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2011
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[2011] ZAGPPHC 40
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Msiza v S (SA05/2005, A 984/2009) [2011] ZAGPPHC 40 (31 March 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
Case
No: SA05/2005
Appeal
Case No: A 984/2009
In
the matter between:
THULANI
BENNY
MSIZA
.............................................................................................
Appellant
and
The
State
...................................................................................................................
Respondent
JUDGMENT
SAPIRE,
A J:
The
Appellant was charged in the Regional Court for the District
Kwamhlanga on the charges of robbery with aggrevating circumstances.
He was found guilty and sentenced to 12 (TWELVE) years imprisonment.
Against this sentence he now appeals.
The
Complainant Frans Mahlanga testified that on the 30th of June 2004 he
was approached by the Appellant who wished to establish
the price of
a blanket. The Complainant was in the business of selling bedding.
The Appellant also wanted to know where the owner
of the blankets
were. Nothing was concluded on that day but the Appellant said that
he would return later. According to the Complainant
the Appellant did
indeed return later but not alone. The Appellant according to him and
the person who accompanied him drew firearms
and although the
Complainant tried to escape the assailants shot at him and wounded
him.
The
Appellant and those who accompanied him robbed him of his vehicle,
blankets, the keys to the motor vehicle and the cellphone
which the
Complainant had.
One
Oupa Mogale who had previously been prosecuted on the same charge and
who had been found guilty and sentenced to 12 (TWELVE)
years
imprisonment also testified. He said that both he and the Appellant
were each in possession of a firearm when they approached
the
Complainant on the day in question. He testified that both of them
had fired on the Complainant.
After
the Complainant had been wounded, he Mogale searched the Complainant
and threw the keys to the motor vehicle which he found
to the
Appellant who took them and used them to start the engine of the
vehicle belonging to the Complainant. They then drove away
in the
motor vehicle. The Appellant, according to him, indicated that he was
looking for a vehicle similar to that of the Complainant
and he told
them what have to be done with the motor vehicle. He denied that he
forced the Appellant to take part in the robbery.
A
further witness Almond Mahlanga, who was a reservist police officer,
found the Appellant at his home on the 1st of July 2004.
The
Appellant, according to him, told him that Oupa Mogale forced him to
take part in the robbery.
The
Appellant had pleaded not guilty to the charge put to him and
provided a wide explanation of his non-participation in the robbery.
He admitted that he, together with a co-accused was on the scene of
the robbery. He also admitted that the Complainant was shot
at the
scene of the offence. He admitted that he drove the stolen vehicle
but said he did so under duress of Mogale.
There
is an overwhelming unlikelihood in the explanation given by the
Appellant. If he was as he claims an innocent spectator to
the
robbery and an unwilling possessor of the motor vehicle it would mean
that those who indeed committed the offence left him
in possession of
the vehicle which they had stolen. Why this should happen cannot be
explained.
This
unlikelihood strengthens the evidence of the Complainant who was
unshaken in his evidence that it was the Appellant who was
an active
participant and collaborator in the robbery.
The
Magistrate analysed the evidence before him carefully and came to the
conclusion on the facts that the Accused is guilty
There
is no misdirection to be found in his judgment, nor can it be said
that his conclusion was unreasonable. Seldom will an Appeal
Court
overrule the decision of a Magistrate on fact alone. I do not think
it would be proper so to do in this case.
An
appeal is also made against the sentence which was imposed.
I
will deal first with the sentence. The offence is one falling within
the provisions of Section 51(2) of Act 105 of 1997.
In
my view the Magistrate went as far as he could in treating the
Appellant leniently. He considered the personal circumstances
of the
Appellant, merited a lighter sentence. I see no reason to interfere
with the sentence imposed by the Magistrate.
It
follows that the appeal both as to the merits and the sentence should
be dismissed.
SAPIRE
AJ
I
AGREE:
MABUSE,
J