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[2010] ZAWCHC 496
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Welkom and Another v S (A321/2010) [2010] ZAWCHC 496 (15 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER:A321/2010
DATE:
15 OCTOBER 2010
In
the matter between:
AUBREY
WELKOM
….................................................................
1
st
Appellant
JOHAN
VISAGIE
….....................................................................
2
nd
Appellant
and
THE
STATE
…...............................................................................
Respondent
JUDGMENT
JOHN
ROGERS, AJ
:
On
21 January 2010, the appellants were convicted in the Wynberg
Regional Magistrate's Court on a charge of robbery with aggravating
circumstances as defined in
section 1
of the
Criminal Procedure Act
51 of 1977
, and both sentenced to eight years direct imprisonment.
Each of the appellants appeals, with leave of the court a
quo,
against
both conviction and sentence. The convictions and sentences followed
a trial at which both appellants pleaded not guilty
and were
represented throughout by Ms F
Kinnear
of
the Athlone Justice Centre, Legal Aid.
Conviction
:
The robbery of which the
appellants were accused was against one Franklin Witbooi, whom they
were alleged to have stabbed and
hit with a blunt object on or about
8 November 2008, at or near Athlone, with intent to steal cash of
R650.00 from him. The State
relied on the testimony of a single
witness, namely Witbooi. Each of the appellants testified in his own
defence and neither
called any further witness.
Witbooi testified that
on the night of 8 November he had been walking from visiting one
friend to visit another in Vygieskraal.
He was alone and it was
after 9 p.m. and there were no street lights. He had not had
anything alcoholic to drink. As he was walking,
someone seized him
from behind by his belt. He struggled to free himself and in doing
so, turned and saw that it was the second
appellant, Visagie, whom
he knew from living in the same area for some time. He told Visagie
to release him and Visagie told
him just to stand still and hand
over his money.
With
Visagie, was the first appellant, Welkom, whom Witbooi also knew
from living in the same area for some time and one known
to Witbooi
as Papbek. Welkom hit Witbooi on his left arm with a
piksteel
and
Papbek stabbed Witbooi in the arm with a screwdriver and then put
his hand in Witbooi's jacket pocket and withdrew R650.00.
Welkom,
Visagie and Papbek then ran away with the money. Witbooi was left
with open wounds on his arm and his hip. He went home
and the
following day he reported the incident to the police. He identified
Welkom and Visagie to the police as two of his assailants
and took
the police to their addresses. Welkom and Visagie were then
arrested. Witbooi never recovered his money.
Welkom initially denied
knowing Witbooi. Subsequently he acknowledged that Witbooi and he
lived close to one another and saw each
other frequently. He also
initially denied knowing anything about the robbery. Subsequently he
said that he had in fact seen
Witbooi that night. He and Visagie had
been together drinking. At 11 p.m. they were on their way home and
were passing a shop.
They saw Witbooi who asked them whether they
had seen three people. They answered that they had not, whereupon
Witbooi began
abusing them. They took no further notice of Witbooi
and walked on. There were a number of other people in the vicinity.
None of this had been
put to Witbooi, and when asked in cross-examination why that was so,
Welkom said that he had not been asked
about it by his attorney.
During cross-examination, Welkom said that Witbooi had been drunk.
This was something that he had not
said during his evidence in
chief. Welkom acknowledge during cross-examination that there was no
bad blood between Witbooi and
him and could not suggest any reason
why Witbooi would incriminate him falsely. In response to questions
by the court, Welkom
said that he had heard of Papbek and that he
had been arrested at his home the morning after the robbery.
Visagie denied knowing
Witbooi at all or even having seen him previously. He said that he
had been with Welkom on the night of
the robbery. They had been
drinking and were on their way home. At a shop he bought some
cigarettes, and as they were leaving,
Witbooi confronted them.
Witbooi was drunk and asked Welkom whether he had seen three people.
At that Visagie's mother approached
and he left with her. There were
also other people in the vicinity. The following morning Witbooi and
two others came to Visagie's
home and assaulted him. Again none of
this had been put to Witbooi, although in response to a question by
the court, Visagie
said that he had given his version of events to
his attorney. Visagie could not suggest why Witbooi would
incriminate him falsely,
other than that Witbooi may have been
offended, because he could see the night before that Visagie was not
concerned about him.
In
terms of
section 208
of the
Criminal Procedure Act 51 of 1977
, an
accused may be convicted of any offence on the single evidence of
any competent witness. However, the well known cautionary
rule
requires that the evidence of a single witness be treated with care.
Relevant considerations in evaluating the reliability
of evidence of
identification by a single witness include whether the person
identified was previously known to the witness and
whether there was
a proper opportunity for identification by the witness of the person
identified.
S
v Mthetwa
1972(3)
SA 766 AD at 768A-C.
In the current instance
the learned magistrate considered Witbooi to be a credible and
trustworthy witness. He had given his evidence
in a straightforward
and logical manner and had not given the impression of seeking to
conceal anything or to incriminate the
appellants falsely. As to the
reliability of Witbooi's identification of the appellants, it was
dark and Witbooi would have been
alarmed and suffered a measure of
pain. However, it would not have been pitch dark, and the appellants
were within touching distance
of him. Moreover, he must have known
the appellants and their addresses as he testified. Welkom clearly
knew who Witbooi was
and where he lived, and no other explanation
was offered for the arrest of
Visagie the following
morning.
The learned magistrate
properly went on to consider whether the versions of the appellants
could nevertheless reasonably possibly
be true. He concluded that
they could not and that the appellants had clearly been untruthful.
He pointed out in this regard
that in testifying to having come
across and spoken with Witbooi the evening of the robbery, the
appellants had clearly deviated
from instructions to their attorney
and that they had also sought to mislead the court as to their
knowing Witbooi.
In the circumstances the
learned magistrate held the identification of the appellants by
Witbooi, as perpetrators of the robbery
against him, to be reliable.
I see no reason to question the correctness of the verdict reached
by the learned magistrate or
his reasons for arriving at that
conclusion. A trial court has the benefit of seeing, hearing and
appraising witnesses and there
does not seem to me to be anything in
the record to suggest that the learned magistrate was wrong in his
evaluation of the evidence.
The appellants clearly
did not tell their attorney of having come across and spoken with
Witbooi the evening of the robbery, otherwise
she would undoubtedly
have put it to Witbooi. It follows that Visagie's evidence that he
did furnish his attorney with the version
to which he testified, is
not credible. Given the obvious importance thereof, Welkom's
evidence that he did not furnish his attorney
with the version to
which he testified because he was not asked about it, is also not
credible.
It is also noteworthy in
my view, that neither of the appellants called any witness to
corroborate the version of their having
coming across and spoken to
Witbooi the evening of the robbery, notwithstanding that according
to Visagie, his mother had come
along while that was happening and
that according to both appellants, there had been others in the
vicinity.
I consider the
circumstances to have been such that Witbooi would have been quite
capable of identifying as perpetrators of the
robbery against him,
individuals known to him, as it seems clear the appellants were, and
I agree with the learned magistrate
that with Witbooi having no axe
to grind with the appellants, it is improbable that he would falsely
have incriminated them.
Sentence
:
Section 51(2)(i) of the
Criminal Law Amendment Act 105 of 1977, read with Part II of
Schedule 2 thereto and section
51(3)(a) thereof,
provides for minimum sentences of imprisonment for varying periods
to be imposed on various classes of offenders
convicted on the
charge of robbery with aggravating circumstances, unless in the
instance the court is satisfied that substantial
and compelling
circumstances exist which justify the imposition of a lesser
sentence.
As
to the personal circumstances of the appellants, the learned
magistrate took into account that Welkom was only 18 and Visagie
only 19 at the date of the robbery. Visagie had no previous
convictions and Welkom had one conviction for theft committed on
7
May 2007, for which he had merely been cautioned and discharged.
Welkom had reached Standard 5 at school and had been working
as a
general labourer at a wage of R400,00 per week for a year at the
time of his arrest. Visagie had reached Standard 8 school
and had
been working as a general labourer at a wage of R500,00 per week for
two and a half years at the time of his arrest.
Visagie had a six
year old child living in Kimberley, for whom he regularly sent
contributions towards maintenance on a voluntary
basis. Both
appellants had been in custody from the time of their arrest, i.e.
for a period of about 14 months as at the date
of the sentence. As
to the crime, the earned magistrate took account of the fact that
while armed robbery was always a serious
crime, the robbery in
question, in which the weapons used were a
piksteel
and
a screwdriver, and in which the complainant had been injured, but
evidently not severely, was not on a par with the more serious
categories of armed robbery with which the court had frequently to
deal. Nevertheless the kind of thuggery in which the appellants
had
indulged could not be tolerated on the streets and a strong message
had to be sent to the community that it would be heavily
punished.
Witbooi had also not recovered his money. In the circumstances the
learned magistrate held, correctly in my view, that
substantial,
that compelling circumstances existed which justified the imposition
of lesser sentences on the appellants than
the prescribed minimum
sentences. He then proceeded to sentence each of the appellants to
direct imprisonment for a period of
eight years.
In
the absence of material misdirection, an appeal court only
interferes with a sentence imposed by a trial court if the disparity
between the sentence of the trial court and the sentence which the
appeal court would have imposed, had it been the trial court,
is so
marked that it can be properly be described as shocking, startling
or disturbing inappropriate. S
v
Malqas
2001(1)
SACR 469 (SCA) at para 12.
It
is trite that youth is a factor to be taken into account in matters
of sentence, although in a particular case the nature of
the crime
might be such as to reduce any mitigating effect of youth, among
other reasons because of the protection society may
need against the
particular offender. See
S
v Maarman
1976(3)
SA 510(A) at 513A-B.
In
S
v Hawthorne & Another
1980(1)
SA 521 (A), it was held that a trial judge in imposing sentence
could take into account the fact that the accused had
been in
detention for a long time and could apply that fact for the benefit
of the accused by making the period of imprisonment,
which was
actually imposed, shorter than it would otherwise have been.
In my view, without
minimising the seriousness of the crime or armed robbery, and
mindful of the need to quell crimes of violence,
a sentence of
direct imprisonment for eight years, after a period of 14 months in
custody, for youthful culprits, who were effectively
first
offenders, and who were in regular employment before their arrest,
and, in the case of Visagie, who was voluntarily maintaining
a
child, for a crime in which the weapons used were items not designed
as weapons, in which serious injuries were not caused
and in which
relatively little was taken, is disturbingly inappropriate.
I consider a period of
direct imprisonment for each appellant to have been appropriate, but
blending the need to send a strong
message to the community that
crimes of the kind in question will not be tolerated with an element
of mercy, and to provide an
incentive for the appellants to mend
their ways, I would have imposed on each of the appellants a
sentence of imprisonment for
eight years, of which three were
suspended for a period of five years from the date of his release,
on condition that he was
not convicted of a crime involving theft or
attempted theft or violence or a threat of violence committed within
that period.
Conclusion
:
I
would accordingly dismiss the appeals against the convictions, but
uphold the appeals against the sentences and substitute for
the
sentence in respect of each appellant, a
SENTENCE
OF IMPRISONMENT OF 8 (EIGHT) YEARS OF WHICH (3) THREE YEARS ARE
SUSPENDED FOR A PERIOD OF 5 (FIVE) YEARS FROM THE DATE
OF HIS
RELEASE
on
condition that he is not convicted of a crime involving theft or
attempted theft or violence or the threat of violence committed
within that period.
JOHN
ROGERS, AJ
GRIESEL,
J
:
I agree. It is so ordered.
GRIESEL,
J