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[2021] ZAGPJHC 462
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Gilbert v S (A36/2021) [2021] ZAGPJHC 462 (24 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO: A36/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
24/08/2021
In
the matter between:
CINDI
MUSA
GILBERT
Appellant
and
THE
STATE
Respondent
CORAM:
MABESELE J; MAHALELO J AND DU PLESSIS AJ
J
U D G M E N T
MABESELE,
J
:
[1]
The appeal is against the convictions and sentences. The appellant is
convicted of
murder and robbery with aggravating circumstances; two
counts of attempted murder and the counts of unlawful possession of a
semi-automatic
firearm and unlawful possession of ammunition. The
counts of murder and robbery with aggravating circumstances are each
read with
the provisions of sections 51(1) and 51(2) respectively, of
the Criminal Law Amendment Act
[1]
[2]
The appellant was sentenced to life imprisonment for murder; 20 years
imprisonment
for robbery with aggravating circumstances; 16 years
imprisonment for each count of attempted murder; 16 years
imprisonment for
unlawful possession of a firearm and 6 years
imprisonment for unlawful possession of ammunition.
[3]
The appellant contends that the state failed to prove its case beyond
reasonable doubt
to secure the convictions and the sentences imposed
on him are shockingly inappropriate.
[4]
At the centre of this appeal is the issue of identification. The
appellant argues
that the trial court did not correctly apply the
cautionary rules in so far as they relate to the evidence of
identification.
[5]
The evidence is that on the morning of the 23
rd
August
2017, the deceased, his mother (Mrs Mollo) and brother (Percy) went
to the Absa Bank at Maponya Mall to draw money in the
sum of R
23 350.00 to pay for the funeral service for the late daughter
of Mrs Mollo. The family spent about 10 to 15 minutes
in the bank.
[6]
It is common cause that the appellant was at the Absa bank on the
morning of 23
rd
August 2017. The undisputed evidence of Mr
De Wet, a national investigator of violent crimes and integrity
management for Absa,
which was presented through the video footage in
court is that the appellant was standing in a queue and looking at
the Mollo family
standing in the same queue waiting to collect the
money from the teller who was by then busy counting. The appellant
left the bank
about two seconds after the family of Mollo had left,
as per the times shown in the video footage. He was wearing a black
cap and
a jacket.
[7]
Mrs Mollo testified that an amount of R 23 350.00 in cash was
handed over to
her by the teller and she put the money inside the
bag. Thereafter she and the two sons walked out of the bank to their
car which
was parked not far from the bank and thereafter proceeded
to Zola 1 Funeral Parlour. The deceased drove the car. She sat next
to
him and Percy sat in the back.
[8]
When the car stopped at the funeral undertakers the deceased asked
for the bag and took the money out and put it between the
driver’s
seat and passenger seat. At that stage she did not realise that there
were men standing outside the car. After she
had received her bag
from the deceased she got out of the car. As she was about to climb
the stairs to the mortuary she looked
back and saw the two men
unknown to her, at the car. She went back to the car and stood next
to the deceased and the man unknown
to her who she recognised as the
appellant. The appellant was holding a firearm. The other man was
pushing Percy back into the
car from the other side. She noticed a
white motor car parked in front of their car. The appellant who stood
with the deceased
looked at her bag and demanded the money from her.
The appellant said to her “bring the money or else I will kill
you, bring
the money or else I will shoot”. She asked the
appellant ‘money for what?’ The appellant shot in the air
and
the sound affected her ear because she was at the distance of an
arm’s length away from the appellant . The appellant grabbed
her bag and threw her on the ground. She pleaded with the appellant
not to take the money because she was going to pay for the
funeral
costs. The deceased too, pleaded with the appellant not to take the
money. The appellant responded by saying “give
me the money,
please give the money”. While she and the appellant were
pulling the bag to their sides the bag opened and
the appellant
noticed that there was no money in the bag and went to the car. The
deceased argued with the appellant and could
do nothing because the
appellant was armed with a firearm. After the appellant had taken
money in the car, he came back to her
and took the bag which had
contained the birth and death certificates and the titles deed and
pushed her on the ground. When she
stood, up she went to Percy on the
other side of the car and found him crying and pointed at the
deceased on the ground and said
that the deceased was shot. Percy was
injured on the left thigh. After Percy had pointed the deceased to
him, she went to the deceased
and kneled and asked God what had she
done on earth. While she was still uttering those words, the
appellant came and shot her
on the side of the head and left the
scene. The bullet did not penetrate the head and she sustained a
slight injury.
[9]
Mrs Mollo testified during cross-examination that the whole incident
of robbery took
10 to 15 minutes and she had observed the appellant
for that period of time. She testified that she and the appellant
looked at
each other face to face when the appellant had grabbed her
and had told the police that she would be in a position to point out
the appellant. She told the police that appellant had big lips and
was wearing a cap. She testified that at the police station
she was
shown the photos which depicted a number of the male persons. She
identified the appellant among them and pointed him out.
[10]
Mr Percy Mollo confirmed the version of Mrs Mollo that he was in her
company at the bank and
drew cash in the amount of R 23 350.00.
His mother took the money. From the bank they drove to Zola 1 Funeral
Parlour. The
journey from the bank took 15 minutes.
[11]
Percy testified that after the deceased had stopped the car at the
funeral parlour a white Chevrolet
parked in front of them. As they
were about to alight from the car two male persons alighted from the
Chevrolet and approached
them. They were armed with firearms. One of
them approached the deceased and the other approached him on the
other side of the
car and instructed him to go back into the car and
not look at them. The man who was with the deceased hit the deceased
with the
butt of a firearm on the head and demanded the money. The
deceased was standing outside the car. The man approached the mother
and demanded the money. The man pushed the mother to the ground. The
mother was standing next to the deceased. He testified that
the
appellant is not the one that hit the deceased with the butt of a
firearm and pushed his mother to the ground because the appellant
was
threatening him on the other side of the car and instructing him not
to look at him. Percy said that the appellant approached
the deceased
for the first time when the deceased was fighting with the
appellant’s companion and was going to offer help
to his
companion. When the appellant reached them, he shot the deceased
while his companion was still struggling to cock his firearm.
Thereafter the appellant and his companion took the money and in the
car and the mother’s bag and left the scene. He tried
to chase
them and the appellant shot him on the thigh. He said that the whole
incident of robbery lasted for approximately 5 minutes.
He said that
the appellant was wearing a black cap and jacket and has big lips.
[12]
On 28
th
August 2017 he went to the Jabulani Police Station
to submit a J 88. Upon his arrival he was requested by the police
officer Ndwande
to view the video footage of the people who were
inside the Absa bank and pointed out the suspects who robbed them of
the money
and killed the deceased. He pointed the appellant and
someone else. He again pointed out the appellant in a photo album.
[13]
During cross-examination, Percy admitted that he wrote in the
statement the following: ‘there
was a struggle between my
brother and other suspect moving towards the back of the vehicle and
both fell down. I heard the shot
being fired’. He admitted that
he did not mention in the statement that the appellant approached the
deceased and shot him
while the deceased was involved in a struggle
with his companion. He explained that the omission to mention the
appellant in the
statement is due to the trauma which he had suffered
when he made the statement.
[14]
The appellant testified that on the day of the incident he was at
Maponya Mall. He had gone there
to meet a friend called Leonard. He
roamed around the mall, waiting for Leonard and ended up entering the
Absa bank. He did not
do any business at the bank or made any
enquires. He could not recall why he left the bank. He suggested that
perhaps he had received
a message from Leonard. He does not recall
where he went after leaving the bank. He denied that he took part in
the attack.
[15]
The appellant testified during cross-examination that had he not
shown the footage depicting
him in the bank he would have denied that
he was in the bank that day. Counsel for the state said:
‘
Sir
I put to you that if you were not shown the video footage identifying
yourself at the Maponya Mall ABSA Bank branch you would
have denied
that you were at the bank that day, do you have any comment ?’
The appellant
responded:
‘
Yes,
I would deny
…
.’
[16]
The evidence of identification should be approached with caution.
There must be certainty beyond
reasonable doubt as to the reliability
of such evidence
[2]
In
R V Mokoena
[3]
Ramsbottom AJP
made the following observations:
‘
where
it is a case of identification the court should be satisfied that the
identification is not only honest but is reliable from
the point of
view of the of the witness’
opportunity
of observing
[4]
[17]
The robbery which resulted in the death of the deceased took place
during the day. It lasted
for approximately 5 to 10 minutes according
to the eye
witnesses. Mrs Mollo was at the distance of an arm’s length
away from the appellant when the appellant demanded
money from her
and she in turn asking the appellant ‘money for what?’
During the conversation she had looked appellant
in the face. She
described his lips as big and was wearing a cap. She and the
appellant had fought for her bag before the appellant
threw her on
the ground. She again saw the appellant when he came to shoot her
after he had taken the money from the car. She undoubtedly
had
sufficient opportunity to observe the appellant. In addition, Mrs
Mollo pointed out the appellant at the police station among
the male
persons who appeared in the photo album which she was shown.
[18]
Although Percy contradicted Mrs Mollo with regard to the role played
by the appellant at the
crime scene, he, however, had placed the
appellant at the scene. He too, described the lips of the appellant
as big and said that
appellant was wearing a jacket and black cap.
[5]
He is the one who told Mrs Mollo that the deceased was shot by the
appellant.
[19]
The appellant went into the bank and stood in a queue although he was
not going to do any business
with the bank. He admitted during
cross-examination that he looked around and at the people inside the
bank. According to the time
recorded in the video footage the
appellant left the bank about two seconds after the Mollo family had
left with the money. The
witnesses identified him at the scene with
the same cap and jacket which he was wearing in the bank. The robbery
took place less
than an hour after the Mollo family had left the
bank. The fact that the appellant was not prepared to admit that he
was in the
bank had the video footage not depicted him, demonstrates
that he had stood in a queue as though he was going to do business
with
bank whereas his intention was to look at the clients of the
bank who were drawing the money from the bank. For all these reasons
his version that he did not take part in the robbery and murder of
the deceased is rejected as not being reasonably possibly true.
[20]
The trial court in its judgement correctly made the following
observations: ‘The repeated
demand of the attackers in asking
“
where
is the money “ rather than demanding valuables generally, or
rather demanding to know if the family had money shows
that the
attackers knew that the family had money. Given that the family had
obtained the cash only 15 minutes before the attack
and had driven
straight to where the attack occurred, the demand for “the
money” links the attackers to the family’s
visit to the
bank. At least one of the attackers must have been at the bank when
the family drew the cash’ For all these
reasons the appeal
against the convictions cannot succeed
[21]
Punishment is pre-eminently a matter for the discretion of the trial
court. The appeal court
may alter or interfere with the sentence
imposed by the trial court only when its sentencing discretion has
not been judicially
and properly exercised. As correctly argued by
counsel for the state the test is whether the sentence is vitiated by
irregularity
or misdirection or disturbingly inappropriate.
[22]
The appellant is married in accordance with customary law. He has two
dependent children. He
owns a taxi. He has previous convictions of
robbery with aggravating circumstances and possession of a firearm
and ammunitions.
He is currently serving a sentence of 20 years
imprisonment for his previous convictions.
[23]
The trial court correctly found that these personal circumstances do
not justify a deviation
from the prescribed minimum sentences.
[24]
The appellant was sentenced to 16 years imprisonment on each count of
attempted murder that relates
to Mrs Mollo and Percy, respectively.
The state had recommended a sentence of 10 years imprisonment on each
count. Both Mrs Mollo
and Percy sustained minor injuries from the
gunshots as indicated in the medico-legal examination reports marked
exhibits ‘D’
and ‘E”, respectively. They were
both treated at the hospital and released on the same day they were
admitted. In this
regard the sentences of 16 years imprisonment
imposed on counts 3 and 4 do not fit the crime. Therefore this court
is at large
to interfere with these sentences. The court is of the
view that a sentence of 7 years imprisonment on each count is
appropriate.
[25]
In the result, the following order is made:
1.
The
appeal against the convictions is dismissed.
2.
The
appeal against the sentences is upheld, partially.
2.1
The
appeal against the sentences on counts 1, 2, 5 and 6 is dismissed.
2.2
The
appeal against the sentences on Counts 3 and 4 is upheld.
2.2.1 The sentences
imposed by the trial court on counts 3 and 4 are set aside and
replaced with a sentence of 7 years imprisonment
on each count.
MABESELE
J
(Gauteng
Local Division)
I
agree
MAHALELO
J
(Gauteng
Local Division)
I
agree
DU
PLESSIS AJ
(Gauteng
Local Division)
Date
of hearing
: 2
August 2021
Date
of judgment
:
24
August 2021
For
the appellant
:
Adv. A
Mavatha
Instructed
by
: Legal
Aids S.A
For
the respondent
:
Adv. P.
Ranchod
Instructed
by
: DPP -
Joahnnesburg
[1]
105
of 1997
[2]
S
V Charzen and Another 2006(2) SACR 143 (SCA)
[3]
1958(2)
SA 212(T) at 215. See also S V Mthetwa 1972(3) 766(A) at 768-c
[4]
Emphasis
added
[5]
Regard
should be had that the appellant was wearing a cap and a jacket in
the bank