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[2010] ZAGPPHC 603
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Mpungose v S (A1034/2009) [2010] ZAGPPHC 603 (27 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO:
A1034/2009
DATE: 27 MAY 2010
In the matter
between:
SIFISO
MPUNGOSE
..........................................................................................................................
Appellant
And
THE
STATE
......................................................................................................................................
Respondent
JUDGMENT
LEDWABA,
J
[1]
The appellant was convicted on 4 counts of robbery with aggravating
circumstances (counts 1, 2, 4 and 5), one count of contravening
section 3 of Act 60
of 2000
(unlawful
possession of a firearm) (count 3) and attempted robbery with
aggravating circumstances (count 6). Counts 1, 2, 4 and
5 were taken
together for sentence and he was sentenced to fifteen years
imprisonment. On count 3 he was sentenced to
five
years imprisonment. On Count 6 he was sentenced to
five
years imprisonment which was to run concurrently with the sentence of
fifteen years imprisonment on counts 1, 2, 4 and 5. Appellant
was
then effectively sentenced to twenty years imprisonment and was
further declared unfit to possess a fire arm.
[2]
According to the charge-sheet all the offences were committed on 18
th
October 2008 at Wattville in the Region of the Gauteng District.
Appellant was legally represented during the trial in the court
a
quo.
[3]
Leave to appeal against conviction and sentence was granted by the
High Court after the court a
quo
refused
to grant the application for leave to appeal.
[4]
For convenience sake, I will refer to the incidents where counts 1
and 2 were allegedly committed as ‘the first incident’
and the incidents where counts
A.
5
and 6 were allegedly committed as ‘the second incident’.
Count 3 is an element in the first and second incidents.
How count 3
was committed, will be apparent when I discuss the facts relating to
the first and second incidents.
[5] Thokozani Mbala
(Thokozani) and Vuyiswa Mthunzi (Vuyiswa) testified about counts 1
and 2 and said on the 18 October 2008 at
about 21h00 they were
walking together with one Goodman when they were approached by a
group of men. When one of the men from the
group, whom they said is
the appellant, cocked a fire arm, Thokozane tried to run away but
they caught him and three shots were
fired during the event.
Thokozane was hit with a fire arm on his forehead. He sustained an
open wound and bled profusely. The attackers
searched him after he
fell on the ground and took his cell phone, a Nokia 6600.
[6] Vuyiswa was
separated from Thokozane by some of the attackers. She was hit with a
open hand on her face and her cell phone and
a belt were taken.
[7] When the
attackers left, Thokozani went to a nearby shebeen to seek
assistance.
[8] The summary of
the evidence of Ishmael Zwane (Ishmael), Mpumelelo Zwane (Mpumelelo),
and Dikeledi Molehisi (Dikeledi) complainants
in count 4, 5 and 6,
respectively, regarding the second incident is that on 18 October
2008 at about 1h00 whilst on their way to
buy some alcohol beverages
they were attacked by a group of people. One of the attackers cocked
a firearm and demanded money and
cell phones from them.
[9] Ishmael was hit
with the firearm on his left eyebrow. When a shot was fired he took
out R50 and dropped it on the ground. The
attackers took his pair of
trousers and there was R100 in one of the pockets. The attackers took
Mpumeleo’s wallet which
contained R800 and some bank cards. His
pair of takkies was also taken. Dikeledi said when she was searched,
the attackers indecently
touched her breast and private parts.
Nothing was taken from her.
[10] The
complainants said they were instructed by the attackers to lie down
and were not supposed to look at their attackers.
[11] Dikeledi and
Mpumeleo said the offenders left and the person who had a fire arm,
whom they also said is the appellant, remained
behind and one of the
offenders from the group that left, called him by the name ‘Sifiso’.
They further said after
the second incident occurred a vehicle passed
next to them.
[12] Regarding the
first incident, Bongani Magagula (Bongani), seventh state witness,
confirmed that Thokozani did come to the shebeen.
He (Bongani),
invited his co-worker and they all left in a vehicle to look for the
attackers.
[13] They noticed a
group of people in the process of a robbing some people. Thokozani
and himself alighted to check what was happening.
When the vehicle
approached the said group the attackers ran away. They pursued one of
the attackers who cocked the fire arm in
his possession to threaten
them but they managed to catch him when he tried to jump over a
fence. They said the person they arrested
is the appellant.
[14] Thokozani
testified that his cell phone and Vuyiswa’s cell phone were
found in possession of the appellant. However,
Bongani said only one
cell phone was found in the appellant’s possession.
[15] Appellant in
his evidence denied that he robbed the complainant and that he was in
possession of a fire arm. His version, briefly,
was that he was from
his place of employment in Johannesburg on 17 October 2008. He
arrived at Kwikot in Wattville just after 23h00.
A BMW motor vehicle
bumped him. Thereafter the occupants beat him and put him in the
boot. They then took him to the police station.
He further said he
was falsely accused to have been in possession of a fire arm.
[16] He said he was
taken to Thembisa hospital for treatment. When he returned from the
hospital he saw the complainant at the police
station.
[17] Mr. Novella,
the eighth state witness, testified that Bongani came to the police
station with a group of people. He received
a Luger 9mm fire arm, a
cell phone and something (the record of the proceedings reflects
[inaudible] regarding what he further
received), see page 63 lines
2-3 of the record.
[18] Aaron Monkoe
testified that on 12 November 2008 he booked out a 9mm CZ75 fire arm
which was sealed and had a serial number
FSC 577457 from the SAP 13
459/2000 and took it to the Forensic Department.
[19]
In paragraph 3 of exhibit ‘B’, affidavit in terms of
section 212 of the
Act
by
Tebogo Alfred Shametha the fire arm is described as a 9mm Parabellum
Calibre CZ model 75B semi-automatic pistol, serial number
V8505 with
a magazine.
I think Mr. M.
Novella and Mr. Monkoe refer to the same fire arm because both refer
to the same SAP 13.
EVALUATION OF THE
EVIDENCE
[20] The
complainants in the first incident said the attacker was the
appellant and he was wearing dark clothes and they recognised
his
height or body built. However, they could not give a description of
his face. They further said they were seeing the appellant
for the
first time. They said it was dark but there were street lights.
[21] It would not be
proper to convict the appellant solely on the basis of the
identification of the complainants especially because
Thokozani
admitted that he consumed some beers and he further said he felt
dizzy because of the bleeding.
[22] Complainants in
the second incident also said the appellant was one of the attackers
and he was wearing dark clothes. They
also said there were some
street lights some 5-10 metres away from where they were robbed.
[23] Dikeledi said
she also recognised the appellant’s voice.
[24] Regarding the
cell phone Thokozani said two phones were found on the appellant
after he was arrested. However, Bongani said
one cell phone was found
in his possession.
[25] Vuyiswa’s
uncontested evidence is that her cell phone was also taken and she
received it back after about one hour from
Thokozani. I think Bongani
could not have seen the second cell phone taken from the appellant
when he was arrested.
[26] I also need to
take into account that Dikeledi and Mpumelelo said one of the
person’s who attacked them was called by
his name ‘Sifiso’.
[27] Coincidentally
the appellant’s name is also ‘Sifiso’ and he does
not dispute that he was bumped by a vehicle
and arrested by the
people who were in the said vehicle.
[28] According to
the appellant he was arrested on the 17 October 2008 just after
23h00. He did not challenge and dispute the complainants
version that
the arrest took place at about 1H00 on 18 October 2008.
[29] I need to point
out that the magistrate erred in the judgment when he said in
addition to the cell phone an amount of R1000
was taken from
Thokozani. Thokozani testified that only a cell phone was taken from
him.
[30] I think the
magistrate correctly accepted the version of the state witnesses and
found that the accused's version, where it
contradicts with the
version of the state is not reasonably possibly true. The conviction
is in order.
SENTENCE
[31] The only reason
mentioned in the appellant’s heads of argument regarding
sentence is that the magistrate misdirected
himself by imposing an
effective imprisonment term of twenty years and overemphasised
certain aspects.
[32]
It is trite that the court, the appeal court, should not lightly
interfere with the sentence imposed by another court when
the said
court exercised its discretion reasonably and there are no material
misdirections. See
S
v Kgosimore
1992 (2) SACR 238
SCA,
and
S v Nchechê
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W).
[33]
I cannot find any justification to interfering with the sentence of
the court a
quo.
[34]
I therefore, make
the following order:
The
appeal against conviction and sentence is dismissed.
A.P. LEDWABA
JUDGE OF THE HIGH
COURT
I agree,
N. P.
MNGQIBISA-THUSI
JUDGE OF THE HIGH
COURT