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[2011] ZASCA 236
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Dube v S (322/11) [2011] ZASCA 236 (30 November 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 322/11
In
the matter between
HLANGANANI
SIHLOBO DUBE
…..............................................
Appellant
and
THE
STATE
…..............................................................................................
Respondent
Neutral
citation:
Dube v The State
(322/11)
[2011] ZASCA 236
(30 November 2011)
Coram:
PONNAN, MHLANTLA and
BOSIELO JJA
Heard:
22 November 2011
Delivered:
30
November 2011
Summary:
Criminal Law – appeal against
conviction and sentence – robbery with aggravating
circumstances and reckless driving
– whether appellant was
properly identified as perpetrator – no reason for appeal court
to interfere – convictions
and sentences confirmed.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from:
North Gauteng
High Court (Pretoria) (Omar AJ and Makgoka J sitting as court of
appeal):
The appeal against the convictions and sentences is
dismissed.
___________________________________________________________
JUDGMENT
___________________________________________________________
MHLANTLA JA (PONNAN and BOSIELO JJA concurring):
[1] On 2 November 2006 at approximately 10h00, Milan
Ignatof (the complainant) was driving his motor vehicle in McKenzie
Park, returning
to his workplace after withdrawing an amount of R120
000, which was to be utilized to pay wages to some of his employees.
He was
talking to a client on his cellular phone when a motor vehicle
ahead of him suddenly slowed down and a bakkie that had been
stationary
until then drove into his motor vehicle, effectively
causing a collision. He initially surmised that this was a genuine
collision
but later realized that a robbery was in progress. Three
robbers were involved, two of whom had firearms in their possession.
Before
the complainant could react one of the robbers pointed a
firearm at him and demanded the cash. He was robbed of the R120 000,
his
wallet containing R600 cash, credit cards and his medical aid
card as well as his Nokia cellular phone. The robbers thereafter
casually walked away from the scene.
[2] Shortly after the robbers had left the scene,
paramedics in the employ of ER 24 drove past. He flagged them down
and alerted
them to the occurrence of the robbery. They contacted the
South African Police Services (SAPS) flying squad which arrived at
the
scene within five minutes of the robbery. The complainant
provided the police officers with the description of the robbers,
that
is, the type and colour of clothing worn by them as well as
their physical appearances.
[3] The police set out in pursuit of the robbers.
Constable Rodney Ramaroka, a member of the flying squad, saw a person
wearing
dark trousers and a red top, who did not seem to know where
he was going, walking up and down the street. Ramaroka was suspicious
of him but did not arrest him and kept on patrolling. He saw another
person who wore a grey polo neck, grey trousers and shoes
near a
certain house. This fitted the description of one of the suspects
provided by the complainant. Ramaroka saw this person
enter a certain
residential premises. He confronted him and asked for his
identification and the purpose of his visit at that house.
The man
replied that he was the owner. He later established that the man was
not the owner but had sought refuge there. He arrested
the suspect
and took him to the scene where he found the other suspect. He
immediately recognised the person as the one he had
seen earlier,
wandering near an open field. Inspector Mooka attached to the Crime
Combating Unit of the SAPS, received a report
from radio control. He
is the one who arrested the second suspect whose clothing fitted the
description provided. Mooka found a
Nokia cellular phone in his
possession. The two suspects were formally charged. The complainant
subsequently attended an identification
parade where he positively
identified the appellant as one of the robbers.
[4] The appellant and his co-accused were charged in the
Regional Court, Benoni of robbery with aggravating circumstances. The
appellant
also faced a charge of reckless or negligent driving. At
the commencement of the trial the appellant tendered a plea of not
guilty.
In amplification of his plea in terms of
s 115
of the
Criminal Procedure Act 51 of 1977
, he explained that he had gone to
McKenzie Park to seek casual employment and had no knowledge of the
robbery. According to him,
his arrest was motivated by a xenophobic
mindset on the part of the police since he was a Zimbabwean national;
that the police
had assaulted him and compelled him to admit that he
was the driver of the bakkie.
[5] During the trial the complainant also identified the
appellant whilst the latter was sitting amongst five other persons in
the
dock. The former further elaborated that the physical appearance
of the appellant had changed as he had lost some weight since the
robbery. He was adamant that the appellant was one of the robbers. He
identified the appellant as the person who had driven into
him and he
had clearly seen his face at that stage. The police officers
corroborated the complainant's version in regard to the
arrest of the
appellant. The appellant denied ever committing the offences.
Repeating his allegation that his arrest was as a result
of the
xenophobic tendencies of the police, he further claimed that the
complainant had conspired with the police officers to falsely
implicate him.
[6] On 22 November 2007 the regional magistrate rejected
the appellant's version as not reasonably possibly true and accepted
the
State's version. He convicted the appellant of robbery with
aggravating circumstances and reckless driving. The magistrate
imposed
a sentence of 15 years' imprisonment for the robbery and 12
months' imprisonment in respect of reckless driving. He thereafter
dismissed the appellant’s application for leave to appeal
against the convictions and sentences imposed.
[7] The North Gauteng High Court, Pretoria subsequently
granted the appellant leave to appeal against his convictions and the
sentences
imposed. His appeal was dismissed by Omar AJ (Makgoka J
concurring). These are the reasons why the court below dismissed the
appeal:
(a) The court below characterized the evidence as
circumstantial and held that the magistrate had correctly found that
the police
officers had corroborated the version of the complainant
in every material respect;
(b) The magistrate had correctly found that the
appellant and his co-accused had contradicted their versions;
(c) The court below accordingly rejected the version of
both that they were victims of circumstances and found that their
version
was false.
(d) In regard to sentence, the court below held that the
appellant, who had been legally represented, was at all times aware
that
the minimum sentence legislation was applicable. It thus
confirmed the convictions and sentences imposed.
[8] The court below dealt with the case briefly and
after dismissing the appeal in a four page judgment, surprisingly
granted the
appellant leave to appeal further to this court.
[9] The issue on appeal is whether the State has
succeeded in proving the identity of the robbers beyond reasonable
doubt. Put differently,
whether the appellant was one of the
perpetrators. In regard to sentence, the question is whether the
sentence is excessive and
induces a sense of shock.
[10] Before the commencement of the appeal we advised
the appellant, who was not legally represented, of his right to legal
representation
in terms of s 35(2)(b) and (c) of the Constitution. We
further indicated that arrangements would be made for him to obtain
the
services of counsel to assist him should he so wish. We also
secured the services of a sworn interpreter. The appellant declined
the offer of both and presented his own case. He did so proficiently
in English.
[11] The appellant submitted that the State’s case
rested on the evidence of a single witness in regard to the robbery.
The
crux of his challenge related to the circumstances leading to his
arrest and subsequent identification by the complainant. In so
far as
his arrest was concerned, the appellant submitted that it did not
make sense how Ramaroka, who had seen him walking in the
street,
could have continued patrolling the area and not arrest him, if he
were a suspect and the complainant had provided his
description.
[12] Regarding this challenge, there is no doubt that
the description of the suspects had been provided by the complainant.
What
is not clear is the manner in which the information was relayed
to the officers. One has a sense that each police officer was on
a
look-out for a suspect fitting a particular description. This would
explain Ramaroka’s decision not to arrest the appellant
as at
that stage he was on the look-out for a person wearing grey trousers
and a grey polo-neck. Indeed Mooka testified that he
had received
information from radio control and was provided with a description of
a short, plump suspect wearing a red t-shirt.
This turned out to be
the appellant. The police officers placed the appellant and his
co-accused in the vicinity shortly after
the robbery had been
committed. They arrested two suspects who fitted the description
provided by the complainant. They corroborated
each other and the
complainant in regard to the description of the robbers. In my view,
there in nothing implausible in the manner
in which Ramaroka and
Mooka effected the arrest of the appellant and his co-accused.
[13] The appellant assailed Mooka’s version that
he had seized a cellular phone from him. His criticism was that Mooka
had
not requested the complainant to identify it. This issue can be
disposed of relatively simply. That a cellular phone had been found
on him and that it had not been shown to the complainant is thus
wholly irrelevant in the determination of the appellant’s
guilt.
[14] The main attack by the appellant relates to the
identification of him as one of the robbers. He submitted that the
complainant
had conspired with the police officers to falsely
implicate him. In this regard he contended that the complainant had
been able
to identify him at the identification parade because the
police had brought him to the scene after his arrest for an informal
parade.
He accordingly submitted that no reliance could be placed on
the evidence adduced on behalf of the State.
[15] This submission has no merit. There was direct
evidence of identification of the appellant as one of the robbers.
The evidence
adduced by the State linking the appellant to the
offences consisted of the eyewitness testimony of the complainant
including the
report about the identification parade. There was also
the evidence of the arresting officers. The complainant identified
the appellant
as one of the robbers. According to him, the appellant
was the person who drove the bakkie and collided with his vehicle. He
further
testified that the appellant was never brought to him whilst
at the scene. He had already provided a description of the appellant
as he had seen his face during the collision. The complainant
identified him at an identification parade from a line-up of about
20
men. He again identified the appellant in court amongst five men and
made certain observations and remarks about the appellant's
physical
condition. In my view, this was direct evidence and the court below
erred when it characterized this evidence as circumstantial.
[16] The appellant’s version on the other hand was
that the police officers had brought him to the complainant at the
scene
of the robbery to identify him. According to the appellant on
that occasion the complainant informed the police that the appellant
had not been involved in the robbery. According to him, the
complainant later conspired with the police to falsely implicate him.
This was motivated by xenophobia on their part.
[17] The appellant’s version does not make sense.
He wants the court to believe that the complainant, who had initially
exonerated
him at the scene, later conspired with the police to
falsely implicate him and in the process protect the real robbers.
This conspiracy
would involve planning with the police who came from
different units. There is no evidence that the police officers knew
the complainant.
If the appellant is to be believed, something must
have happened to the complainant to change his version and thus cause
him to
falsely implicate the appellant. The question to be asked is
if there were to be a conspiracy, why would such a plan involve only
one suspect – the complainant having failed to identify the
other suspect. There is no explanation as to why the complainant
would falsely implicate the appellant. In my view, the version of the
appellant falls to be rejected as false.
[18] Our courts have repeatedly stated that evidence of
identification must be approached by courts with caution. In
S
v Mthethwa
,
1
Holmes JA enunciated the following principle:
‘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 be tested.’
The complainant, albeit a single witness was a good
witness and his evidence was clear and satisfactory. The evidence of
the identification
parade was not attacked. The complainant explained
during the dock identification that the general appearance of the
appellant
had changed from the day of the incident. This was never
disputed. His evidence of the identification of the appellant as one
of
the perpetrators was reliable. There was overwhelming evidence
against the appellant and his version was correctly rejected as
false.
[19] I am unable to find any fault with the assessment
of the witnesses by the regional magistrate who had the advantage of
observing
them when they testified. Similarly the judgment of the
court below cannot be assailed. It follows that the guilt of the
appellant
was established beyond any reasonable doubt. In the absence
of any misdirection there is no basis upon which this court can
interfere
with the findings
2
of the court below. It follows that the appeal against
conviction must fail.
[20] Turning to the question of sentence: The imposition
of sentence is a matter falling pre-eminently within the judicial
discretion
of the trial court. The test for interference by an appeal
court is whether the sentence imposed by the trial court is vitiated
by
an irregularity or misdirection
or
is disturbingly inappropriate.
3
In this case the provisions of the
Criminal Law
Amendment Act 105 of 1997
are applicable. The prescribed minimum
sentence in respect of a conviction of robbery with aggravating
circumstances is 15 years’
imprisonment. A court may impose a
lesser sentence if there are substantial and compelling
circumstances.
[21] The court has to evaluate all the evidence when
determining the existence of substantial and compelling
circumstances. The
mitigating factors are the following: the
appellant is a first offender; is relatively young; and he had been
in custody for a
year pending the finalization of the trial. Against
that background are the aggravating factors as follows: this was a
brazen attack
in broad daylight; the manner in which the robbery
unfolded indicates that there was prior planning; the robbers must
have kept
the complainant under surveillance and eventually caused
the collision forcing him to stop; firearms were used to threaten the
complainant; and a large sum of money and other valuable items were
stolen which were never recovered. The incident must have had
a
negative impact on the workers who were expecting their wages from
the complainant, as they were deprived thereof, albeit temporarily.
[22] In my view, the aggravating factors in this case
far outweigh the mitigating factors. There are accordingly no
substantial
and compelling circumstances justifying the imposition of
a lesser sentence. The sentence imposed is commensurate with the
seriousness
of the offences, the interests of society as well as the
circumstances of the appellant. There is accordingly no basis for
this
court to interfere. It follows that the appeal against sentence
also fails.
[23] In the result the appeal against the convictions
and sentences is dismissed.
_______________
N
Z MHLANTLA
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant : H S Dube (In Person)
Modderbee
Correctional Centre
Pretoria
Justice Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent : E V Sihlangu
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
1
S
v Mthethwa
1972 (3) SA 766
(A) at 768A-B. See
also
S v Mehlape
1963
(2) SA 29
(A) at 32A-F.
2
See
R v Dhlumayo
1948 (2) SA 677
(A).
3
Director
of Public Prosecutions, KwaZulu-Natal v P
2006
(1) SACR 243
(SCA) para 10.