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2021
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[2021] ZANCHC 60
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Fick and Another v S (CA & R 9/2021) [2021] ZANCHC 60 (12 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: CA & R 9/2021
Heard:
08/11/2021
Delivered:
12/ 11/ 2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
TEFO
FICK
FIRST APPELLANT
MLUNGISO
LAAT
SECOND APPELLANT
and
THE
STATE
Respondent
JUDGMENT
Moses
AJ
INTRODUCTION
1.
This is an appeal lodged in this Court by and/or on behalf of
the
First Appellant and the Second Appellant respectively, against both
their convictions and sentence imposed by the Regional
Court,
Kimberley.
2.
Both
appellants were charged with two counts. Count one is robbery with
aggravating circumstances. The State alleged that the appellants
committed the robbery in concert with one another. In the charge
sheet it was alleged that on 12/07/2019 within this Court's
jurisdiction
the appellants in the execution of a common purpose
assaulted Sehlalo Mgolozeli and then with force took R6300.00 from
him. The
aggravating circumstances being grievous bodily harm was
inflicted during the commission
of the
offence.
[1]
2.1
Count two
is a separate count of assault with intent to do grievous bodily
harm.
It
is alleged that on the same date and place the appellants assaulted
Sehlalo Mgolozeli by pulling him beating him with fists,
hitting him
with
"knobkerries"
as well
as kicking him with booted feet with the intent of causing him
grievous bodily harm. It was not
alleged
that the
appellants
acted
with a
common
purpose.
[2]
2.2
Before the
appellants were asked to plead on the counts their attorney raised
the
question
that putting the counts as it is indicated in the charge sheet may be
a duplication of charges because the robbery and
the assault occurred
on the same day and the same time.
[3]
The
State then indicated that
"the
State is satisfied that a charge of robbery, of assault with intent
to do grievous bodily harm can be established as a
separate charge to
that of robbery with aggravating circumstances."
[4]
2.3
In her
address before judgment the State conceded that it was not proved
that the first appellant acted in common purpose with the
second
appellant during the robbery.
[5]
The State argued that:
"Therefore, Your
Worship, from the facts as it emanated from the complainant's
evidence, it does appear that the robbery by
accused 1 was committed
very opportunistically after he saw the other person taking money
from the pocket of the complainant."
[6]
2.4
After hearing evidence and arguments by both parties the first
appellant was
convicted on count two on the basis that he had
intended to make common cause with those who were perpetrating the
assault. The
second appellant was convicted on count one but only
robbery of the amount of R3 300.00. This conviction was on
28/10/2020.
2.5
After hearing evidence and arguments the appellants were sentenced as
follows
on 12/11/2020:
2.5.1
First appellant was sentenced to six (6) years imprisonment.
2.5.2
Second appellant was sentenced to ten (10) years imprisonment.
2.6
Both
appellants applied on 29/01/2021 for leave to appeal against their
convictions as well as against their imposed sentences.
Leave was
granted to both appellants to appeal as applied by them.
[7]
2.7
Both appellants are currently out on bail pending the finalization of
this appeal.
The Appellants' Notice
of Appeal
3.
The appellants filed their "Notice of Appeal Against Convictions
and Imposed Sentences" dated 2 March 2021, in this Court,
wherein the following grounds of appeal were set out:
"Ad
convictions
2.1
First Applicant
Ad Count Two:
That the Honourable Court
erred in:
2.1.1 Not taking into
account and/or to under emphasize the material contradictions in the
evidence of Setlalo Ngolozeni as well
as the material contractions
between his evidence in court and his statement to the police
(Exhibit "A");
2.1.2 Not taking into
account and/or to under emphasize the material contradictions in the
evidence of Ashley Ranger;
2.1.3 Not taking into
account and/or to under emphasize the material contradictions in the
evidence of Setlalo Ngolozeni and Ashley
Ranger;
2.1.4 Over emphasize the
contradictions in the version of the first applicant;
2.1.5 Over emphasize the
contradictions in the evidence between the first and the second
applicants;
2.1.6 Rejecting the
evidence of the first applicant as not reasonably possibly true;
2.1.7 Finding that the
first applicant acted in common purpose with the other people that
assaulted Setlalo Ngolozeni;
2.1.8 Finding that the
identity of the applicants was proved by the Respondent beyond a
reasonable doubt;
2.1.9 Convicting the
first applicant on a count of assault with the intent to do grievous
bodily harm.
2.2
Second
Applicant:
Ad Count One
That the Honourable Court
erred in:
2.2.1 Not taking into
account and/or to under emphasize the material contradictions in the
evidence of Setlalo Ngolozeni as well
as the material contractions
between his evidence in court and his statement to the police
(Exhibit "A");
2.2.2 Not taking into
account and/or to under emphasize the material
contradictions in the
evidence of Ashley Ranger;
2.2.3 Not taking into
account and/or to under emphasize the material contradictions in the
evidence of Setlalo Ngolozeni and Ashley
Ranger;
2.2.4 Over emphasize the
contradictions in the version of the first applicant;
2.2.5 Over emphasize the
contradictions in the evidence between the first and the second
applicants;
2.2.6 Rejecting the
evidence of the first applicant as not reasonably possibly
true;
2.2.7 Finding that the
identity of the second applicant as one of the people who assaulted
Setlalo Ngolozeni was proved beyond a
reasonable doubt by the
Respondent;
2.2.8 Finding that the
second applicant took money from Setlalo Ngolozeni after he hit him
with his fist;
2.2.9 Finding that the
actions of the second applicant to hit Setlalo Ngolozeni with the
fist and then took the money from him are
so closely linked with the
assault by the other people after the second applicant took the money
from Setlalo Ngolozeni that the
latter proved the necessary
aggravating circumstances necessary for the conviction on a count of
robbery with aggravating circumstances;
2.2.10
Convicting the second applicant on account of robbery
with
aggravating circumstances;
2.2.11
In the alternative not to convict the second applicant
only on a
count of robbery (common).
Ad Sentence:
Both Applicants 1
and 2:
That the Honourable Court
erred in:
3.1
Under emphasizing the favourable personal drcumstances of the
applicants and over emphasizing the seriousness of the offences, the
part each one played in the commission of the offences and the
interest of the community;
3.2
Imposing sentences that induce a sense of shock and that can
be described as disturbingly inappropriate."
4.
In the Appellants' Heads of Argument, to which their Practice
Note,
dated 11 October 2021, is annexed, the crisp issues for determination
on appeal with which the State (Respondent) agrees,
are set out as
follows:
"1.
If the trial
Court misdirected herself to convict the first appellant on the basis
that he acted in common purpose with the other
people.
2. If the trial Court
misdirected herself to convict
the second
appellant
on
a
count of robbery with
aggravating circumstances and not only on common robbery."
5.
The Appellants, furthermore, in their "Summary of Appellant's
(sic) Arguments" in their afore-stated document, state the
following:
"1.
The Appellants will concede that the trial court was correct in
accepting the evidence
of the
State and
rejecting
the evidence
of the appellants.
2.
The first appellant will argue that that the trial court
misdirected
herself in using the common purpose
doctrine and to find that he acted in common purpose
with
other people.
3.
The second appellant will argue that the trial court
misdirected herself to find that the assault after the robbery was so
closely
linked to the robbery that the first appellant is guilty of
robbery with aggravating circumstances."
6.
The Respondent, in its Practice Note, annexed to its Heads of
Arguments, dated 18 October 2021, summarised its argument as follows:
"1. That the appeal
against the learned Magistrate's decision to convict the second
appellant on a charge of robbery with aggravating
circumstances
succeed.
2.
That the appeal against the learned Magistrate's decision to
convict the first appellant on a charge of assault with intent to do
grievous bodily harm be dismissed.
3.
Concedes that the learned Magistrate misdirected herself by
finding that the first appellant was guilty on the basis that he
acted
in common purpose with the group.
4.
That the first appellants' actions on its own is sufficient to
sustain his conviction on a charge of Assault with intent to do
grievous
bodily harm."
7.
During their oral submissions in this Court on Monday 8 November
2021, counsel for both the Appellants and the Respondent confirmed
and persisted with their respective concessions as above-stated.
These were wise, and to my mind, correct concessions given the facts
and circumstances of this case. I return to this briefly hereunder.
A Brief Summary of the
factual matrix of the case
8.
The State, in the trial court and at the hearing of this matter,
called three (3) witnesses who gave evidence, namely Sehlalo
Ngolozeli, the complainant, one Ashley Ranger, an eyewitness to this
incident that happened on 12 July 2019 near the North Cape Mall in
Kimberley and Dr Athekosi Kema, the medical doctor who attended
to
the complainant subsequent to this incident, and who completed the
medical report, the J88, in respect of the complainant pursuant
to
his medical examination.
9.
The two appellants, respectively, testified in their own defence
at
the trial, being legally represented by the same attorney. No
witnesses were called by them and/or on their behalf.
10.
On 12 July 2019 around 3.15 pm whilst the complainant, who worked as
a taxi driver
with his own car, was loading passengers, in close
proximity of the Mall as above-stated, three (3) mini bus taxis
arrived. Men
armed with knobkerries (wooden sticks), described as
approximately 1.5 m long and 3 cm in diameter, alighted from these
taxis,
visibly aggressive and threatening, and immediately stormed
towards the complainant's vehicle.
11.
When they reached his vehicle, his passengers, frightened by this
armed mob of knobkerrie
wielding men, opened their doors of the
vehicle and fled the scene. One of these passengers was a pregnant
woman.
12.
Mr Ranger, the State's eye-witness, who is/was also a taxi driver,
and who belonged
to the same taxi association as the complainant, was
in the queue of the taxis to load passengers travelling from the Mall
to the
Central Business District (CBD) of Kimberley at the time. He
also fled the scene upon seeing this visibly angry mob, by jumping
over the fence separating the Mall premises from the roadside where
they would pick up their passengers. At the time of the incident
he
was therefore on the other side of that fence but in close proximity
- about 5 meters- of the incident and with full view thereof.
13.
As it turned out, upon reaching the complainant's vehicle, they - it
was the second
appellant, Mr Laat, tried to force open the door on
the driver's side, to get to the complainant. The second appellant
who managed
to arrive at the complainant's vehicle first, was the one
who, with the assistance of some members of that mob, managed to open
the door and get hold of the complainant. There was a scuffle of
sorts in the car, from what Ranger could observe. According to
the
complainant, it was while he was still in the car that he was
assaulted by the second appellant who struck him with his fist
against his head, and then robbing him of his R 3 300 which was in a
money bag in the right pocket of his trousers. But whilst
that
scuffling between him- the complainant and the second appellant
happened, another unknown person got into the car from the
passenger
side and took the money he had in his left pocket, R3 000 cash,
without his consent.
14.
The second appellant, who is apparently much stronger than the
complainant, then managed
to drag the complainant out of his car as a
result whereof the complainant landed and fell on the grass surface
next to his car.
It is/was not clear from the evidence what role, if
any, the second appellant played after the complainant landed outside
his vehicle
on the ground (the grass surface). It is clear however
that the second appellant did not have a knobkerrie in his hands at
that
stage.
15.
On the evidence of the complainant, and corroborated by the
eye-witness Ranger, the
first appellant was then the first person who
struck the complainant as he was lying and/or sitting down, with a
knobkerrie. On
the evidence he struck the complainant once only. The
complainant demonstrated during his evidence how he was shielding his
head
with his arms to protect himself. It is common cause that the
complainant suffered a fracture of the right arm. It is unclear on
the evidence, what role, if any, the first appellant played after he
had struck the complainant, in and during the assault by the
mob, on
the complainant. Neither the complainant nor the eyewitness could
give any clarity regarding this aspect during their respective
testimony in court.
16.
This attack and assault on the complainant by this mob continued
until after approximately
15 - 20 minutes the police arrived on the
scene whereupon this mob fled to their taxis and drove away. None of
them, except these
two appellants, who are both known to the
complainant and the eyewitness, were apprehended and arrested in
connection with this
assault on the complainant. The complainant and
Ranger belong to the same taxi organisation, whilst the appellants
belong to another
taxi organisation. There was apparently a rivalry
between these two taxi organisations.
17.
The complainant suffered serious injuries as a result of this
assault, which were
not considered "life-threatening" by
the examining doctor at the time, but which nevertheless caused the
complainant
to undergo surgery subsequently regarding his swollen
abdomen, apparently caused by the swelling of the tissues of his
small intestines,
which was clearly as a result of these injuries
sustained during this attack on him by this mob.
18.
Apart from the R6 300.00 that he lost and was robbed of him, he could
also not work
and earn an income for his family for
approximately two months. The R6 300.00 was never
recovered,
and neither the second appellant nor the first appellant,
offered to make amends in this regard, to date hereof.
The Judgment of the
trial court
19.
The trial court correctly summarised the common cause facts as
follows:
19.1.
Both appellants were at the scene where the complainant was
assaulted and robbed of his money.
19.2.
The complainant was also assaulted by an unknown number of
individuals who were at the scene.
19.3.
The complainant sustained various serious injuries as a result
of the assault he endured and required surgical intervention for his
injuries.
19.4.
The first appellant did not participate in the taking of the
complainant's money.
19.5.
The first appellant's actions resulted in the complainant
sustaining a fracture to his arm.
19.6.
Neither appellant participated in the assault of the
complainant once the mob commenced their attack.
20.
The trial court then went on to make the following findings on the
evidence presented
in court:
20.1
It
considered the evidence and found that when the second appellant hit
the
complainant
with his fist and that first appellant was part of the mob that was
surrounding the Car.
[8]
20.2
While the
second appellant pulled the complainant to the outside of the car
another
person entered from the left front door and removed R3 000.00 from
the left front trouser pocket of the complainant.
[9]
20.3
While the
second appellant was holding the complainant he took R3 300.00
from the
right front trouser pocket of the complainant.
[10]
20.4
The second
appellant managed to pull the complainant out of the vehicle. The
complainant then noticed the first appellant as one
of the mob. The
first
appellant
struck him with the knobkerrie
and then
the rest of the mob started to participate in the assault.
[11]
20.5
The trial
Court found that a fact in dispute was if the accused persons were
active
participants in the assault on the complainant and whether the second
appellant had robbed the complainant from R3 300.00
and whether the
first
appellant
had formed the common purpose with the second appellant to rob
the
complainant and also if the second appellant had formed common
purpose with the unknown person who robbed the complainant of
the R3
000.00.
[12]
20.6 During
the evaluation of all the evidence the trial court considered the
contradictions between the evidence of
the State witnesses as well as
that between the appellants, the probabilities in the case and
clearly took into account the onus
of proof as well as the cautionary
rules applicable. The trial court then concluded that the
contradictions between the evidence
of the state witnesses were
immaterial, and that the versions of the appellants are not
reasonably possibility true and therefore
rejected their versions and
accepted that of the State.
21.
The trial court then also made the following findings:
21.1
The
complainant observed the first appellant as the person who struck him
the first blow with the
"knobkerrie".
The mob
at that stage had not yet participated.
[13]
21.2
After the
trial court considered the so called common purpose doctrine the
court found that grievous bodily harm was indeed inflicted
within
a
very short
of time after the money was removed and that there was a close link
between the theft and the commission
of the
violence.
[14]
21.3
The court
found that the second appellant indeed had intended to make common
cause with those who were perpetrating the assault
after the
complainant
was removed
from the car.
[15]
21.4 The
court found that the second appellant manifested his sharing of
common purpose with the perpetrators after
the assault by himself
performing some act of association with the conduct of the others to
wit:
"Leaving with the
first appellant from the rank at a high speed."
[16]
21.5
The trial
court then found that the second appellant did not make common cause
with the actions of the unknown person in taking
the R3 000.00 on the
available evidence.
[17]
21.6
The trial
court found that there is no evidence indicating that the first
appellant was aware of the robbery or had made common
cause with the
robbery.
[18]
21.7
The trial
court found that the first appellant had intended to make common
cause with those who were perpetrating the assault. The
reason
therefore is that after assaulting
the
complainant
he remained
with the
mob while
the actions
of assault by the mob ensued.
[19]
Application for leave
to Appeal in the trial court
:
22.
The following important concessions were made during the application
for leave to
appeal:
22.1 On
behalf of the appellants it was conceded that the fact findings of
the trial court were correct.
22.2
It was also
conceded that the findings that the first appellant assaulted the
complainant was in all probability correct but the
bases on which it
was done (doctrine of common purpose) was a misdirection.
[20]
22.3
The
Respondent during her arguments conceded that the evidence did
not sustain
an inference that the first appellant or the other people (mob) had
knowledge
of the
robbery
or acted in
furtherance
of
such
offence.
[21]
23.
In
supplementary reasons for granting leave to appeal the trial court
indicated that the doctrine of common purpose is not relied
upon to
secure a conviction on a charge of assault with the intent to do
grievous bodily harm. The first appellant's sharing of
common purpose
with the mob while the actions of assault by the mob ensued was
indeed a factor considered for sentence purposes.
[22]
24.
In the
supplementary reasons the trial court referred to the case of S
v
Mgedezi
1989
(1) SA 687
(A). After discussing the requirements necessary
to comply
with the doctrine of common purpose the trial court then indicated
that the mob acted
with common
purpose when the complainant
was
robbed.
[23]
A Brief Evaluation
Ad Conviction
25.
Given the common cause facts as summarized by the trial court
referred to above, and
the concessions made by both the counsel it is
not necessary for this court to deal in any great detail with the
grounds of appeal.
26.
I deal with the first issue referred to in paragraph 4.1 above.
26.1.
In this regard the learned regional court magistrate has
stated in her supplementary reasons, referred to above, that the
first
appellant was not convicted on the basis of the common purpose
doctrine. But the common purpose which he allegedly made with the
mob
was a factor that was taken into account in sentencing the first
appellant.
26.2.
The Respondent's submissions in this regard are succinctly
summarized in paragraphs 9 and 10 of its Heads of Argument, which
reads
as follows:
"9. The
Respondent concedes that no averment was made in the charge sheet of
common purpose in respect of count 2. No evidence
emanating from any
of the witnesses supported a finding beyond a reasonable doubt, that
the appellant had made common cause with
the mob to assault the
complainant. It is respectfully submitted that every factual
indication has been that the first appellant
had been the first
person to commence the attack outside the car.
(Record, Volume 2-page
28-29 par 20)
(Record, Volume 2-page
149 par 10)
10. It remains the
Respondent's submission that on the evidence, the first appellant is
guilty of assault with intent to do grievous
bodily harm on the basis
of his own actions."
27.
These
concessions made by and on behalf of the Respondent are correct in
law
[24]
and on the facts of
this case. As stated above
[25]
neither the complainant nor the eyewitness could give any evidence,
and they did not, that the first appellant played any role,
apart
from his initial action - the first blow to the complainant - in the
assault of the mob. No other reliable and/or objective
evidence
exists to
even infer any such role and/or active participation
by the
first appellant in the
clearly
unlawful attack of the mob on the complainant.
[26]
28.
It follows
that the first appellant ought to have been convicted on the charge
of assault with intent to do grievous bodily harm
by having struck
the complainant with a knobkerrie, only once, on the basis of his own
actions, as was done by the trial court.
[27]
29.
In the circumstances the appeal against the trial court's decision to
convict the
first appellant on a charge of assault with intent to do
grievous bodily harm, the second count, ought to be dismissed.
Ad The Second Issue:
Conviction of the Second Appellant of Robbery with
aggravating
circumstances
30.
The trial
court convicted the second appellant on robbery with aggravating
circumstances because that court found that the assault
was closely
linked with
the
robbery, and that the second appellant intended to make common cause
with the mob after the complainant was removed from the
car. This was
a misdirection on the facts and in law.
[28]
31.
This court
was referred to, inter alia, the case of S
v
Isaacs and Another
2007
(1) SACR 43(C).
In this case, which also deals with robbery and
aggravating circumstances, the Court stated and decided that inasmuch
as the test
for determining the presence or otherwise of aggravating
circumstances is a factual
one, the
State, bearing the onus of proving an accused person's guilt beyond
reasonable doubt, throughout the criminal proceedings,
also bears the
onus of proof in respect of the presence
or
otherwise
of
aggravating
circumstances.
This is important because the presence or otherwise of aggravating
circumstances impacts significantly on the quantum
of sentence the
court is likely to impose, an approach it suggests, which is in
accordance with an accused's person's fair trial
- rights as
guaranteed in section 35(3) of the Constitution
[29]
.
This Court is in respectful agreement with this approach.
32.
The Respondent has, in paragraphs 17 and 18.2 of its Heads of
Argument made the following
concessions:
"The Respondent
concedes that it has not proven beyond reasonable doubt that the harm
sustained by the complainant at the hands
of the second appellant is
grievous in nature.
It is conceded that
the learned magistrate erred in convicting the second appellant of
Robbery with aggravating circumstances and
that the evidence led
during the trial only established his guilt on a charge of Robbery
(common)."
33.
These concessions are, as referred to above both wise and correct,
both in law and
on the facts. On the evidence presented by the State
there is nothing to indicate what role, if any, the Second Appellant
has played,
apart from his robbery of the complainant, and on which
it can be said, beyond a reasonable doubt, that he actively
associated
himself with the clearly unlawful actions of the mob in
assaulting the complainant, and hence indicative of a common purpose
he
formed with this mob at the time. There is no evidence of any role
he played after the second appellant's assault on the complainant
in
which he robbed the latter of the R 3 300.00, neither does the
evidence indicate and justify a finding, beyond reasonable doubt,
of
the existence of aggravating circumstances as contemplated in
section
1
of the
Criminal Procedure Act, 1977
(No 51 of 1977) as amended.
34.
In the
circumstances this issue must be answered in favour of the second
appellant, albeit partially so, in that he ought to have
been
convicted of "robbery
simpliciter"
[30]
,
in other
words robbery (common). We find accordingly.
Ad Sentence Imposed In
Respect of the First Appellant and Second Appellant
35.
It
is
trite
that
the
determination
of
an
appropriate
sentence
in
a
criminal
trial
resides
pre-eminently
within
the
trial
court, but
that
in
the
event
of
a
material
misdirection
by the
trial court
[31]
in the
exercise
of
that sentencing discretion,
an
appellate
court"...is at large..." to consider the question of
sentence afresh.
[32]
36.
This court has found in respect of the First Appellant that he ought
to have been
convicted of assault with intention to cause grievous
bodily harm to the complainant, on the proven evidence, by hitting
him once
with a knobkerrie. It is common cause in this Court that on
the proven evidence, he did not act in common purpose with either the
Second Appellant and/or the mob when he committed that offence. The
actions of the mob could therefore not be attributed to him
on the
basis of the doctrine of common purpose, for purposes of sentencing
him. This is/was a misdirection on the part of the sentencing
court.
37.
This Court has also found, in respect of the Second Appellant, that
inasmuch as it
has not been proven beyond a reasonable doubt he acted
in common purpose with either the other unknown robber, the First
Appellant
and/or the mob, and that aggravating circumstances as
contemplated in
section 1
of the CPA, 51 of 1977 have similarly not
been proven beyond a reasonable doubt, that the correct conviction
with regards to him,
ought to have been robbery-common, for lack of a
better word.
38.
In the circumstances this Court is at liberty to revisit the imposed
sentences by
the trial court in respect of the appellants.
39.
Mr Nel, for the appellants, had initially submitted that in both
cases the matter
be remitted to the trial court for consideration of
correctional supervision in terms of
section 276
(1)(h) of Act 51 of
1977, alternatively, a wholly suspended sentence in respect of both
appellants.
40.
Ms Engelbrecht, for the Respondent, has submitted that, despite any
misdirections
that this Court might find with regards to the trial
Court's findings, given the seriousness of these offences committed
by the
appellants and on which they were convicted, a period of
direct imprisonment in respect of both appellants, is still warranted
in the circumstances of this case.
41.
This Court canvassed with counsel whether, in the circumstances of
this case, there
ought to be different sentences imposed in respect
of the respective appellants. Both counsel conceded subsequently
however, that
there need not be such a differentiation in this case.
42.
In considering an appropriate and just sentence in respect of both
the appellants,
the trial court meticulously and correctly set out
the various factors to be taken into account. These were the accused
as primary
caregivers in respect of their minor children
respectively; their roles respectively, in the commission of these
offences; the
motive underlying these offences; remorse, and the
absence thereof on the part of the accused (the appellants herein);
the offences
committed by them and the community's interest. This
court is in agreement with this consideration process and assessment
by the
trial court.
43.
In the circumstances I would make the following order:
1.
The First Appellant's appeal against his conviction is
dismissed.
2.
The First Appellant's appeal against his sentence succeeds.
3.
The Second Appellant's appeal against his conviction and
sentence succeeds.
4.
The sentence imposed by the trial court in respect of the
First Appellant is hereby set aside and substituted for the
following:
"Tefo Fick is
sentenced to five(5) years imprisonment in respect of Count 2, in
terms of
section 276(1)(i)
of the
Criminal Procedure Act, 1977
(No 51
of 1977) as amended."
5.
The conviction and sentence imposed by the trial court in
respect of the Second Appellant, are hereby set aside and substituted
for the following:
"Mlungiso Laat is
convicted of robbery, without aggravating circumstances, as defined
in
Section 1
of the
Criminal Procedure Act, 1977
(No 51 of 1977) in
respect of Count 1.
He is sentenced to five
(5) years imprisonment in terms of
section 276(1)(i)
of the
Criminal
Procedure Act, 1977
(No 51 of 1977) as amended."
J J MOSES
ACTING
JUDGE OF
THE
HIGH
COURT
NORTHERN
CAPE DIVISION
I
agree and it is so ordered
APS
NXUMALO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Appellants:
Adv. I.J. NEL
For
the Respondent
Adv. MZC ENGELBRECHT
[1]
Record, Volume 1, C
[2]
Record, Volume 1, D
[3]
Record, Volume 2 page 62 lines 14 to 21
[4]
Record, Volume 2 page 63 line 5
[5]
Record, Volume 3 page 228 line 18 to page 229 line 13
[6]
Record, Volume 3 page 229 line 14
[7]
Record, Volume 4 page 366 lines 10 to 15
[8]
Record, Volume 3 page 249 line 21
[9]
Record, Volume 3 page 250 line 9
[10]
Record, Volume 3 page 250 line 9
[11]
Record, Volume 3 page 250 line 14
[12]
(Record, Volume 3 page 256 lines 14 to 21
[13]
Record, Volume 3 page 264 lines 9 to 14
[14]
Record, Volume 3 page 271 line 16
[15]
Record, Volume 3 page 271 line 20
[16]
Record, Volume 3 page 271 line 23 to page 272 line 2
[17]
Record, Volume 3 page 272 line 13
[18]
Record, Volume 3 page 273 line 8
[19]
Record, Volume 3 page 273 line 17
[20]
Record, Volume 4 page 355 line 6
[21]
Record, Volume 4 page 363 line 17 to page 364 line 20
[22]
Record, Volume 5 page 416 paragraphs 2.1.8. and 2.1.9
[23]
Record, Volume 5 page 419 lines 1 to paragraph 2.2.7
[24]
See S v Msimango
2018 (1) SACR 276
(SCA) paras 14-15)
[25]
See para 15 above. See also para 21.1 above, which is/was a correct
finding by the trial court
[26]
See R v Blom
1939 AD 188
at 202-203
[27]
As per the Supplementary Reasons para 23 above
[28]
See paras 21.2 and 21.3 above
[29]
Ibid Paras [36], [37] and [38]
[30]
Isaacs, supra para [38]
[31]
Director of Public Prosecutions v Mngoma
2010 (1) SACR 427
(SCA)
para (11]
[32]
S v Malgas
2001 (1) SACR 469
(SCA) p 478 (d)-(g)