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[2019] ZAGPPHC 301
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Rametsi v S (A845/2010) [2019] ZAGPPHC 301 (2 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION - PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case No.: A845/2010
2/7/2019
JAMES
RAMETSI
Appellant
and
THE
STATE
Respondent
JUDGMENT
MNGQIBISA-THUSI
J:
[1]
The appellant and two others were charged with 10 counts, ranging
from robbery with
aggravating circumstances to unlawful possession of
ammunition. The appellant was convicted on three counts of robbery
with aggravating
circumstances (counts 2, 3 and 4) and sentenced to
15 years imprisonment on each count, with the sentence in count 4
ordered to
run concurrently with the sentence in count 2. In effect
the appellant was sentenced to 30 years imprisonment.
[2]
The offences for which the appellant was convicted occurred on 7 May
2009 (counts
2 and 3) at a Pep Store, Bella Ombre Plaza, Potgieter
Street, Pretoria and on 15 July 2009 (count 4) at a Pep Store in
Bloed Street,
Pretoria.
[3]
The
appellant is appealing against his conviction and sentence imposed.
[4]
The
conviction and sentence of the appellant relate to a spate of
robberies which were committed by a group of three to four persons
at
various Pep Stores around the Pretoria area. Cash and other items,
including,
inter alia,
cell
phones and a fire arm were stolen.
[5]
The
police investigating the spate of robberies committed at the various
Pep stores received information from an informant who led
them to
accused 2 where the police found prescribed police uniforms and blue
identification parades, if any; and, of course, the
evidence by or on
behalf of the accused. The list is not exhaustive. These factors, or
such of them as are applicable in particular
case, are not
individually decisive, but must be weighed one against the other, in
the light of the totality of the evidence, and
the probabilities".
[8]
With
regard to counts 2 and 3, Ms Dora Ditlhage, Mr Mzwakhe Dladla and Mr
Paulus Mokgoshi, a police officer, described two of their
attackers
as one being light in complexion and of slender built and the other
being dark in complexion and of medium height. Although
in court Ms
Ditlhage identified the appellant as one of their assailants, she,
however, was unable to point out anyone at an identity
parade.
However, Mr Dladla did make a dock identification of the appellant's
co-accused (that is accused 2 and 3) but he also did
not positively
identify anyone at the identity parade. Mr Mokgoshi, the complainant
in count 3 made a dock identification of the
appellant and positively
identified accused 3 at an identity parade.
[9]
With
regard to count 4, Ms Christina Makopa Rametsi, Ms Caroline Mosapo
Papo and Ms Batsibi ElizabethMalepo were attacked. They
testified
that of the two armed men who attacked the store, one stood guard at
the door to prevent anyone from leaving whilst the
other took cash
and cell phones. Ms Rametsi identified the appellant as the person
who stood guard at the door. Ms Rametsi positively
identified the
appellant at an identity parade and also identified him in court as
one of the people who attacked the store on
the relevant day. Ms Papa
and Malepo identified accused 2 and 3 in court.
[10] With
regard to the incident which occurred in the Bella Ombre Plaza on 7
May 2009, the appellant raised
the defence of an alibi, alleging that
on the day in question he had accompanied his mother to hospital. As
proof the appellant
produced his mother's appointment letter with a
doctor. This letter was admitted as exhibit "N" during the
trial.
[11] The
State bore the onus to prove the guilt of the appellant beyond a
reasonable doubt. Once the appellant
raised the defence of an alibi,
that alibi had to be accepted unless it was found not to be
reasonably possibly true. Even though
the police had failed to
investigate the veracity of the letter produced by the appellant,
none of the State's witnesses positively
identified the appellant at
the identity parade. All the witnesses made a dock identification of
the appellant during the trial.
[12]
Bearing in mind the fact that the attackers had led the three women
to a store room, their faces were
not covered and they had taken
their time to pack the items they stole, I am satisfied that the
court a quo did not misdirect itself
in finding that the State had
proven the identity of the appellant as one of the perpetrators of
the robbery, beyond a reasonable
doubt.
[13]
Further, taking into account the positive identification of the
appellant at the identity parade and
in court by Ms Rametsi; the fact
that the witnesses described the appellant in a similar fashion on
all counts he was convicted;
the similar
modus
operandi
in the
robberies of the Pep stores and the fact that the appellant's
co-accused led the police to where he stayed even though all
three
accused had alleged that even though they knew each other when they
were young, in later years they had lost contact with
each other and
did not know where each stayed at the time of the commission of the
offences, I am satisfied that the State has
proven beyond a
reasonable doubt that the appellant was one of the assailants who
attacked the store on the relevant date. I am
of the view that the
court a quo did not misdirect itself in convicting the appellant on
counts 2 and 3.
[14]
With regard to count 4, Ms Rametsi was a
single witness with regard to the identification of the appellant. In
terms of section
208 of the Criminal Procedure Act, an accused may be
convicted on the uncorroborated evidence of a single and competent
witness.
Barring minor discrepancies, the court a quo found the
evidence of Ms Rametsi to be satisfactory and reliable. Further, the
appellant
when approached by the police had cooperated leading to the
arrest of accused 3 where fire arms and ammunition were found.
[15]
In the result I am of the view that the
appeal against conviction on all three counts ought to fail.
SENTENCE
[16]
The
issue which this court has to determine is whether the trial court
has misdirected itself in imposing an effective sentence
of 30 years
imprisonment.
[17]
In
S v Rabie
1975
(4) SA 855
(a) at 861A-862F the court stated that punishment must fit
the criminal, as well as the crime, taking into account the interest
of society, as well as the need to blend the sentence with a measure
of mercy.
[18]
A sentence imposed by a lower court
should only be altered if:
18.1
An irregularity took place during the
trial or sentencing stage;
18.2
The court
a
quo
misdirected itself in respect of
the imposition of sentence;
18.3
The sentence imposed by the court a quo
could be described as disturbingly or shockingly inappropriate. See
S
v Salzwedel and others
1999 (2) SACR 586
(SCA) at 591 [10]
and
S v Malgas
2001 (1) SACR 469
(SCA) at
851 D-E.
[19]
The
prescribed minimum sentence for robbery with aggravating
circumstances is 15 years imprisonment unless this Court is persuaded
and finds that substantial and compelling circumstances exist
warranting a departure from the prescribed sentence.
[20]
In
S v
Vilakazi2009
(1) SACR 552 (SCA), at
562G:
"It is enough for the
sentence to be departed from that it would be unjust to impose it. To
determine whether or not it would
be unjust to impose the sentence
the court is entitled to consider factors traditionally taken into
account in sentencing and referred
to as "mitigating factors".
[21]
In
imposing sentence the court a quo had found that there were no
substantial and compelling circumstances justifying a departure
from
the minimum sentence prescribed.
[22]
It
was argued that the sentence is not only disproportionate to the
offences committed but that it is also disturbingly or shockingly
inappropriate. It was also asserted on behalf of the appellant that
in imposing an effective sentence of 30 years imprisonment,
the court
a quo had ignored the appellant's personal circumstances.
[23]
At
the time of the commission of the offences, the appellant was 29
years old, single with one child. The appellant was a first
offender
and had been an awaiting trial prisoner for four years. Counsel
argued that the appellant's personal circumstances were
sufficient to
amount to substantial and compelling circumstances justifying a
deviation from the minimum sentence.
[24] On
behalf of the State it was argued that the aggravating circumstances
far outweigh the mitigating
factors and accordingly urged this Court
to impose the prescribed minimum sentence.
[25]
The only factors which I can consider as
mitigatory are that the appellant is a first offender and that he has
been in custody for
4 years awaiting trial. Bearing in mind that the
robberies appear to have been planned and the appellant and his
cohorts were on
a spree to commit these robberies, when weighing the
mitigating factors against the aggravating circumstances, the scale
tips in
favour of aggravating circumstances.
[26]
Although
in
Malgas
the
Court found the presence of substantial and compelling circumstances,
it still stated the following about the minimum sentence
legislation:
"
The specified sentences
are not to be departed from lightly or for flimsy reasons'
and
that
" speculative hypothesis favourable to the offender,
undue sympathy, aversion to imprisoning first offenders
...
are
to be excluded'.
[27]
Further in
S
v Kwanape
[2012] ZASCA 16Bthe
court
stated that:
"[15] Recently this court
reiterated in S v Matyityi
2011 (1) SACR 40
(SCA) that 'the crime
pandemic that engulfs our country' has not abated. Thus courts are
duty-bound to implement the sentences
prescribed in terms of the Act
and that 'ill-defined concepts such as "relative youthfulness"
or other equally vague
and ill-founded hypotheses that appear to fit
the particular officer's personal notion of fairness' ought to be
eschewed".
[28]
Having regard to the facts of this case
and the personal circumstances of the appellant, I am of the view
that the court a quo did
not misdirect itself with regard to sentence
and that there is no reason to interfere with the sentence imposed.
[29]
In the result, the following order:
1.
The appeal against conviction is
dismissed.
2.
The appeal against sentence is
dismissed.
NP
MNGQIBISA-THUSI
Judge
of the High Court
I
agree:
L VUMA
Acting Judge of the High Court
Appearances
For
the Appellant: Adv HE Ndzakana-Hamca (instructed by: Pretoria Justice
Centre)
For
the Respondent: Adv A Roos (instructed by the DPP, Pretoria)