About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2012
>>
[2012] ZASCA 26
|
|
Dlamini v S (362/11) [2012] ZASCA 26; 2012 (2) SACR 1 (SCA); [2012] 2 All SA 569 (SCA) (27 March 2012)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 362/11
In the matter between
MUSA DLAMINI
…....................................................................................
APPELLANT
and
THE STATE
….......................................................................................
RESPONDENT
Neutral citation:
Dlamini v
S
(362/11)
[2012] ZASCA 26
(27 March 2012)
Coram
: FARLAM, VAN HEERDEN,
CACHALIA, SNYDERS and MAJIEDT JJA
Heard: 17 FEBRUARY 2012
Delivered: 27 MARCH 2012
Summary: Duplication of convictions
– armed robbery involving three robbers acting with a common
purpose to rob three people
on a single occasion. Accused charged
with three offences – correctly convicted as evidence
established three separate robberies
– no duplication of
convictions.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
KwaZulu-Natal
High Court, Pietermaritzburg (Ntshangase J and Gorven AJ sitting as
court of appeal):
The appeal against the convictions on
counts 2 and 3 is dismissed.
The appeal against the sentence is
upheld.
The order of the court below on
sentence is set aside and substituted with the following:
‘
The appeal
against sentence is upheld and the order of the trial magistrate is
set aside and the following order is substituted
in its place:
“
(a) The
accused is sentenced to fifteen years’ imprisonment on
each of counts 1 and 2 and to ten
years’ imprisonment on count 3;
The accused is sentenced to three
years’ imprisonment on count 4;
The accused is sentenced to one
year’s imprisonment on count 5;
The sentences on counts 2 and 3 are
ordered to run concurrently with the sentence on count 1 and the
sentence on count 5 is ordered
to run concurrently with that on
count 4;
One year of the three years on count
4 is ordered to run concurrently with the sentence on count 1.
In terms of s 12 of the Arms and
Ammunition Act 75 of 1969, the accused is declared unfit to possess
a firearm.
The effective sentence to be served
is seventeen years’ imprisonment.”’
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA (FARLAM JA concurring):
[1] This appeal, from the
KwaZulu-Natal High Court, is aimed at securing the reduction of an
effective sentence of 43 years’
imprisonment that was imposed
on the appellant on three counts of robbery arising from an incident
on 26 April 2002, and two unrelated
charges for the unlawful
possession of a firearm and ammunition.
[2] Although this court, on petition,
granted the appellant leave to appeal only against his sentence –
and Mr
Kemp
,
who appeared on his behalf, drew his heads of argument on this basis
– Ms
A Watt
,
counsel for the state, in her written submissions, requested us to
consider the ‘fact that there was a duplication of convictions’
for the three robbery charges. In support of this submission, and
relying on
dicta
of
Wessels JA in
S v Grobler &
another
1
she contended that the three charges
arose from actions committed with a ‘single intent’ in a
‘continuous transaction’.
There was, she submitted, in
substance only one offence of robbery – not three – which
this court ought to consider
when deciding on an appropriate
sentence. Ms
Watt
accordingly supported the appellant’s
appeal for the sentence to be reduced. So, at the court’s
invitation, Mr
Kemp
applied to amend his grounds of appeal
to include duplication of the robbery convictions, and was granted
leave to proceed on this
basis.
[3] The appellant, Mr Musa Dlamini,
was indicted in the Pinetown Regional Court on six counts: three of
robbery arising from the
incident on 26 April 2002, one of theft and
two for the unlawful possession of an unlicensed firearm and
ammunition. The theft
charge – not related to the robbery –
concerned a motor vehicle that was allegedly stolen in 1999. The
police discovered
the firearm and ammunition, which were the subject
of the remaining charges, in Mr Dlamini’s possession three
days after
the robbery. There was, however, no evidence linking this
firearm and the ammunition to the robbery.
[4] The regional magistrate convicted
Mr Dlamini on all counts and found that the robbery occurred in the
manner described below.
[5] At about 19h00 on 23 April 2002,
Mrs Janet Burgess was at her private residence in Pinetown waiting
for her friends, Mrs Ingrid
Usher and Mrs Gale Acutt, to arrive.
They had arranged to drive together to a church nearby.
[6] Mrs Usher arrived, first in a
Volvo motor-vehicle. As she drove into the driveway of Mrs Burgess’s
house, Mrs Burgess
emerged from her house, locked her front door and
turned on the lights illuminating the driveway in front of the
garage. She walked
a few steps to Mrs Usher’s vehicle and asked
her whether it would be convenient for all of them to travel to their
destination
in the Volvo. Mrs Usher agreed and Mrs Burgess then
got into the car next to her.
[7] Soon Mrs Acutt also arrived there
in her Toyota motor-vehicle and parked in the driveway a short
distance from the Volvo. She
alighted from her vehicle and began
walking towards the Volvo, which had its headlights on and was facing
the entrance gate ready
to depart.
[8] At that point three men clad in
blue overalls appeared in the driveway. They moved swiftly towards
the Volvo. Mr Dlamini was
among them. One of the men pointed a
firearm at Mrs Acutt, who had reached the Volvo and was preparing to
open the rear passenger
door to join her friends. The men demanded
that the women hand over their possessions. Mrs Acutt tried to steer
clear of the armed
man by moving towards the back of the vehicle. At
the same time she dropped her car keys next to the back wheel in an
attempt to
conceal them from the intruders.
[9] Mrs Burgess stepped out of the car
as one of the two unarmed robbers – later identified as Mr
Dlamini – moved quickly
towards her demanding that she give him
all her possessions. She complied by handing over her handbag and
house keys to him.
[10] The robbers also commanded the
women to hand over the keys of both cars. Again, they obeyed. The men
then got into the two
cars and drove off quickly, taking with them
the personal effects of the three women including their handbags,
prescription glasses,
cellular phones, cash and a video camera. The
incident lasted only a few minutes.
[11] The three charges of robbery were
for the items taken from the three women, including the two vehicles
belonging to Mrs Acutt
and Mrs Usher. Mr Dlamini was the only
person charged with these offences. His evidence that he was not
present at the scene
of the robbery was false and was properly
rejected by the magistrate. The high court correctly confirmed this
finding.
[12] Mr Dlamini’s conviction for
the unrelated firearm and ammunition offences was also upheld by the
high court. However,
the high court set aside his conviction for the
theft of the motor vehicle in 1999 because of insufficient evidence.
The Magistrate’s Judgment on
Sentence
[13] The magistrate sentenced Mr
Dlamini to 15 years’ imprisonment each for the robbery of Mrs
Acutt’s and Mrs Usher’s
vehicles as well as their
personal effects, and to ten years for robbing Mrs Burgess.
Section
51(2)
of the
Criminal Law Amendment Act 105 of 1997
read with Part ll
of Schedule 2 is the sentencing regime applicable to these offences.
It requires a minimum sentence of 15 years’
imprisonment to be
imposed on a first time offender, where there were aggravating
circumstances during a robbery or where the offence
involved the
taking of a motor vehicle.
Section 1
of the
Criminal Procedure Act 51
of 1977
includes within its definition of aggravating circumstances
the wielding of a firearm and the threat to inflict grievous bodily
harm. Both conditions were present during the robbery. This being so,
the magistrate did not explain why he imposed a sentence
of 10 years
instead of 15 years, for the count relating to the robbery of Mrs
Burgess, but nothing turns on this.
[14] On the firearm and ammunition
charges Mr Dlamini was sentenced to three years’ imprisonment
(three years for the firearm
and one year for the ammunition, which
were ordered to run concurrently) and to two years for the theft of
the motor vehicle in
1999. Together with the three robbery counts he
was sentenced to serve a total of 45 years’ imprisonment.
[15] Mr Dlamini’s legal
representative asked the court to order that the sentences run
concurrently ‘as (they) were
committed at the same time’.
The prosecutor on the other hand asked for the maximum sentence for
each of the robbery counts
to be served consecutively because of the
gravity of Mr Dlamini’s conduct. This submission was surprising
in the light of
her concession that he was ‘an ideal candidate
for rehabilitation’. Nevertheless she accepted that the
‘maximum
sentence’ may be considered too excessive and
therefore asked for a sentence of ‘nothing less than 30 years’.
The magistrate had no regard to these submissions. His judgment is
replete with misdirections the effect of which I shall consider
later.
[16] But first I must consider the
issue that was raised at the beginning of this judgment –
whether Mr Dlamini’s conviction
for three counts of robbery
instead of just one count offended the rule against duplication of
convictions. The purpose of the
rule is to avoid a person being
convicted and sentenced more than once for what is in substance a
single offence, which could have
been embodied in a composite
charge.
2
It forms part of the constitutional
right to a fair trial.
3
[17] Although
s 83
of the
Criminal
Procedure Act 51 of 1977
permits prosecutors to charge a person with
more than one offence when it is doubtful which of several offences
may have been committed,
it remains the court’s duty to be
vigilant that no duplication occurs.
4
This is to avoid prejudice to an
accused: not only is there the likelihood that the accused may be
punished more severely if convicted
for multiple offences instead of
just one, but these offences become part of the offender’s
criminal record. The prejudice
is evidently more serious in cases
where compulsory minimum sentences apply.
[18]
In
this regard s 51(2) of the Criminal Law Amendment Act 105 of 1977,
which is applicable here, requires a court to impose a harsher
sentence in the case of second or third and subsequent offenders. The
effect on the appellant is that he not only has a less flattering
criminal record, but if he re-offends a court would be obliged to
treat him as a triple-offender if he is again found guilty of
robbery, and to apply a minimum sentence of 25 years’
imprisonment unless the circumstances justify a lesser sentence.
[19] Our courts have applied different
tests to decide whether duplication has occurred. In
S
v Maneli
5
Streicher JA explained:
‘
One
such test is to ask whether two or more acts were done with a single
intent and constitute one continuous criminal transaction.
Another is
to ask whether the evidence necessary to establish one crime involves
proving another crime.’
[20] There is
however no all-embracing formula. The various tests are mere
guidelines – they are not rules of law, nor are
they
exhaustive. Their application may yield a clear result, but if not a
court must apply its common sense, wisdom, experience
and sense of
fairness to make this determination.
6
[21] Robbery
consists of the theft of property by intentionally using violence or
threats of violence to induce submission to its
taking.
7
It is thus a crime
involving two unlawful acts – taking property and performing a
violent act upon a person.
8
Mr Dlamini
committed no violent act himself. He took Mrs Burgess’s
property from her after one of his co-robbers threatened
the three
women at one and the same time with a firearm. His liability for the
robbery of the three women could thus only have
arisen from a common
purpose, which the state neither alleged nor sought to prove. The
evidence did not establish any prior agreement
to commit the crime.
But it did prove that the three men, including Mr Dlamini, actively
associated themselves with the commission
of the crime against each
of the three women with the requisite fault element. So the finding
that Mr Dlamini was liable for the
robbery of the three women was
correct, albeit that the charge sheet may have been deficient in
failing to specify a common purpose
to commit the crime.
[22] In my view it
is clear that the ‘single intent’ – or in this case
the single common intent – of the
robbers involved the threat
to take property from the three women and the taking of their
property in ‘one continuous transaction’.
Furthermore,
this was accomplished through a single threat of violence directed at
the three women simultaneously. This evidence
– the violent
threat – which was necessary to establish each charge involved
proving the other two charges. So both
tests in
Maneli
were
satisfied.
[23] However, even
without the application of these tests to this case, to conclude that
three offences were committed – when
in substance only one was
– would defy common sense and fairness. Moreover, it would
contradict the recent approach of this
court in
Maneli.
[24] The facts in
Maneli
were these: Several
robbers went to a farm. They first stole money from an office and
shortly afterwards also stole electronic equipment
from a homestead
nearby. To achieve their purpose they incapacitated the owner of the
farm and assaulted one of his gardeners in
the office. They then went
to the homestead and tied up a visitor to the farm and a domestic
employee. The robbers were charged
with two offences, the robbery of
the farmer’s cash from the office and the electronic equipment
from the visitor, and were
convicted in a lower court on this basis.
On appeal, it was held that because the assaults on the farmer and
the visitor were done
with the same object in mind – to steal
the property from the office and the homestead – only one
offence was committed.
The court said that ‘the theft of the
money from the office and from the house by the use of violence to
induce submission
was done with a single intent and constituted one
continuous transaction’.
9
There was thus, it
held, a duplication of convictions.
[25] One of the
differences between
Maneli’s
case and the
present one is that there the property of a single person was taken,
whereas here three women had their property removed
by force. That is
not a material difference because ownership of property stolen is not
an element of the crime of robbery. The
case for a duplication of
convictions is even stronger in the present case because the property
was taken from the three women
through a single threat of violence at
the same time and at the same place, which was not the case in
Maneli
where
the theft involved two physical acts of violence on two separate
occasions.
[26] During the
hearing Ms
Watt
informed
us that the practice of the Director of Public Prosecutions is to
charge offenders in cases such as this with a single
offence, not
multiple crimes. That approach is sensible and the facts of this case
demonstrate this.
[27] Mr Dlamini’s
conduct could comfortably have been brought within the ambit of one
charge.
10
He therefore ought
to have been charged with only one count of robbery committed with a
common purpose – and to have been
punished on this basis.
Moreover, the learned magistrate failed in his duty to consider
whether there had been a duplication of
convictions. Had he done so
he would doubtless have come to another conclusion and imposed a
significantly lesser sentence that
was proportionate to the crime.
[28] I now turn to examine the
magistrate’s approach to sentence. The record shows that Mr
Dlamini’s legal representative
placed his personal
circumstances before the magistrate in mitigation on 28 February
2003. These were scant and hardly touched
upon the important
questions always relevant to sentencing – the offender’s
motive for committing the crime and his
prospects for rehabilitation.
They revealed that he was 22 at the time of the robbery, but was
still at school doing Grade 11.
He had no parents, having lost his
mother in 1984 and his father in 2000. However, he had two children –
a six-year old and
a baby of just seven months. At the time of his
arrest on 26 April 2002 he was living with his aunt. He had no prior
history of
offending. The record also shows that the Mr Dlamini
spent approximately ten months in custody before he was sentenced.
The
learned magistrate considered none of this evidence relevant in
his determination of sentence. As mentioned earlier he misdirected
himself completely on this aspect.
[29] First, he appears to have
misunderstood how to apply the minimum sentence regime to these
offences. ‘Sentences, relating
to these offences have been
prescribed by the legislature, not by the court’ he wrote.
‘And’, he continued: ‘if
the courts do not comply
with the laws made by parliament, then the courts might as well close
down because they are not complying
with the rules and laws of the
lawmakers’. Moreover, he concluded, ‘if an offence is of
such a serious nature, one
does not have to worry about the personal
circumstances of the accused like that he is a first offender and so
on because the interest
of society require that it be dealt with
commensurately’ (sic).
[30] The magistrate’s reasoning
suggests that he was not aware of this court’s judgment in
S
v Malgas
11
that was handed down two years
earlier. It dealt with the effect of the minimum sentence
dispensation and concluded that while the
minimum sentence prescribed
by the legislature should
ordinarily
be imposed the sentencing
court retained its discretion to impose a lighter sentence if there
was weighty justification for doing
so.
12
In this regard the court made clear
that all factors traditionally taken into account in sentencing
(whether or not they diminish
moral guilt) continue to be relevant.
[31] The second misdirection was that
he punished Mr Dlamini for the participation of his co-robbers in the
commission of these
crimes. Of course, the fact that a robber acts
with others when committing a crime is an aggravating factor of which
a court must
take account. But it is not permissible to make an
accused ‘shoulder the blame’, as the magistrate put it,
because
the other robbers were not made to account for their part in
the crime. An offender can be punished only for his own criminal
conduct
and the conduct of co-perpetrators that is imputed to him –
nothing more.
[32] Thirdly, the magistrate surmised
that the crime had been carefully planned, which is an aggravating
factor. But this was pure
speculation. There was no evidence
whatsoever to suggest that this crime was planned, and it was
certainly not an inference that
could safely have been drawn from the
circumstances under which the robbery took place.
[33] Finally, and assuming that there
was no duplication of convictions, the magistrate’s most
serious misdirection was his
failure to consider the cumulative
effect of the sentences. Only the sentences imposed on the firearm
and ammunition counts were
ordered to run concurrently, the effect of
which was to reduce the total sentence to be served by just one year.
All the other
sentences, including the theft of the motor vehicle,
were ordered to run consecutively. The total of 45 years’
imprisonment
was a sentence of 15 years more than even the state
thought it could legitimately ask for. It seems that the magistrate’s
unexplained premise for ordering the sentences to run consecutively
was his erroneous assumption that the minimum sentence regime
required this. So
even
if Mr Dlamini had committed three offences, they were perpetrated ‘at
the same time and place, and in a single unbroken
sequence’.
13
Here too common
sense and fairness suggest that he ought to have been punished as if
only one offence was committed.
The Judgment of the High Court
[34] As I have mentioned the high
court set aside Mr Dlamini’s conviction for the unrelated motor
vehicle theft in 1999, but
confirmed the convictions for the three
counts of robbery as well as the firearms and ammunition charges. So
the two year sentence
for the theft fell away leaving an effective
sentence of 43 years’ imprisonment, which it also upheld.
[35] The high court (Gorven AJ,
Ntshangase J concurring) dealt cursorily with Dlamini’s appeal
against his sentence and concluded:
‘
[I]n
the light of all the relevant circumstances of the matter and taking
into account the relative youth of the appellant as well
as the fact
that this was a first offence and weighing it against the manner in
which the offence was committed, indicating that
this was a slick and
professional operation, and weighing it also in the light of the
legislature’s indication of the seriousness
of the offence in
the eyes of the community, I cannot find that the magistrate imposed
a sentence any different from the one which
I myself would have
imposed. There is therefore no basis on which to find that this court
is at large to intervene and impose its
own sentence.’
[36] In approaching the issue in this
manner the high court seems to have laboured under the same
misapprehension as the magistrate
did – that the minimum
sentence regime required these sentences to be served consecutively.
What also weighed with the high
court was, as the magistrate
similarly found, that this ‘was a slick and professional
operation’ justifying the severest
sentence. As I indicated
earlier, there was simply no evidence, circumstantial or otherwise,
to support this inference. Ms
Watt
, who appeared for the state
in this appeal, to her credit did not seek to defend this flawed
reasoning.
[37] I turn to consider the
appropriate sentence. The robbery was a serious crime aggravated by
the fact that Mr Dlamini acted in
concert with two others. The three
women who were going about their normal business went through a
terrifying experience –
one that they would no doubt fear could
happen to them again. Only one of the two cars and some of the items
taken during the robbery
were recovered.
[38] However, Mr Dlamini directed no
physical violence against any of the victims. His conduct went no
further than taking Mrs Burgess’s
possessions, albeit that this
was induced under the threat of violence by one of his co-robbers.
[39] It is unfortunate that Mr
Dlamini’s legal representative placed so little evidence in
mitigation of sentence before the
trial court. On the face of it the
fact that the appellant had lost both his parents – his mother
when he was only 13 –
must have had some bearing on what
happened to him. Also the court was told nothing of the circumstances
of how he came to father
two children and whether he was fulfilling
any responsibility for them. Importantly, no evidence was led
regarding his schooling,
save for the fact that he was in Grade 11,
which may have assisted the court in considering his prospects for
rehabilitation. In
short no substantial and compelling circumstances
were placed before the court to justify the imposition of a lesser
sentence.
Fifteen years’ imprisonment is therefore a proper
sentence for his role in the robbery notwithstanding the wrong
approach
by both the magistrate and the high court.
[40] The effective sentence of three
years’ imprisonment for the firearm and ammunition charges is
in and of itself not unduly
harsh. Mr
Kemp
did not suggest that it was. So taken
together with the fifteen years’ for the robbery the sentence
he ought to serve is eighteen
years.
[41] This brings me to the ten months
Mr Dlamini spent in custody before he was sentenced which, as I have
mentioned, neither the
magistrate not the high court took into
account in deciding the appropriate sentence. It is trite that the
period an accused is
held in custody while awaiting completion of his
trial should be taken into account when deciding on the appropriate
sentence.
14
This is done by making the period of
imprisonment actually imposed shorter than it would otherwise have
been. However, the courts
have not spoken clearly on how to calculate
this period. One approach has been to do an inexact subtraction;
15
another is to deduct the period
actually spent;
16
yet another is to treat the time spent
in custody at the very least as equivalent to the time served without
remission
17
and
a fourth more adventurous method is to treat the period as equivalent
to about twice the length because of the harsher conditions
that
awaiting-trial prisoners are subjected to in comparison with the
conditions of sentenced prisoners.
18
[42] As we have not had the benefit of
argument on what the correct approach should be I refrain from saying
anything further on
this question – particularly in the case of
prison conditions – as this would depend on the facts. Suffice
to say that
the courts have spoken clearly that an appellant is
entitled to the benefit of the period of his incarceration. In Mr
Dlamini’s
case this was ten months, which equates roughly to a
year in custody. I would deduct this period from the overall
sentence of 18 years’
imprisonment, which it otherwise would have been, and impose an
effective sentence of 17 years’
imprisonment.
_______________
A CACHALIA
JUDGE OF APPEAL
MAJIEDT JA ( VAN HEERDEN AND
SNYDERS JJA concurring):
[43] I have read the judgment of
Cachalia JA. I disagree with his conclusion that there was a
duplication of convictions on counts
1, 2 and 3. I, however, agree
with him that the appeal against sentence should be upheld for the
reasons enunciated in paras 28
to 42 above, in particular paras 33
and 36, as far as the concurrency of the sentences on counts 1, 2 and
3 is concerned.
[44] The facts are fully detailed in
the judgment of Cachalia JA. It is, however, necessary that I expand
on some of the facts and
place others in proper context.
[45] A useful point to start with is
the charge sheet. Counts 1, 2 and 3 are germane to the appeal and I
shall, in the interest
of brevity, refer to them collectively as ‘the
charges’. There were three complainants on the charges. In
count 1 the
appellant was charged with ‘robbery with firearms’,
understood by all concerned at the trial to mean robbery with
aggravating
circumstances where a firearm was used. The State alleged
that Mrs Acutt was unlawfully, intentionally and by force divested of
a Toyota Corolla motor vehicle, a video camera, a cellphone, two
pairs of sunglasses, one pair of prescription glasses and a handbag
containing cosmetics. In count 2 the charge was one of robbery with
aggravating circumstances in respect of Mrs Burgess. The State
averred that Mrs Burgess had been robbed of a Volvo motor vehicle, a
pair of prescription sunglasses, a pair of prescription reading
glasses, various tapes and a pair of sandals. Count 3 was also one of
robbery with aggravating circumstances in respect of Mrs
Usher who
was allegedly robbed of a handbag containing a purse, a cellular
phone, a cheque book, cash, a cosmetics bag, two pairs
of reading
glasses and one pair of sunglasses. Counts 2 and 3 were wrongly
framed inasmuch as Mrs Usher, and not Mrs Burgess, had
been robbed of
the Volvo and the other items listed above. It appears that the State
had erroneously switched the lists of stolen
items around in this
regard.
[46] As stated, the appeal was before
us only on sentence – the appellant sought leave on petition
only against the sentence,
which was granted. Counsel argued the
duplication of convictions aspect without the advantage of prior
preparation and research,
in the circumstances explained by Cachalia
JA.
[47] According to the evidence, one of
the three robbers had a firearm which he pointed at all three
complainants. Mrs Usher was
in her car (the Volvo) in the driver’s
seat, Mrs Burgess was seated in the front passenger seat and Mrs
Acutt was approaching
the Volvo from the rear to occupy the seat
behind the driver, when the firearm was pointed at them. This
constituted the main threat
to the complainants, although other
threats and demands were also uttered and addressed to them
individually and as a group. The
complainants testified that one
robber (identified by Mrs Burgess at an identification parade as the
appellant) first approached
Mrs Burgess and demanded her handbag and
other possessions. The other robber approached Mrs Acutt to demand
the keys of her Toyota
Corolla, while the one with the firearm
continued pointing it at Mrs Usher. Mrs Usher vacated the driver’s
seat, walked towards
the rear of the Volvo and handed over her car
keys to one of the robbers when this was demanded of her. The robbers
eventually
drove off with both vehicles and with various belongings
of the complainants in their possession.
[48] Against this factual background,
together with the facts set out by Cachalia JA, what falls to be
decided is whether there
has been a duplication of convictions on the
charges. For the reasons that follow, I am of the view that the
evidence established
three separate counts of robbery and that the
appellant had been correctly convicted. In my view,
S
v Maneli,
19
relied upon by Cachalia JA, is
distinguishable on the facts. But before I set out my reasons for
differing on these aspects, it
is necessary to restate the general
legal principles regarding robbery.
[49] Cachalia JA cites the definition
of robbery as set out in
Maneli
20
which, in turn, emanates from Prof
Milton’s work.
21
That definition accords broadly with
those advanced by Prof Snyman
22
and by Prof de Wet.
23
As Cachalia JA states, robbery
comprises two unlawful acts, one the taking of property and the other
the perpetrating or uttering
of a violent act upon or violent threats
to a person.
24
While the definition and the essential
elements of the offence are straightforward, the application thereof
to factual situations
is not, as this case demonstrates. Prof Milton
correctly observes that ‘[t]his duality lends a measure of
complexity to the
analysis and application of the elements of the
crime that has ensured a continuing quality of ambiguous uncertainty
about the
crime, which sometimes leads to strange anomalies’.
25
[50] Two further elements of the
offence bear emphasis. Firstly, there must be a causal link between
the violence perpetrated and
the taking of the property.
26
Secondly, robbery, unlike theft, is
not a continuing crime – the offence of robbery is complete
once
contrectatio
is effected.
27
These are important considerations in
assessing whether there has been a duplication of convictions. I
hasten to point out that
the observation that robbery is not a
continuing crime
must not be confused with the factual
matrix (as in
Maneli)
where two or more acts are done with a
single intent, constituting one
continuous
transaction.
In the first
instance a robbery would be completed once property has been taken
from the victim as a result of violence or threats
directed at him or
her. Where violence is directed at a person after the goods had been
taken, our courts have held that it is
not the offence of robbery
that is committed.
28
In the second instance, on the other
hand, a single intent to take property by means of violence towards
persons at separate locations
in one continuous transaction can, in
appropriate circumstances, constitute one robbery. This was the case
in
Maneli,
29
which I turn to discuss next.
[51] My brother Cachalia JA has
already expounded the facts and findings in
Maneli
.
The present matter differs in my view materially from
Maneli
on the facts in the following
respects: firstly, all three women were threatened separately and
together and their property taken
from them individually, separate
from the others. Unlawful threats of violence and the taking of
property were thus perpetrated
separately in relation to each of the
women. In
Maneli
various people were threatened and
violent acts were directed at various people, but only the
complainant’s (Mr Maske’s)
property was stolen. That
property was in the complainant’s possession and under his
control, thus only one robbery was committed.
The threats and
violence against the persons present there, including the
complainant, facilitated the theft of the complainant’s
property. The second difference is to be found in the intent
requirement. In
Maneli
there was a single intent, namely to
deprive the complainant of his property through violence. That single
intent was executed in
one continuous transaction, at the
complainant’s office and at his house. As the appellant in the
present matter denied involvement
in the incident, his subjective
intention could not be investigated during the trial. As his
conviction is dependent upon him having
had the requisite intention,
it has to be inferred from his actions and those of his accomplices
insofar as he associated himself
with their actions, as testified to
by the three victims. That evidence reveals:
A threat with a firearm by one of the
perpetrators (I refer to him as the second perpetrator for ease of
reference) aimed and
directed at all three women;
That threat, together with
threatening and demanding utterances by all the perpetrators,
facilitated the removal of property from
all three women;
The appellant took a handbag and
other possessions from Mrs Burgess;
The inference that the appellant had
the intention to rob Mrs Burgess lies in his own action of taking
her property from her,
threatening her and associating himself with
the second perpetrator’s threat towards her. That completes
the crime of robbery
of Mrs Burgess;
The third perpetrator (reference
again for convenience) took the handbag, the Toyota motor vehicle
and its keys from Mrs Acutt
whilst threatening her and associating
himself with the threat by the second perpetrator towards her. Thus
the third perpetrator’s
actions fulfilled all the elements of
the crime of robbery towards Mrs Acutt;
Because the appellant made common
purpose with the second and third perpetrators, as correctly pointed
out by Cachalia JA in para
21 above, he is also guilty of the
robbery committed by the third perpetrator against Mrs Acutt
although he personally took no
action against her;
The same reasoning, applied to the
robbery of Mrs Usher, leads to the conclusion that the appellant is
also guilty of the robbery
committed against her.
This illustrates that it is not
possible to conclude, from the events testified to by the three
victims, that the appellant had
‘a single intent’.
In the present matter there was a
separate intent by the three robbers to rob each of the three women.
That separate intent in respect
of each woman was executed separately
in respect of each woman.
[52] One might ask rhetorically: if
the three women had been raped by the appellant, can it ever be
argued that there was only one
offence of rape? Reverting to robbery:
if violent acts are performed on a number of persons, but property is
taken from only one
of them, then there is only one robbery, and
several assaults, as was the case in
Maneli
.
If violence is directed at only one person, but property is taken
from several persons, including the one against whom violence
was
directed, then there is one robbery and several thefts. But where
violence or threats are perpetrated against three persons
and
property taken from all three as a result of such violence or
threats, there are three robberies. The point can be made by
simply
asking – who was robbed by the appellant? If it was only one
robbery, the inevitable consequence must be that only
one of the
women was robbed of all of the property, despite the fact that it was
taken from the possession of the others. The next
logical question
would be – who is the woman that was robbed? The difficulty in
answering these questions does not arise
when they are posed in
respect of
Maneli
.
There Mr Maske, the complainant, was robbed of all of the property,
as it was in his possession or under his control. The presence
of
others against whom violence was directed in the course of the
robbery, was merely incidental to the robbery of the complainant,
although the accused in
Maneli
could legitimately have been charged
with the assault of the other persons. In the present matter,
however, property was taken from
the possession and control of each
of the women separately, through the use of threats of violence.
[53] It is difficult to comprehend
how, for example, the taking by force of Mrs Acutt’s property
could constitute a robbery
of Mrs Burgess, and vice versa. A similar
difficulty arises with the finding that the appropriation of Mrs
Usher’s property
by force constitutes a robbery of Mrs Acutt or
Mrs Burgess. Snyman defines robbery as the ‘theft of property’
by intentionally
and unlawfully using violence or threats to take the
property from someone else.
30
So, one of the elements of robbery is
theft. All the requirements of theft also apply to robbery. Theft is
in turn defined as appropriation
of corporeal, movable property
which, inter alia, ‘belongs to, and is in the possession of
another’.
31
So, in the case of robbery, the fact
that the perpetrator takes property belonging to and in possession of
three different persons
clearly constitutes three counts of robbery.
In
Maneli,
on
the other hand, property belonging to and in the possession of only
one person was appropriated.
[54] The single intent and continuous
transaction test, as applied to an enquiry regarding the improper
duplication of convictions,
has already been discussed above. Another
test is the enquiry whether the evidence necessary to establish one
crime involves proving
another crime.
32
As is the case with the single intent
test, above, this second test also compels one to the ineluctable
conclusion that there were
three separate robberies. If the State had
led the evidence of one complainant only in relation to the property
she had been forcibly
deprived of, all the elements of the crime of
robbery would have been proved. This is true of all three
complainants.
[55] A brief consideration of the
principles regarding duplication of convictions is apposite.
Section
83
of the
Criminal Procedure Act 51 of 1977
enables the State to
draft charges as widely as it may deem necessary, to the extent that
it may technically amount to a duplication
of charges. That the law
permits. But what is not permitted is duplication of convictions in
order to safeguard an accused against
being convicted twice in the
same case for the same offence. As stated by Cachalia JA, where the
application of the two tests to
determine whether there has been a
duplication of convictions yields no clear result, a court is called
upon to apply its common
sense, wisdom, experience and sense of
fairness to reach a decision.
33
As demonstrated above, on the evidence
and in applying the two tests, three separate offences were
committed. To hold otherwise
would be to distort a fundamental legal
principle, leading to anomalous results. As Wessels JA said in
S
v Grobler
en ‘n
ander:
34
‘
The
test or combination of tests to be applied are those which are on a
common sense view best calculated to achieve the object
of the rule.’
The rule is primarily aimed at
fairness. This, however, embodies fairness to both the accused and
the State. Harms DP put it thus
in the context of the Constitution’s
fair trial provisions in s 35:
‘
Fairness
is not a one-way street conferring an unlimited right on an accused
to demand the most favourable possible treatment, but
also requires
fairness to the public as represented by the State’.
35
The rule cannot be applied where it
would lead to manifest unfairness to the State, as would be the case,
in my view, were Cachalia
JA’s views to be upheld. To borrow
again from Wessels JA in
S v
Grobler en ‘n ander:
36
‘
The
main purpose and social function of criminal proceedings are to
establish the guilt of an accused person in respect of criminal
conduct so that he may be punished according to law for that
conduct.’
The practice of the DPP, referred to
by Cachalia JA in para 26, is ill conceived as s 83 of the Act
specifically permits a broader
approach to be followed in the
formulation of charges. But once evidence is heard a court should be
mindful of the rules regarding
the duplication of convictions. The
manner in which charges had been formulated in the present matter
constitutes the proper approach.
[56] To summarise: the evidence
plainly established the commission of a separate robbery against each
of Mrs Acutt, Mrs Burgess
and Mrs Usher. The application of the
single intent, continuous transaction test and of the evidence test
inexorably leads to this
conclusion.
[57] In the premises, I would dismiss
the appeal against conviction on counts 2 and 3. I would, however,
for the reasons set out
above, uphold the appeal against sentence. In
the result, the following order is made:
The appeal against the convictions on
counts 2 and 3 is dismissed.
The appeal against the sentence is
upheld.
The order of the court below on
sentence is set aside and substituted with the following:
‘
The appeal
against sentence is upheld and the order of the trial magistrate is
set aside and the following order is substituted
in its place:
“
(a) The
accused is sentenced to fifteen years’ imprisonment on
each of counts 1 and 2 and to ten
years’ imprisonment on
count 3;
(b) The accused is sentenced to three
years’ imprisonment on
count 4;
(c) The accused is sentenced to one
year’s imprisonment on
count 5;
(d) The sentences on counts 2 and 3
are ordered to run
concurrently with the sentence on
count 1 and the sentence on
count 5 is ordered to run concurrently
with that on count 4;
One year of the three years on count
4 is ordered to run concurrently with the sentence on count 1.
In terms of s 12 of the Arms and
Ammunition Act 75 of 1969, the accused is declared unfit to possess
a firearm.
The effective sentence to be served
is seventeen years’ imprisonment.”’
________________________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES
For Appellant: K J Kemp SC
Instructed by:
Hulley & Associates Inc, Durban
Honey, Bloemfontein
For Respondent: A A Watt
Instructed by:
Director of Public Prosecutions,
Pietermaritzburg
Director of Public Prosecutions,
Bloemfontein
1
S
v Grobler & another
1966 (1) SA 507
(A) at 523A-524B.
2
S
v Grobler & another
1966
(1) SA 507
(A) at 523B-524A; See generally E Du Toit, FJ De Jager,
A Paizes, A Skeen and S Van Der Merwe
Commentary
on the
Criminal Procedure Act
Ch
14 at 5-8B.
3
S
v Whitehead & others
2008 (1) SACR 431
(SCA) para 10.
4
S
v Whitehead & others
2008 (1) SACR 431
(SCA) para 33.
5
S
v Maneli
2009 (1) SACR 509
(SCA) para 8.
6
S
v Whitehead & others
2008 (1) SACR 431
(SCA) para 35.
7
S
v Maneli
2009 (1) SACR 509
(SCA) para
6; J R L Milton
South African Criminal
Law and Procedure
Vol II
Common
Law Crimes
1 ed at 642-643.
8
Burchell
J
Principles of Criminal Law
3 ed (2005) at 218.
9
Ibid
para 8.
10
Cf
S v Grobler & another
1966
(1) SA 507
(A) at 523E-524A.
11
S
v Malgas
2001 (2) SA 1222
(SCA).
12
P
ara
25B.
13
Fourie
v S
2001
(4) All SA 365
(A).
14
See
generally
Terblanche
Sentencing in South Africa
p
205 and the cases there cited.
15
S
v Njikelana
2003 (2) SACR 166
(C) where the court subtracted
three years’ imprisonment for 35 months spent in custody; In
S
v Vilakazi
2009 (1) SACR 552
(SCA) para 60 a minimum sentence of
15 years’ imprisonment was reduced by two years because the
accused had spent ‘just
over two years’ in custody.
16
In
S v Hawthorne and another
1980
(1) SA 521
(A) at 523F-G read with 525H the court deducted the exact
period of one year spent in custody from the sentence imposed by a
provincial division.
17
S
v Brophy
2007(2) 56 SACR (W) para 18.
This is a decision of the full court of the Johannesburg High Court.
It agreed with the dictum in
S v
Stephen
1994 (2) SACR 163
(W) at 168f
where the court, following Canadian authority, approved the
statement that ‘Imprisonment whilst awaiting trial
is the
equivalent of twice that length.’ In
Brophy
the court reduced a sentence of 24
years’ imprisonment, which would have been appropriate, to 16
years for a period of four
years and four months in custody in
respect of one accused and to 18 years’ imprisonment in
respect of the other accused
for two years and four months in
custody. In
S v Egglestone
[2008] ZASCA 77
;
2009
(1) SACR 244
(SCA) para 33, Farlam JA in a minority judgment said
that he would hesitate to give general approval to the statement in
Stephen
though
he thought that the circumstances of the particular case warranted
its application.
18
S
v Brophy
para 18.
19
S
v Maneli
2009 (1) SACR 509
(SCA).
20
S
v Maneli
para 6.
21
J
R L Milton
South African Criminal Law and Procedure
3 ed
(1996) at 642.
22
C
R Snyman
Criminal Law
5 ed (2008) at 517.
23
De
Wet and Swanepoel
Strafreg
4 ed (1985) at 373.
24
Cf
S v Moloto
1982 (1) SA 844
(A) at 850B.
25
Milton
at 643.
26
Snyman
at 518; Milton at 648.
27
Milton
at 647.
28
Milton
at 647 and cases cited at footnote 63.
29
And
see further
Ex parte Minister van Justisie: In re S v Seekoei
[1984] ZASCA 89
;
1984 (4) SA 690
(A).
30
Snyman
at 517.
31
Snyman
at 483.
32
S
v Maneli
para 8 and cases cited there.
33
S
v Whitehead & others
2008 (1) SACR 431
(SCA) para 35;
S v
Dos Santos & another
2010 (2) SACR 382
(SCA) para 44.
34
S
v Grobler en ‘n ander
1966 (1) SA 507
(A) at 523F.
35
See:
National Director of Public Prosecutions v King
2010 (2) SACR
146
(SCA) para 5.
36
At
522F-G.