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[2019] ZAGPPHC 283
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Tau v S (A30-2016) [2019] ZAGPPHC 283 (14 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case Number: A30/2016
14/2/2019
In
the matter between:
JOHN
BUTI TAU
Appellant
And
THE
STATE
Respondent
JUDGMENT
JANSE VAN NIEUWENHUIZEN J
[1]
The
appellant was convicted and sentenced in the Klerksdorp Regional
Court on the following counts:
Count 1:
Contravention of section
117(a) read with
section 1
Of the
Correctional
Services Act, 111 of 1998
;
3 years' Imprisonment
Count 2:
Robbery with aggravating
circumstances;
10 years' Imprisonment
Count 3:
Robbery with aggravating
circumstances;
10 years Imprisonment
Count 5:
Contravention of section117(a) read with
section 1
10 years' imprisonment
Of the Correctional
wholly suspended subject
Services Act, 111 of 1998
to certain conditions
[2]
In
the result, the appellant received an effective sentence of 23 years
Imprisonment.
[3]
The
court
aquo
granted
the appellant leave to appeal against his conviction in respect of
counts 1, 2, 3 and 5 and against his sentence in respect
of counts 1,
2 and 3.
CONVICTION
[4]
Mr
Thompson, counsel for the appellant, to his credit, submitted that he
could not advance any legitimate grounds concerning the
conviction in
respect of counts 1 and 3. In the result the appeal only proceeded In
respect of the convictions on counts 2 and
5.
COUNT2
Evidence
[5]
The
conviction on count 2 emanates from an incident that occurred on 21
October 2013 at the Klerksdorp police cells. The two state
Witnesses,
warrant officer Mahule and warrant officer Tshazibane were on duty on
the day of the incident.
[6]
The
conviction on count 2 relates to the evidence of warrant officer
Mahule and the conviction in respect of count 3 to that of
warrant
officer Tshazibane.
[7]
Warrant
officer Mahule testified that he heard a commotion from the cells and
upon investigation determined that an inmate complained
that the
appellant does not belong in that cell because he is a gang member.
[8]
Warrant
officer Mahule referred to the person who complained as the
·”reporter”.
Warrant officer Mahule testified
that the reporter grabbed the appellant by his clothes and it seemed
to him that a fight was Imminent
He unlocked the cell and proceeded
to the reporter and the appellant. Upon reaching them the reporter
grabbed him around his neck
and turned him around. He testified that
another accused, accused number 3, assisted in holding him, where
after he was tied up
with shoelaces. Whilst being tied up he heard
someone saying “search him". Accused number 3, searched
him and took his
cell phone.
[9]
Warrant
officer Mahula was then covered with a bedsheet. Prior to being
covered with the bedsheet, warrant officer Mahule could
see one of
the inmates yielding a knife.
[10]
During
cross-examination, It appeared that warrant officer Mahule confused.
the numbers of the accused in the dock. The person whose
actions he
attributed to accused number 3 was the person that was not supposed
to belong In the cell. Warrant officer Mahule was
clearly referring
to the appellant and the confusion with the numbers was an honest
mistake.
[11]
Warrant
officer Tshazibane came to the cell after the attack on warrant
.officer Mahule and was also attacked and robbed of his
possessions.
Warrant officer Tshazlbane identified the appellant as one of the
people who was involved In
the
initial shuffle to get him Into the cell, which explains the reason
why the conviction on count 3 is not challenged.
[12]
The
appellant did, thereafter, succeed in escaping from the cell which
led to his conviction on count 1.
Grounds
of appeal
[13]
The
grounds of appeal against the conviction on count 2 is set out in Mr
Johnson's, counsel for the appellant, heads of argument
as follows: ·
“
12.7 In the premises It
is submitted, firstly, that in respect of count 2, the robbery of
Warrant Officer Mahule, the
trial Court erred in finding that·-
1.
the
Appellant
must have Intended
to make common cause with those perpetrating the assault;
(my emphasis);
2.
the
Appellant manifested the sharing of the common purpose
by
himself
by performing some
act of association with the conduct of the others,·
(my
emphasis);
3.
the
Appellant had the requisite mens rea.
12.8
Secondly, It is submitted that
the fact that the Appellant escaped on the 21• of October 2013,
does not necessarily mean, on
the facts proved, that the Appellant
had formed the intention to escape at the time when Warrant Officer
Mahule had been attacked.
12.9
It is submitted that on the
facts, It Is reasonable to Infer that the Appellant fanned that
intention afterwards, when Warrant Officer,
Tshazibane and Warrant
Officer Van Deventer were attacked."
Discussion
[14]
The
only question in respect of the conviction on count 2 is therefore
whether the appellant had the necessary intention to rob
warrant
officer Mahula of his cell phone.
[15]
In
order to distance the appellant from the robbery, Mr Johnson
submitted that the appellant most probably only searched and took
wan-ant officer Mahule's · cell phone, because he was still
scared and ordered to do so by the reporter
[16]
This
submisslon does not account for the fact that the appellant freely
and out of his own will participated in holding warrant
officer
Mahule before he was tied up. The court
a
quo’s
finding that the
appellant intended to make common cause with those perpetrating the
assault is, in my view, in accordance with
the facts presented to the
court.
[17]
In
the premises, the appeal against the conviction on count 2 must fail.
COUNTS
Facts
and discussion
[18]
The
facts underlying the conviction on count 5 do not support the
conviction.
[19]
It
is common cause that the appellant was detained on 3 October 2013 at
the Klerksdorp Police cells with four other detainees. The
cell was
locked by· Sergeant Modisadife. Upon Sergeant Modisadife's
return to the cell, he discovered that the appellant
and two of the
other detainees were no longer in the cell. The cell was, however,
still locked.
[20]
One
of the remaining detainees Informed sergeant Modisadife that
the appellant and the two other detainees were removed by
a
police officer, which· · obviously accounts for the
fact that the cell was still locked upon sergeant Modisadife's
return.
[21] Notwithstanding a
thorough search of the police station, the appellant could not be
found.
[22] No evidence was
led to suggest that the appellant played a role in his removal from
the cell. To the
contrary, on the State's own version, the appellant
was removed from the cell by a police officer. The aforesaid evidence
does
not support a finding that the appellant
·unlawfully
escaped from
custody and the appeal
against conviction on count 5 should succeed.
SENTENCE
[23]
The prescribed minimum sentence in
respect of counts 2 and 3 is in terms
of
:
the provisions of the Criminal Law
Amendment Act, 105 of 1997 ("the Act"), 15 years'
Imprisonment, The court
a quo
took
the fact that the appellant Is already serving long term Imprisonment
Into account and deviated, In terms of section 51(3)
and (6) of the
Act, from the prescribed minimum sentence by imposing the lesser
sentence of ten years' imprisonment.
[24]
The court
a
quo.
further stated:
"To
prevent an undue long. term of Imprisonment, the Court will order
that the sentence in respect of count 2 and count 3 run
concurrent.
[25]
In, what appears to be an oversight, the
court did not In Its order, order that the sentence on count 2 and
count 3 should run concurrently.
In the result, the sentence should
be amended to rectify the aforesaid patent mistake.
[26]
In respect of the sentence imposed on
count 1, the court held that It could not order that the sentence run
concurrently with the
sentence Imposed on count 2 and count 3. The
applicable portion of the Judgment reads as follows:
“
However In terms of the
Correctional
Services Act, Act
111/1998 any sentence that is imposed would
commence only after the sentence in respect of escaping, has been
served.”
[27]
Chapter
XV of the
Correctional Services Act, 111 of 1998
creates several
statutory offences and sets out the applicable penalties to be
imposed upon a conviction on one of the offences.
[28]
To
this end,
section 117(a)
states that any person who escapes from
custody will be guilty of an offence and further provides that such a
person will be liable·
to a fine or imprisonment for a period
not exceeding ten years or to imprisonment without the option of a
fine or both.
[29]
Section
117
does not stipulate that any term of imprisonment imposed in terms
of the section should be served prior to the serving of any other
sentence.
[30]
Mr
Johnson referred to
section 39
of the
Correctional Services Act,
supra
which
deals with the commencement, computation and termination of
sentences.
[31]
The
relevant portion of
section 39
reads as follows:
“(
1)
Subject to the provisions of subsection (2) a sentence of
imprisonment takes effect from the day
on which that sentence Is
passed, unless it Is suspended under the provisions of any law or
unless the sentenced person is released
on bail pending a decision of
a higher court, in which case the sentence takes. effect from the day
on which he or she submits
to or is taken into custody.
….
(2)(a) Subject to the provisions
of paragraph (b), a person Who receives more than one sentences of
imprisonment or
receives additional sentences while serving a term of
Imprisonment must serve each such sentence, the one after the
expiration,
setting aside or remmission of the other, in such order
as the Commissioner may determine, unless the court specifically
directs
otherwise, or unless the court directs that such sentences
shall run concurrentlybut-“
[32]
The court
a
quo
did not refer to a specific
section In the
Correctional Services Act,
supra
as authority for his finding that a
sentence Imposed on an escape conviction cannot run concurrently with
any other sentence Imposed.
I could find none.
[33]
In the premises, there is no legal
impediment to order that the sentence Imposed on count 1 to run
concurrently with the sentence
Imposed count 2.
[34]
The convictions on counts 1, 2 and 3
emanate from the same series of events and I am of the view that the
sentence Imposed on count
1 should run concurrently with the sentence
Imposed on count 2.
ORDER
[35]
In the premises, I propose the following
order.
1.
The appeal against
the conviction on count 2 is dismissed.
2.
The appeal· against the
conviction on count 5 succeeds and the conviction is set aside.
3.
The appeal against sentence on counts 1,
2 and 3 succeeds and the sentences are set aside.
4.
The appellant is sentenced as follows:
4.1
Count 1 : Contravention of
section117(a) read with section
1
of the
Correctional
Services Act, 111 of
1998
;
3
years' imprisonment
4.2
Count 2 : Robbery with aggravating
circumstances;
10 years 1 imprisonment
4.3
Count 3 : Robbery with aggravating
circumstances;
and
10 years’ imprisonment
5.
The sentences imposed on counts 1 and 3
to run concurrently with the sentence imposed on count 2.
6.
The sentence is ante-dated to 3
September 2015.
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree
J.M MATSEMELA
ACTING JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
It
so ordered
DATE
HEARD:
22 November 2018
DATE
DELIVERED:
14 February 2019
APPEARANCES
Counsel
for the Appellant
Advocate
A. Thompson
(076 072 6093/012 424 4336)
Instructed
by.
Legal Aid
South Africa
Pretoria Justice Centre
(012 401 9200)
Counsel
for the Respondent
Advocate S. Scheepers
(084 520 0593/012 315 6773))
Instructed
by.
State Attorney's Office
(012-351
6700)