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[2011] ZASCA 83
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Nkosi and Another v S (411/10) [2011] ZASCA 83; 2011 (2) SACR 482 (SCA) (27 May 2011)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 411/10
In the matter between:
JAMES NKOSI
…...................................................................................................
First
Appellant
ZWELI ALBERT MTHETHWA
….................................................................
Second
Appellant
and
THE STATE
….............................................................................................................
Respondent
Neutral citation
:
James Nkosi v The State
(411/10)
[2011] ZASCA 83
(27 May 2011)
Coram:
PONNAN, MAYA JJA AND PETSE AJA
Heard:
17 March 2011
Delivered:
27 May 2011
Summary:
Appeal against convictions and sentences –
whether appellants ought to have been discharged at close of state
case in terms
of
s 174
of the
Criminal Procedure Act 51 of 1977
–
whether convictions and sentences imposed appropriate.
__________________________________________________________________
ORDER
On appeal from:
North
Gauteng High Court (Pretoria) (Hussain J sitting as court of first
instance):
The first appellant’s appeal succeeds. His
convictions and sentences are set aside.
The second appellant’s appeal is dismissed.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
MAYA JA (Ponnan JA and Petse AJA concurring):
[1] In the early hours of 9 September 2004, a gang of
heavily armed robbers travelling in a blue Toyota Tazz motor vehicle
attacked
Fidelity Cash Management Services (Fidelity) security guards
who were transporting cash from Boksburg to a Benoni pension
pay-point,
east of Johannesburg. The attempted cash-in-transit heist
occurred on the busy N12 highway between Benoni and the Etwatwa
off-ramp,
between 06h00 and 07h00, in heavy early morning traffic.
The Toyota had been violently robbed at gunpoint from its driver, Mr
Joao
Ananias Matembu, on the previous evening.
[2] Unbeknown to the robbers, Fidelity had received a
tip-off of an impending robbery. The police had been duly alerted and
strategically
positioned themselves along the relevant route. The
attack occurred as anticipated. During the course of the attempted
robbery,
one of the two Fidelity vehicles and a passing motorist, Mr
Johannes Hendrik Humphries, were shot by the gang. However, the
police
were waiting in the vicinity and a gunfight ensued between
them and the gangsters who were armed with AK47 assault rifles and
semi-automatic
9mm pistols. In the melee, the police shot four men.
Two of them died at the scene. The other two, one of them, the second
appellant,
were arrested and conveyed to hospital. The third man died
in hospital on the same day.
[3] A Mazda 626 vehicle which had been observed at the
crime scene during the commission of the offences was seen driving
away.
The police gave chase and a similar vehicle was subsequently
found at a taxi rank in Daveyton, a township about 30 to 40
kilometres
away. Its driver, the first appellant, was arrested.
[4] The appellants were subsequently charged (a) on
count 1, with robbery with aggravating circumstances of the Toyota;
(b) on count
2, with attempted robbery with aggravating circumstances
of the Fidelity vehicle, alternatively unlawful conspiracy with
Sibanda
(an employee of Fidelity who was murdered before the trial)
to commit robbery; (c) on count 3, with the attempted murder of
Humphries;
(d) on counts 4,5 and 6, with the murders of the three
would-be robbers Prince Hlophe, Philip Mahlaba and Vunokwakhe
Mtshali; (e)
on count 7, with unlawful possession of two AK47 rifles
(f) on count 8, with unlawful possession of six 9mm pistols and (g)
on
count 9, possession of 7,62mm, 7,65mm and 9mm calibre ammunition.
[5] The appellants pleaded not guilty to all the
charges. After hearing evidence, the court below acquitted them in
respect of the
counts of the robbery of the Toyota (for lack of
evidence against them) and the three counts of murder (the court
found that the
dead gangsters had been lawfully killed by the police
acting in private defence). They were, however, convicted on counts
2, 3,
7, 8 and 9. They were then each sentenced to undergo 15 years
imprisonment on count 2, seven years imprisonment on count 3, five
years imprisonment on count 7, three years imprisonment on count 8
and 2 years imprisonment on count 9. The sentences on counts
7, 8 and
9 were ordered to run concurrently with those imposed on counts 2 and
3. Thus, they were each sentenced to an effective
term of 22 years
imprisonment.
[6] The court below granted both appellants leave to
appeal against their convictions and sentences. The state also sought
leave
to cross-appeal against their acquittals on the murder charges,
which was granted, but abandoned its appeal before the hearing.
Only
the appellants’ appeals remain for adjudication.
[7] The state called several witnesses to support its
case. The evidence of the first of those witnesses, Matembu, is not
relevant
for present purposes as it concerned the robbery of the
Toyota which is no longer in contention. Humphries, the next witness,
testified
that he was driving his bakkie along the N12 highway from
the Witbank direction on his way to work in Johannesburg at about
06h20.
He noticed two Fidelity vehicles approaching from the opposite
direction. The one ahead suddenly swerved and turned around towards
Johannesburg whilst the other one stopped. There was commotion as
traffic halted abruptly and those who could, realizing that something
was wrong, turned around to escape.
[8] He stopped his bakkie in preparation to turn back.
But before he could move, a blue Toyota Tazz came from the opposite
direction
and stopped in the middle of the highway, about 150 metres
from him. A man carrying an AK47 rifle alighted from the vehicle and
walked towards him, firing shots directly at his bakkie. One bullet
penetrated his vehicle and struck his right shoulder. At that
moment,
a number of police vehicles swooped and a police helicopter landed
behind his vehicle on the highway. His assailant was
shot by the
police and fell in front of his vehicle. The Toyota sped off pursued
by the police who were shooting at it. It swung
around and stopped at
a nearby field. One of the vehicles that he noticed at the crime
scene was a ‘white Mazda 626’
which drove away towards
Johannesburg, behind the fleeing Fidelity vehicle, when the trouble
started. A policeman assisted him
out of his vehicle and he was taken
to hospital.
[9] One of the police officers monitoring the N12
highway before the incident was Inspector Jacobus Johannes
Redelinghuys of the
Serious Violent Crime Unit, Pretoria. According
to him, members of his unit travelled to the N12 highway early that
morning with
an order to scout the road for a possible robbery. He
travelled with a colleague, Captain Viljoen. They chose a spot along
the
highway and lay in wait. Not long thereafter, a green Fidelity
vehicle drove past slowly towards Witbank followed closely by a ‘gold
Mazda 626’ which drove on the yellow line of the road. Behind
the Mazda followed another police vehicle from his unit, which
was
also on the stake-out. They joined the traffic and followed about 100
to 150 metres behind the Mazda, separated from it by
one vehicle. At
some stage, the Fidelity vehicle and the Mazda drove around a bend
and disappeared from their sight momentarily.
[10] They saw traffic suddenly turning around and
speeding away and heard the sound of gunfire. They drove on and saw a
blue Toyota
Tazz, which travelled parallel to the highway, drive onto
the nearby field, alongside the highway, and stop. The front
passenger
jumped out of the vehicle before it came to a complete
standstill. Redelinghuys jumped out of his vehicle and approached the
Toyota.
The driver and a left rear passenger who remained in the
Toyota alighted and he ordered them to lie on the ground. He
confiscated
the cellular phones he found upon searching them and
noticed that they both had gunshot wounds. The man who jumped out of
the Toyota
earlier lay about 10 to 20 metres from it and had been
apprehended by the other police officers. He was wounded. He searched
him
and removed his cellular phone. He found a 9mm pistol on the road
near the Toyota. A man lay dead in the middle of the road and
next to
his body was an AK47 rifle. He did not see the Mazda again and had
noticed neither its registration details nor its occupants
as he had
seen it from a distance of about 200 to 250 metres.
[11] Captain Johannes Fryer was in one of the police
vehicles which lay in wait at various observation points along the
N12 highway.
He testified that his party received a radio message
alerting them to the approach of the Fidelity vehicles. They were
shortly
passed by one of the vehicles and followed it from behind a
large volume of traffic spanning about 200 metres. Sudden gunfire
erupted
from the opposite direction bringing the traffic to a
standstill. They weaved their way through and saw a blue Toyota Tazz
parked
on the right-hand side of the highway, facing the Witbank
direction. Two men stood near it. One carried an AK47 rifle and was
shooting
at the Fidelity vehicle which tried to turn around towards
the direction from which it had come. They could not see what the
other
man carried in his hands.
[12] Superintendent Blom, who drove their vehicle,
stopped and activated its blue light. They approached the gunman and
ordered
him to stop shooting, but he turned around and shot at them.
They returned fire and the man dropped to the ground. Inspector
Bambeger,
one of his crew, approached the injured man to arrest him.
Meanwhile, he and Blom pursued the Toyota which was driving away into
the field. The vehicle stopped and he saw a man running away from it.
He ordered him to surrender and subsequently arrested him.
He then
handed him to another colleague and left to join the helicopter crew
to pursue a brown or beige Mazda 626 which, they were
told by radio
control, was involved in the offences and was fleeing the crime scene
towards Daveyton. However, they were informed
shortly after take-off
that the Mazda had been apprehended at the Daveyton taxi rank and
returned to the crime scene.
[13] According to Constable Gaba Magaqa of Daveyton
police station, a message came through radio control, reporting a
robbery along
the N12 highway, some 30 to 40 kilometres away, and
that a ‘light brown Mazda 626’ with two occupants had
been seen
speeding towards Daveyton. He set off in chase with the
assistance of a helicopter which flew overhead. He saw the vehicle
pass
a local college, Isidingo, at high speed and followed it to the
local taxi rank for a distance he estimated initially between 200
to
250 metres, then a kilometre to a kilometre and a half and, finally,
40 to 50 metres. Once the vehicle stopped, two people jumped
out and
ran towards different directions. One of them, the first appellant,
went to hide under a parked motor vehicle from which
he dragged and
arrested him in the presence of other police officers and the
helicopter which still hovered above them.
[14] A few more witnesses testified briefly on behalf of
the state to tidy up some loose ends. Captain Sebola Mampane of the
East
Rand Services and Violent Crime Unit said that he arrived late
at the crime scene, after it had been ‘contained’ and
followed up on the whereabouts of the second appellant who was
reported to have been arrested there. He found him at Springs Police
Station on the following day, wrapped in bandages, and charged him.
Inspector Jacobus van der Linde of Fidelity’s Investigations
Services Intelligence Unit confirmed receiving a tip-off about a
possible robbery. Only the rear wheels of their vehicle were damaged
in the incident and its occupants were treated only for shock.
Another witness was Mr Lunga Mthombothi, a paramedic of the Etwatwa
Fire Department and one of the crew who attended to the injured men
at the crime scene, who identified themselves as Dumisani Hlophe
and
Zweli Mthethwa (the second appellant). He conveyed them to hospital
and had them admitted. The last witness was the investigating
officer
of the case, Inspector Goosen. He confirmed the death of Sibanda who,
he said, would have been a key state witness but
for his murder.
[15] At the close of the state case, the first
appellant’s legal representative expressed an intention to
apply for his discharge
in terms of
s 174
of the
Criminal Procedure
Act 51 of 1977
. However, the court below brusquely informed him that
to do so would be ‘a waste of court time’ as ‘the
practice
was not to grant discharges piecemeal where there are
multiple accused involved’ although ‘ it would have been
a very
different matter if [the first appellant] had been on his
own’. Thus, the application was aborted.
[16] Both appellants then testified in their defence and
denied any involvement in the commission of the offences. It emerged
from
their evidence that they were old friends and that the vehicle
driven by the first appellant on the day of the incident, a brown
Mazda 626 as he described it, belonged to the second appellant.
According to the first appellant, a taxi owner, he had purchased
the
vehicle on the second appellant’s behalf in December 2003. He
borrowed it on the day preceding the incident because his
vehicle had
broken down. When it transpired during his cross-examination that he
owned several vehicles which were in good working
order at the
material time, he said that he intended to use the Mazda to track
down one of his taxis which had been stolen. The
taxi rank from which
he operated was strictly patrolled on Tuesdays and Thursdays and all
taxi owners were expected to be present
or face penalties which
included a fine. As he would not be able to remain at the taxi rank
and the disciplinary committee had
already queried his frequent
absences, in writing, he used the Mazda to avoid detection by the
patrollers when he left because
they knew his vehicles.
[17] He left his home in Katlehong shortly before 06h00
on the fateful day and drove straight to the taxi rank in Daveyton
using
the Wattville Road. It appeared that the vehicle’s engine
was faulty as it kept ‘cutting’. He thought that it
might
have run out of fuel and could not rely on its petrol gauge. He
parked the vehicle near a public telephone shop and asked
around for
an empty container in order to buy petrol. Whilst waiting for the
container he approached one Bheki Molotwa whom he
had asked to repair
his cellular phone. The special task force police arrived at that
juncture and summarily arrested them together
with four or five other
people.
[18] After being handcuffed, they were handed over to
another team of police officers. According to him, Magaqa was not
among his
arrestors and he recalled being arrested by Inspector
Moleka. They were led to the nearby Daveyton police station and,
later, were
conveyed by car to the Germiston Murder and Robbery Unit.
On the following evening he heard Molotwa’s name being called.
He did not see him again and when he asked the investigating officer
about his whereabouts, he was informed that he had been taken
to
Rustenberg for another case. He met the second appellant during a
subsequent court appearance and learnt that he had also been
arrested
on the day of his own arrest. He denied travelling on the N12
highway, which he estimated to be about 30 to 40 kilometres
from the
taxi rank.
[19] The gist of the second appellant’s testimony
was that he was inadvertently caught in cross-fire between the police
and
the would-be robbers and that he was arrested whilst on his way
to fetch his vehicle from the first appellant in Daveyton. He said
that he left home after 05h00 after receiving a telephone call from
the first appellant reporting that the Mazda had a fault. The
vehicle’s petrol pump was generally not in a sound condition
and, as he knew how to fix it, he went to assist the first appellant
who advised him to call for directions to his location when he
reached Etwatwa. He travelled to Germiston and, from there, caught
another taxi to Benoni where he would catch the last taxi to his
destination, Daveyton taxi rank. However, upon arrival at the
Benoni
taxi rank, he found no available transport. He then took a lift in a
truck travelling to Middleburg on the N12 road which
dropped him off
at the Etwatwa off-ramp just as the gunfight started. He was then
arrested in the confusion whilst fleeing the
scene which he had not
even had the opportunity to observe.
[20] On the basis of this evidence, the court below
found that the state witnesses were credible and that the state
version of the
events was largely unchallenged. Adverse credibility
findings were made against the appellants who were described by the
court
as very unsatisfactory, evasive and lying witnesses with
improbable versions which could not reasonably possibly be true. In
the
court’s view, the evidence established beyond reasonable
doubt that the appellants received information from Sibanda which
they used to execute the attempted robbery using the Toyota, in which
the second appellant travelled, and the Mazda carrying the
first
appellant and Sibanda, who fled the scene upon encountering the
police but were nonetheless seen and followed to Daveyton
where they
were arrested.
[21] I deal first with the first appellant’s
conviction. What linked him to the case is only the fact that he
drove a Mazda
626 vehicle belonging to the second appellant on the
morning in question. I have a grave difficulty with the description
of the
Mazda 626 observed at the crime scene. The witnesses variably
testified about a ‘white’, a ‘gold’ and a
‘light brown or beige’ vehicle. Humphries and
Redelinghuys each saw the same vehicle model but in starkly different
colours travelling towards the opposite ends of the highway. Whatever
description is accepted, it could hardly be the brown vehicle
found
subsequently. Significantly, neither witness had observed the ‘white’
or ‘gold’ vehicle being used
in a manner which singled it
out from the numerous vehicles said to have been on that road, other
than following behind the Fidelity
vehicle. But then Redelinghuys
believed the one he saw to have followed the flow of traffic towards
Witbank as he did not see it
again. Humphries saw the white one turn
around and drive towards Johannesburg behind the Fidelity vehicle as
other vehicles did.
Neither witness got close to either vehicle
sufficiently to see its registration numbers or its occupants.
[22] Most importantly, other than the cryptic radio
message from a faceless individual mentioned by Fryer and Magaqa, to
pursue
a ‘light brown or beige’ Mazda believed to be
involved in the attempted robbery with no other distinguishing
features
given, no evidence at all was led to establish that such
‘light brown of beige’ vehicle (a) had been observed at
the
scene, (b) what rendered it suspicious and (c) if it was the same
vehicle seen by Magaqa, some 30 to 40 kilometres away. Magaqa’s
evidence that he tracked it with the helicopter’s assistance
merely created more uncertainty because Fryer who was in that
helicopter (the state led no evidence to show that more than one
police helicopter was involved in the incident) said that they
abandoned the chase quite early without once sighting the Mazda or
going anywhere near Daveyton taxi rank, as Magaqa claimed, because
of
the radio report that it had already been captured. And, as indicated
above, it turned out after some prevarication by Magaqa
on this point
in his cross-examination that he pursued the vehicle for a negligible
distance, a mere 40 to 50 metres.
[23] These inconsistencies in Magaqa’s evidence,
especially when he was a single witness on this crucial aspect, seem
to lend
credence to the first appellant’s denial, put to Magaqa
during his cross-examination, that he was arrested by someone else
–
a version which the state surprisingly ignored, despite the fact that
the first appellant named the policeman he claimed
to have arrested
him, and did not call any of the several officers said to have been
present during the arrest. But with or without
Magaqa’s dubious
account of the pursuit of the light brown Mazda and capture of the
first appellant, there remains a yawning
gap between the seemingly
innocent white and gold Mazda 626 vehicles last seen driving towards
Johannesburg and Witbank, respectively,
without taking any part in
the commission of the offences and the light brown one observed by
Magaqa hurtling past Isidingo College
in Daveyton.
[24] As the court below itself seems to have realized,
judging from its remarks mentioned in paragraph [15] above, the state
had
not established any evidence against the first appellant on which
a reasonable man could convict him at the end of its case. The
court
below obviously refused to entertain his application for a discharge
in the hope that his co-accused might provide incriminating
evidence
against him and supplement the state case. By so doing, counsel for
the first appellant argued, the court below improperly
exercised its
discretion and violated his Constitutional right against
self-incrimination.
[25] In
S v Lubaxa
,
1
this court found it an unlawful breach of an accused’s
rights under
ss 10
and
12
of the Constitution
2
to refuse him a discharge if there is no possibility of
a conviction except if he testifies and incriminates himself. But the
court
held that the same considerations may not arise where the
prosecution’s case against one accused might be supplemented by
the evidence of a co-accused and explained the basis for the
distinction as follows:
‘[20] The prosecution is ordinarily entitled to rely upon the
evidence of an accomplice and it is not self-evident why it
should
necessarily be precluded from doing so merely because it has chosen
to prosecute more than one person jointly. While it
is true that the
caution that is required to be exercised when evaluating the evidence
of an accomplice might at times render it
futile to continue such a
trial (
Skeen
(
op cit
at 293)) that need not always be
the case.
[21] Whether, or in what circumstances, a trial court should
discharge an accused who might be incriminated by a co-accused, is
not a question that can be answered in the abstract, for the
circumstances in which the question arises are varied. While there
might be cases in which it would be unfair not to do so, one can
envisage circumstances in which to do so would compromise the
proper
administration of justice. What is entailed by a fair trial must
necessarily be determined by the particular circumstances.’
3
[26] As I have said, there clearly was no evidence upon
which the court below might reasonably have convicted the first
appellant
at the close of the state case. Neither was there any
reasonable basis, in my view, for an expectation that his co-accused
might
incriminate him. The second appellant had given no plea
explanation and no indication whatsoever during the cross-examination
of
the state witnesses that he might do so. In fact, it did not
emerge that the second appellant was ever at the scene until the
evidence
of Mthombothi and Captain Mampane was led in the late stages
of the state case. And even then, there was no hint that he might
augment the state case from the very terse and vague
cross-examination of these two witnesses.
[27] Plainly, the court below failed to properly
evaluate the evidence at the end of the state case and wrongly
exercised its discretion.
The first appellant was entitled to a
discharge (which he was not even given a proper opportunity to apply
for) and placing him
on his defence in these circumstances
undoubtedly denied him a fair trial. I should perhaps add briefly
that even a consideration
of all the evidence, including the defence
version, did not warrant his conviction despite the flaws in his own
testimony as the
critical gap in the evidence remained. The court
below misdirected itself in a number of material respects by giving
insufficient
attention to serious discrepancies in the state version
and making findings (for example, that he tried to conceal that he
was
good friends with the second appellant, fabricated the character
of Molotwa and was with Sibanda on the morning of the incident)
which
were not supported by the evidence on record.
[28] The position of the second appellant is, however,
an entirely different matter. He was wounded and arrested at the
scene of
the crimes, a mere 10 to 12 metres from the gangsters’
Toyota. The striking feature of his testimony is his extreme
reluctance
to reveal his capture at the scene by Fryer and that he
had been injured there which he acknowledged only at the very end of
his
cross-examination. It seems incredible that an innocent bystander
wounded by state agents and then, to add insult to injury, wrongly
arrested would hide that fact instead of indignantly proclaiming his
innocence and perhaps even seeking redress for the injustice.
[29] There are other features of the second appellant’s
version which cast doubt on its veracity. The first appellant said
nothing at all about their alleged arrangement to meet that morning
when he testified. Instead, he gave a contrary version during
his
cross-examination which went as follows
‘After you fetched his motor vehicle, when did you see [second
appellant] again? I saw him again at Springs after he was
arrested …
I was at court where we were all about to appear … Did you ask
[second appellant] why he was arrested?
… Yes … Did he
tell you which place was it where there was shooting? … Yes …
Did he perhaps explain
to you where he was heading? Yes … he
said he was going to fetch his car from me … at Daveyton. And
how he was travelling?
I did not ask him. I also told him that I did
phone him to inform that his car was giving me trouble’.
[30] It was never put to Fryer that the second appellant
informed him when he was placing him under arrest that he had just
alighted
from a truck which had given him a lift. And the second
appellant could not explain satisfactorily why he ventured on a long
and
arduous trip at the crack of dawn to fetch (or, irreconcilably,
fix as he testified at some stage of his questioning) a car which
was
mobile, even if faulty, from the first appellant who had several
vehicles instead of simply asking him to return it.
[31] The court below found it improbable that there
would have been no taxis at Benoni taxi rank which is situated near a
train
station during the morning peak period as the second appellant
claimed in an effort to explain his odd presence on the busy highway.
I agree with that view. Furthermore, his evidence that he was
unfamiliar with that area raises the question how he would have known
about the seemingly obscure footpath to Etwatwa which traverses the
mealie-field which he said he was planning to follow upon alighting
from the truck.
[32] It was contended on the second appellant’s
behalf that the evidence of Redelinghuys and Fryer which suggested
that he
emerged from the Toyota was unreliable because the scene was
mobile and dusty. I see no reason to doubt the reliability of these
witnesses’ observations. Redelinghuys was certain that the man
he saw get off the Toyota was the same one they captured shortly
thereafter, at no more than 20 metres from that vehicle. Fryer stated
that even though it was dusty because of the ploughed field,
one
could still see clearly. He insisted that he saw no pedestrians in
that vicinity and that even though he did not see the passenger
get
off the vehicle there was nowhere else that he could have come from
but the Toyota. Photographs of the crime scene taken directly
after
the foiled robbery depict a flat, straight strip of a multi-lane road
flanked by expanses of recently ploughed fields with
no buildings in
sight. They show no vegetation or any objects which would have
obstructed the view of Redelinghuys or Fryer once
they had their
sights on the Toyota and make plain the sheer improbability of a
pedestrian going unnoticed instead of standing
out on the barren
terrain, a version which was, in any event, never put to the two
policemen.
[33] The second appellant’s explanation for his
presence at the crime scene simply did not bear scrutiny. The
evidence presented
by the state established beyond reasonable doubt
that he was a passenger in the Toyota. The conclusion that he was one
of the gang
which set out to commit the foiled robbery is ineluctable
in the circumstances. His convictions were, therefore, proper and
should
not be disturbed.
[34] Turning to the question of sentence, it should be
reiterated that sentencing is pr-eminently a matter for the
discretion of
the trial court and that this court does not have an
overriding discretion to interfere unless the sentences imposed by
the court
below are vitiated by irregularity or misdirection or are
disturbingly inappropriate.
4
Although the appeal had been directed at the sentences
imposed on the second appellant as well, his counsel conceded their
correctness
during the hearing.
[35] The concession seems to me proper in view of the
judgment of the court below which shows that it carefully considered
all the
factors relevant in the enquiry – the second
appellant’s personal circumstances, the nature of the offences
involved
and the interests of society. Some of the sentences were,
fairly, ordered to run concurrently with the sentences imposed in
respect
of the main counts.
[36]
Section 51(1)
read with
Part I
of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
prescribes a minimum sentence
of 15 years imprisonment, which was imposed here, for the completed
offence of robbery and makes
no specific provision for attempted
robbery of which the second appellant was convicted on count 2. In my
opinion, there is little
in the circumstances of this case to
distinguish between a completed robbery and the heinous, foiled
attempt by the second appellant,
who runs a seemingly decent paving
business, and his associates, which involved the use of heavy
artillery and gratuitous violence
with no regard for the safety of
innocent civilians or police. The offence of robbery was all but
completed and it is a miracle
that Humphries survived and more people
were not maimed or killed. The offences committed in this case count
among the most violent
and, unfortunately prevalent in this country.
The harshest form of punishment is undoubtedly warranted.
[37] I am satisfied in the circumstances that there is
no legal basis to interfere with the sentences and they must stand.
The following
order is accordingly made:
1 The first appellant’s appeal succeeds. His
convictions and sentences are set aside.
2 The second appellant’s appeal is dismissed.
_____________________
MML Maya Judge of Appeal
APPEARANCES
APPELLANT: H L Alberts
Pretoria Legal Aid Centre
RESPONDENTS: KM Mashile
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein
1
S
v Lubaxa
2001 (2) SACR 703
(SCA) paras 18 ff.
2
The
Constitution of the Republic of South Africa, 1996.
3
Compare
S v Ndlangamandla
1999 (1) SACR 391
(W) at 393f-h
; S v
Legote
2001 (2) SACR 179
(SCA) para 9.
4
S
v Rabie
1975 (4) SA 855
(A).