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[2017] ZASCA 53
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Khumalo v S (62/2017) [2017] ZASCA 53 (18 May 2017)
THE SUPREME
C
OURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 62/2017
In the matter between:
THULANI NCUBE
KHUMALO
APPELLANT
and
THE STATE
RESPONDENT
Neutral citation:
Khumalo
v The State
(62/17)
[2017]
ZASCA 53
(18 May 2017)
Coram:
Tshiqi, Saldulker, Zondi and Van der Merwe JJA and
Schippers AJA
Heard
:
4 May 2017
Delivered:
18 May 2017
Summary:
Criminal
Procedure : appeal against refusal of petition by the court a quo :
robbery with aggravating circumstances contemplated
in
s 51
of the
Criminal Law Amendment Act 105 of 1997
: no reasonable prospect of
success on appeal : appeal dismissed.
ORDER
On
appeal from: Gauteng Local Division of the High Court, Johannesburg
(Carelse and Bam JJ sitting as court of appeal):
The
appeal is dismissed.
JUDGMENT
Schippers
AJA (
Tshiqi, Saldulker, Zondi and
Van der Merwe JJA
concurring):
[1]
The appellant was
charged in the regional court, Alexandra, with two counts of robbery
with aggravating circumstances. The State
alleged that at a
restaurant in Paulshof, Rivonia, the appellant and his two
accomplices, at gunpoint, robbed the manager of R
5000 (count 1); and
a patron of a wristwatch (count 2). The appellant was convicted of
robbery with aggravating circumstances on
count 1 and sentenced to 15
years’ imprisonment in terms of s 51 of the Criminal Law
Amendment Act 105 of 1997 (the Act).
The State did not present any
evidence on count 2 and the appellant was acquitted on that charge.
The regional court refused leave
to appeal. A petition to the South
Gauteng High Court for leave to appeal against conviction and
sentence under
s 309C
of the
Criminal Procedure Act 51 of 1977
was
also refused.
[2]
Subsequently the
appellant was granted special leave to appeal to this Court in terms
of
s 16(1)(
b
)
of the
Superior Courts Act 10 of 2013
. Since the appeal lies only
against the refusal of the petition by the court a quo,
[1]
the issue is whether it should have granted the appellant leave to
appeal to it. Stated differently, the question is whether the
appellant demonstrated reasonable prospects of success on appeal.
[2]
That requires an examination of the evidence.
[3]
The appellant was
convicted on the evidence of Mr Happy Molonga, the manager of the
restaurant, Mr Nkanyese Letsoaliso, a security
guard at the complex
in which the restaurant is located, and Constable Andile Thlame.
[4]
Mr Molonga testified
that around 8:30 pm on 2 September 2012, the appellant and his two
accomplices entered the restaurant, the
only establishment open in
the complex at the time; and the appellant said it was a robbery. He
and one of his accomplices, who
both had firearms, got under the
counter to where Mr Molonga was standing. A gun was pointed at Mr
Molonga and they ordered everybody
to lie down. Everyone complied.
The appellant and his accomplice then instructed the cashier to open
the tills, and Mr Molonga
to open the safe, which they did. The
robbers removed cash of R5000 and an additional R3 000 (a
worker’s wages which
were in the safe) and put it into a money
bag which they were carrying. Thereafter they ordered everybody to
remain lying down,
robbed some of the patrons and left the restaurant
on foot.
[5]
The robbers had walked
a short distance within the complex when Mr Molonga, his staff, some
patrons and Mr Letsoaliso followed them.
The robbers then ran from
the complex. Mr Molonga followed them on his motorcycle. The robbers
split up: two ran straight ahead
and the appellant turned right into
Mount Fletcher Street. As fate would have it, he ran into a
cul-de-sac and was cornered by
the crowd. He tried to throw the
firearm over a wall, but it fell and dropped next to him. It was
later picked up by Constable
Thlame. The crowd remained with the
appellant until the police arrived, whereupon he was arrested.
[6]
In cross-examination Mr
Molonga said that the robbery took less than five minutes; that the
appellant was apprehended about 10 minutes
after it had taken place;
that he was certain that the appellant was one of the robbers; and
that the visibility at the restaurant
and the place where the
appellant was apprehended was very clear - there were streetlamps all
over. Mr Molonga remembered that
the appellant was wearing a
reflective vest which security guards usually wear. When asked
whether it made sense for persons to
commit a robbery and just walk
away, Mr Molonga replied that the robbers had arranged transport
because a car without number plates
had sped off from the complex,
when its occupants saw the robbers being followed by the crowd. He
denied the appellant’s
version that he was arrested while
standing at a garage waiting for his uncle to fetch him.
[7]
In his evidence, Mr
Letsoaliso confirmed that at the time of the robbery, all the other
shops in the complex were closed. Three
men entered the restaurant.
As they left and were walking towards him, employees of the
restaurant followed them and shouted that
the three men had robbed
them. Mr Letsoaliso asked the men what they had done at the shop. The
appellant responded by threatening
Mr Letsoaliso with a firearm. He
moved out of their way and they ran from the complex. Mr Letsoaliso
and the employees followed
them. Two of the men ran into Stone Haven
Street and the appellant turned right into Mount Fletcher Street. As
the crowd approached
him and when he realised that he was cornered,
the appellant threw the firearm into a residential complex and sat
down. Mr Letsoaliso
apprehended him. He
then went to the residential complex and discovered that the firearm
was a .38 revolver which the appellant
had thrown over the wall, but
he did not touch it. When the police arrived, Mr Letsoaliso handed
the appellant over to them. They
retrieved the firearm, which was
loaded, and showed it to Mr Letsoaliso. Save for the firearm, the
appellant had nothing else in
his possession, but a number of bank
cards were found some two metres from the place where he had been
apprehended. Mr Letsoaliso
said that the appellant was wearing black
pants, a black shirt and a jacket with reflectors on which the word
‘security’
was written.
[8]
In cross-examination Mr
Letsoaliso said that he had been stationed near the gate of the
complex and the three men had to pass him.
He confirmed that it was
the appellant who had threatened him with a firearm - he saw how he
was dressed and did not take notice
of the other two robbers. He did
not lose sight of the appellant when he turned into Mount Fletcher
Street. His attention was focused
on the appellant, who could have
shot him and those in the crowd. Before he was apprehended, the
appellant removed his security
jacket and threw it on the ground. Mr
Letsoaliso denied the appellant’s version - different from the
one put to Mr Molonga
- that he was walking in the direction of the
garage when he was arrested.
[9]
Constable Thlame
testified that he picked up the firearm in the yard of the
residential complex and arrested the appellant. He said
that the
appellant wore dark clothing. He did not find a jacket at the scene
but a security guard brought it to him and said that
the jacket
belonged to the appellant.
[10]
The appellant testified
in his defence. He said that he was walking towards a garage next to
Paulshof where he had arranged to meet
his uncle to collect money
for
transport. He had not yet reached the garage when he saw two men
being chased by a group, running towards him. The men ran away
and as
the appellant was about to ask what was going on, the group started
assaulting him, saying that he had robbed somebody and
later arrested
him. He denied that he was one of the robbers, that he had been
chased by the group or that he had thrown away a
firearm. He
testified that no security guard had tried to stop him.
[11]
The central issue in
this appeal is whether the appellant was one of the robbers. The
evidence shows that Mr Molonga had more than
one opportunity to
identify the appellant. He saw the appellant when he entered the
restaurant. He was close to the appellant when
he got under the
counter. He again looked at him when he was ordered to open the safe.
The visibility at the restaurant was very
clear. Mr Molonga also saw
the appellant leaving the complex. From that time he was never out of
sight of Mr Molonga, who pursued
the appellant until he was
apprehended some 10 minutes after the robbery. Mr Molonga saw the
appellant throwing the firearm away,
and noticed that he was wearing
a vest normally worn by security guards. Again, there was nothing
which impaired Mr Molonga’s
vision: there were streetlights all
over. Indeed, Mr Karam, for the appellant, fairly conceded that the
identification of the appellant
as one of the robbers could not be
disputed. And it is highly improbable that Mr Molonga would have
invented the explanation for
the robbers leaving on foot: the getaway
car, with no number plates, had sped off immediately as the robbers
were approaching it,
followed by the crowd.
[12]
Mr Letsoaliso
corroborates Mr Molonga’s version in virtually every respect.
First, that the appellant had a firearm. Mr Letsoaliso
was not in the
restaurant and could not have known that the appellant was armed,
unless his evidence is correct.
The
appellant and his accomplices had to walk past Mr Letsoaliso when
they entered the complex and he saw them enter the restaurant.
Second, the appellant and his accomplices ran from the complex and
split up. Third, the person who Mr Letsoaliso pursued and apprehended
was the same person who had threatened him with a firearm - the
appellant. Fourth, the appellant had worn a jacket with reflectors
and the word ‘security’ was written on it. Finally, Mr
Letsoaliso confirmed that the appellant turned right into Mount
Fletcher Street and when he had nowhere to flee, threw the firearm
away. Nothing turns on the difference between the two witnesses
as to
where the firearm had landed - it had been used in the robbery, the
appellant had been in possession of the firearm, and
it was a moving
scene. And Constable Thlame retrieved the firearm in the vicinity of
the place where the appellant had thrown it.
[13]
The finding by the
trial court that the appellant’s version is riddled with
inconsistencies and improbabilities, cannot be
faulted. It was put to
Mr Molonga that the appellant was standing at the garage waiting for
his uncle to fetch him when he was
arrested. However, the version put
to Mr Letsoaliso was that the appellant was walking in the direction
of the garage when he was
arrested. The appellant could not explain
this discrepancy. Still later, the appellant testified that on his
way to the garage,
he saw two men running towards him being chased by
a crowd. The two men ran away and the crowd then accused the
appellant of being
one of the robbers. But the version of the two men
being chased by the crowd and the appellant being mistaken for one of
the robbers,
was never put to any of the State witnesses. In any
event, it is untrue because the appellant’s accomplices ran in
the opposite
direction of the garage; and the appellant was never out
of sight of Mr Malonga or Mr Letsoaliso, hence his arrest.
[14]
On the totality of the
evidence, I am satisfied that the appellant does not have reasonable
prospects of success on appeal against
his conviction.
[15]
As regards sentence, it
was submitted that the finding that there were no substantial and
compelling circumstances was a misdirection;
that the trial court
attached insufficient weight to the appellant’s circumstances;
and that the sentence imposed induces
a sense of shock.
[16]
In
Malgas
,
[3]
this Court held that the minimum sentences prescribed in the Act are
the sentences which should ordinarily be imposed. The aim
of the Act
is to ensure a severe, standardised and consistent response from the
courts to the commission of the specified crimes,
unless there are
substantial and compelling circumstances justifying a departure from
the prescribed minimum sentences.
[4]
The sentences specified in the Act must not be departed from lightly
and for flimsy reasons. The legislature however did not intend
to
exclude the factors traditionally taken into account in the
imposition of sentence,
[5]
namely the nature and seriousness of the crime, the interests of
society and the personal circumstances of the offender.
[17]
The trial court
correctly held that robbery with aggravating circumstances is a very
serious crime and was a traumatic experience
for the staff and
patrons of the restaurant. They were forced at gunpoint to lie on the
floor. The fact that no one was shot is
not attributable to any act
of kindness or thoughtfulness by the robbers, as Mr Karam sought to
argue. Rather, nobody was hurt
in the robbery because the victims
complied with the robbers’ demands, for fear of being shot. The
facts show that the robbery
was planned: the appellant and his
accomplices knew that the restaurant would be the only business open
in the complex; the robbery
was carried out with precision; and a
getaway car was on standby to transport the robbers from the scene of
the crime. Only the
courage of the staff, patrons of the restaurant
and Mr Letsoaliso, foiled the appellant’s escape.
[18]
The trial court noted
that armed robbery was prevalent within its area of jurisdiction, and
that courts have a duty to protect the
community against this crime
by imposing appropriate sentences. In this regard, this Court has
said that the natural indignation
of interested persons and the
community at large should receive recognition in the sentences that
courts impose; and that if sentences
for serious crimes are too
lenient, the administration of justice will fall into disrepute and
injured persons may take the law
into their own hands.
[6]
[19]
The trial court also
took into account the appellant’s personal circumstances,
including his age, clean record and the period
of his incarceration
awaiting trial.
[20]
In the circumstances,
the trial court’s finding that there were no substantial and
compelling circumstances that warranted
deviation from the prescribed
minimum sentence, cannot be faulted. There are no reasonable
prospects of success on appeal against
the sentence imposed on the
appellant.
[21] In
the result, the appeal is dismissed.
_________________
A Schippers
Acting Judge of Appeal
Appearances
For Appellant:
W A Karam
Instructed
by:
Johannesburg
Justice Centre
c/o Symington & De Kock Attorneys, Bloemfontein
For
Respondent:
T Byker
Instructed by:
The Director of Public Prosecutions, Johannesburg
c/o The Director of Public
Prosecutions, Bloemfontein
[1]
S v Tonkin
[2013] ZASCA 179
;
2014 (1) SACR 583
(SCA) para 3.
[2]
S v
Van
Wyk & another
[2014] ZASCA 152
;
2015 (1) SACR 584
(SCA)
paras 34 and 35.
[3]
S v Malgas
2001
(1) SACR 469 (SCA).
[4]
Malgas
n 3 above at 476h-477a.
[5]
Malgas
n 3 above
at 477d-f.
[6]
R v Karg
1961
(1) SA 231
(A) at 236B-C.