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[2020] ZALMPPHC 7
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Raolane v S (A53/2017) [2020] ZALMPPHC 7 (6 February 2020)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: A53/2017
6/2/2020
In
the matter between
CASWELL
RAOLANE
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
SEMENYA
J:
[1] The appellant and his
erstwhile co-accused were convicted in Tzaneen regional court on a
charge of robbery with aggravating
circumstances as intended in
section 1 of the Criminal Procedure Act 51 of 1977 (the CPA),
unlawful possession of a firearm and
unlawful possession of
ammunition in contravention of sections 3 and 90 of the firearms
control Act 60 of 2000 respectively. The
appellant was sentenced to
15 years’ imprisonment on the robbery charge, 10 years on
unlawful possession of ammunition to
which he was cautioned and
discharged. The sentence of 15 and 10 years’ imprisonment were
ordered to run concurrently. The
appeal is against both conviction
and sentence and is with leave of the trial court.
[2] The crisp issues in
this appeal are whether the regional court was correct in its
evaluation and acceptance of evidence of identification
of the
appellant by state witnesses and whether such evidence amounted to
proof of guilt beyond a reasonable doubt, a standard
of proof
required in a criminal case. It is the view of the appellant, on the
basis of the argument that I shall refer to in this
judgment, which
the appeal court should find that the regional magistrate erred in
that regard and that the conviction and the
resultant sentence should
be set aside.
[3] A summary of the
evidence that led to the conviction of the appellant is that, on the
16 July 2010, two people who were identified
by Petrus Ramathoka
(Ramathoka) and other state witnesses as the appellant and his
erstwhile co-accused, arrived at Ramathoka’s
tavern at night
after other patrons had left as it was closing time. The appellant
and his co-accused’s suspicious behaviour
made Ramathoka to
call one David Mohale (Mohale) to the tavern. Ramathoka’s
brother, Johannes, was outside the tavern at
that stage. The
suspicion arose out of the fact that it became apparent to Ramathoka
that the appellant and his co- accused were
not intending to finish
the snooker game that they were playing even when he told them that
he wants to close the tavern. Their
movements as well as the bag that
they were carrying further raised his eyebrows.
[4] At some stage the
appellant produced a firearm and pointed it at Ramathoka and Mohale
who were next to the counter and ordered
them to lie down. The
appellant and his co-accused dragged Ramathoka and Mohale to behind
the counter, tied their legs and arms
and demanded money. Ramathoka
told them that the only money available was the one on top of the
till. The appellant struck Ramathoka
with a firearm and demanded more
money. The appellant and his co-accused ransacked the tavern was
searched for more money. Ramathoka
decided to show them where an
amount of R10 000.00 was after the appellant had threatened to
kill him. The appellant and his
co-accused eventually put Ramathoka,
Mohale and Johannes inside refrigerators and left, but not before
they had damaged what they
referred to as the jukebox. After about
one hour thirty minutes, Mohale untied himself, kicked open the
fridge and went out. He
and Johannes untied Ramathoka and took him
out of the fridge. Cigarettes and their phones were missing. The
police were called
to the scene.
[5] Mohale stated that
the appellant and his co-accused were known to him by sight only
prior the date of the incident, as he saw
them about three times at
that tavern. Both he and Ramathoka testified that the appellant and
his co-accused used to come the tavern
accompanied by Bongani, his
girlfriend Mokgadi, Mable and another lady. The police proceeded to
search for Bongani and Mokgadi
who, after being found, were arrested
when Bongani denied that he knew the appellant and his co-accused.
The police summoned him
(Mohale) and Ramathoka to the police station
few days thereafter where they identified their cell phones which
were stolen during
the robbery.
[6] Warrant officer
Maunatlala testified that he found Bongani at the police station with
three ladies after they were arrested.
Bongani and the two ladies,
Mokgadi and Kedibone, agreed to take the police to a place where the
appellant could be found. He,
Warrant officer Maunatlala, and other
police officers drove to Marenong in three police vehicles. When they
had parked at a filling
station, the two ladies pointed at the two
accused and informed Maunatlala that they are the people he is
looking for. The appellant
and his co-accused stopped and talked to a
taxi driver. Upon seeing Maunatlala and his colleagues, the appellant
and his co-accused
ran towards a block of flats and into the nearby
bush. His co-accused was by then holding a blue and black bag.
Maunatlala and
his colleagues surrounded them which caused the
appellant and his co-accused to jump over the fence. Maunatlala and
one Warrant
Officer Mashau, fearing that they will outrun them, fired
shots and injured the appellant’s co-accused on his leg. The
appellant
jumped over the wall and disappeared into the bush. Other
police officers later came with the appellant to the spot where the
co-accused
had fallen. An ambulance was summoned to take the
co-accused to the hospital for treatment.
[7] When the police
enquired about the bag, the appellant told them that it was somewhere
in the bush. Constable Wrongly Mahlatsa
testified that the appellant
took him to a place among tall grasses and a donga where a black and
blue backpack was eventually
found. The bag was opened in the
presence of official police photographer. Inside the bag there was
adidas jacket, pair of jeans,
two cell phone chargers, a knife, dove
body lotion, a tooth paste and tooth brush, 8 rounds of ammunition,
two magazines, 9 ammunition
inside a magazine in Norinco firearm, a
6.35 firearm and R1014.00. the two firearms’ serial numbers
were obliterated.
[8] Mokgadi Pilusa and
Detective Warrant Officer Neverdie Risimati Matwalane of the Dog Unit
corroborated Maunatlala about what
happened when the appellant was
arrested. Matalwane went further to state that he arrested the
appellant and took him to the police
station and that upon their
arrival there the appellant told him that he had handed over three
cell phones to a certain person
at Boxer Supermarket. He proceeded to
Boxer with the appellant where the appellant showed him a person by
the name of Matome Lawrance
Matlou. Matlou gave him three cell phones
which were later identified by the complainants in this matter.
[9] Sergeant Luvuyo Lundi
Mlindazwe who is employed as Assistant Forensic Analyst deposed to an
affidavit in which she stated that
she has done a ballistic test on
the firearms which were found by Constable Mahlatsa in a donga and
found that they are capable
of firing.
[10] The appellant
testified in his defence and denied that he was at the scene of the
incident on the date of the commission of
the offence. He stated that
he was at Moganya village in Botlokwa on the 16
th
and came to Tzaneen on the 17
th
,
the date on which he was arrested. He denied that he has ever been at
the Ramathoka’s tavern with Bongani before the date
of the
incident. He stated that he started to know Bongani and his
girlfriend Mokgadi after his arrest. He admitted though that
he was
staying at Phalaborwa and that the police were heading there to
search for him when he got arrested.
[11] The issues raised on
appeal are that the circumstances under which Ramathoka, Johannes and
Mohale found themselves in are such
that they could not have had a
clear observation of their assailant. Counsel for the appellant based
his argument on the case of
S
v Charzen & Another
2006 (2) SACR 143
(SCA)
where the appeal court set aside the conviction that came about out
of the identifying witness’ evidence despite accepting
that the
witness was an intellect, patently honest and confident. The Supreme
Court of Appeal found that his evidence of identification
is
unreliable more so in that his premises were searched and none of the
stolen properties were found. The witness in that case
had stated
that he made sure that he has a good look at his assailants so that
he can assist the police with investigations in
case he survives the
ordeal.
[12] The facts in
Charzen’s case are distinguishable from the one before us in
that in Ramathoka had sufficient opportunity
to observe his
attackers, whom he suspected their motives. His evidence is further
corroborated by that of Mohale. In addition
to this, the questions
put to the appellant during cross examination sums up nicely, the
facts upon which doubt with regard to
the appellant as the
perpetrators of the offence can be excluded. The prosecutor put it to
the appellant that Ramathoka and Mohale
associated him with Bongani,
his girlfriend Mokgadi and another lady. It is for this reason that
the first person to be contacted
by the police were this Bongani and
Mokgadi. It is Mokgadi and the other lady who told the police that
the appellant resides at
Phalaborwa and who offered to go there with
the police in search of him. This happened a few hours after the
commission of the
offences. In less than 24 hours, the appellant was
found at a taxi rank. He and his co-accused fled immediately when
they saw the
police. Firearms and other items were found in a bag
which was in their possession when the police saw them. The evidence
is that
the perpetrators of the offences were holding a back pack and
that they pointed a firearm at the complainant. The cell phones which
were stolen during the commission of the offence were retrieved with
the assistance of the appellant. This evidence cannot be coincidence.
[13] It is indeed so, as
expressed in
R
v Shekelele and Another
1953 (1) SA 638
(T), S v Mthethwa
1972 (3) SA
766
(A) at 768 A
and many other cases that followed them, that the evidence of
identification must, for various reasons stated in those cases, be
approached by the courts with caution. The evidence of
identification of the appellant by the identifying witnesses, coupled
with collateral evidence of other witness, points to the appellant as
one of the persons who robbed the complainants beyond reasonable
doubt. The application of caution to their evidence only point in
that direction.
[14] The appellant raised
a defence of alibi. In
R v Biya
1952 (4) SA 514
(A) at 521C-D,
cited with approval by the Supreme Court of Appeal in
S v
Liebensberg
2005 (2) SACR 355
(SCA)
, it was held that:
“
If there is evidence of an
accused person’s presence at a place and at a time which makes
it impossible for him to have committed
the crime charged, then if on
all the evidence there is a reasonable possibility that this alibi
evidence is true it means that
there is the same possibility that he
has not committed the crime”.
In this appeal, the
totality of the evidence proves that the appellant was at Ramathoka’s
tavern on the date and time of the
commission of the offence and not
at Botlokwa as per his testimony.
[15] It was held in
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 649
i
–
j
that the trial court’s primary findings of fact should remain
undisturbed unless they are clearly wrong, I find that there
is no
misdirection on the part of the regional magistrate with regard to
her factual findings and, therefore, no reason to disagree
with her.
[16] On sentence, it
cannot be said that the regional magistrate overestimated the
seriousness of the offence. It is indeed so that
the use of a firearm
during the commission of an offence is an aggravating factor whether
or not that firearm was fired. In any
event sentencing is the domain
of the sentencing court and trite that the powers of the appeal court
to interfere with the sentence
is very limited. The essential enquiry
is not whether that court was wrong, it is whether the court
exercised its discretion judiciously
or not. -see
Director
of Pubic Prosecutions, Kwazulu-Natal v P
2016 (1) SACR 243
(SCA)
.
It is evident that the appellant and his co-accused meticulously
planned the commission of the offence. They waited until everyone
else had left. They pretended to be playing a pool table game. They
came armed with ropes which they used to tie the victims. As
if
robbing the victims of their money was not enough, they also damaged
their juke box. The circumstances of this case calls for
a minimum
prescribed sentence in terms of section 51 (2) of Act 105 of 1997.
There is no misdirection on the part of the sentencing
court in
respect of the sentence that it imposed on the appellant and
therefore no reason to interfere.
[17] In the circumstances
I make the following order:
The appeal on conviction
and sentence is dismissed.
M.V SEMENYA
JUDGE
OF THE HIGH COURT
I
agree
T.C TSHIDADA
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES
ATTORNEYS
FOR THE APPELLANT : LEGAL AID SA, POLOKWANE
COUNSEL
FOR THE APPELLANT : MR. LM
MANZINI.
ATTORNEY
FOR THE RESPONDENT : DPP, LIMPOPO
COUNSEL
FOR THE RESPONDENT : ADV. JJ JACOBS
RESERVED
ON
: 08 NOVEMBER 2019
JUDGMENT
DELIEVERED ON
: 06 FEBRUARY 2020