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2023
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[2023] ZAECMKHC 43
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Khatu v S (CA&R171/2021) [2023] ZAECMKHC 43 (14 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
CASE
NO: CA&R171/2021
In
the matter between:
YOLISA
KHATU
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
Bloem
J
1.
The appellant was charged with robbery with
aggravating circumstances in the regional court, Gqeberha. It
was alleged that
on 12 March 2019 and at Booysenspark, Gqeberha he
assaulted Xolile Mngupane (the complainant) and thereafter forcefully
took a
Mazda motor vehicle and a cell phone from him, while pointing
a firearm at him. The magistrate acquitted the appellant of
robbery, but convicted him of theft of the motor vehicle and cell
phone. He sentenced the appellant to 15 years’
imprisonment.
The magistrate granted the appellant leave to
appeal against sentence, but refused him leave to appeal against
conviction.
It is with the leave of this court that he also
appeals against conviction.
2.
The complainant’s undisputed evidence
was that on the day in question, he stopped his taxi at a four way
intersection in Booysenspark.
At the time he had four
passengers in his taxi, three males at the back and a female in
front. One or more of the passengers at
the back tried to hold his
left shoulder. He felt something being pressed against his neck. He
thought that it was a firearm.
He managed to open the driver’s
door of the taxi and ran away. One of the passengers at the back
moved to the front and drove
off in the taxi. He stopped a
police vehicle and gave a description of his taxi to the policemen.
He informed them
that one of his passengers had a gold tooth and
dreadlocks and described the clothing of the other. The
policemen drove off.
A policeman later contacted him and
informed him that the vehicle, that he had described to them, had
been found. He was
collected and taken to his vehicle, where a
bag was shown to him wherein his cell phone was found. He
testified that he had
left his cell phone in his vehicle before he
had ran away.
3.
Charl Jonk testified that he and a
colleague, constable Adams, were patrolling when they received a
report that a red vehicle had
been hijacked. When they came
across that vehicle, he saw one person sitting in the driver’s
seat while another one
was pushing the vehicle. He drove in the
opposite direction and passed that vehicle, but made a u-turn.
The person
behind the steering wheel of the red vehicle jumped out
and ran into nearby bushes. He was wearing a brown top and a
white
cap. The man who pushed the red vehicle was wearing a
grey top. He had a black bag on his back. He ran in the
direction of nearby houses, leaving no one inside the red vehicle.
Constable Adams had in the meantime requested for assistance.
Shortly thereafter sergeant Killian and constable Justin Petrus
reported to them that they had chased two men and managed to
apprehend
one of them.
4.
Constable Petrus testified that he and
sergeant Killian were patrolling in the Kwanoxolo area at about 19h00
on 12 March 2019, when
they received a report over the radio of a red
vehicle that had been hijacked. Constable Adams described the
clothing that the
two men were wearing to them. As they
continued patrolling the area, they saw two men emerging from the
bushes. They
ran away when they saw the policemen. They
ran after the men and managed to apprehend one of them where he was
laying in
what turn out to be a vlei in a bushy area. They
searched him and found a black cell phone in one of his pockets.
He
also had a backpack in which they found a grey top. They took him
to the Bethelsdorp police station where the complainant was in
attendance. He identified the cell phone, that the police found
in the suspect’s possession, as his. That concluded
the
state’s case.
5.
The appellant testified that on the day in
question he travelled in one taxi from Motherwell to Kwanoxolo, where
he was awaiting
another taxi to take him to Booysenspark. A
maroon or red vehicle (the red vehicle) stopped and a woman
alighted. A
police vehicle drove past them in the opposite
direction, but made a u-turn shortly thereafter. The police
fired shots at
the red vehicle. Two young males emerged from
the red vehicle and ran into nearby bushes. At that stage, he
was approximately
four meters from the red vehicle. He ran
after the two men, but veered off in the direction of the houses.
He ran because
the policemen were firing shots in his direction.
He testified that he was arrested in a street in Kwanoxolo, not the
bushes,
after a policeman had instructed him to stop running.
He denied that he had a cell phone on his person when he was
arrested.
6.
The magistrate accepted the evidence of all
the state witnesses. He described them as honest and credible
witnesses.
On the other hand, the magistrate described the
appellant’s evidence as unbelievable. He rejected it as
false in those
respects where it differed from the evidence given by
the state witnesses. The magistrate found that the complainant
was
not a single witness. Regarding the evidence in respect of the
appellant’s identity, the magistrate found that he was
“
convinced that there is enough
evidence with regard to his identity, which proves his identity
beyond reasonable doubt and I believe
that evidence to be correct
”.
7.
The evidence of a single witness should be
approached with caution. The aim of the careful
consideration of the evidence
of a single witness is to reduce the
risk of a wrong finding and a wrong conviction. That does not mean
that the exercise of caution
should displace the exercise of common
sense. The magistrate found that the complainant was not a single
witness because his evidence
was corroborated by circumstantial
evidence. He found corroboration in the fact that the
complainant’s cell phone was
found on the appellant and that
the appellant hid in the vlei. In my view, the complainant was a
single witness, which required
his evidence to be carefully
considered. That is so because only he gave evidence regarding the
circumstances under which he abandoned
his taxi. The aspects upon
which the magistrate relied for the finding that the complainant was
not a single witness do not undo
the fact that the complainant was
single witness.
8.
Evidence
of identification should also be approached with caution. In
R v Shekelele
[1]
it was held that in all cases that turn on identification, the
greatest care should be taken to test the evidence. The appellant’s
evidence was that he was wearing a green skipper (T-shirt) underneath
a grey top and black pants. The magistrate found that
it was
the appellant who was wearing the grey top and who stole the red
vehicle and cell phone. It is that finding that is central
to this
appeal. It was submitted on behalf of the appellant that that
finding was incorrect.
9.
The complainant testified that he had not
seen any of his passengers before the day in question. While he was
driving, he saw the
passengers at the back seat for a few seconds
when he looked over his shoulder and when he looked at them through
the rear view
mirror when he made enquiries about the taxi fare.
As he was running away, he also looked backwards when it sounded that
the driver of his taxi experienced difficulties changing the gears of
the taxi.
10.
The complainant’s description of the
appellant’s clothing did not include a green T-shirt, although
he said that “
there was a T-shirt
underneath
” when he was
cross-examined about the grey top that one of his passengers was
wearing. It was constable Petrus who
testified that the person
who they had arrested was wearing a green T-shirt. The
appellant corroborated that piece of evidence
when he confirmed that
he was wearing a green T-shirt. Furthermore, the complainant
testified that one of his passengers
was dressed in a grey top and
black pants. Although sergeant Jonk made no secret of the fact
that he would be unable to identify
the two passengers who ran away
from the red vehicle, he testified that one of them was wearing a
grey top. Constable Petrus
testified that the person who had
been found in the vlei, had a backpack in which they found a grey
top. All the witnesses
accordingly testified that the person
was either wearing a grey top or had it in his backpack.
11.
What presented a bigger problem for the
appellant is the complainant’s cell phone. The complainant
testified that he left
his cell phone on the driver’s seat
before he abandoned his taxi. Constable Petrus testified that,
when they searched
the appellant after his arrest, they found a cell
phone in one of the pockets of his trousers. The appellant
denied that
a cell phone was found in his possession. It is
undisputed that the complainant left his cell phone in his taxi.
The
complainant’s evidence regarding the identification of the
cell phone (that constable Petrus testified about) as his, went
unchallenged. The issue accordingly is whether or not that cell
phone was found in the appellant’s possession upon
his arrest.
12.
The magistrate accepted constable Petrus’
evidence that he found the complainant’s cell phone in the
appellant’s
pocket when he was arrested. Mrs McCallum,
attorney for the appellant, submitted that the magistrate should have
rejected
constable Petrus’ evidence. As part of the attack on
his evidence, counsel referred to a portion thereof where he
testified
that they found the appellant in a bushy area. He
“
was completed submerged but his
face was above the water. He was not wet
”.
While constable Petrus’ evidence in that regard seems to be
improbable, nothing turns on it. His evidence
relevant to the
appellant’s grey top was confirmed by other witnesses,
including the appellant. It must therefore be accepted.
His
evidence that the complainant’s cell phone was found in the
appellant’s possession was not shaken.
13.
It
is trite that the factual findings of a trial court are presumed to
be correct unless those findings are plainly wrong.
An appeal
court will only reverse those findings where it is convinced that
they are plainly wrong.
[2]
It
is improbable that the police would have deprived the complainant the
use of his cell phone from 12 March 2019 until 13
August 2019, when
the complainant testified, only to frame the appellant. For
that plot to be plausible, it would have had
to have been hatched by
the policemen and the complainant immediately upon the appellant’s
arrest, since the cell phone was
in the possession of the police
since then. In my view, the appellant’s denial that the
cell phone was found in his
possession is so improbable, in the light
of all the evidence, that his evidence in that regard cannot be
reasonably possibly true.
The magistrate accordingly correctly
found that the complainant’s cell phone was found in the
appellant’s possession.
Since the appellant has failed to
give any explanation for his possession of the complainant’s
cell phone, the only explanation
therefor is that the appellant
unlawfully removed it from the complainant’s taxi with the
intention of permanently depriving
the complainant thereof.
14.
In all circumstances, I am unable to find
that the magistrate was wrong when he found that the complainant’s
cell phone was
found in the appellant’s possession. When
one considers that finding; that it was the same person seen by
the
complainant and sergeant Jonk who was dressed in a grey top and
that top having subsequently being found in the backpack by constable
Petrus; that the appellant was dressed in a green T-shirt; that
sergeant Jonk and constable Petrus testified about the same red
vehicle described by the complainant, it must be concluded that the
magistrate correctly found that the identification of the appellant
by the complainant and constable Petrus was reliable. There is
accordingly no justifiable basis for interfering with the
magistrate’s findings in that regard. In the
circumstances, the appeal against conviction must be dismissed.
15.
Although
the appellant was charged with robbery with aggravating
circumstances, he was convicted of the theft of the complainant’s
vehicle and cell phone. He should accordingly have been
sentenced for the offence of which he had convicted. Mrs
McCallum
submitted that the sentence which the magistrate has imposed
reasonably creates the impression that he sentenced the appellant as
if he had been convicted of robbery with aggravating circumstances.
Mr Vena, counsel for the state, submitted that 15 years’
imprisonment was an appropriate sentence given the circumstance of
this case.
16.
Sentencing
falls within the discretion of the trial court. An appellate
court’s power to interfere with sentences imposed
by courts
below is circumscribed. An appeal court can only interfere
where there has been irregularity that results in a
failure of
justice; the court below misdirected itself to such an extent
that its decision on sentence is vitiated;
or the sentence is
so disproportionate or shocking that no reasonable court could have
impose it.
[3]
17.
To arrive at an appropriate sentence, a
sentencing court must take into account the personal circumstances of
an offender; the nature
of the offence and the circumstances under
which it was committed; and the interests of society. The
magistrate was
informed by the appellant’s attorney that, as at
January 2020, he was 26 years old, unemployed, single, left school
whilst
doing standard nine and the father of three minor children who
reside with their respective mothers. During 2014 he was
convicted
of attempted theft and sentenced to a fine of R1000 or 6
months’ imprisonment, which was wholly suspended for five years
on certain conditions.
18.
There can be no doubt that the theft of a
motor vehicle is a serious and prelevant offence, and so is the theft
of a cell phone.
It is a mitigating factor that both the
complainant’s taxi and cell phone were recovered on the same
day of having been stolen.
Members of society expect the courts
to deal harshly with persons who show no respect for other persons’
property.
19.
In
S
v Davies
[4]
the appellant was convicted of theft of a Mercedes Benz vehicle,
albeit on the basis of
dolus
eventualis
.
The trial court sentenced him to five years’ imprisonment on
the basis of the facts contained in the statement wherein
he admitted
guilt to the offence of theft. With the leave of the Supreme
Court of Appeal he appealed against that sentence.
The full
court saw “
nothing
to suggest that a sentence of five years’ imprisonment was
shocking or inappropriate to the facts of that case, the
personal
circumstances of the appellant or the concerns of the community
.”
It found that the sentence was not “
out
of touch with the sentences imposed throughout the country and by the
highest court in respect of theft of motor vehicles
”.
The appeal was accordingly dismissed.
20.
In
S
v Connell
[5]
the appellant was convicted of theft of a motor vehicle and sentenced
to five years’ imprisonment. The appeal against
sentence
was successful because the appeal court found that the appellant, a
27-year old first offender with the mentality of a
13-year old child,
had acted on the spur of the moment when he took the vehicle for a
joyride. The sentence was altered to
one of correctional
supervision for two years.
21.
In
S
v Naidoo
[6]
the 34-year old appellant was convicted of the theft of a truck, the
value of which was in excess of R500 000. The magistrate
sentenced him to 15 years’ imprisonment. On appeal that
sentence was reduced to eight years’ imprisonment of
which
three years were suspended for five years on condition that the
appellant not be convicted of theft or an offence of which
dishonesty
is an element committed during the period of suspension. That
sentence was reduced despite the fact that the court
found more
aggravating than mitigating circumstances.
22.
I have used the above authorities as a
guide in the determination of an appropriate sentence. I have
satisfied myself that,
given the circumstances of the present appeal,
a sentence of 15 years’ imprisonment is so disproportionate to
the offence
committed by the appellant, his personal circumstances
and society’s interest that no reasonable court could have
imposed
it. There is merit in the submission made by Mrs
McCallum. That being the case, the sentence must be set aside.
In my view, a sentence of seven years’ imprisonment will be
appropriate.
23.
In the result, it is ordered that:
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence is upheld.
3.
The sentence of 15 years’
imprisonment is set aside and replaced with the following:
“
The
accused is sentenced to seven years’ imprisonment.”
4.
The sentence is antedated to 15 January
2020.
GH BLOEM
Judge of the High Court
I agree.
A GOVINDJEE
Judge of the High Court
For the appellant:
Mrs
HL McCallum of Legal Aid South Africa, Makhanda.
For
the state:
Mr
L Vena, of the Office of the National Director of Public
Prosecutions, Makhanda.
Date
of hearing:
8
March 2023.
Date
of delivery of judgment:
14
March 2023.
[1]
R
v Shekelele
1953
(1) SA 636
(T) at 638G.
[2]
Rex
v Dhlumayo and another
1948 (2) SA 677
(A) at 706.
[3]
S
v Bogaards
2013
(1) SACR 1
(CC) at 14d-e.
[4]
S
v Davies
2016
JDR 1866 (GJ).
[5]
S
v Connell
2001
JDR 0389 (T)
[6]
S
v Naidoo
2010
(1) SACR 499
(JGS).