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[2021] ZAKZPHC 56
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Biyase v S (AR51/2020) [2021] ZAKZPHC 56 (27 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR51/2020
In
the matter between:
MTHOBISI
BIYASE APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
Regional Court, lxopo (Mr.
Squires sitting as a court of first instance)
1. Appeal
against both conviction and sentence is dismissed.
2. The
convictions and sentences imposed by the trial court are confirmed.
JUDGMENT
Mngadi
J (Mlaba AJ concurring)
[1] The
appellant with leave of the trial court appeals against both
conviction and sentence.
[2] The
appellant was charged before the regional court with three (3) counts
of robbery with aggravating circumstances.
A legal representative
represented the appellant during the trial. When the charges were put
to the appellant, he pleaded not guilty
to all the charges. The
regional magistrate after hearing evidence acquitted the appellant on
one count (count 3). The court convicted
the appellant of common
robbery on one count (count 1) and convicted the appellant as charged
on another count (count 2). He sentenced
the appellant to three (3)
years on common robbery and to fifteen (15) years imprisonment on
count 2. The court ordered that the
sentences imposed be served
concurrently. It resulted in an effective sentence of fifteen (15)
years imprisonment.
[3] The
charges against the appellant were as defined in section 1 of the
Criminal Procedure Act 51 of 1977 (the
CPA), further, they were read
with the provisions of section 51 (2) of the Criminal Law Amendment
Act 105 of 1997 (the CLAA). The
first charge (count 1) alleged that
on or about 6 September 2016 and at or near Hopewell the accused did
unlawfully and intentionally
assault Nokulunga Silagu and did then
and with force take a cellphone her property, the aggravating
circumstances being that the
complainant was strangled, threatened
with a broken bottle and she sustained some injuries. Count 2 alleged
that in or about 13
September 2016 and at or near Christ The King
Hospital- lxopo the accused did unlawfully and intentionally assault
Philile Ngcobo
and did with force take a smart tab 3g, R1200 in cash
and a bag her property, aggravating circumstances being the use of
firearm
to threaten the complainant. Count 3 alleged that upon or
about 12 September 2016 and at or near lxopo the accused did
unlawfully
and intentionally assault Kefure Molefe and did with force
take from her money, cash R1200, a cellphone and denin bag, the
aggravating
circumstances being use of firearm to threaten the
complainant.
[4] The
appellant as basis of defense raised an alibi. It was common cause
that the issue in dispute was identification.
The State lead evidence
of the three complainants, two witnesses Khulekani Mnguni (Mnguni)
and Simile Dladla (Dladla) who both
claimed to have acquired the
stolen cellphones from the appellant and the police captain Zindela
Madondo (Madondo) who was involved
in the recovery of the
cellphone(s) and the arrest of the appellant. The appellant testified
for the defense and he did not call
any witness. Nokwazi Mkhize who
was with the complainant in count 2 during the robbery corroborated
the evidence of the complainant
and she testified that the
perpetrator was the appellant although she was not given an
opportunity to do identification in an ID
parade.
[5] The
evidence relating to the occurrence of the robbery of the cellphones
incidents was not challenged. The
appellant denied that those from
whom the cellphones were recovered got the cellphones from him and he
denied that one cellphone
was found on him. The evidence of the
complainants that after the recovery of the cellphones, they were
called to the police station
and they identified the recovered
cellphones was not challenged.
[6] The
appellant admitted that the complainants in counts 1 and 3 pointed
him out in the ID parade. The evidence
of two complainants on the
holding of the ID parade establish that it was regularly held.
[7] The
evidence establish that the crimes were committed on 6, 12 and 13
September 2016. The appellant was arrested
on 19 September 2016.
Within about two weeks from the date of the commission of the crimes,
the complainants in count 1 and 3 identified
the appellant in the ID
parade as the perpetrator. On 14 September 2016, Madondo recovered
from the appellant the tablet robbed
from the complainant on 13
September 2016 on count 2. Shortly, after the arrest of the appellant
cellphones robbed on count 1 and
3 were recovered from Mnguni and
Dladla.
[8] The
three complainants were robbed during the day. They were robbed when
they were walking alone. The complainants
were not robbed in the
manner of grab and flee. The perpetrator confronted, held or
threatened them. During the incident, the complainant
was face to
face with the perpetrator. The perpetrator made no attempt to cover
or hide himself to make it difficult to be identified.
The
complainants were young women familiar with young African males. The
ID Parades were held soon after the incidents, when the
incident was
still fresh in the minds of the complainant. The complainant had no
difficulty to identify the perpetrator in the
ID parade. Both Mnguni
and Dladla received the cellphones a few days before police recovered
the cellphones from them and they
immediately connected the appellant
with the cellphones found on them. Madondo recovered the tablet
cellphone from the appellant
a day after it was robbed from the
complainant. He recovered it when he was not aware that the appellant
robbed the complainant
of it a day prior to its recovery.
[9] Dladla's
evidence was that Sicelo was with the appellant when he sold the
cellphone to him. The fact that the
appellant was with the person in
possession of, selling the cellphone a few hours after the cellphone
was robbed from the complainant,
and the complainant identified the
appellant as a perpetrator and pointed him out in the ID parade is
significant.
[10] The
appellant testified that he was in another area from 1 September 2016
to 15 September 2016. He was carrying
out building construction in a
particular homestead. He was not able to call any persons he worked
with as witnesses. He was given
an opportunity and the police
accompanied him to point out the homestead he was carrying the
building construction on but he failed
to do so. In my view, there
were proper grounds to reject the appellant's alibi as false. The
court correctly found him to be a
poor witness and he adduced no
evidence to support his alibi. In
R v Hlongwane
1959 (3) SA
337(A)
at 340H the court stated that there is no
onus
on an
accused to establish an alibi, if it might be reasonably be true he
must be acquitted. The alibi, held the court, does not
have to be
considered in isolation, it must be considered in the light of the
totality of the evidence in the case and the court's
impression of
the witnesses.
[11] The
State witnesses gave their evidence in a straightforward manner. The
evidence linking the appellant with
the robbed goods soon after the
incidents corroborated the complainants' evidence relating to the
identification of the perpetrator.
Evidence relating to
identification must be approached with caution. An accused person can
easily be mistaken for the perpetrator.
The circumstances under which
identification took place and other supporting evidence provide the
necessary safeguard that the
identification can safely be relied
upon. See
S v Mthethwa
1972(3) SA 766(A) at 768A-769A.
[12] The
evidence, in my view, was strong against the appellant in respect of
all the counts. The regional magistrate
appear to have misconstrued
the situation relating to count 3. It is not clear why the
complainant's evidence identifying the appellant
as the perpetrator
was not given any weight. It is also not clear why the fact that the
person identified as the perpetrator was
with the person selling the
robbed cellphone few hours after it was robbed was regarded as
irrelevant. He could not have been an
innocent companion because in
his evidence he denied that he was present. In addition, the
complainant, Ms. Molefe identified the
appellant in the I.D parade as
the perpetrator not long after the incident. The regional magistrate,
in my view, wrongly assessed
evidence relating to this count in
piece-meal fashion instead of considering relationships between
pieces of evidence. As individual
pieces, it might appear weak but
the total effect of all the pieces is important. In
S v Hadebe and
Others
1997 (2) SACR 641
(SCA) at 645i quoting from
Moshephi
and Others v R
(1980-1984) LAC 57
AT 59F-H held:
'The question for
determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the appellants was
established beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful aid
to a proper understanding
and evaluation of it. But, in doing so, one must guard against a
tendency to focus too intently upon
the separate and individual parts
of what is, after all, a mosaic of proof. Doubts about one aspect of
the evidence led in a trial
may arise when that aspect is viewed in
isolation. Those doubts may be set at rest when it is evaluated again
together with all
the other available evidence.'
[13] The
appellant contends that the regional magistrate erred in finding that
there were no substantial and compelling
circumstances for a court to
impose a sentence less than the prescribed minimum of sentence of
fifteen (15) years imprisonment
on count 2. The defence argues that
the error was occasioned by the failure to take into account properly
the following factors,
namely; that the appellant was twenty three
(23) years old at the date of the commission of the crimes, he was a
first offender,
and he spent three (3) years in custody awaiting
trial.
[14] The
record of the previous convictions of the appellant (SAP69) shows
that he was not a first offender. He
embarked on a road of
criminality when he was seventeen (17) years old in 2010. During the
period 2010 to 2015, he had been convicted
of five (5) crimes. He was
convicted of robbery on two occasions, had one conviction of
housebreaking, one conviction of assault
and one conviction of
murder.
[15] The
sentences previously imposed on the appellant show that he was
treated with a great degree of leniency.
He has not learnt anything
from the sentences that were imposed on him. He had, within a short
period, committed a number of offences.
He was embarking on a crime
spree. It indicates that he is a danger to society. He can only blame
himself that he could not be
released on bail pending trial.
[16] Sentencing
is primarily in the discretion of the trial court. The appellate
court can interfere with the sentence
imposed on limited
circumstances, namely, where the sentence imposed is either
disturbingly inappropriate, or it is vitiated by
a material
misdirection or it is so severe that it induces a sense of shock.
[18] The
law prescribed a prescribed minimum sentence of fifteen (15) years
imprisonment for a crime of robbery
with aggravated circumstances, if
no substantial and compelling circumstances are found to exist for a
court to impose a lesser
sentence. The substantial and compelling
circumstances are factors which have a bearing on the question of
sentence. Such factors
must bear scrutiny and must have some
substance. The prescribed minimum sentence may not be deviated from
due to flimsy reasons.
[19] The
court In
S v Malgas
2001(1) SACR 469 (SCA) at 476 held that
the court is required to approach the question of sentence conscious
of the fact that the
legislature has ordained the particular
prescribed period of imprisonment as the sentence which should
ordinarily be imposed. This
is in order to ensure a severe,
standardized, and consistent response from the courts to the
commission of such crimes unless there
were truly convincing reasons
for a different response. In my view, there are no grounds to upset
the finding made by the regional
magistrate that there were no
substantial and compelling circumstances as envisaged in the CLAA.
[20] The
sentencing court determines a sentence that is proportionate, fair
and just. A sentence of fifteen (15)
years imprisonment is a robust
sentence. The sentence must fit the offender, be in the interest of
the community and fit the crime.
The purposes of punishment are
deterrence, prevention, rehabilitation and retribution. A robust
sentence depending on the circumstances
of the case may be the
appropriate sentence. I am unable to find that the trial court
misdirected itself in the manner it sentenced
the appellant.
[21] I
propose the following order:
1. Appeal against
both conviction and sentence is dismissed.
2. The convictions
and sentences imposed by the trial court are confirmed.
Mngadi
J
I
agree, it is so ordered
Mlaba
AJ
APPEARANCES
Case
Number: AR
51/2020
For
the Appellant: Bongani
Mbatha
Instructed
by: Legal
Aid South Africa, PIETERMARITZBURG
For
the Respondent: S.I.
Sokhela
Instructed
by: Deputy
Director of
Public Prosecutions, PIETERMARITZBURG
Date
matter argued: 20
August 2021
Judgement
delivered on: