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[2020] ZAGPJHC 192
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Makhalima and Another v S (A65/2016) [2020] ZAGPJHC 192 (29 May 2020)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: A65/2016
In the matter
between:
MAKHALIMA,
NQOBANI
Appellant
1
KHUMALO,
BONGANI
Appellant
2
And
THE
STATE
Respondent
JUDGMENT
MIA, J
[1] The appellants
appeared in the Regional Court Johannesburg on 5 May 2015. Appellant
one, Mr Makhalima and appellant two Mr Khumalo,
were convicted of
robbery with aggravating circumstances, read with section 51 (2) of
the Criminal Law Amendment Act 105 of 1997(CLAA).
Mr Khumalo was
further found guilty of possession of a prohibited firearm and
possession of ammunition. Both appellants’
were acquitted of
the fourth charge of being in possession of suspected stolen
property. Both appellants were sentenced to 13 years
imprisonment on
count 1. Mr Makhalima was acquitted on count 2 and 3. Mr Khumalo was
convicted on counts 2 and 3 which were taken
together for the
purposes of sentence. Mr Khumalo was sentenced to a further 5 years
imprisonment, and thus a total of 18 years'
imprisonment. The court
a
quo
did not order the sentence on count
2 and 3 should run concurrently with the sentence on count 1 in
respect of Mr Khumalo. The
appeal is before this court with leave of
the court
a quo
in respect of the conviction for both Mr Makhalima and Mr Khumalo and
in respect of the sentence for Mr Khumalo.
[2] On 2 April 2014
the complainant was driving a Toyota Avanza taxi near Ivory Park. At
around 17h50 that evening he picked up
four passengers near Phoenix
station who wanted to be dropped off at Freedom Drive. When they
arrived he heard someone behind him
cock a firearm. The person tried
to grab his hand. He managed to open the door and ran away. They
drove off in his vehicle with
his identity document, his wallet, his
cell-phone and some cash. He went to Rabie Ridge police station and
called Car Track, the
tracking company that tracked his vehicle. He
testified that he recognised Mr Makhalima as he was the person seated
in the front
seat next to him. He recalled that he had dreadlocks at
the time of the robbery even though his hair was cut short during the
trial.
His wallet and his identification book were returned however
the sound system and an amount of R1200 in cash were taken from the
vehicle.
[3] Mr Mogale and
Mr Davids, employees of Car Track, were on duty on 2 April 2014. At
19h30 they received a call to look for a hijacked
vehicle, a Toyota
Avanza, with registration number […] GP. The picked up a
signal for the vehicle and followed the signal
towards the N1 and
ended up in Yeoville. At 20h45 they found the vehicle in Rockey
Street, Yeoville. It was parked in the road.
Mr Khumalo was
sitting in the back seat and Mr Makhalima was outside of the vehicle.
Mr Makhalima opened the driver’s
door and got in behind the
steering wheel.
[4] When Mr
Makhalima saw the Car Track employees approach the vehicle he jumped
to the back seat and both men exited the vehicle
through the rear
doors. Mr. Davids apprehended Mr Makhalima who had dreadlocks at the
time. Mr. Mogale apprehended Mr Khumalo.
Both the appellants were
apprehended approximately 3 m from the vehicle. According to the Mr
Mogale, Mr Khumalo removed a firearm
from the front of his pants and
threw it on the ground. Mr Mogale and Mr Davids left the firearm on
the ground and called the police.
When the police arrived the
witnesses handed the scene over to the police. The police recovered
cell-phones, hair clippers and
other items inside the vehicle. The
police also found the car keys on the ground next to the appellants.
The appellants denied
that either of them was found inside the
vehicle.
[5] The appellants’
version was that they had nothing to do with this vehicle. They were
going to Super Bets to place a bet
that evening. They met at Nandos
and proceeded to a shop to buy air time. They were in the process of
walking back from Nandos
when the Mr Makhalima stopped next to the
vehicle to load the airtime onto his cellphone. Mr Mogale and
Mr Davids ordered
them to lie down whilst pointing firearms at them.
They testified they were apprehended for no reason whatsoever. They
also deny
that Mr Khumalo was in possession of a firearm. Warrant
Officer Mashilo testified that the firearm was a 7.65 mm Walter
semi-automatic
pistol and was loaded with 4 rounds of ammunition and
the identifying markings on the firearm had been obliterated.
[6] The first issue
before this court is whether the court
a
quo
correctly convicted the appellants
where the identification of the appellants in the robbery is in
dispute, bearing in mind that
the complainant was a single witness to
the robbery. The vehicle was recovered by Car Tracker recovery agents
in Rockey Street
Yeoville, a considerable distance from where the
robbery occurred in Freedom Drive. The appellants’ dispute
being in the
vehicle when the tracker recovery agents arrived. They
also deny being in possession of a firearm and the complainant's
identity
document and wallet, which were found in the vehicle.
[7] The second issue is whether the
sentence imposed is disproportionate to the crimes which Mr Khumalo
was convicted of. Mr Makhalima
did not pursue an appeal with regard
to sentence.
AD CONVICTION
[8] Mr Miller
appearing for the appellants argued that the identification by the
complainant, Mr Farisani, was not reliable as it
was dark and Mr
Farisani was a single witness. He argued that there was no physical
evidence linking the appellants to the robbery.
This he submitted
must be compared with the appellant’s version that they were
not inside the vehicle found in Rockey Street.
He maintained that
their version was reasonably possibly true. He also argued that the
identity document and wallet found in the
vehicle were left behind by
the robbers.
[9] Mr Miller
submitted the court should be cautious about the reliability of
identification evidence of a single witness in these
circumstances
and referred to the case of
R v
Mputing
1960(1) SA 785(T) where
Boschoff J pointed out that where there was uncertainty regarding
identification an identification parade
should be held. He also
relied on the decision of
R v Shekele
1953 (1) SA 636
(T) at 638 where
Dowling J indicated that where identification is to be proved
the witness must answer questions about identifying
features and
marks as well as questions relating to the person’s build,
complexion, height and clothing worn to ensure that
identification is
accurate. Mr Miller also referred to
S v
Mthetwa
1972(3) SA 766 (A) at 768 where
the Court indicated that the reliability of the witnesses observation
must be taken into account
bearing in mind various factors.
[10] He continued
that in view of the complainant only identifying the appellants in
the dock, the view of the court per Blieden
J in
S
v Maradu
1994(2) SACR 410 (W) was
applicable as it was not dissimilar to a leading question in
examination in chief as it suggests the answer
desired and therefore
should be inadmissible. He argued consequently that the evidence of
identification of the appellants in the
dock should be inadmissible.
Further, he continued, the role of the second appellant was not
clear. The evidence before the court
a
quo
was contradictory regarding the
firearm as the tracking agents testified it was inside Mr Khumalo’s
tracksuit pants whilst
the police officer found it on the ground when
they arrived. On considering the evidence he submitted that the
appellants must
be given the benefit of the doubt and be acquitted.
[11] Mr. Mpekana
appearing for the State, conceded that the complainant was a single
witness and his evidence was to be treated
with caution. He submitted
however that the court
a quo
did just that. He contended that whilst identification was raised in
dispute, this issue was clarified when Mr Farisani, the complainant,
recognised Mr Makhalima who had dreadlocks during the robbery when he
appeared without his dreadlocks in court. This identification
he
submitted was possible because Mr Farisani had an opportunity to look
at Mr Makhalima when the vehicle’s cabin light was
switched on
when Mr Farisani collected money from Mr Makhalima. Mr Makhalima sat
next to him for twenty five minutes during the
trip. This afforded
him sufficient opportunity to observe Mr Makhalima’s features
and to notice the dreadlocks.
[12] He submitted
further that Mr Farisani’s evidence of identification did not
stand alone. It was corroborated by the tracker
agent, Mr Mogale who
confirmed that Mr Makhalima was seated in the front seat of the
vehicle when they approached. He confirmed
that Mr Makhalima had
dreadlocks at the time they arrested the two appellants. Whilst no
identification parade was held both witnesses
identified Mr Makhalima
independently of each other and recalled that he had dreadlocks at
the time of the robbery which had since
been cut.
[13] He submitted
further that the appellants’ version that they were on the
street loading airtime in the dark in a dangerous
area was correctly
rejected by the court
a quo
.
Further their version was riddled with contradictions in that they
testified they were going to place bets at Super Bets but were
not
moving in that direction. They stopped to purchase airtime but did
not load it in the store where there was sufficient lighting
but
stopped coincidentally next to the stolen vehicle in a dangerous
area. A further inconsistency in their version was that they
alleged
being assaulted but did not put that version to the state witnesses.
Their version regarding the time they were arrested
by the police is
earlier than the time the tracker report was received regarding the
call for assistance. In view of these inconsistencies,
Mr Mpekana
submitted that the court
a quo
was correct in rejecting their version.
[14] In
S v Mthetwa
[1972] 3 SA
All SA 568 A at 570 the Court stated:
“…
evidence
of
identification is approached by the Courts
with
some caution. It is not enough for 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
and the result of the identification parades, if any; of
course the
evidence by or on behalf of the accused. The list is not exhaustive.
These factors, or such of them are applicable in
a particular case
are not individually decisive but must be weighed one against the
other, in the light of the totality of the
evidence and the
probabilities.”
[15] In
S v Charzen
[2006] 2
All SA 371
SCA the Court stated the following with regard to
identification:
“
But,
as our courts have emphasised again and again, in matters of
identification, honesty and sincerity and subjective assurance
are
simple enough. There must in addition be certainty beyond reasonable
doubt that the identification is reliable, and it
is generally
recognised in this regard that evidence of identification based upon
a witness’s recollection of a person’s
appearance can be
“dangerously unreliable”, and must be approached with
caution. This illustrates the risks”
[16] The court
a quo
took into
account that the complainant was a single witness and that even
honest witnesses may make mistakes and applied the necessary
caution
required. It found that the complainant and the tracker agent Mr
Mogale both testified that Mr Makhalima had dreadlocks
on the night
of the robbery which were cut when the trial commenced. Yet both
witnesses were clear and consistent in their recognition
and pointed
to Mr Makhalima as the person who sat next to the complainant and in
the driver seat of the vehicle after the complainant
fled. The Court
noted that the complainant’s evidence on its own was not
sufficient for a conviction because the complainant
despite
remembering Mr Makhalima’s dreadlocks identified him by his
facial features. It however found corroboration
in Mr Mogale’s
and Mr Davids' evidence which the court noted was impressive
regarding their tracking of the vehicle’s
location and their
approach to the appellants. Their attempt to escape and to
discard the keys and firearm in their possession
upon seeing the
tracker agents left no doubt with regard to the events which had
occurred.
[17] Whilst Mr Miller submitted that
the present matter was similar to the facts in
Charzen supra,
I
am of the view that the facts are distinguishable
.
The Court
noted in
Charzen
that the identification of the accused by a
single witness by means of his dreadlocks was not the most reliable
evidence and there
were other aspects of his evidence which were less
than satisfactory. In the present matter not only did the trial court
take cognisance
of this aspect of identification but noted that it
did not rely on this alone. Further unlike in
Charzen
, the
complainant’s evidence was corroborated by Mr Mogale and Mr
Davids, the tracker recovery agents who also identified
Mr Makhalima
as the person who sat in the driver’s seat of the vehicle and
had dreadlocks when the vehicle was recovered.
The complainant's
wallet and ID were found in the vehicle however the amount of R1200,
the cellphone and the vehicle’s radio
was missing. The
disposable items were removed while the wallet and ID document were
left in the vehicle.
[18] In view of the above I can find
no misdirection by the court
a quo
with regard to the
conviction on count 1 or counts 2 and 3. The inconsistencies which Mr
Miller refers to are easily explained
by the evidence tendered that
the tracker agents observed Mr Khumalo remove the firearm from his
track suit pants and place it
on the ground which is where the police
officers found it upon their arrival. There is no inconsistency or
contradiction. The vehicle
keys were also found near the appellants.
I have had regard to
R v Blom
1939 AD 188
, where the court
extracted two rules for drawing inferences, the initial rule being
that the inference sought to be drawn must
be consistent with all the
facts. Having satisfied the first it should follow that the
proved facts should be such that they
exclude every reasonable
inference, save the one sought to be drawn.
[19] In applying the above rules to
the present matter the inference is consistent with the facts. The
tracker agents tracked the
vehicle and found the appellants in the
vehicle. Mr Makhalima fits the description provided by the
complainant. Mr Khumalo was
found in possession of a firearm which he
discarded upon being arrested. The only inference that can be drawn
is that they were
involved in the robbery earlier that day.
AD SENTENCE
[20] Section 51(2) (a) of the CLAA
provides for a sentence as follows in Part II of Schedule 2:
“…
In
the case of
(i)
A
first offender, to imprisonment for a period not less than 15 years;
(ii)
A
second offender, to imprisonment for a period not less than 20 years;
(iii)
A
third or subsequent offender of any such offence to imprisonment for
a period of not less than 25 years;”
[21] Part II of
Schedule 2 refers to robbery of a motor vehicle using a firearm and
prescribes a sentence of 15 years imprisonment
for a first offender.
Where substantial and compelling circumstances are present, the court
may deviate from the prescribed sentence.
In the present matter the
court
a quo
took
into account the fact that the appellants spent more than a year
awaiting trial, considered this a substantial and compelling
circumstance and reduced the sentence to 13 years imprisonment on
count one.
[22] Mr Khumalo was
convicted of possession of a semi-automatic firearm where the
identification markings were obliterated as well
as possession of
ammunition. The court
a quo
sentenced Mr Khumalo, applying section 51(2) (a) Part II Schedule 2
and expressed that the prescribed sentence was at least 15
years
imprisonment. The court noted that in view of the markings have been
obliterated the sentence may be increased to 25 years
imprisonment.
Once more the court
a quo
found
substantial and compelling circumstances in the youth of the offender
and that it was Mr Khumalo’s first offence. The
court
a
quo
also took into account that the
vehicle was recovered and no physical harm was visited upon the
complainant. The appellant had
spent almost a year in prison awaiting
trial. The court also expressed the view that the firearm found in
the Mr. Khumalo’s
possession could not be linked to the firearm
used during the robbery. In view of the firearm and ammunition being
in possession
together the court took the offences together for the
purpose of sentencing and sentenced Mr Khumalo to five years
imprisonment.
[23]
In
S
v Rabie
1975
(4) SA 855
(A) at 857 the Court set out the guiding principles with
regard to interference with a sentence on appeal. Recognising that
sentencing
is a matter for the trial court and an appeal court should
not lightly erode such discretion, unless it has not been “judicially
and properly exercised” or the sentence is “vitiated by
irregularity or misdirection or is disturbingly inappropriate.”
In
S
v
Blignaut
2008(1) SACR 78 (SCA)
the
Court held that factors need no be exceptional to be substantial
and
compelling.
[24] The trial court deviated from the
prescribed minimum sentence triggered by the provisions of section
51(2) (a) of the CLAA,
however the factors taken into account appear
to fall under the usual mitigating factors. Per Blignaut
supra
those factors need not be exceptional to be regarded as
substantial and compelling justifying the deviation. Even though Mr
Mpeka
called for a sentence of twenty five years imprisonment to be
imposed, I am not persuaded that there are sufficient facts before
the court
a quo
which persuaded it to increase the
sentence to the highest possible. So too, am I, unpersuaded that the
maximum sentence
be imposed because it is possible. Sentencing
entails a blending of factors which include retribution,
rehabilitation and mercy.
Imposing the maximum sentence must justify
the circumstances. The trial court did not find aggravating factors
apart from the use
of the firearm and to sentence Mr Khumalo to the
maximum is not warranted on the charge of possession especially where
the sentences
were not ordered to run concurrently. Consequently the
sentences do not induce a sense of shock. I am unable to
find
that a greater or lesser sentence is warranted under the
circumstances.
[25] In the circumstances, I make the
following order.
ORDER
1.
The
appeal against conviction in respect of both appellants be dismissed.
2.
The
appeal against sentence in respect of appellant two be dismissed.
_________________________________
S C MIA
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I agree.
_________________________________
U BHOOLA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances:
On behalf of the applicant: Adv M
Miller (acting
pro bono
)
Instructed by: Johannesburg Justice
Centre
advocatemiller@gmail.com
On behalf of the respondent: Adv P. T.
Mpekana
Instructed by: Office of the Director
of Public
Prosecutions
tpmpekana@npa.gov.za
Date of hearing: 5 May 2020
Date
of judgment: 29 May 2020