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[2022] ZAMPMBHC 41
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Tumane and Other v S (A32/2021) [2022] ZAMPMBHC 41 (3 June 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NO.: A32/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
3
June 2022
In
the matter between:
CLINT
MZWANDILE TUMANE
1
st
Appellant
TSHAKANE
LAWRENCE NTLEMO
2
nd
Appellant
NKULULEKO
MOSES MKHWANAZI
3
rd
Appellant
versus
THE
STATE
Respondent
JUDGMENT
MPHAHLELE
J
[1]
The appellants were charged with ‘
robbery
with aggravating circumstances read with the provisions of section 51
of Act 105 of 1997 minimum sentence of 15 years imprisonment
upon
conviction in that upon or about the 27
th
of June 2012 and at or near Valencia, Nelspruit in the regional
division of Mpumalanga the accused did unlawfully and intentionally
assaulted Riza Ali Mayet and did then and with force take from him
R27 500-00 a bag valued at R200-00 his property or property
in his
lawful possession aggravating circumstances being the use of
firearms’.
[2]
The appellants pleaded not guilty but were eventually convicted as
charged and each
sentenced to 15 years’ imprisonment.
[3]
This is an appeal by leave of the trial court against both the
conviction and sentence.
[4]
The main contention of the appeal is that the trial court erred in
accepting the evidence
of the complainant as a single witness to be
true and finding that the state proved its case beyond reasonable
doubt on the charge.
Further that the trial court erred by failing to
allow the recalling of the complainant and in fact failed to make any
ruling in
this regard.
[5]
Let me first deal with the application for the recall of Mr Riza Ali
Mayet (“the
complainant”), to the witness stand. This
application was brought immediately after the testimony of the first
two appellants,
who were accused 1 and 2 respectively during the
trial proceedings. The main objective of the application was to place
a statement
made by the complainant to the police before court and
also clarify some aspects of the statement by canvassing the issues
with
him (the complainant). At page 113 line 17, the legal
representative submitted as follows: “
However
your worship in the interest of justice and for the court to reach a
just decision it is necessary that Mr Rizza be recalled
so that he
can clarify some of these things in his statement that were not put
to him.
”
[6]
The State then indicated that it had no objection to the
complainant’s statement
made to the police being handed into
the record. On this basis, the appellants’ representative
indicated that there was no
need to recall the complainant. He
practically abandoned the application and proceeded to call the third
appellant (accused 3)
to the witness stand.
[7]
The trial court, correctly so, stated in its judgment that the
application for the
recalling of the complainant was abandoned and as
a result thereof did not deal with the application.
[8]
Let me now deal with the issue of whether or not the State managed to
prove its case
beyond reasonable doubt.
[9]
Mr R A Mayet, the complainant was the only witness for the state
connecting the appellants
to the crime.
[10]
It is trite that an accused may be convicted of an offence on the
single evidence of a competent
witness but the court must apply the
cautionary rule and that particular evidence be treated with due
caution. In this respect
the court in S v Mthethwa
1972 (3) SA 766
(A) at 768 A – C, stated the following:
“
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 the identification
parade, 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…..
”
[11]
Therefore, particular care should be taken if the only evidence
connecting the accused with the
crime is that of a single identifying
witness; then the cautionary rule relating to single witnesses should
also be taken into
account.
[12]
In S v Sauls & Others
1981 (3) SA 172
(AD) at page 180 E –
G, the court stated the following:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness ……
The trial Judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy
and whether despite the fact that there are shortcomings or defects
or
contradictions
in the testimony, he is satisfied that the truth has been told. The
cautionary rule referred to by DE VILLIERS JP
may be a guide to a
right decision but it does not mean ‘that the appeal must
succeed if any criticism, however slender,
of the witnesses’
evidence were well founded.’ …… It has been said
more than once that the exercise of
caution must not be allowed to
displace the exercise of common sense.
”
[13]
The complainant testified that on 27 June 2012 at about 16h15, the
first appellant entered his
store to ask for a quotation. The first
appellant was not very clear what he wanted, he could see that he did
not know what he
wanted but nevertheless proceeded to give him a
quotation. It is in the normal course of his business that he would
find customers
who are confused and then he will advise and then give
a proper quotation. After receiving the quotation, the first
appellant left
the store followed by the complainant who went to his
yard to give instructions to his workers. The complainant then
noticed the
first appellant getting into a white Golf driven by the
second appellant. The Golf was parked at the gate of his store. The
car
was parked right in his driveway at the entrance to the gate and
he was walking towards the gate to his staff who was on the left
hand
side and that is when he saw the first appellant getting into this
car. The car was driven by the second appellant. There
were other
occupants in the car but could only notice the third appellant who
was wearing a red shirt. The appellant was sitting
in the front seat.
It was at the time the store was about to close and there were not
many people around, it was quiet.
[15]
The complainant collected daily takings of R6 500-00 from the store
and placed it in his pocket.
He then left for his home. When
approaching his home, he noticed three or four people standing on the
staircase of the overhead
pedestrian bridge adjacent to his home. He
regularly observes the bridge to ascertain if there were any people
standing there because
he was previously robbed. He noticed 3 to 4
people standing on the staircase. He immediately recognised the first
appellant who
was walking towards his house. He found the scenario to
be a bit suspicious and did not immediately turn into his driveway,
he
drove past his house and went around the block and then eventually
turned into his house. He then pulled into his driveway and before
he
could exit the vehicle, he was accosted by three men. The first and
third appellants and another person ordered him out of the
vehicle.
As he got out of the vehicle, he was punched by the third appellant.
He could not identify the persons who assaulted him
whilst he was
lying on the floor. He had a scarf around his neck which was used to
strangle him as they demanded cash. The amount
of R6 500-00 in cash,
two cell phones and other belongings were removed from him. He
directed them to a bag containing the rest
of the money at the back
of his car. The bag had an amount of R14 500-00 in cash. After
removing the bag, one of the men instructed
the other one to shoot
the complainant. At the time the complainant's neighbour appeared and
shouted, enquiring as to what was
happening. The appellants then
left. The complainant’s daughter who witnessed the attack went
inside the house and pressed
the panic button. Hi Tech security
personnel who were patrolling in the vicinity responded immediately.
About an hour later, the
security personnel informed the complainant
that 3 suspects have been arrested. He later went to the police
station to make a formal
statement and the appellants were brought in
at the same time. He immediately notified the police officer in
charge that the appellants
were the very same people who attacked
him.
[16]
He recognised the first appellant as the man who came to his store
earlier on for a quotation.
He still remembered his face and the same
clothes he was wearing earlier on at the store. He “
unmistakably”
identified the second appellant by his dread hairstyle and face and
recognised him as the driver of the vehicle. He recognised
the third
appellant as one of the occupants in the car. The third appellant was
wearing a red shirt and he punched him during the
incident.
[17]
The complainant recognised the appellants because it was just a short
period of time from the
time that they came to his shop to the time
that they attacked him at his home. He thereafter saw them about an
hour later after
the attack at the police station. He saw them thrice
on that day. The three men who instructed him to get out of his car
were all
armed.
[18]
HiTech recovered the bag and gave it to the complainant at the police
station and he found his
belongings intact in the bag, namely his
watch, a personal file as well as some business documents.
[19]
Under the circumstances of this case, the trial court exercised
caution in regard to the evidence
of the complainant and found the
evidence of the complainant to be reliable and credible.
[20]
As to his reliability, the court found that the complainant had ample
opportunity for observation
of the appellants.
[21]
The circumstances of this case justify the guilty finding of robbery
with aggravating circumstances
as found by the trial court.
[22]
It follows that the appeal against conviction cannot succeed.
[23]
I now turn to the appeal against the sentence imposed by the trial
court. As already stated,
the appellants were each sentenced to 15
years’ imprisonment for robbery with aggravating circumstances
read with section
51 of Act 105 of 1997. The appellants were further
declared unfit to possess firearms.
[24]
The appellants did not lead any evidence in mitigation and their
personal circumstances were
presented as follows:
[25]
The first appellant is a 33 years old male and a father of two
children. He is living with his
wife and younger brother and sister.
He is employed as a security officer and has one older brother who is
also employed. His family
is dependent on him for financial support.
He is a first offender.
[26]
The second appellant is a 34 years old male and has 3 children aged
2, 8 and 12 years old respectively.
He is still staying with this
mother. His wife, mother and children are financially dependent on
him. He is self-employed and offer
some employment opportunities for
the youth. He passed matric and thereafter obtained a diploma in
bookkeeping. He is also a first
offender.
[27]
The third appellant is a 34 years old male and has three children
aged 3, 6 and 14 years old
respectively. Only two of these children
are staying with him. His family, including his mother, are dependent
on him for financial
support.
[28]
Further it was submitted that the court should also take into
consideration that the appellants
were relatively young at the time
of the commission of the offence, that the complainant did not suffer
serious injuries and that
all the stolen items were recovered.
Further the offences were committed in June 2012 and the matter was
only finalised in February
2019 even though the appellants were on
bail, as a result they were not in custody during the whole trial
proceedings. During this
period of approximately 7 years, there were
several postponements of the trial hearings and the appellants
attended each of the
court proceedings without fail. Further in that
period, the appellants were never found to have fallen foul of the
law. The appellants
appear to be good candidates for rehabilitation.
[29]
It is no doubt that the appellants were convicted of a serious
offence. Society expects the courts
to deal appropriately with the
perpetrators of such heinous deeds. Without doubt, society needs to
be protected from such criminals.
[30]
After having considered all the evidence in this mater, I am of the
considered view that there
are substantial and compelling
circumstances justifying the imposition of a lesser sentence than the
prescribed minimum sentence
of 15 years’ imprisonment in
respect of each appellant. I am further of the considered view that
the appropriate sentence
would be 10 years’ imprisonment in
respect of each appellant.
[31]
In the result, it is hereby ordered as follows:
1.
The appeal against conviction is hereby dismissed.
2.
The appeal against the sentence is hereby upheld and replaced with
the following sentence:
2.1
The appellants are each sentenced to 10 years’ imprisonment,
antedated to 22 February 2019;
2.2
The appellants are further declared unfit to possess firearms
in
terms of
section 103
of the
Firearms Control Act 60 of 2000
.
S
S MPHAHLELE
DEPUTY
JUDGE PRESIDENT
MPUMALANGA
HIGH COURT
I
agree.
JH
ROELOFSE
ACTING
JUDGE
MPUMALANGA
HIGH COURT
FOR
THE APPELLANTS:
Attorney C G Jordaan
INSTRUCTED
BY:
Coert Jordaan Inc Attorneys
FOR
THE STATE:
Adv T S J Bekwa
INSTRUCTED
BY:
THE NDPP
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date for hand-down
is
deemed to be the 03
rd
day of June 2022.