is an every-day occurrence. It results in a great
deal of
financial loss to society and to the victims. Victims also suffer
greatly in the form of unwarranted grief and anxiety,
which affects
their mental and at times even their physical health. So rife is
crime in general and crime of theft specifically
that society
requires the justice system to attend to it firmly and decisively in
order to, on the one hand, restore the moral
fabric of society, and
on the other hand protect the innocent from simply becoming prey to
those who have no qualms about engaging
in criminal activities.
Society is exhausted by the levels of crime it is forced to endure at
present. In this particular case,
Constable Moloto testified that
there were twenty cases of a similar nature at the Randburg Crime
Intelligence Centre.
[26.3]
Both appellants are educated, own businesses that are successful and
have no need to commit crime in order to survive. The
first appellant
has a civil engineering degree and earns R1m annually. By any
standard, this is a substantial earning. He used
his technical skill
to commit the crime of stealing from a motor vehicle.
Similarly, the second appellant earned a salary
of R828 000.00
annually. He too, is a sophisticated businessman. Such personal
details do not generate any sympathy for them or
understanding for
their lapse into the world of crime. The second appellant has two
previous convictions, thus qualifying him for
the status of a
recidivist. As for the issue of them being important breadwinners of
their respective families, there is no evidence
that their families
would become impecunious should they be incarcerated.
[27]
Taking note of the factors in the three
previous sub-paragraphs, We believe that the first appellant should
be sentenced to five
(5) years imprisonment while the second
appellant should be sentenced to eight (8) years imprisonment.
[28]
To conclude. The sentences that this Court
believes are appropriate are so markedly different from that of the
court
a quo
that an interference with the sentences imposed by the court
a
quo
is warranted. Consequently the
following order is made:
1.
The appeal against conviction is dismissed.
2.
The sentence imposed by the court
a
quo
is set aside and replaced with the
following:
a.
The first appellant is sentenced to five
(5) years imprisonment.
b.
The second appellant is sentenced to eight
(8) years imprisonment ante-dated to 2018/01/23.
_____________________
VALLY
J
_____________________
MALUNGANA AJ
Date of hearing: 22 May
2019
Date of judgment: 20 June
2019
For Appellants: J C
Kruger from BDK Attorneys
For the State: Adv EHF Le
Roux from the NDPP
[1]
S
v Malgas
2001
(1) SACR 469
(SCA) at 478d-h.