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[2010] ZAWCHC 471
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September v S (A403/2010) [2010] ZAWCHC 471 (10 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A403/2010
DATE
:
10
SEPTEMBER 2010
In the matter between:
CECIL
MCDONALD SEPTEMBER
…................................................
Appellant
and
THE
STATE
…...............................................................................
Respondent
JUDGMENT
BUIKMAN,
AJ
:
The appellant was
granted leave to appeal to this court by way of a petition on 29
Mach 2010. The appeal is in respect of the
conviction only, the
appellant having been found guilty of robbery with aggravating
circumstances.
A
summary of the evidence in the court a
quo
is
as follows: The State led the evidence of the complainant, Mr
Andrews, who was a single witness and who testified as follows:
1. On 17 August 2007 he
left the Bellville Magistrate's Court with one Bradman Heuwel;
2. Heuwel was speaking
with the appellant, who was unknown to the complainant. They all
walked together to the taxi rank, which
leads from the magistrate's
court under a bridge. Heuwel and the appellant evidently walked
ahead of the complainant. He noticed
that they were deep in
discussion;
3. When Heuwel and the
appellant parted ways, the appellant turned around and walked in his
direction. He did not know what had
happened to Heuwel. The
appellant then grabbed him by his neck and he felt something hard
and cold being pressed thereto. He
was then forced to walk together
with the appellant under the bridge where there were no people
present;
4. The appellant was
joined by another gunman;
5. The appellant reached
for his exact trouser pocket in which he was carrying approximately
R140.00. He had put the change from
his lunch time purchase in this
trouser pocket. Heuwel knew that the complainant had R1 700,00 on
him, but Heuwel did not know
that he had put R1 500,00 thereof in
his sock;
6. He suspected that
Heuwel had told the appellant that the complainant had a large
amount of money on his person and this is
why he was robbed;
7. An argument arose
between the appellant and his friend. The complainant used this
opportunity to struggle free, during which
time the appellant's gun,
a black 9 mm pistol, fell to the floor;
8. The complainant ran
away and almost immediately enlisted the assistance of the police,
who came back to the scene with him;
9. Back at the scene, he
witnessed the unknown robber picking up the gun, swopping it with
his own and running off with the appellant's
firearm. The police did
not manage to catch him;
10. The police then ran
after the appellant and the appellant threw the gun, which had been
swopped with his own, over the wall.
The appellant was arrested and
searched and the police found R40.00 in coins;
11. A search of the
neighbouring property yielded a plastic silver coloured toy gun;
12. Later at the police
station another search of the appellant was conducted, which
produced a further R100.00 note;
13. The complainant was
asked to make a statement that day, which he did in the presence of
Heuwel.
During
cross-examination, the complainant was primarily asked about the
contradictions in his testimony in court, as compared
with the prior
statement he had made before the police on the day of the incident.
In his statement made to the police, the complainant
had stated
that:
"While
we were passing Bellville Night Shelters, an unknown Coloured man
approached us, asking us to borrow him a cigarette
light. While
Bradwin was giving the guy the light, the other Coloured man who was
with him, (unknown man), pull out a firearm
and grabbed me with my
clothes and demanding money from him. I told him I do not have money
and then he put his hand on my pocket.
Het took R140.00 on my pocket
and we ran around the corner. We immediately found the police and
informed the matter to the police
and we pointed the suspect to
them. So we and the police chased him and caught him by the railway
station. I did not give permission
to
this
guv
to
rob me my money. The police informed me that it was a toy gun that
this
guv
used
to robb me." (My emphasis)
The complainant conceded
that the statement that he had made was not in accordance with the
events that took place on 17 August
2007. He testified that Heuwel
had pressurised him into giving a watered down version to the police
of what had happened, in
order to give the appellant a chance.
He said that although he
suspected that Heuwel must have told the appellant of the money that
he had in his possession, he did
nothing to implicate Heuwel, as he
was looking after him at the time. Heuwel was only 17 years old.
The complainant
testified that all he wanted was the return of his money which had
been confiscated. He had on four occasions
attempted to have the
charges against the appellant withdrawn.
The appellant's version
that was put to the complainant was merely that he had denied being
in possession of a gun and that he
did not rob the complainant. The
appellant's version of the events, however, differs from the
complainant, only in respect of
what is said to have happened under
the bridge. The appellant denies that he robbed the complainant or
that he had a gun and
stated rather that he took money out of his
pocket, which he then told the complainant and Heuwel that he was
going to use to
buy drugs. According to him, Heuwel and the
complainant then left him there, only to return with the police who
had asked him
for the gun and R100.00. He was thereafter arrested
for no reason.
It appears therefore
that it is common cause that the appellant and the complainant met
each other for the first time on the day
of the incident; that they
had walked together in the direction of the Bellville Station along
the footpath with Heuwel; the
scene where the crime allegedly took
place was the bridge near the Bellville Station; that the
complainant returned to the scene
with the two policemen; that the
police, after the appellant was pointed out to them, arrested the
appellant at the scene of
the crime; that there was a search
conducted for a gun; that a gun was found in the adjacent property
and that a search of the
appellant yielded approximately R150,00, of
which only R100.00 was returned to the complainant.
The
magistrate in the court a
quo
considered
the evidence of the complainant carefully and was mindful throughout
his judgment that the complainant was a single
witness and applied
the so called cautionary rule. The magistrate found, however, that
the complainant's evidence was such that
it was trustworthy and
true. The magistrate gave a detailed summary of the decisions
regarding the cautionary rule and I do not
intend to repeat them
here. He, in particular, considered the fact that there were various
contradictions in the evidence given
by the complainant, which
conflicted with his statement. He concluded that there was no bias
on the part of the complainant towards
the appellant, who did not
seek to implicate him as, it was common cause, that they had met for
the first day on the incident
and that he had previously tried to
withdraw the charges against the appellant.
Notwithstanding the
inconsistencies in the statement made to the police, the magistrate
concluded that, having regard to the totality
of the evidence and
the explanation given by the complainant, as well as the impression
that the complainant made on the court
during his evidence during
cross-examination, he was prepared to accept the evidence of the
complainant.
On
a careful reading of the evidence on record in the court a
quo,
as
well as the statement made by the complainant on the day of the
incident, it appears to me that the magistrate did not correctly
interpret the evidence of the complainant in relation to the
statement when finding that the complainant intended, in the
statement,
to protect the appellant. According to the magistrate the
complainant, in his statement, had identified the appellant as being
the man who had asked for a light and that the appellant did not
have a gun.
If
the complainant's statement is read carefully, it is clear that the
complainant stated that it was the gunman who was the person
who had
robbed him and who was arrested by the police. This can undoubtedly
only be a reference to the appellant. If it was anyone
who the
complainant was protecting in his statement, it was Heuwel, who was
stated therein as having been in his company throughout
the incident
and who assisted him and the police in apprehending the appellant.
This was also consistent with the complainant's
evidence in the
court a
quo,
namely
that the complainant intended to protect Heuwel, who he suspected
played a part in the robbery.
Although it cannot be
disputed that there were inconsistencies in the complainant's prior
statement compared with his evidence
in court, it is clear that
these do not relate to the appellant's involvement in the robbery.
His evidence as to how the actual
robbery took place was consistent
throughout.
The evidence of the
appellant in fact corroborates that of the complainant in material
respects and specifically in relation to
where the incident took
place and that a toy gun was found in the neighbouring property.
Where the evidence differs, however,
it is so implausible that it is
not difficult to see why the court rejected it. It is highly
improbable that the complainant
would have turned to the police to
assist him in stealing the appellant's money. More important, is
that the appellant would
have this Court believe that the gun that
was found on the adjacent property to the incident, was a mere
coincidence and it had
nothing whatsoever to do with the crime. To
this must be added the fact that many exculpatory statements made by
the appellant
during his evidence, were never put to the
complainant, such as the fact that the complainant was alleged to
have offered him
R10 000,00 to get rid of a State witness.
Although the versions of
the complainant and the appellant conflict as to whether or not the
complainant had been robbed, I concur
with the magistrate that the
probabilities in this case dictate that the evidence of the
complainant should be accepted over
that of the appellant.
I
also agree that aggravating circumstances were present. Even if the
gun that was used was a toy gun, it is clear that at all
times, even
during the evidence in the court a
quo,
the
complainant was under the impression that it was a real gun. The
complainant testified that he feared for his live.
In all the
circumstances, I am satisfied that the appellant is guilty of
robbery with aggravating circumstances being present
and accordingly
I would dismiss the appeal.
BUIKMAN, AJ
VELDHUIZEN,
J
:
It is so ordered, the appeal is dismissed and the conviction and
sentence confirmed.
VELDHUIZEN,
J