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2021
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[2021] ZAGPPHC 66
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Zuma v S (A169/2019) [2021] ZAGPPHC 66 (22 January 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NO: A169/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
DATE:
22 January 2021
In the matter between:
VICTOR
SIBUSISO
ZUMA
Appellant
and
THE STATE
Respondent
JUDGMENT
AVVAKOUMIDES AJ
INTRODUCTION:
1.
The Appellant was convicted in the Regional
Court, Cullinan, on one
count of robbery with aggravating circumstances, read with section 1
of Act 51 of 1977. The Appellant was
sentenced to 15 years
imprisonment. Pursuant to the refusal of an application for leave to
appeal before the Regional Court, the
Appellant's petition to this
Court was granted on 7 March 2019 only in respect of the conviction.
ISSUES
ON
APPEAL:
2.
The Appellant has placed in dispute whether
the State proved, beyond
a reasonable doubt, that he was part of a group who robbed various
complainants as Eskom.
3.
It appears to be common cause that the Appellant
was present at the
scene and that a robbery ensued. The Appellant however has denied
that he played any part in the robbery.
THE EVIDENCE:
4.
The State led the evidence of Mr Lukhele,
a security officer at
Eskom, who was on duty on 16 August 2014. He testified that one
Bongani and Mr Makgoba were nearby him. At
approximately 21h00 that
evening he noticed a grey Corsa vehicle with blue lights on the
dashboard of the vehicle which arrived
at the gate where he was on
duty. Mr Lukhele thought that the vehicle was a police vehicle. When
approaching the vehicle, a person
sitting in the front passenger seat
introduced themselves as police officials. A second person wore a
reflector jacket with the
words “
crime scene”
portrayed thereon. A third person appeared to Mr Lukhele to have
a case docket in his possession. The driver of the vehicle was the
Appellant.
5.
Mr Lukhele was informed that they had come
to search the premises
because they were looking for someone. The three men who accompanied
the Appellant alighted from the vehicle
and opened the gate
themselves and entered the premises on foot. Mr Lukhele then formed
the belief that they were not police officers,
more so when one of
the men asked him whether he was in possession of a panic button. He
did not notice the driver of the vehicle
clearly.
6.
He approached the building of Eskom together
with the three men, but
the Appellant remained in the vehicle. The three men tied Mr Lukhele
up with rope together with two other
men who were employed in the
office at Eskom. They demanded that they be shown where the copper
was. According to Mr Lukhele the
driver (the Appellant) later drove
the vehicle inside the premises.
7.
Mr Lukhele identified that it was the Appellant
who held him and the
two men hostage in the office and that he was in possession of a
firearm. When the police arrived at the scene
the Appellant was
arrested in the office whilst he was holding Mr Lukhele and the two
other men hostage. It took approximately
one hour before the police
arrived. This is an important aspect because, inasmuch as the
Appellant denied that he was part of the
robbery, it is common cause
that three men were tied up with ropes whilst the Appellant was not
tied up at all. This flies in the
face of his evidence that he was a
victim as well and that all he did was to transport the three men to
Eskom against payment of
the sum of R1 000.00.
8.
Mr Lukhele confirmed that there was sufficient
lighting where he and
the other two men were held hostage and only the Appellant was
arrested by the police at the scene upon their
arrival. Mr Lukhele
testified that the Appellant was part of the group of men who arrived
at the scene and that he took part in
the robbery. The Appellant kept
watch over Mr Lukhele and the two men in the office and there was no
indication that the Appellant
was under any duress to participate in
the robbery.
9.
The State called a second witness, Mr Monyae
who testified that he
was also on duty as a security officer on 18 August 2014. Mr Lukhele
and three men approached him, and one
of the three men asked him
whether he carried a panic button. He and Mr Lukhele were tied up and
were taken to Mr Makgoba’s
office where they were held hostage.
When the police arrived, the Appellant was arrested in the office and
he was the one who kept
watch over them. Mr Monyae’s evidence
is corroborated by that of Mr Lukhele and, that there was no
indication whatsoever
that the Appellant was held at gunpoint or
forced to take part in the robbery.
10.
The State called Mr Makgoba who was on duty on the night of
18 August
2014. His evidence also corroborates the evidence of the other two
witnesses in all material respects. Mr Makgoba confirmed
that when
the police arrived only the Appellant was arrested, and he was
responsible for keeping watch over the three of them who
were tied
up.
CONVICTION:
11.
The Respondent submitted that the evidence of the State witnesses
corroborated each other in all material respects. It was further
submitted that it is indisputable that four persons entered the
premises and only one was arrested at the scene by the police, being
the Appellant. The three State witnesses all testified that
it was
the Appellant who kept watch over them during the robbery. In doing
so, bearing in mind the facts and the evidence led,
the Appellant
acted with common purpose in the robbery at Eskom.
12.
The Appellant, in denying that he acted with common purpose,
submitted
that two of the State witnesses could not clearly identify
the Appellant. However, in rebuttal, the State submitted that it was
common cause that only one person was arrested in the office by the
police and that is the Appellant. This is while the three men
employed by Eskom were tied up and lying on the floor of the office.
In this regard the State submitted that the version of the
Appellant
that his role was simply to transport the three other men to the
premises of Eskom against payment, was correctly rejected
by the
Court a
quo
as not reasonably and possibly true.
13.
Having considered the evidence and the submissions made by
the
parties, I am not persuaded that the appeal against the conviction
has any merit. Consequently, I make the following order:
13.1
The appeal against the conviction is dismissed.
G.T.AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
I agree
T.A.N. MAKHUBELE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
Date of hearing: 01
September 2020
Date of judgment: 22
January 2021
Delivered: This
judgment was prepared and authored by the Judge(s) whose name(s)
is/are reflected and is
handed down electronically by circulation to
the parties/their legal representatives by e-mail and by uploading it
to the electronic
file of this matter on Caselines. The date for
hand-down is deemed to be 22 January 2021.
Appearances:
On behalf of
Appellant:
Adv LA van Wyk
Instructed
by:
The Legal Aid Board of South Africa
On behalf of
Respondent:
Adv L Williams
Instructed
by:
National Prosecuting Authority