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[2023] ZAECMKHC 5
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Mahlahla v S (CA&R 143/2021) [2023] ZAECMKHC 5 (25 January 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MAKHANDA
CASE NO: CA&R
143/2021
Heard on: 3 August
2022
Judgment
delivered on: 25 January 2023
In
the matter between:
SINETHEMBA
MAHLAHLA
Appellant
and
THE
STATE
Respondent
JUDGMENT
MALUSI
J
:
[1]
The appellant was charged with robbery with aggravating circumstances
read with the
provisions of
s51(2) of
Act 105 of 1997 (minimum sentences Act)
in the regional court sitting in
Uitenhage
.
He was convicted and sentenced to twelve
(12)
years’ imprisonment. He appeals against his sentence with
leave granted on petition.
[2]
The charge put to the appellant and his since deceased accomplice
was that on 31 January 2020 at or near
Shoprite
Square
in
KwaNobuhle
they robbed the complainant of four
(4)
tyres valued at
R2 400.00
.
It was alleged that aggravating circumstances were present in that a
knife was used in the execution of the robbery.
[3]
The evidence led in the court a quo disclosed that the complainant
and his father
delivered goods to a shop in the mall. Whilst the
father attended at the shop, the complainant stood guard over the
delivery bakkie.
The appellant and his accomplice approached the
complainant, demanding that he must open the canopy door. He
pointedly refused
and stood against the canopy door. The accomplice
advanced towards him and uttered the words ‘
This
is how we work, we are working here’.
The
accomplice simultaneously placed his hand in his pocket when saying
those words. The complainant retreated and escaped
from the two
men.
[4]
The complainant stated that the accomplice’s advance and
placing of his hand
in his pocket induced a fear in him that the
accomplice would produce a knife. He thought the accomplice would
stab him. He had
not seen any knife before escaping. The moment the
accomplice placed his hand in his pocket, the complainant turned
around and
ran away.
[5]
The regional magistrate reasoned in his judgment that it is not
necessary for a weapon
to be wielded for aggravating circumstances to
be established. A threat by conduct of the assailant to inflict
grievous bodily
harm is sufficient to establish aggravating
circumstances. He concluded that the mere touching of a pocket was
sufficient to establish
aggravating circumstances.
[6]
The order granting leave to appeal specifically raised the issue
whether the elements
of robbery were proved. In particular, the
question was raised as to whether the touching of or placing a hand
in the pocket
by the deceased accomplice was sufficient to constitute
a threat of violence.
[7]
The elements of the crime of robbery are the following:
7.1
the theft of property;
7.2
through the use of either violence or threats of violence;
7.3
a causal link between the violence and the taking of the property;
7.4
unlawfulness; and
7.5
intention.
[1]
[8]
The element at issue in this appeal is the threat of violence.
It has been held
that a threat of physical harm directed at the
complainant if he does not acquiesce to the removal of property is
sufficient.
[2]
The threat must
be of immediate personal violence to the complainant. The subjective
test is whether the complainant believed that
the appellant intended
to carry out the threat and was able to do so.
[3]
The decisive factor is that the threat must induce a fear of violence
in the complainant. The threat may be conveyed by conduct
or words or
both.
[9]
On the facts of this case it is clear that the complainant had
initially resisted
the theft of the tyres. In order to overcome
his resistance, the accomplice uttered the words in para [3] (supra)
which in
themselves are not a threat. However, his advance on
the complainant and his placing his hand in the pocket induced a fear
of an immediate personal attack in the complainant. The
resultant state of fear satisfied the requirements for this element
of robbery.
[10]
The further enquiry relates to ‘
aggravating
circumstances’
in relation to the
offence of robbery. These are defined in
s2(1)(b)
of the Criminal Procedure Act
to mean:
“
(i)
the wielding of a fire-arm or any other dangerous weapon;
(ii)
the infliction of grievous bodily harm; or
(iii)
a threat to inflict grievous bodily harm by the offender or an
accomplice on the occasion
when the offence is committed, whether
before or during or after the commission of the offence”.
[11]
Part of the charge put to the appellant was that ‘
The
aggravating circumstances is that a knife was used in the execution
of this robbery’.
As
indicated in para [4] supra, the complainant did not actually see any
knife in possession of the accomplice nor in his pocket.
Neither did the accomplice utter words that he was in possession of a
knife. Thus, the threat to inflict grievous bodily
harm could
only materialize by the conduct of the accomplice. Such conduct
was the placing of his hand in his pocket.
[12]
On the facts of this case there is insufficient evidence to conclude
that there was a threat
to inflict ‘
grievous
bodily harm’.
In my view not
every threat of violence amounts to a threat of grievous bodily harm.
An objective assessment of the evidence clearly
shows that there was
no knife used nor threats to use one. The subjective assumption
of the complainant that there was a
knife in the pocket is sufficient
to carry a robbery conviction solely focusing on the results of the
conduct. However, viewed
objectively there is no evidence that the
same conduct proves the accomplice was in possession of a knife. The
complainant was
simply not asked for purposes of establishing a
threat of grievous bodily harm the reasons he thought the accomplice
was in possession
of a knife. There is no evidence of a bulge
in the pocket or any indication that the accomplice was in possession
of a knife
or any weapon whatsoever for that matter.
[13]
An example would suffice. A robber who placed his hand in his pocket
in such a way to subjectively
induce fear in the mind of a
bank-teller that he has a fire-arm is guilty of robbery.
However, the same robbery may not be
with aggravating circumstances
when viewed objectively because there may not be a threat of
inflicting grievous bodily harm as
the belief of a fire-arm in the
pocket may simply be unreasonable.
[14]
In my view, on the facts of this case the robbery was not with
aggravating circumstances but
was robbery
simpliciter
.
This conclusion has an effect on the appropriate sentence as the
provisions of the minimum sentences Act do not find application.
[15]
The appellant was convicted of robbery with aggravating
circumstances. For the reasons
stated above, the conviction is
wrong. This court must invoke its inherent power to review the
proceedings of the lower court.
It cannot allow a clearly wrong
conviction to stand. In the circumstances the conviction must
be set aside.
[16]
This court has to consider afresh the appropriate sentence as all the
relevant information is
before us. The appellant was
26
years old at the time he committed the offence. He was single
and did not have dependants. His highest education
qualification
was grade 10. He was employed as a seasonal
general worker in the citrus industry earning
R1 800.00
per fortnight. He had spent six
(6)
and a half months in custody awaiting trial. He had two
(2)
previous convictions for theft, one for contempt of court and another
for a drug offence. No weapon was wielded and no injuries
were
inflicted on the complainant. The stolen tyres were recovered.
[17]
The offence for which he was convicted is prevalent in the
Republic
.
It is a serious offence which displays a lack of respect for the
property of other persons. It was committed brazenly
in broad
daylight in front of many people.
[18]
In my view an appropriate sentence is a period of five
(5)
years’ imprisonment.
[19]
In the result the following order will issue:
19.1
The conviction and sentence of the appellant are set aside;
19.2
It is replaced with the following:
“
The
accused is found guilty of robbery. The accused is sentenced to
undergo five (5) years’ imprisonment”.
T MALUSI
JUDGE OF THE HIGH
COURT
I agree:
J G A LAING
JUDGE
OF THE HIGH COURT
Appearances
:
For
the Appellant: Adv Geldenhuys
instructed
by
Legal
Aid Board
MAKHANDA
For
the Respondent:
Adv Kgatwe
instructed by
Director
of Public Prosecutions
MAKHANDA
[1]
Criminal Law, C R Snyman, 6
th
Edition, page 508.
[2]
S
v Moloto
1982
(1) SA 844
(A) at 850B-C;
S
v Kgayane
1982
(4) SA 133 (T).
[3]
R
v Sibanyone
1940
JS 40 (T);
Mtimunye
1994
(2) SACR 482
(T) at 485a-b.