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[2010] ZAWCHC 458
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Kani v S (A324/2010) [2010] ZAWCHC 458 (3 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A324/2010
DATE
:
3 SEPTEMBER 2010
In
the matter between:
SIPHELO
DAVID KANI
…......................................................................
Appellant
and
THE
STATE
….........................................................................................
Respondent
JUDGMENT
FOURIE.
J
:
Appellant
appeared in the Regional Court at Wynberg on one count of
housebreaking with the intent to rob and robbery. He pleaded
not
guilty, but after hearing evidence, the presiding magistrate found
him guilty of robbery with aggravating circumstances and
sentenced
him to 11 years imprisonment. He now appeals, with the leave of the
court a
quo,
against
both his conviction and sentence.
It
is common cause that in the early hours of 3 May 2007, the
residential dwelling occupied by the complainants, was entered by
three persons who robbed the complainants of their possessions.
These items were loaded into the boot of a motor vehicle, belonging
to one of the complainants, whereafter the perpetrators attempted to
flee from the scene with the vehicle. However, the vehicle
stalled
close the complainants' residence, whereafter the robbers fled on
foot.
The
appellant was subsequently apprehended due to his fingerprints which
were taken in the complainants' house and in the motor
vehicle in
which the robbers attempted to flee the scene. The appellant raised
the defence of necessity. He says that he was
one of the persons who
entered the house of the complainants and took their possessions and
loaded same into the car. His version,
however, is that he was
threatened by one of the other perpetrators, a person by the name of
Sawso, to partake in the robbery
and that it was never his intention
to harm the complainants or to rob them of their possessions. He
says that if it were not
for the conduct of Sawso, he would not have
partaken in the robbery.
The
defence of necessity is recognised by our courts. See
S
v Goliath
1972(3)
SA 1 (A). As explained in
Goliath
,
the validity or not of a defence of duress or compulsion will depend
on the particular circumstances of each case and the whole
factual
matrix will have to be carefully examined, and adjudicated upon with
the greatest care. If no immediacy of life threatening
compulsion
was present and/or an accused had other choices rather than to
commit the offence with which he is charged, the defence
will fail.
See also
S
v Mandela
2001(1)
SACR 156 (C).
In
his thorough judgment, the regional magistrate carefully weighed all
the relevant facts and circumstances in considering whether
appellant had acted under duress or compulsion. In my view a
conspectus of the evidence as a whole clearly justifies the finding
of the magistrate that this defence could not succeed and that the
version of the appellant should be rejected as not being reasonably
possibly true.
I
am further of the view that the version of the appellant is not only
improbable, but clearly false. In arriving at this conclusion,
the
following should be emphasised:
1.
According to the State witnesses, all three perpetrators partook in
the execution of the robbery and even took turns in watching
over
the family members.
2.
Mr McNicol observed that all three robbers attempted to flee the
scene in the stolen vehicle and that they fled on foot when
the
vehicle stalled.
3.
Appellant did not only partake in the robbery, but even instructed
one of his co-perpetrators to ask the occupants of the house
to tell
him how the immobiliser of the motor vehicle works. He was
accordingly not a mere passive bystander.
4.
When the authorities arrived on the scene, appellant did not come
forward to identify himself as an innocent bystander, but
rather hid
away in the reeds until the next day. He also failed to report the
incident after he got home the next day.
5.
There appears to have been ample opportunity for appellant to make a
getaway during the course of the robbery, which lasted
nearly three
hours. However, he at no stage attempted to distance himself from
the robbery.
6.
It
is not only improbable but illogical in the extreme that the robbers
would take appellant along as a potential witness on their
robbery
excursion. They surely would have realised that appellant, whom they
allegedly caused to act under compulsion, could
easily turn against
them if apprehended.
To
all of this I should add that appellant's version as to how he came
to be involved with the others, is totally unconvincing.
It seems
highly improbable, if he was requested to assist Sawso to collect a
vehicle which he, Sawso, had bought from his employer,
that they
would have driven around from 7 p.m. until the early hours of the
morning before reaching the house where the car ought
to have been
collected. Also on his version, appellant was not threatened by the
other two to partake in the robbery and he testified
that the reason
why he did not leave the scene of the robbery was that he was
unfamiliar with the area. This does not constitute
a valid defence
of necessity. I, therefore, conclude that there is no merit in the
appeal against his conviction.
As
far as the sentence is concerned, it is trite that a court of appeal
will only interfere if there has been a failure by the
sentencing
court to properly exercise its discretion. An approach which is
often used is to ask whether the court of appeal,
had it been the
court of first instance, would have imposed a sentence which differs
substantially from the sentence imposed
by the trial court. The
magistrate properly considered the provisions of Act 105 of 1997,
which prescribes a minimum sentence
of 15 years imprisonment in the
case of robbery with aggravating circumstances. He concluded that
there are substantial and compelling
circumstances justifying a
lesser sentence, particularly having regard to appellant's personal
circumstances. In my view, there
is no basis for a finding that the
magistrate misdirected himself in regard to sentence and the
sentence imposed does not differ
substantially from the sentence
which I would have imposed had I been the court of first instance.
In
the result I propose that the appeal be dismissed and that the
conviction and sentence be confirmed.
ROUX,
AJ
:
I agree.
ROUX,
AJ
FOURIE,
J
:
It is ordered accordingly.
FOURIE, J