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[2023] ZAFSHC 95
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Khanye v S (A14/2022) [2023] ZAFSHC 95 (28 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A14/2022
In
the appeal between:
THABO
KHANYE
Appellant
and
THE
STATE
Respondent
CORAM:
VANZYL, Jet MPAMA, AJ
HEARD
ON
:
25 JULY
2022
JUDGMENT
BY
:
VANZYL, J
DELIVERED
ON
:
28 MARCH 2023
[1]
The appellant stood trial on one count of robbery with aggravating
circumstances. He pleaded not
guilty, but was convicted as charged on
26 November 2020. On the same date he was sentenced to ten years'
imprisonment.
[2]
This appeal is directed against both the conviction and the sentence
upon leave to appeal having
been granted by the court a quo on 11
November 2021.
Condonation:
[3]
The appellant filed a substantive application for condonation for the
appellant's late filing
of his heads of argument and the non-filing
of a certificate of completeness by the Regional Court Magistrate who
presided in the
court a quo.
[4]
At the start of the hearing of the appeal Mrs Claassens, who appeared
on behalf of the State,
indicated that the State is not opposing the
application for condonation.
[5]
Since we were satisfied with the merits of the said application, we
granted condonation at the
commencement of the hearing of the appeal
in terms of prayers 1 and 2 of the Notice of Motion.
A:
Ad merits
Grounds
of appeal:
[6]
The following grounds of appeal are set out in the Notice of Appeal:
"3..1
The Honourable Magistrate erred in finding that the appellant was
properly identified, since the State led evidence that
he wore a mask
and therefore the witness could not see the face of the alleged
perpetrator.
3.2
Erred in finding that the appellant's version is not reasonably
possibly true.
3.3
Erred in regard to the impression that the court found the appellant
created in regard to the rain. Impression created by attorney
on
behalf of appellant and not appellant himself. The evidence of the
appellant however remained constant and reliable.
3.4
Erred in finding that the State disproved the appellant's version.
3.5
Erred in finding that the phone found in the possession of Enoch
Mgenezulu was stolen by the appellant, in light of the witness
providing a statement in this regard and upon testifying in court
that the SAPS paid him to state that he received the phone from
the
appellant. It is submitted that a statement without supporting
evidence under oath cannot be sustained.
3.6
The Honourable Magistrate did not properly take into account the
contradictions between the witnesseses for the State, in that
it was
firstly testified that there was good light to see the appellant and
this was then contradicted by the second state witness
that the
lighting was not so good.
3.7
The Honourable Magistrate failed to properly evaluate the evidence.
3.8
The Honourable Court erred in finding that the state witnesses were
reliable and took into account the confessions which were
excluded by
the court.
3.9
The Honourable Magistrate erred by finding that the contradictions in
the testimony of the witnesses, are not material.
Said
contradictions should have cast doubt in the eyes of the court, which
doubt should have counted in favour of the appellant.
3.10
The Honourable Magistrate should have:
(1)
Found that, given the contradictions by the witnesses of the events,
the benefit of the doubt should go to
the appellant, and that the
State by virtue thereof, did not prove their case beyond a reasonable
doubt.
(2)
Attached less value to the testimony due to the contradictions.
3.11
The Honourable Magistrate erred in finding that the State proved its
case beyond a reasonable doubt. The Honourable Magistrate
should have
taken into account tha the burden of proof never shifts and remains
with the State.
3.12
Erred by not taking into account that the defence case is in direct
conflict with the State case as it stands and that these
different
versions should be properly weighed against each other. The
Honourable Magistrate should have properly weighed the said
versions
against one another with reference to all the relevant facts and
should have found the appellant not guilty and discharged
him.
3.13
Erred by not, because of the material contradictions in the witnesses
of the State, rejecting the State's version.
3.14
The Honourable Magistrate erred by rejecting the appellant's version
as not being reasonably possibly true.
3.15
The Honourable Magistrate erred in finding the appellant guilty.
3.16
The Honourable Magistrate erred in dismissing the application of the
appellant in terms of section 174."
Background
events:
[7]
The background events to the incident are not in dispute.
[8]
The 40-year old Mr Mohammed Maqsood ("Mr Mac"), a citizen
from Pakistan, was the owner
of a grocery shop in Namahadi, Frankfort
('the shop") at the time when the robbery occurred.
[9]
Mr Mac was robbed at gunpoint outside the shop just after 20h00 on 19
November 2019, while he
was waiting for his cousin, Mr Zameer, to
fetch him with his motor vehicle to take him home. At the time Mr
Zameer was the person
who took him to the shop in the mornings and
took him back home when the shop closed.
[10]
Mr Mac's shop assistant, who was also the owner of the property in
which the shop was situated, Samuel Mofokeng,
referred to in the
evidence as "Lerato", was also present during the incident.
[11]
The robber appeared, pointed Mr Mac with a firearm and demanded money
and his phone, whereafter Mr Mac in
fact handed the money from the
shop and his cell phone to the robber.
[12]
Almost immediately thereafter Mr Zameer arrived in his vehicle and
upon hearing of the robbery from Mr Mac,
he pursued the robber with
his vehicle.
[13]
The cell phone was eventually found in the possession of the witness,
Enoch Mgemezulu.
[14]
As indicated earlier, the appellant pleaded not guilty. The following
plea explanation was recorded on behalf
of the appellant:
"...
our defence is based on that of an alibi. Two witnesses, one PuIeng
Mdunda and Matakale Tosetsti will be called as witnesses.
And will
verify that the accused on the said day was nowhere near the shop, he
was indeed present, it was a rainy day that day
and the accused did
not even take out his vehicle for a drive on the said day."
(sic)
[15]
The identity of the robber is consequently the main issue in dispute.
The
evidence:
The
complainant. Mr Mac:
[16]
The complainant, Mr Mac, testified that on 19 November 2019 at
approximately after 20h00, he and his assistant,
Mr Mofokeng, stood
outside the shop waiting for Mr Mac's cousin, Mr Zameer, to pick him
up with his vehicle and take him home.
He explained that at the time
Mr Zameer transported him by taking him to the shop in the morning
and fetching him in the evening
again. He explained that the building
where his shop is, is the property of Mr Mofokeng. The building is
one structure which consists
of the shop on the one side and the
house of Mr Mofokeng on the other side.
[17]
During cross-examination much was made of the issue whether Mr Mac
phoned Mr Zameer to fetch him or whether
Mr Zameer phoned Mr Mac. In
my view nothing turns around this issue, since it is not in dispute
that Mr Zameer actually arrived
in his vehicle to pick up Mr Mac.
[18]
Whilst standing outside the shop, the robber appeared and pointed Mr
Mac and Mr Mofokeng with a firearm.
Mr Mac testified that when he
first saw the robber he was about eight metres away from them and
when the robber was about four
metres away from them, he pointed Mr
Mac with a firearm.
[19]
At that stage Mr Mac and Mr Mofokeng were standing in front of the
shop, almost at its door. Mr Mac testified
that when he saw the
robber at the distance of eight metres, he could not recognize him.
However, when he saw him with the firearm
at four metres from him, he
recognized the robber to be Thabo. When the robber came even closer
and asked about the phone and the
money, Mr Mac was 100% sure that it
was Thabo. (It is common cause that the reference to Thabo was a
reference to the appellant.
For purposes of dealing with the
evidence, I will, however, continue to refer to "Thabo".)
[20]
Mr Mac testified that Thabo was a customer at his shop and even when
Thabo passed his shop, the people outside
the shop called him Thabo.
He used to come to Mr Mac's shop once or twice a week and most of the
time Mr Mac served him. When asked
how many times before the incident
he served Thabo at the shop, Mr Mac responded as follows:
"...if
I remember correctly maybe about I start with 5 times, but previously
one and recently one I remember, it was before
the incident about two
times."
[21]
According to Mr Mac he never asked Thabo his name, but he heard it
from the people outside the shop who called
him Thabo, to whom Thabo
then responded. He testified "I did learn from the people and
the face and certain features that
he is Thabo".
[22]
At the time when Thabo was about four metres away from him, Mr Mac
started to run away. Thabo instructed
him not to move or he will
shoot him. Mr Mac then stopped. At that stage Mr Mac was at the door
of Mr Mofokeng's house, because
he actually wanted to enter the
house. That was about six to seven metres away from the door of his
shop. Thabo then demanded money
and a cell phone from Mr Mac. When he
made the said demand, he was about a metre to a metre and a half from
Mr Mac. Although Mr
Mac recognized him to be Thabo, he did not
mention his name, because he was scared that Thabo would shoot him.
[23]
Mr Mac testified that Thabo's jersey covered his head. He further
testified that he had a mask on his face,
but explained that the mask
was not a Covid-19 type of mask, but a cloth which covered his lips
and the bottom part of his face;
hence from under his nose downwards.
[24]
When Thabo demanded the money, Mr Mac threw the money on the ground
and when Thabo bent down to pick up the
money, "that clothing
thing gone down and I saw it is Thabo .. .the nose was not in the
cloth and the cloth was closing the
lip and the bottom of the face
...the side was loosening and when he picks up the money from down
the full face I could see it...".
Mr Mac further testified that
he could then see Thabo clearly.
[25]
Mr Mac testified that at the time when they were still standing in
front of the shop, the visibility was
good. The apollo lights and the
lights inside (shining through the windows) and outside the
surrounding buildings and houses, also
provided light. At the time
when they were standing in front of Mr Mofokeng's house, an apollo
light was still providing light
and the light outside Mr Mofokeng's
house was also switched on. Light was also shining through the
windows from inside Mr Mofokeng's
house. Both Mr Mac and Thabo were
standing under the outside light of Mr Mofokeng's house and Mr Mac
testified that "/ could
see nicely and he could see me nicely".
[26]
Whilst Thabo took the money, which was in a plastic bag, and the cell
phone from the ground, he continued
pointing the firearm at Mr Mac.
After he picked up the two items, Thabo "run downwards".
When Thabo started running away,
he pointed Mr Mac with the firearm
and instructed him not to follow him, since he will then shoot him.
[27]
At that stage Mr Zameer arrived with his vehicle to fetch Mr Mac. The
vehicle was coming from the left side
of the shop and its lights were
facing in the direction in which Thabo was running. Mr Zameer asked
Mr Mac what had happened and
Mr Mac told Mr Zameer that the man who
was running robbed him. At that stage Thabo was about ten metres away
from them. Mr Zameer
immediately followed Thabo with his vehicle,
whilst Thabo was in front of the vehicle.
[28]
Mr Mac testified that "the bakkie followed him and then when he
reached to him there was a corner edge,
and on that edge, he goes to
the side and then after I do not know what happened'.
[29]
When asked whether Mr Mac knew the parents of the appellant, he
testified that he does not know any of his
family members. No family
member of the accused ever paid him a visit.
[30]
During cross-examination further questions were posed to Mr Mac as to
when he first saw the firearm and it
was put to Mr Mac that he was
contradicting himself. I will later return to this aspect of the
evidence.
[31]
It was put to Mr Mac that the appellant never visited his shop as a
customer since he stayed about 8km away
from the shop and there were
about four to six shops which sold similar products in the area where
the appellant lived. Mr Mac
testified that that was not true, since
the appellant did visit his shop as a customer before the day of the
incident. He testified
that even the day prior to the incident Thabo
came to his shop and bought a cooldrink.
[32]
When asked about the lighting Mr Mac again gave the same explanation
as during his evidence in chief and
testified that there was enough
light to see each other.
[33]
With regard to the weather, Mr Mac testified that during the incident
the weather was fine, but that it was
drizzling a bit before the
incident occurred.
[34]
During further cross-examination Mr Mac testified that Mr Zameer
drove a Kia van and when he arrived to pick
up Mr Mac, he had not
even stopped properly when Mr Mac told him in his language "go
and chase that guy because he took the
money and the phone from me".
Mr Zameer then gave chase to Thabo with his van on his own. Mr Mac
did not see whether Mr Zameer
met up with Thabo and/or spoke to him.
However, Mr Zameer told Mr Mac when he returned "that it was
Thabo, because he felt'.
[35]
When it was put to Mr Mac that due to the bad weather the appellant
never went outside his home on the specific
night, he was safely at
home and that two witnesses will come and verify that he was not
close to Mr Mac's shop that night, Mr
Mac responded that "... he
was present that night there, there is no doubt”.
Mr
Zameer:
[36]
Mr Zameer testified that Mr Mac is his cousin and also his friend. He
fetched Mr Mac from the shop every
day.
[37]
He testified that when he reached the shop that night, his vehicle
had not even yet stopped when Mr Mac told
him "that guy he
robbed me and gone". He further testified that "then I
could not wait him to sit in the car I proceed'.
[38]
With regard to the general lighting in the area, Mr Zameer testified
as follows:
"It
was light Your Worship, and even that the light for the big pole was
also on and it was easy to anybody can see it."
[39]
Mr Zameer further testified that the lights of his vehicle were
switched on and "when I proceed followed
Thabo because my cousin
he also told me the name Thabo and I knew the Thabo also the name and
his face and I proceed and because
there is a downhill little bit
that road where I followed Thabo ...".
[40]
When asked how he knew which direction to take with his vehicle, Mr
Zameer testified that Thabo was not far
from his vehicle, he could
see him running.
[41]
Whilst Mr Zameer was following Thabo, he saw that Thabo fell on the
road in front of Mr Zameer's vehicle
and when he stood up, Mr Zameer
said to him "Thabo what are you doing", whereupon Thabo
pointed him with a firearm.
[42]
Mr Zameer explained that when he saw Thabo for the first time, Thabo
was walking. However, when Thabo saw
that Mr Zameer was following him
in his vehicle, he started running and that is when he fell down.
[43]
Mr Zameer testified that after the person fell down and stood up in
front of his vehicle's lights, he then
saw that it was Thabo. That
was when he pointed the firearm at Mr Zameer and told him that should
he follow him, he was going to
shoot Mr Zameer. Mr Zameer remained in
the vehicle and Thabo then walked away from there.
[44]
At that very same time Mr Zameer called the police, but they did not
answer the phone. He then went to the
police station and the police
came to the scene. Mr Zameer informed the police about the identity
of Thabo and he also knew where
Thabo stayed at the time.
[45]
When asked how he knew Thabo, Mr Zameer explained that he has been
living in Frankfort since 2009 and that
he knows most of the people
from there, one of which is Thabo. He knew him as a person, since
Frankfort is a small community. Mr
Zameer further testified that he,
Mr Zameer, also has a shop there and that he sometimes saw Thabo in
his shop as a customer.
[46]
The day after Thabo was arrested, Mr Zameer was at his shop when an
unknown person came to the shop with
a phone and told him that Thabo
wanted to speak to him. He then spoke to Thabo over the phone, during
which conversation Thabo
said that he made a mistake by robbing Mr
Zameer's cousin's shop, that Mr Zameer should please forgive him,
that his parents were
going to come to Mr Zameer and whatever he
stole from Mr Mac, "they will return you bacK'. Thereafter
Thabo's parents came
to Mr Zameer's shop and asked him whether they
could not come to an agreement that the case be withdrawn and that
whatever "you
people lost we will return you". Mr Zameer
then told them that he cannot withdraw the case and that they should
go home.
[47]
Mr Zameer testified that it was Thabo who spoke to him over the
phone, since he recognized his voice.
[48]
With regard to the people who came to his shop, Mr Zameer testified
that it was Thabo's father, whom he knew,
accompanied by two ladies
who were unknown to him.
[49]
During cross-examination Mr Zameer testified that he and Mr Mac stay
together.
[50]
Mr Zameer was cross-examined on the basis of his witness statement in
which he stated as follows:
''The
suspect Thabo was not far from the shop and I went to him together
with my brother but he tried to ran away and fell to the
ground."
[51]
He explained that because it was approximately only seven metres from
where Mr Mac was standing, which, according
to him, is a short
distance, he was unsure whether to say that they were together or
separate. Mr Zameer further explained that
the fact that Thabo had a
firearm placed a lot of pressure on him, but he did not see Mr Mac
being personally present when Thabo
fell.
[52]
Mr Zameer further testified that when he reached the shop of Mr Mac,
he saw Thabo at a distance of about
five to seven metres from there.
At the time when Thabo fell to the ground, he was in front of Mr
Zameer's vehicle at a distance
of about two metres. Initially Thabo
was walking, but when he saw that the vehicle was following him with
its lights on, he started
running, but almost immediately fell to the
ground.
[53]
In further cross-examination Mr Zameer testified that Mr Mac never
told him that it was Thabo who robbed
him. Mr Mac only told him that
"that guy robbed me". When Mr Zameer himself saw the
person, he recognized him as Thabo.
[54]
With regard to the lighting, Mr Zameer testified that the Apollo
light provided bright light, his vehicle's
lights were also switched
on and the outside lights of some of the houses were also switched
on. He testified that "there
was light, there was bright light”.
[55]
Concerning the weather, Mr Zameer testified that it was drizzling
before the incident. Thereafter the weather
was fine and the sky was
clear, it was not overcast.
[56]
With regard to the incident when a person came to Mr Zameer's shop
and gave him a phone, Mr Zameer testified
that the person said that
Thabo wanted to speak to him. Mr Zameer testified that it was the day
after the incident. Although it
was the first time that Mr Zameer
spoke to Thabo over the phone, Mr Zameer testified that the person on
the phone introduced himself
as Thabo. Mr Zameer furthermore
testified as follows with regard to his identification of Thabo as
being the person to whom he
spoke:
"Your
Worship, if it happened with someone before the time and then he
introduce himself as Thabo understanding the whole story,
I have to
admit this is Thabo."
[57]
Mr Zameer testified that he received the call before 12h00 in the
afternoon the day after the incident. It
was put to Mr Zameer that
the appellant had already been arrested earlier that morning at 09h00
and that he was in custody; hence,
he could not have phoned Mr Zameer
at the stated time. Mr Zameer responded that he does not know how
Thabo was able to phone, but
he did.
[58]
It was further put to Mr Zameer that the appellant denies that he was
at Mr Mac's shop on 19 November 2019
and that he further denies that
he was the one who spoke to Mr Zameer over the phone. It was also put
to Mr Zameer that the appellant
would not have phoned Mr Zameer,
since Mr Zameer was not the complainant in the matter and could
therefore not have been of any
assistance with regard to the
withdrawal of the case against the appellant. Mr Zameer responded as
follows:
"As
I indicated earlier Your Worship, we are one family and in the town,
location, the vicinity, the people knows us that is
why he called me
because I am the eldest and the experienced person in this area."
[59]
Mr Zameer testified that it is for the same reason that the
appellant's parents came to see him and not Mr
Mac.
[60]
During re-examination Mr Zameer testified that immediately after
Thabo left the scene after having pointed
Mr Zameer with a firearm,
both Mr Mac and Mr Zameer said to each other that Thabo was the
perpetrator.
Mr
Mofokeng:
[61]
Mr Mofokeng testified that he and Mr Mac were standing outside the
shop waiting for Mr Zameer to fetch Mr
Mac. A man arrived with his
two kids and stood with Mr Mofokeng and Mr Mac, whilst talking to one
another. This man was known to
Mr Mofokeng, since they stayed in the
same street, His name is Nqana. Whilst they were busy talking, a
young man appeared from
the street. They did not give this man much
attention. When the young man was supposed to pass the man with the
kids, he turned
and approached them. At that stage the young man
realized that what he was wearing, "it is becoming to open".
He stopped
and rearranged what he was wearing. Mr Mofokeng explained
the aforesaid by testifying that the young man was wearing a
tracksuit
top with a hoody which was over his head. He pulled the
strings of his hoody so that the hoody could cover half of his face.
The
young man lifted his tracksuit top and drew a firearm, which he
pointed at them. The man with the kids managed to run away, so did
the kids. When the young man approached Mr Mac, Mr Mac tried to run
away. The young man then pointed the firearm at Mr Mac and
instructed
him to stand where he was. The young man then asked Mr Mac for the
money and his cell phone. At that stage Mr Mac and
the young man were
standing approximately half a metre apart, at arm's length.
[62]
Mr Mac handed the money and the cell phone over to the young man by
throwing them on the ground. The young
man picked up the items,
whilst still pointing Mr Mac with a firearm. The young man then left
running down the street. As the young
man was leaving, Mr Zameer
arrived in his vehicle. Mr Zameer apparently noticed that something
was wrong, because he spoke through
the window of the vehicle and
asked Mr Mac what has happened. Mr Zameer then drove off down the
street.
[63]
When asked whether Mr Mofokeng knows the young man who robbed them,
he testified that he knows him very well
and pointed the appellant
out in court. When asked where he knew him from, he testified that
the appellant's parental home is not
far from his own parental home
and that they attended the same primary school, Tuto Kitsela Primary
School, although the appellant
was one grade ahead of him.
[64]
With regard to the lighting, Mr Mofokeng testified that there was an
apollo light "in the street in
front of the street where I am
staying", it was not far from the shop and where he was staying
so "the brightness of
the apollo light is very bright or it
makes very clear".
[65]
Two or three days after the incident the father of the appellant came
to the shop of Mr Mac, which is a different
shop than the one of Mr
Zameer. He spoke to the one lady who assisted at the shop and said he
wanted to meet with Mr Mac, since
he wanted to hear from him what had
happened. However, Mr Mac was not present in the shop at the time. Mr
Mofokeng overheard the
said conversation. Mr
Mofokeng
does not know whether they eventually met or not.
[66]
With regard to the weather conditions, Mr Mofokeng testified that it
rained that night, but that it was soft
rain. It was put to Mr
Mofokeng that "for a few days or the day before that and during
that period it was a long period of
rain or a couple of days with
rain and he (the appellant) never left his home and did not come
close to the shop". Mr Mofokeng
responded that "what I am
saying to you and of which I am sure with it is that it is him that I
saw".
Mr
Mgemezulu:
[67]
Mr Mgemezulu testified that he was questioned by W/O Mahamotsa about
a Samsung S5 cell phone. He testified
that he found the cell phone in
water just a street down from where a robbery took place. He passed
the scene and saw the incident.
He testified that "there was
this person who had covered his face with a balaclava, who had
pointed a gun to one of the Pakistani
shop owner'.
[68]
He further explained that what drew his attention were two children
who came to him and then he saw people
outside the shop. He was asked
to explain what he saw then:
"He
was pointing at this person with the gun and the person I did not
know and then after that I saw ... [mechanical interruption]
... that
it was handed over to him and as the street have a steep I was on the
down steep of this street and he was up the steep
of the street and
then when he approached towards me and then I run away." (sic)
"I
hide in one of the houses there, after I hide and then I come another
street going to where the incident happened, because
I wanted to see
what was happening, there I saw a van that belongs to the Pakistani,
who was driving towards where that person
had run to, or to the
direction where that person had went to." (sic)
[69]
At that stage there was nobody outside where the incident happened
and Mr Mgemezulu walked down the street,
in the same direction as
where the Pakistani vehicle went. Whilst walking, there was a small
hole from where a cell phone was ringing,
He picked up the cell phone
since he wanted to answer it, but it stopped ringing. According to
the witness the phone shut down
because it had been in the water in
the hole. Mr Mgemezulu took the phone home. The distance from where
he picked up the phone
to where the incident occurred, was
approximately 200 to 300 metres.
[70]
Mr Mgemezulu was asked what the visibility was where he was walking
and he testified that he was far from
the scene where the incident
took place, "so the light was not enough". He heard the
name Thabo being mentioned at the
scene, but he did not know whether
they were speaking to Thabo or calling him. Mr Mgemezulu furthermore
testified as follows:
"...
after I hear they say Thabo because he was this one who was pointing
the firearm and then this other Indian guy I saw
he throw some items
to that person, there is nothing that had happen. "(sic)
[71]
W/O Mahamotsa came to look for the witness at his parental home, but
the witness was not home. Eventually
W/O Mahamotsa went to the
workplace of Mr Mgemezulu and enquired from him which phones he were
using, to which Mr Mgemezulu responded
that he was using a SK and a
Samsung SS. He told W/O Mahamotsa that he picked up the SS and W/O
Mahamotsa told him that the said
cell phone has a connection to a
robbery.
[72]
When asked about the weather Mr Mgemezulu testified that during the
day of the incident there was no rain.
It was only after 18h00 that
it became cloudy and started drizzling. The witness explained that it
was not raining hard and that
is why he could walk home in the rain.
[73]
During cross-examination Mr Mgemezulu testified that from where he
was standing and viewing what was happening,
he could not identify
any person. However, there was light at the scene where the incident
occurred. He explained that the light
was coming from the shop,
although he did nqt know whether the light was coming from inside the
shop or whether there was a light
above the door of the shop.
[74]
During further cross-examination Mr Mgemezulu was again asked about
the sequence of events. He testified
that when he saw the person
whose face was covered with a balaclava coming towards him, he feared
for his life since the person
had a gun. He went and hid himself in
some house until the person had passed him. At that stage the person
was walking normally,
not as though somebody was chasing him. When Mr
Mgemezulu came out of the house where he was hiding, he saw the van
stationary
at the scene where the incident occurred. The van then
drove at a fast speed in the direction where the person had gone to.
[75]
Mr Mgemezulu did not see the person falling down or stumbling.
[76]
With regard to the cell phone, Mr Mgemezulu testified that it did not
cross his mind that there was any connection
between the cell phone
and the robbery. W/O Mahamotsa came to his workplace, enquiring about
the cell phone, approximately a week
or two after the incident.
According to Mr Mgemezulu W/O Mahamotsa wanted him to become his
informer and told him that he will
get some money should he become
his informer. W/O Mahamotsa told Mr Mgemezulu to take his ID to Capt.
Swanepoel "so that they
could do everything", but Mr
Mgemezulu was not interested in doing so.
[77]
It was put to Mr Mgemezulu that he at some stage visited the
appellant's family and indicated to them that
W/O Mahamotsa said that
he will give Mr Mgemezulu R1 500-00 should he testify and say that he
received the cell phone from the
appellant. Mr Mgemezulu testified
that W/O Mahamotsa did promise him R1 500-00 although he did not know
the reason for it. W/O
Mahamotsa did however ask him several times
whether he stole the phone from Thabo. Mr Mgemezulu never went back
to W/O Mahamotsa
and he did not receive R1 500-00.
W/O
Mahamotsa:
[78]
The last witness for the State was W/O Mahamotsa. He testified that
he was the investigating officer in the
case.
[79]
He spoke to Mr Mgemezulu twice. The first time was when he
confiscated the cell phone and the second time
was when he told Mr
Mgemezulu that he should come to the police station so that W/O
Mahamotsa can take a statement from him. He
at no stage offered any
money to Mr Mgemezulu.
[80]
W/O Mahamotsa confirmed that it did rain the night of the incident.
[81]
W/O Mahamotsa was advised that the one witness testified that the
robber's face was covered with a balaclava.
W/O Mahamotsa responded
that the complainant told him that the person who robbed him just had
a hood over his head with the result
that they could see his face and
who he was.
[82]
When confronted with the fact that no formal identification parade
was held, W/O Mahamotsa explained that
the witness who was with the
complainant when they were robbed, told W/O Mahamotsa that it was
Thabo who robbed them and that they
at some stage attended the same
school. He further testified that that witness also explained to him
where Thabo lives. W/O Mahamotsa
further testified that the witness
also explained to him that the appellant used to move around in town
with his brother and that
that is how he knows the appellant.
[83]
W/O Mahamotsa denied that he offered Mr Mgemezulu R1 500- 00 to
testify that he received the cell phone from
the appellant. He
further denied that he requested Mr Mgemezulu to become his informer.
[84]
That concluded the State's case.
The
appellant:
[85]
The appellant testified that on 19 November 2019 he was at home. He
woke up shortly after 08h00 and then
he went to the shop to buy a
cooldrink for one of his family members and Matlakala.
[86]
With regard to the weather, the appellant testified that it was
drizzling. When asked to elaborate, he further
testified that it did
not rain the whole day. It started to rain in the afternoon, although
he cannot remember what time and that
it was wet outside.
[87]
The appellant was at home with his wife, his child Nebo and Matlakala
also arrived there at about 08h30 in
the morning.
[88]
When he returned from the shop, he took a bath, ate some food and
then he went back to bed since he was suffering
with his kidneys. He
spent the whole day in bed.
[89]
The appellant testified that he lives approximately 8km from
Phahameng where the shop relevant to this incident,
is situated. He
does not know exactly where the shop is, but heard in the evidence
that it is situated in Phahameng. He has never
visited the said shop.
He testified that in the vicinity where he is staying there are
approximately seven to eight shops from
where he could buy whatever
he needed.
[90]
According to the appellant he does not know the complainant. The
second witness, Mr Zameer, is known to him
"because we are used
to each other from long ago". He knows Mr Mofokeng by sight and
they used to attend the same primary
school.
[91]
The appellant denied any knowledge of the robbery and again confirmed
that he was at home the whole day,
except when he went to buy the
cooldrink.
[92]
The appellant was arrested on 20 November 2019.
[93]
During cross-examination when the appellant was asked about the
weather, he testified that it was not raining
hard like in showers,
it was drizzling, but it was wet. He further testified that he does
go out when it is wet, but that he did
not have any reason to go out
on that particular day.
[94]
The prosecutor put it to the appellant that she understood his
attorney to state that it was raining so much
and it was so wet that
he did not even take his car out for two days. The appellant
confirmed same. When he was then asked whether
it was because of the
rain, he responded that there was no reason for him to take his car
out for a drive.
[95]
The appellant testified that when he went to the shop to buy
cooldrink, he walked there and according to
him the outing did not
even take three minutes. He bought "Coke, R31-80, 2 litre".
[96]
The lady who visited them at home on the particular day is a family
member of his biological mother. She
remained there for the whole day
until late, so late that he did not even see when she left since he
was sleeping. He last saw
her when he said that he was going to
sleep.
[97]
According to the appellant he did not know what his wife and the lady
did all day. His wife did not tell
him and he did not ask her.
However, his wife was pregnant at the time and she was assisting his
wife "in some of the other
things".
[98]
With regard to the witness Mr Zameer, the appellant testified that he
is the brother of the complainant,
that he knows him and that they
were on good terms. He testified that he knows Mr Zameer through one
of his (the appellant's) friends.
He knows Mr Zameer very well and he
even used to come to the appellant's parental home to call him.
However, they never went to
the complainant's shop.
[99]
It was put to the appellant that considering that Mr Zameer knows him
so well, Mr Zameer could not have made
a mistake by identifying the
appellant when he saw him in the lights of his vehicle. The appellant
denied same.
[100]
The appellant denied that he phoned Mr Zameer and requested him to
withdraw the case. He further explained that he would
not know
whether his parents went to see Mr Zameer, since by then he had
already been arrested.
[101]
In re-examination the appellant testified that he and Mr Zameer did
not visit each other on a daily basis. He explained
as follows:
"I
did not even go and pay a visit to him, Mr Zameer is the one who come
to my friend, because he was a friend to my friend
and he, Mr Zameer,
is the one who went to my friend and this friend of mine is staying
at my parental place."
Ms
Matlakala Tsotetsi
[102]
Ms Matlakala Tsotetsi was called as a defence witness. She testified
that her mother is a relative to the appellant's
father.
[103]
She testified that during the time when the appellant was living
behind her, which was also the case during November
2019, she visited
the appellant on a daily basis.
[104]
The day before the appellant's arrest she also went to the
appellant's home at about past 08h00 or just before 09h00.
He was
staying with his wife and children. She woke them up, because they
were still sleeping. The appellant's wife opened the
door for her.
She asked her what she wanted. The witness told her that she wanted
the appellant to buy cooldrink for her, because
she felt like having
some cooldrink. The appellant's wife went to the bedroom and woke him
up. His wife told her that the appellant
did not appear to be well,
because of his kidneys. The appellant went to the shop and bought her
cooldrink, namely two 2 litres
of Coke. The outing to the shop took
about five minutes. The rest of the day the appellant was in bed,
since he was not feeling
well.
[105]
Ms Tsotetsi testified that except for going out to buy the cooldrink,
the appellant never left the house that day. She
sat with his wife
for the whole day. She just went out to the toilet and then returned
to the appellant's wife. She only left to
go home just before 12h00
at night, because they were watching television. According to Ms
Tsotetsi the appellant's wife was also
not well, since she was
pregnant.
[106]
According to her if the appellant had left the house during the time
when she was there she would have seen him.
[107]
With regard to the weather conditions, Ms Tsotetsi testified that the
rain was drizzling the whole day.
[108]
During cross-examination Ms Tsotetsi testified that it was her habit
to visit the appellant's house from the morning
till approximately
midnight. She then just sat there. This habit started since the time
when the appellant started renting that
house, which was February or
March of that year.
[109]
When she was then asked how she can remember what she did on 19
November 2019, she responded that it was "because
I was there".
When asked what happened on 20 November 2019 she testified that the
police arrived to arrest the appellant.
When asked what happened on
18 November 2019, she testified "/ cannot remember well”
[110]
Ms Tsotetsi was asked why she expected the appellant to go to the
shop when he was so sick. The question had to
be put to her a couple
of times before she gave a straight answer to it. She answered as
follows:
"He
said if we go by ourselves to the shop buy the drink we are going to
spend his change."(sic)
When
asked whether she did not feel sorry for the appellant, she testified
that she did feel sorry for him, "but he said he
will go".
[111]
It was further put to Ms Tsotetsi that the appellant testified that
he only bought one 2 litres of Coke, to which
she responded that he
bought two of those.
[112]
It was further put to her that the appellant testified that it did
not rain the whole day, to which she responded
that it did rain.
Applicable
legal principles:
[113]
The court a quo correctly stated that the guilt or otherwise of an
accused must be arrived at after considering
the totality of the
evidence, which is to be considered holistically. See S v Van Aswegen
2001 (2) SACR 97
(SCA) at para [8].
[114]
In S v Chabalala
2003 (1) SACR 134
(SCA) the approach to be followed
in a criminal case is set out as follows at para [15]:
[15]
The trial court's approach to the case was, however, holistic and in
this it was undoubtedly right... The correct approach
is to weigh up
all the elements which point towards the guilt of the accused against
all those which are indicative of his innocence,
taking proper
account of inherent strengths and weaknesses, probabilities and
improbabilities on both sides and, having done so,
to decide whether
the balance weighs so heavily in favour of the State as to exclude
any reasonable doubt about the accused's guilt.
"
[115]
It is trite that evidence pertaining to the identification of a
person, must not only be truthful, but also reliable.
See S v Sithole
and Others
1999 (1) SACR 585
(WLD) at 591 C - D. See also S v Ndika
and Others
2002 (1) SACR 250
(SCA) at 256 G.
[116]
Evidence pertaining to identification is therefore to be approached
with caution. In the well-known dicta in S
v Mthetwa
1972 (3) SA 766
(A) at 768 A - C the applicable principles are set out as follows:
"Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution.
It is not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends
on various factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation,
both as to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case,
are not individually
decisive, but must be weighed one against the other, in the light of
the totality of the evidence, and the
probabilities; see cases such
as R. v Masemang,
1950 (2) SA 488
(AD); R. v Dladla and Others, 1962
{1} SA 307 (AD)at p. 310C; S. v Mehlape,
1963 (2) SA 29
(AD)."
[117]
There is no burden of proof on an accused with regard to an alibi
defence. See S v Mhlongo
1991 (2) SACR 207
A at 210 D.
[118]
A court must not consider an alibi in isolation, but in the totality
of the evidence and the court's impression
of the witnesses. See S v
Hlongwane
1959 (3) SA 337
(A) at 341 A.
[119]
In S v Ngcina
2007 (1) SACR 19
(SCA) at para [18] the following is
stated pertaining to an alibi defence:
"...
courts occasionally fall into the error of treating an alibi defence
as a separate issue to the issue of identification.
An alibi defence
is essentially a denial of the prosecution's case on the issue of
identification "
[120]
The ultimate test remains whether the prosecution has furnished proof
beyond reasonable doubt with regard to the issue
of identity. See S v
Ngcina, supra, at para [19].
Evaluation
of the evidence:
[121]
The court a quo correctly found that it was not disputed that the
appellant was well known to Mr Mofokeng and to Mr
Zameer. The
complainant, Mr Mac, testified that the appellant was known to him
having attended his shop previously, with Mr Mac
overhearing the
complainant being called Thabo. This was disputed by the defence on
the basis that the appellant never attended
the shop of Mr Mac.
[122]
Both Mr Mac and Mr Mofokeng testified that the visibility was good at
the scene where the incident occurred and they
explained the
different sources of light at the scene. Although this evidence was
challenged during cross-examination, the court
a quo, in my view,
correctly found that there was no evidence to gainsay the aforesaid
evidence and that it is to be accepted that
the lighting and the
visibility in the area of the scene was good. Mr Zameer's evidence
with regard to the lighting in the area
was also to the effect that
the visibility was good. The evidence of Mr Mgemezulu did not detract
from the aforesaid evidence,
considering that he was at a distance of
approximately 200 to 300 metres from the scene. In fact, his evidence
corroborated the
evidence of Mr Mac and Mr Mofokeng with regard to an
outside light at the door of Mr Mofokeng's house.
[123]
In my view it is evident that the lighting in the circumstances was
such that it is to be accepted that the visibility
was good.
[124]
With regard to the identity of the appellant, Mr Peyper, who appeared
on behalf of the appellant, submitted that the
evidence of Mr Mac and
Mr Mofokeng was riddled with contradictions as to what occurred
during the robbery and also with regard
to their ability to have
identified the appellant as the robber.
[125]
I cannot agree with the aforesaid submission. As correctly submitted
by Ms Claassens, the mobility of the scene and
the fact that the
firearm was pointed at Mr Mac and Mr Mofokeng at different stages of
the incident, are of importance in the evaluation
of the evidence. As
it was put in S v Bruiners
1998
(2)
SACR 432
(SE) at 439 E - F:
"Ondervinding
het geleer dat daar byna nooit twee of drie getuies sal wees wat
presies dieselfde getuienis sal afle met betrekking
tot dieselfde
voorval of gebeure nie.
Dit is
derhalwe vir die verhoorhof om te besluit, in aggenome die getuienis
as 'n geheel, of sodanige verskille wesenlik genoeg
is voordat gese
kan word dat die staat se weergawe nie aanvaar kan word nie."
The
aforesaid principle was also referred to by the Constitutional Court
in S v Liesching
2019 (1) SACR 178
(CC) at para [96]:
"Two
witnesses seldom give identical accounts of the same incident, so not
all errors or contradictions between their evidence
will affect their
credibility.”
[126]
The aforesaid principles are also applicable to the discrepancies
between the evidence of Mr Mac and that of Mr Shameer.
[127]
In my view there were no serious contradictions in the witnesses'
description pertaining to the essence of how the robbery
occurred and
of the events that followed when Mr Shameer arrived in his vehicle.
[128]
Mr Peyper, during his oral argument, also submitted that the
witnesses contradicted themselves pertaining to the visibility
of the
robber's face. In this regard he submitted that Mr Mac testified
about a mask, Mr Mofokeng testified about a hoodie and
Mr Mgemezulu
testified about a balaclava. In my view the following aspects of
their evidence are to be taken into consideration:
1.
Mr Mac testified that Thabo's jersey covered his head. Since it only
covered his head, it was in all
probability the hoodie of the jersey.
The so-called mask was described as a cloth which only covered the
robber's face from under
his nose downwards, which cloth in any event
dropped downwards when the robber picked up the cell phone and the
money, whereupon
his face became visible.
2.
Mr Mofokeng testified about a tracksuit hoody which covered half of
the robber's face. As mentioned,
this description is in my view not
irreconcilable with Mr Mac's description of the jersey. The fact is
that according to this description,
the face of the robber was still
visible.
3.
With regard to Mr Mgemezulu's evidence with regard to a balaclava
must be considered against the background
that he was 200 to 300
metres away from the scene of the robbery. There was no evidence as
to the distance and the lighting in
the area at the time when the
robber passed Mr Mgemezulu whilst he was hiding in some house. His
evidence was in any event not
relied upon by the State for purposes
of identification.
[129]
In addition to the aforesaid, Mr Zameer's evidence with regard to the
identity of the appellant as the robber serves
as corroboration for
the identification of the appellant by the other two witnesses. In
this regard one must be mindful of the
fact that there was no mention
in the evidence of Mr Zameer that something prevented him from seeing
the whole face of the appellant,
which occurred right in front of his
vehicle and in the headlights of his vehicle.
[130]
All the witness had adequate time and opportunity for purposes of
identification and they knew the appellant prior to
the incident.
[131]
The state witnesses testified with clarity and confidence about the
identification of the appellant. In the circumstances
it appears that
their evidence is not only truthful, but also reliable.
[132]
With regard to the weather conditions, the court a quo found as
follows at p.287, line 11 to p.288, line 11 of the judgment:
"The
assessment of the version starting with the weather conditions. At
the beginning of the trial a plea explanation which
the accused
confirmed was furnished to the effect that the accused was nowhere
near the shop of the complainant that day. That
it was a rainy day
and he did not even take out his car for a drive on that day. This
version was maintained throughout the testimony
of the state
witnesses and created the impression that it was raining so much, so
that the accused did not get out of the house
at all that day, nor
take out his car for a drive. It became apparent during the testimony
of accused, that it did not rain the
whole day, but only started to
drizzle in the afternoon. He testified that although he could not say
when it began raining, it
was wet outside and that showed that it had
rained. This was contrary to the earlier impression that it had
rained so much that
the accused could not take his car for a drive,
because of the rain that day. It transpired in the testimony of the
accused and
Ms Tsotetsi that the accused went out briefly and walked
to buy Ms Tsotetsi a cold drink. It is apparent from the testimony of
the accused when his attorney asked him about the weather conditions
that even when it began to rain, it was only drizzling and
the
testimony that he had to this effect was nothing other than the
wetness that he saw outside and most probably the following
day since
he slept the whole day. I therefore accept the state witnesses'
testimony that it began to drizzle in the late afternoon
and it was
not raining the whole day."
[133]
Mr Peyper submitted that the wrong impression with regard to the rain
was created by the attorney who acted on behalf
of the appellant in
the court a quo and not the appellant himself.
[134]
I cannot agree with the aforesaid contention. The attorney in the
court a quo obviously gave the plea explanation and
posed the
appellant's version to the different witnesses based on the
instructions which he received from the appellant. This version
was
continued with throughout the State's case. It should therefore be
accepted that at no stage did the appellant indicate to
his attorney
that what he was posing to the State witnesses, was not in accordance
with his instructions or his version. Throughout
the trial many
discussions were held, which the court a quo itself was also part of,
with regard to the difference between drizzling
rain and rain
showers. It was only subsequent to all of the aforesaid that the
appellant, during his evidence, gave a version with
regard to the
rain which was different to what had been posed on his behalf to all
the witnesses and was eventually also contradicted
by his alibi
witness.
[135]
With regard to the evidence of Ms Tsotetsi the following:
1.
In her evidence in chief it was her version that she woke up the
appellant and his wife because she wanted the appellant
to buy her
cooldrink. She went further by testifying that the appellant's wife
went to the bedroom to wake him for the said purpose.
2.
However, when Ms Tsotetsi she was confronted about the fact that
despite the appellant being sick, she still requested
him to go to
the shop, she out of the blue gave an explanation that the appellant
was the one who insisted to go to the shop instead
of his wife and Ms
Tsotetsi.
3.
The appellant testified that Ms Tsotetsi is a family member of his
biological mother. She, however, testified that
her mother is a
relative to the appellant's father.
4.
Despite the simplicity of her version, Ms Tsotetsi and the appellant
differed pertaining to the number of bottles
of cooldrink which he
bought.
5.
I have already dealt with the contradiction pertaining to the rain
between Ms Tsotetsi's evidence and that of the
appellant.
6.
Ms Tsotetsi's version that she has been going to the house of the
appellant and his wife since February or March
2019 up to 19 November
2019 every day and for the whole day is nonsensical and highly
improbable.
7.
At the beginning of the trial it was indicated that the appellant
will be calling two witnesses who will confirm
his alibi. However,
eventually the appellant did not call his wife as a defence witness,
without providing any explanation thereto.
[136]
The court a quo specifically stated at p.292, lines 16 to 18 of the
judgement, that the version of the appellant need
only be reasonably
possibly true and that there is no onus on the accused to prove his
alibi.
[137]
In my view the court a quo correctly applied the abovementioned legal
principles in her evaluation of the evidence.
[138]
The following findings by the court a quo as stated at p. 293, line
17 to p. 294, line 2 of the judgment, cannot, in
my view, be faulted:
"I
thus reject the version of the accused's alibi as not reasonable
possible true. I find that the evidence of the identity
presented by
the State as reliable, the situation and mobility of the scene, the
visibility, opportunity to observe and prior knowledge
of the accused
by the witnesses is in my view proved by the State beyond reasonable
doubt.
I
further find that the evidence of Zameer and Lerato [Mr Mofokeng] of
attempts made [by] and on behalf of the accused to have the
case
withdrawn as credible and most probable in the circumstances."
[139]
Lastly in relation to the merits of the appeal, I need to deal with
the ground of appeal set out in paragraph 3.16 of
the Notice of
Appeal to the effect that the Magistrate erred "in dismissing
the application of the appellant in terms of Section
174". From
a proper reading of the record it is evident that the Magistrate did
not dismiss the application, since no such
application had in fact
been made. Although the Magistrate could and should have handled the
defence's indication of its intention
to bring an application in
terms of Section 174 differently, it was the defence who decided not
to persist with such an application.
[140]
The appeal against the conviction can consequently not succeed.
B:
Ad sentence
[141]
In the notice of appeal the following grounds of appeal against the
sentence are set out:
"The
Honourable Magistrate erred by sentencing the appellant to a sentence
that is shockingly inappropriate, for the following
reasons:
4.1
The Honourable Magistrate erred by not giving proper consideration to
the appellant's personal circumstances, more
specifically his chances
of rehabilitation.
4.2
The Honourable Magistrate erred by not taking into consideration that
the appellant was a first offender.
4.3
...
4.4
The Honourable Magistrate erred in over-emphasising the aggravating
circumstances and the nature of the crime.
4.5
The Honourable Magistrate erred in under-emphasising the mitigating
circumstances of the appellant.
4.6
The Honourable Magistrate erred in over-emphasising the crime and
community interests at the expense of the offender
and imposing a
shocking heavy sentence.
4.7
The Honourable Magistrate erred by not taking into consideration
other appropriate forms of sentence and properly
weighing them up
against one another."
[142]
In terms of The
Criminal Law Amendment Act, 105 of 1997
, the
prescribed minimum sentence for robbery with aggravating
circumstances is 15 years imprisonment for a first offender.
[143]
The court a quo found substantial and compelling circumstances to be
present and imposed a lesser sentence than the
prescribed minimum, in
my view correctly so.
[144]
The court a quo imposed a sentence of 10 years imprisonment.
[145]
It is trite that sentencing is pre-eminently a matter for the
discretion of the court a quo and that a court of appeal
should be
loath to interfere with an imposed sentence. In
S v Petcar
1998 (3) SA 571
(A) at 574 D the applicable principles are stated as
follows:
"This
Court's powers to interfere with a sentence on appeal are
circumscribed. It may only do so if the sentence is vitiated
by (1)
irregularity, (2) misdirection, or (3) is one to which no reasonable
court could have come, in other words, one where there
is a striking
disparity between the sentence imposed and that which this Court
considers appropriate."
[146]
The court duly referred to and applied the three elements of
sentencing in its consideration of an appropriate sentence,
namely
the personal circumstances of the appellant, the nature and
seriousness of the offence and the interests of the community.
The
court further considered the objects of being prevention, retribution
, deterrence and, rehabilitation.
[147]
The following personal circumstances of the appellant were duly
considered by the court a quo:
1.
At the time of the sentencing the appellant was 34 years old.
2.
He is the father of three minor children, who at the time were 10
years, 6 years and 3 months old, respectively.
3.
The appellant is customarily married to the mother of the three
children.
4.
At the time of his arrest, the appellant was employed as long
distance truck driver.
5.
The appellant is a first offender.
[148]
It is evident from the judgment on sentence that the court a quo also
took the appellant's possible rehabilitation into
consideration in
his favour.
[149]
The court further took the following mitigating factors into
consideration:
1.
No actual violence or injury was inflicted on any person.
2.
The amount of the goods which were robbed are not that substantial.
3.
The cell phone was later recovered, although not due to any doing on
the part of the appellant.
[150]
The court considered the following aggravating factors:
1
The prevalence of the offence in the court's jurisdiction.
2.
The seriousness of the offence.
3.
The fact that the appellant denies any wrongdoing and there is no
remorse on his side.
[151]
In the totality of the circumstances of this appeal I cannot find
that there is any basis upon which we can interfere
with the sentence
of 10 years imprisonment.
[152]
The appeal against the sentence can consequently not succeed.
Order:
[153]
The appeal against the conviction and sentence is dismissed.
C
VAN ZYL, J
I
concur:
L
MPAMA, AJ
On
behalf of the appellant: Mr
P. Peyper
Instructed
by: Peyper
& Botha Attorneys
Bloemfontein
On
behalf of the respondent: Adv.
B.G Claassens
Instructed
by: Office
of the Director
Public
Prosecutions
Bloemfontein