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[2019] ZAGPPHC 238
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Jabuza v S (A139/2017) [2019] ZAGPPHC 238 (21 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: A139/2017
In
the matter between:
JABUZA
MZWANDILE
Appellant
And
THE STATE
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
INTRODUCTION
[1]
The
appellant was convicted on a charge of robbery with aggravating
circumstances and sentenced to 15 years’ imprisonment
in the
Potchefstroom Regional court.
[2]
This
appeal is against both conviction and sentence.
CONVICTION
Evidence
[3]
The
conviction emanates from an incident that occurred in broad daylight
on 28 May 2014 whilst the complainant, a student at North
West
University, Potchefstroom was on her way to class.
[4]
It
is common cause that the complainant accosted the appellant on her
way to the University. The details of their interaction are,
however,
not.
[5]
The
complainant testified that whilst walking she observed a vehicle in
the middle of the road. Two male persons alighted from the
vehicle
and walked towards the complainant. She testified that the street was
quiet at that stage which explains why the presence
of the vehicle
and the two males caught her attention. She was apprehended by the
two males, a firearm was wielded at her and she
was robbed of her
laptop, bankcard, cellphone and R 500, 00 cash.
[6]
The
complainant was able to recall the identifying features of her
assailants and an identikit in respect of the two suspects were
compiled. On 22 August 2014, whilst walking past Midas in
Potchefstroom, the complainant identified the appellant as one of her
attackers and immediately alerted the police. The appellant was
arrested.
[7]
The
appellant admits that he met the complainant on the day, time and
place where she was robbed. According to the appellant he
travelled
from Klerksdorp to Potchefstroom to meet a certain Sarah Moeng to
whom he owed money. He knew Ms Moeng was resident in
a place known as
Botani Flats, but was not sure were exactly the block of flats were
[8]
He
asked the complainant for directions, but she could not assist him.
The appellant saw a person standing nearby and requested
the
complainant to ask the person for directions. The said person
indicated that Ms Moeng had already left Potchefstroom and thereafter
the appellant and complainant parted ways.
[9]
The
appellant denied having robbed the complainant and stated that she
must have been robbed by some else after they parted ways.
[10]
The
court
a
quo
did
not accept the appellant’s version and he was convicted as set
out
supra.
Grounds of
appeal
[11]
In
the heads of argument filed on behalf of the appellant, only the
identification of the appellant was put in issue. The appellant
alleges that the complainant made an error of judgment in identifying
the appellant as one of the robbers. In this regard, reference
was
made to the cautionary rule applicable to adjudicating evidence in
respect of identification.
Evaluation
[12]
The
court
a
quo
was
patently aware of the cautionary rule that applies to evidence in
respect of identification. In the judgment the court referred
to the
following excerpt from
S
v Charzen
2006
(2) SACR 143
SCA at page 147 paragraph [11]:
“
[11]
But, as our courts have emphasised again and again, in matters of
identification, honesty and sincerity
and subjective assurance are
simply not enough. There must in addition be certainty beyond
reasonable doubt that the identification
is reliable, and it is
generally recognised in this regard that evidence of identification
based upon a witness's recollection
of a person's appearance can be
'dangerously unreliable', and must be approached with caution.”
[13]
The
court carefully evaluated the evidence of the complainant and
concluded that her evidence established beyond a reasonable doubt
that the appellant was one of her perpetrators.
[14]
I
could not find any misdirection or error in the court
a
quo
’s
reasoning in this regard. The “
error
of judgment”
referred
to by the appellant is not borne out by the facts.
[15]
The
complainant had sufficient opportunity to observe the appellant, the
incident occurred during the day and there is nothing that
prevented
her from memorising the appellant’s specific features.
Furthermore, the appellant and his co-accused were the only
two male
persons present during the robbery.
[16]
The
aforesaid, coupled with the fact that the appellant, on his own
version, accosted the complainant on the day of the incident
at the
time and place where the incident occurred removes any reasonable
doubt that she made an error in her identification of
the appellant.
[17]
In
the premises, I am of the view that the appeal against conviction
ought to be dismissed.
SENTENCE
[18]
The
15 years’ imprisonment imposed by the court
a
quo
is
in accordance with the provisions of the minimum sentence prescribed
by the
Criminal Law Amendment Act, 105 of 1997
.
[19]
The
appellant submits that the court
a
quo
misdirected
itself in finding that no substantial and compelling circumstances
exist to justify the imposition of a lesser sentence.
[20]
A
court of appeal may only interfere in narrowly defined circumstances,
to wit where the sentence is vitiated by an irregularity,
where the
court
a
quo
misdirected
itself in imposing the sentence or if the sentence imposed induces a
sense of shock. [See:
S
v Salzwedel and Others
1999
(2) SACR 586
SCA at 591 d-g.]
[21]
In
a well-reasoned judgment, the court
a
quo
,
had regard to the appellant’s personal circumstances, the
circumstances under which the crime was committed and the interests
of the community. The court found that the cumulative effect of these
factors do not constitute substantial and compelling circumstances
justifying the imposition of a lesser sentence than the prescribed
minimum sentence.
[22]
The
reasoning of the court
a
quo
does
not amount to a misdirection or material error. In the result, the
appellant has failed to establish any of the jurisdictional
factors
to enable this court to interfere with the sentence imposed by the
court
a
quo
.
[23]
I
n
the premises, the appeal against sentence should similarly fail.
ORDER
[24]
I
propose that the appeal against conviction and sentence be dismissed.
N. JANSE
VAN NIEUWENHUIZEN
JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree
C.
SWANEPOEL
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
It
is so ordered.
DATE
HEARD
6
June
2019
JUDGMENT
DELIVERED
21
June 2019
APPEARANCES
Counsel
for the Applicant:
Advocate J.L.
Kgokane
(082 059
5036)
Instructed
by:
Pretoria
Justice Centre
(012 401
9200
Ref:
LetauK@legal-aid.co.za
Counsel
for the Respondent:
Advocate
A. Coetzee
Instructed
by:
Director of
Public Prosecutions
(084 2500 118)
Ref: No PA
32/2017 (6/6/AC)