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[2021] ZAGPJHC 169
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Chimola v S (A054/2018) [2021] ZAGPJHC 169 (7 May 2021)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER:
A054/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
In
the matter between:
CHIMOLA SAMUEL
KHOLOFELO
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by e-mail. The date and
time for hand-down is deemed
to be 10h00 on the o7
th
of May 2021.
DIPPENAAR
(TWALA J CONCURRING)
[1]
This
is an appeal against both the conviction and sentence premised under
the provisions of s260 and 262
of
the Criminal Procedure Act
[1]
,
51 of 1977 (CPA) as amended. The appellant was arraigned, convicted
and sentenced
[2]
by the Regional
Court, K[....] Park. This appeal is with leave of the Court a quo
[3]
.
The parties were in agreement that an oral hearing could be dispensed
with and the appeal could be determined on the papers.
[2]
The appellant was charged in the Kempton Regional
Court with one count of housebreaking with the intent to rob and
robbery (read
with the provisions of s262(1) and s260 of the CPA). He
was convicted of housebreaking with the intent to rob and robbery
with
aggravating circumstances and sentenced to twelve years’
imprisonment, which was not to run concurrently with the sentence
he
was serving at the time.
[3]
The central issues for determination in this
appeal are threefold. The first is whether, as argued by the
appellant, his version
is reasonably possibly true and whether he
should have been acquitted. The second is whether the appellant was
correctly convicted
of the correct offence. The third issue is
whether the sentence imposed should be set aside or altered.
[4]
It is noteworthy to at this stage mention that the
appellant pleaded not guilty and in his plea explanation denied that
he broke
into the complainant’s home or took the items removed
from the complainant’s home. The appellant was at all times
legally
represented.
[5]
The State’s evidence was that on 18 March
2017 at approximately 02h40 Mr Thompson (“the complainant”),
an off
duty policeman was sleeping in his bedroom when he heard a
noise in the house. His home is in a gated off area in G[....]
M[....],
K[....] Park with a fence and one entrance manned by
security guards. He retrieved his firearm from the safe and
approached the
bedroom door. Two men burst into his room, charged at
him and attacked him. He fell on his bed with both intruders on top
of him
trying to assault him. One of the intruders had a large steel
monkey wrench and tried to hit the complainant on his head. A knife
was later found in the complainant’s bedroom where he had been
attacked. The complainant fired two shots at the first assailant,
the
appellant, who fled from the bedroom. The second intruder continued
with the attack. The complainant shot the intruder, (“the
deceased”) who collapsed on him on the bed.
[6]
After pushing the deceased to the floor, the
complainant left the room, called the police station and switched on
the lights. He
met his stepfather, who was coming down the stairs and
told him to go upstairs as he did not know where the appellant was.
The
appellant had fled through the kitchen window, leaving a blood
trail. He exited the house via the front door with his stepfather
where they found the appellant who had collapsed on the driveway in
front of the door. He was bleeding and groaning. As the complainant
was in his underwear he went inside and got dressed. Entry to
the house was gained through the kitchen window at the driveway.
The
latch was damaged from the outside and exhibited tool marks used to
open the window. The window had been closed when the complainant
went
to bed. The appellant exited the house through the same window.
[7]
The complainant and his stepfather noticed there
was a large pile of their belongings in the driveway, two
laptops, food from
the freezer and fridge and bags to carry the
belongings. The foodstuffs were removed from the kitchen and the
electronic equipment
from a landing on the second floor. A white
Samsung tablet was found next to the appellant and a polony roll and
cheese in his
pockets. The value of those goods was about R70 000.00.
Nobody observed these items being taken. In cross examination the
complainant
disputed the appellant’s version, which in his
evidence, differed in certain respects from the version put to Mr
Thompson.
[8]
The complainant’s stepfather, Mr Jacobs,
heard gunshots in the house. He was advised by the complainant that
there were intruders
in the house and he should return to his
bedroom. He saw the complainant was in his sleeping wear. He could
see the deceased lying
in the bedroom. He observed the blood trail in
the kitchen leading to the window and also observed blood on the
window and the
countertop. He accompanied the complainant outside
where they found the appellant collapsed on the driveway. After
switching on
a spotlight which illuminates the driveway, he saw on
the driveway, between the wall and the car, a bag containing two
laptops.
[9]
Constable Mudau confirmed that the appellant was
found with a Samsung tablet next to him and a polony roll and cheese
on his person.
He was also found with a Huawai cell phone on his
person. She further confirmed that a bag with electronic goods was
found hidden
next to a car on the driveway of complainant’s
home.
[10]
Constable Nkosi who took photographs of the scene
some 1.5 hours after the incident confirmed that the shots were fired
in the complainant’s
bedroom, where the casings were found. He
confirmed that the deceased was also found in the complainant’s
bedroom.
[11]
It is apparent from the record that the evidence
established that the electronic and food items were taken from the
home before
the appellant and the deceased entered into the
complainant’s bedroom and the assault on him occurred.
[12]
In summary, the evidence of the appellant was that
he and the deceased were on their way to collect stolen chairs from
one of the
properties in the secure area in G[....] M[....], K[....]
Park, when dogs started barking. They hid behind an electricity box
for
a while and proceeded to walk fast to pass the property where the
dogs had barked. The complainant, Mr Thompson, confronted
them
and asked what they were doing. He did not accept their explanation
that they were just passing and were on their way somewhere.
[13]
The complainant aimed a cocked firearm at them and
directed them to enter into a property whose door was open. The
appellant was
under the impression that the complainant was a
security officer. He was wearing black trousers and a leather jacket.
Once inside,
he realised that they were in a house and were in an
open plan sitting room. The complainant again asked what they wanted.
He did
not accept appellant’s and the deceased’s
explanation. The appellant’s hands were raised above his head.
The
complainant shot the appellant in the arm, the appellant ran off
and hid under the sitting room table. The complainant shot the
appellant again in his lower back. He saw the kitchen window was open
he ran towards it and jumped on the kitchen counter top.
The
complainant shot him a third time in his upper back intending to
shoot him in the heart. He wanted to make a noise but the
complainant
told him to keep quiet. A while later he heard a shot somewhere
in the house, pushed the window and fell outside.
He saw the
neighbours and called to them to call the police.
[14]
His explanation for possession of the polony roll
was that he had purchased it at a garage before entering the complex
to feed to
the dogs at a neighbouring property to where the chairs
were. The appellant disputed having cheese or a Samsung tablet in his
possession
or that there was a laptop bag with two laptops on the
driveway. He identified the Huawai phone found in his possession as
his.
He accused the complainant and the other State witnesses of
lying.
[15]
Turning
to the first issue, it is apposite to refer to some general
principles. It is trite that the burden is on the State to prove
the
guilt of the accused beyond reasonable doubt. If the accused’s
version is reasonably possibly true in substance the court
must
decide the matter on the acceptance of that version and acquit the
accused. In
S
v Jackson
[4]
the court stated as follows:
“
The
burden is on the State to prove the guilt of an accused beyond
reasonable doubt, no more and no less. The evidence in a particular
case may call for a cautionary approach, but that is a far cry from
the application of a general cautionary rule.”
[16]
In
Shackell
v State
[5]
the Supreme Court of Appeal held:
“
A
Court does not have to be convinced that every detail of an accused’s
version is true. If the accused’s version is
reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course it is permissible
to test the
accused’s version against the inherent probabilities. But it
cannot be rejected merely because it is improbable;
it can only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable that it cannot reasonably
possibly be true.”
[17]
It is
further trite that that a Court may convict an accused person of any
offence on the single evidence of any competent witness.
[6]
However, the Court needs to treat that evidence with caution. The
evidence must be credible and reliable and be supported by other
evidence or facts. In considering the evidence, the Court must not
take a compartmentalised approach but to consider the evidence
in its
totality.
[18]
S 208 of the CPA provides:
“
Conviction
may follow on the evidence of single witness:
An accused may be
convicted of any offence on the single evidence of any competent
witness”.
[19]
In
S
v Van Der Mayden
[7]
,
it was stated:
“
What
must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or to acquit) must account
for all
the evidence. Some of the evidence might be found to be only possibly
false or unreliable; but none of it may simply be
ignored.”
[20]
In R v
Mlambo
[8]
, the Court held:
“
In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to the accused,
it is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charges. He must, in other words, be morally certain of the guilt of
the accused”.
[21]
In applying these principles to the facts, the
evidence of Mr Thompson was consistent and was corroborated by the
evidence presented
by the other state witnesses. Such corroborating
evidence established that:
[21.1] the shots were
fired in Mr Thompson’s bedroom and not in the sitting room and
kitchen as contended by the appellant
as all the damage was in the
bedroom;
[21.2] the deceased and
the monkey wrench in the possession of the appellant and the
deceased, were found in the bedroom;
[21.3] there was a blood
trail belonging to the appellant leading to the kitchen and the
window through which the appellant exited;
[21.4] the laptop bag
with two laptops were found on the driveway;
[21.5] the Samsung
tablet, polony roll and cheese, taken from the complainant’s
home, were found on the appellant;
[21.6] When Mr Jacobs
went downstairs after hearing the shots, the front door was locked
and Mr Thompson was in his sleepwear, not
as the appellant contended
dressed in black pants and a leather jacket.
[22]
In my view, the court a quo cannot be faulted for
not accepting the version of the appellant as reasonably possibly
true. First,
there were certain inconsistencies betwee what was put
as the accused version to the State witnesses and what he actually
testified.
Second, his version of where the shootings occurred was
belied by the photographs and evidence of where the bullet casings
and
shells were found. Third, his denial of the items found in his
possession and the driveway was false and belied by the objective
evidence. Fourth, his version that the complainant accosted him and
the deceased in the street and forced them into his home at
gunpoint
where after simply shooting them was entirely contradictory to the
evidence of the State witnesses The appellant’s
version, is
fanciful and contrived.
[23]
The appellant argued that the court a quo erred in
not accepting that the version of the appellant was reasonably true
in that he
did not rob the complainant. That however conflates the
issue of whether his version is reasonably possible true with the
issue
whether the appellant should have been convicted of robbery, a
separate issue which arises in this appeal.
[24]
It is
also apposite to refer to
S
v Francis
[9]
,
wherein it was stated:
“
The
court’s powers to interfere on appeal with the findings of fact
are limited. Accused No 5’s complaint is that the
trial court
failed to evaluate D’s evidence properly. It is not suggested
that the court misdirected itself in any respect.
In the absence of
misdirection, the trial court’s conclusion, including its
acceptance of D’s evidence, is presumed
correct. In order to
succeed on appeal, accused No 5 must therefore convince us on
adequate grounds that the trial court was wrong
in accepting D’s
evidence – a reasonable doubt will not suffice to justify
interference with its findings. Bearing
in mind the advantage which a
trial court has of seeing, hearing and appraising a witness, it is
only in exceptional cases that
this court will be entitled to
interfere with a trial court’s evaluation of oral testimony.”
[25]
It is my considered view that the Court a quo did
consider the whole conspectus of the evidence before it and did not
misdirect
itself on any factual findings. It further correctly found
that the State proved its case against the appellant beyond
reasonable
doubt and that the appellant’s version could not be
accepted as reasonably probably true.
[26]
However, the legal conclusions drawn from those
factual findings stand on a different footing. In the present
instance, the Court
a quo did not take into account that the goods
were removed from the complainant’s home before there was any
violence. The
violence only ensued when the appellant and the
deceased entered the complainant’s bedroom. The evidence did
not establish
that any goods were taken from his bedroom.
[27]
This brings me to the second issue, namely whether
the appellant’s conviction of housebreaking with the intent to
rob and
robbery with aggravating circumstances is sustainable on the
facts. The court a quo, in finding the appellant guilty of robbery
with aggravated circumstances, had regard to s262 and the definition
of robbery with aggravating circumstances as defined in s
1 of the
CPA. It found that the use of the monkey wrench used to attack the
complainant constituted aggravating circumstances.
[28]
On
this issue the Court a quo misdirected itself in various respects.
First, the appellant was found guilty of an offence more serious
than
that with which he was charged. A charge of robbery with aggravating
circumstances was never put to the appellant and he was
not afforded
the opportunity to address the issue. The charge was never amended to
robbery with aggravating circumstances, which
would prejudice the
appellant in his defence
[10]
.
The appellant could thus not have been convicted of robbery with
aggravating circumstances.
[29]
The respondent conceded in its heads of argument
that the Court a quo misdirected itself on this issue and contended
that the appellant
should have been found guilty of housebreaking
with the intent to rob and robbery. I do not agree with this
contention.
[30]
The
complainant confirmed that no items had been taken from him during
the attack in his bedroom. He further confirmed in cross
examination
that the items which were later found outside his home on the
driveway and in the possession of the appellant had been
taken before
the incident in his bedroom and that the appellant and the deceased
had come back a second time when the assault took
place. The items
had thus been appropriated and removed from the complainant’s
home prior to any violence occurring and no
items were removed
pursuant to any violence. The complainant was thus not threatened
with bodily injury in order to obtain possession
of his property and
he did not hand over any property to avoid injury
[11]
.
[31]
In
convicting the appellant of robbery, the Court a quo relied on
S
v Yolelo
[12]
.
Considering
the facts, such reliance was misplaced as the evidence did not
establish a sufficient causal link between the theft
of the goods and
the violence perpetrated on the complainant that they can be
considered connecting components of one action. It
follows that the
conviction of robbery was a misdirection on the part of the Court a
quo.
[32]
The items had already been removed from the
complainant’s home when the attack on the complainant occurred.
Rather, the evidence
established that removal of the items had
already been completed when the attack ensued in the complainant’s
bedroom. No
further items were taken after the attack.
[33]
The evidence further established that the
appellant and the deceased managed to exercise full and effective
control over the items
found on the appellant and on the driveway and
that the complainant had lost control over those items. The facts
thus did not establish
robbery but did establish the offence of
theft, which is a competent verdict of the offence of robbery. The
facts pertaining to
the attack on the complainant by both the
appellant and the deceased in his bedroom established the offence of
assault. Although
a monkey wrench was used in the attack on the
complainant he was not injured as a result, but sustained only
minimal bruises.
[34]
The relevant portion of s 260 of the CPA provides:
If the evidence on a
charge of robbery or attempted robbery does not prove the offence of
robbery or, as the case may be, attempted
robbery, but-
(a) the offence of
assault with intent to do grievous bodily harm;
(b) the offence of
common assault;
(c) the offence of
pointing a fire arm, air-gun or air pistol in contravention of any
law;
(d) the offence of
theft; …
The
accused may be found guilty of the offence so proved, or, where the
offence of assault with intent to do grievous bodily harm
or the
offence of common assault and the offence of theft are proved, of
both such offences.”
[35]
The relevant portions of s262 of the CPA, relating
to housebreaking with the intent to commit an offence, provides:
“
(1)
If the evidence on a charge of housebreaking with intent to commit an
offence specified in the charge, whether the charge is
brought under
a statute or the common law, does not prove the offence of
housebreaking with intent to commit the offence so specified
but the
offence of housebreaking with the intent to commit an offence other
than the offence so specified or the offence of housebreaking
with
intent to commit an offence unknown or the offence of malicious
injury to property, the accused may be found guilty of the
offence so
proved.
(2) If the evidence on
a charge of housebreaking with intent to commit an offence to the
prosecutor unknown, whether the charge
is brought under a statute or
the common law, does not prove the offence if housebreaking with the
intent to commit an offence
to the prosecutor unknown, but eh offence
of housebreaking with intent to commit a specific offence, or the
offence of malicious
injury to property, the accused may be found
guilty of the offence so proved; … (3)
[36]
It is
thus competent under s260 of the CPA to convict the appellant of both
theft and assault
[13]
. It is
further competent under s262 of the CAP to convict the appellant of
housebreaking with the intent to steal and theft, considering
that
the facts established the offence of theft.
[37]
I conclude that the appeal against the conviction
must thus succeed and the conviction must be altered accordingly.
[38]
Turning to the issue of sentencing, the appellant
argued that the sentence imposed by the Court a quo, of 12 years’
imprisonment,
was shockingly inappropriate.
[39]
Sentencing is pre-eminently the domain of the
trial Court. A Court of appeal may only interfere with the sentence
imposed by the
trial court if it is of the view that the trial court
did not exercise its discretion judicially or where the sentence is
strikingly
inappropriate.
[40]
In
S
v Malgas
[14]
,
the Supreme Court of Appeal stated:
“
A
Court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it was the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would usurp the sentencing of the trial Court.”
[41]
Considering the conclusion reached regarding an
alteration to the appellant’s conviction, the Court a quo
materially misdirected
itself when imposing a 12 year imprisonment
sentence. The sentence imposed must be appropriately amended.
[42]
S 260
of the CPA clearly contemplates a separate sentence in respect of
each offence in an appropriate case. Obviously when considering
an
appropriate sentence the cumulative effect of such sentences must be
taken into account.
[15]
A
court may also treat the separate counts as one for purposes of
sentencing
[16]
. Considering
the facts, this is not an appropriate case for the imposition of
separate sentences.
[43]
The appellant was not a first offender. The SAPS
69 forms proved the appellant as having two prior convictions: a
conviction of
robbery on 29 September 2009 in Germiston with a 3 year
imprisonment sentence and a conviction for escape from lawful custody
at
Nebo on 25 March 2013, with a 3 year imprisonment sentence.
According to the charge sheet obtained, the appellant has a third
prior
conviction, on 4 July 2014 at Tembisa of five charges for
possession of a firearm and ammunition without a licence, two charges
under the Arms and Ammunitions and theft. He was sentenced to five
years’ imprisonment on counts 1, 3 and 4 and 12 months
each on
counts 2 and 5. The sentences were to run concurrently and
concurrently with the sentence he was serving at the time. Before
the
Court a quo, the appellant requested that the sentence imposed on him
was to run concurrently with the sentence he was serving
at the time.
He had been placed under correctional supervision but had been back
in incarceration as he had broken his parole conditions
and he still
had 620 days to complete on that sentence.
[44]
At the time of sentencing, the appellant was 32
years old and has a grade 9 education. He was unmarried and has three
minor children.
There was no evidence that he was the primary
caregiver of the children and considering his incarceration, the
court a quo correctly
accepted that he could not be their primary
caregiver as he was serving an incarceration sentence. It was argued
that as the appellant
got shot during the incident he had suffered a
lot already and had not yet recovered from his bullet wounds. The
goods taken were
recovered and the complainant suffered no loss, with
the exception of the cheese and the polony roll and minor damage to
his property.
[45]
On the converse side, the appellant showed no
remorse, pleaded not guilty and presented a fanciful version. There
was no probation
officer’s report available. He had previously
been convicted of both theft and robbery and has a history of
disregard for
the law. The previous incarceration sentences imposed
on the appellant did not serve as a deterrent against the commission
of any
further crimes.
[46]
Considering all the facts, a sentence of eight
years’ imprisonment would be appropriate.
[47]
It follows that the appeal must succeed, both
against the conviction and sentence imposed by the Court a quo.
[48]
I grant the following order:
[1] The appellant’s
conviction is set aside and altered as follows:
The appellant is
convicted of (i) housebreaking with the intent to steal and theft and
(ii) common assault read with the provisions
of
ss 262(1)
and
260
of
the
Criminal Procedure Act 51 of 1977
as amended.
[2] The appellant’s
sentence is set aside and altered as follows:
The appellant is
sentenced to eight (8) years imprisonment.
EF
DIPPENAAR
JUDGE
OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
:
06 May 2021
DATE
OF JUDGMENT
:
07 May 2021
APPLICANT’S
COUNSEL
: Adv EA Guarneri
APPLICANT’S
ATTORNEYS
: Legal Aid SA
RESPONDENT’S
COUNSEL
: Adv. R. Ndou
RESPONDENT’S
ATTORNEYS
: State Attorney
[1]
51
of 1977 as amended
[2]
On
16 November 2017
[3]
Granted
on 21 December 2017
[4]
1998 (1) SACR 470
(SCA) at 476
[5]
2001 (2) SACR 185
(SCA) para [30]
[6]
S
v Dyira
2010 (1) SACR 78
(SE); S v Sauls and Others
1981 (3) SA 172
(A) 180E-G; S v Webber 1971 (3) SA 754(A)
[7]
1991
(1)
SACR 450 (WLD)
[8]
1957
(4) SA 727
(A) at 738
[9]
1991 (1) SACR 198
(A), quoted with approval in Maphana v S
(174/2017)
[2018] ZASCA 8
(1 MARCH 2018)
[10]
S86
CPA; S v Kearney 1964 (2) SA 495 (A)
[11]
Ex
Parte Minister of Justice: In re R v Gesa; R v De Jongh 1959 (1) SA
234(A)
[12]
1981
(1) SA 1002
(A)
[13]
S
v Matjeke
1980 (4) SA 267
(B); S v Jabulani 1980 (1) SA 331 (N),
[1980] 3 All SA 178 (N)
[14]
2001
(1) SACR 496(SCA)
[15]
S
v Jabulani supra
[16]
S
v Rwayi
[1997] JOL 961
(Tk)