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[2019] ZAFSHC 12
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Montse v S (A204/2018) [2019] ZAFSHC 12 (29 January 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
A204/2018
In
the matter between:-
TEFO
ZAKARIA
MONTSE
Appellant
and
THE
STATE
Respondent
CORAM
:
RAMPAI,
J
et
MBHELE, J
JUDGMENT
BY
:
MBHELE,
J
HEARD
ON
:
29 OCTOBER 2018
DELIVERED
ON
:
29
JANUARY 2019
[1]
The appellant was convicted on one count of housebreaking with intent
to steal and attempted theft by a magistrate in the Welkom
District
Court and was sentenced to imprisonment for 3 years on 25 October
2017.
[2]
The appellant, aggrieved by the conviction and sentence, approached
this court on appeal against both with the leave of the
trial court.
In the notice of appeal, heads of argument as well as submissions
before us, the appellant assails the conviction
on the basis that the
trial court erred in finding that the state managed to prove its case
beyond a reasonable doubt; that it
erred by relying on the evidence
of the state’s single witness that was marred by contradictions
and further that it erred
by rejecting his version which was
reasonably true or reasonably possible.
[3]
The state called one witness, the complainant, in support of its
case. The complainant testified,
inter
alia,
that
on 15 December 2016 she went to a shopping centre called Mannys; that
she left her place of residence at or about 08h00; that
she closed
all the windows, locked her house and her gate before she left.
[4]
On her return home at or about 11h00 she noticed a pole lying on the
ground below the window of her daughter’s bedroom.
At once she
rushed into the house. Upon inspecting the house, she discovered that
the window of her daughter’s bedroom was
broken, its burglar
bars damaged and bent upwards. She then realised that someone must
have gained entry into the house through
the same window.
[5]
While she was still inspecting the house further, she saw the
appellant, her former employee, running off her property and jumping
over the wall onto the adjacent property. She continued to inspect
her house. She further found three pairs of her sports shoes
in the
outside room. They, together with her radio speakers, were packed in
a plastic bag. But when she earlier went away, she
had left the shoes
hanging on the washing line outside to dry up because she had washed
them.
[6]
She had employed the appellant as a gardener from March 2016 until
October of the same year when she terminated his services.
He worked
twice a week on Tuesdays and Thursdays. She knew where he lived.
She went with the police to the appellant’s
house at Kutlwanong
Odendaalsrus on Saturday the following week, about 9 days after her
house was broken into. She pointed him
out to the police. He was
arrested.
[7]
The appellant denied ever having broken into the house of the
complainant. He was adamant that he was still employed by the
complainant on 15
th
December 2016 and that his presence at the complainant’s house
on the relevant date was as a result of his fulfilment of
his
obligations in terms of the employment contract. The complainant had
left him at her house and gave her instructions to mow
the lawn. He
admits that he removed the complainant’s sports shoes from the
washing line because it was raining. He added
that, besides the
shoes, he also removed the complainant’s underwear from the
washing line. He explained that he did so because
he did not want
them to be rained on. He was surprised when the complainant arrived
at his place of abode in company of the police
where she accused him
of breaking into her house with intent to steal.
[8]
Mr. Modise submitted that the uncorroborated evidence of the
complainant, who was a single witness, failed to prove the
appellant’s
guilt beyond reasonable doubt.
[9]
Section 208 of The Criminal Procedure Act provides as follows:
“
An accused may
be convicted of any offence on the single evidence of any competent
witness.”
In
S v
SAULS AND ANOTHER
1981 (3) SA 172
at 180 F-G the court
held
as follows:
“
The
trial Judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is satisfied that the
truth
has been told.
……
the
exercise of caution must not be allowed to displace the exercise of
common sense.”
[10]
The evidence of the complainant was clear and not successfully
challenged during cross examination. It was not disputed, during
complainant’s testimony, that she arrived home at 11h00 and not
after 16h00 as the appellant would have liked the trial court
to have
believed.
[11]
The trial court evaluated the evidence. Having done so, the trial
magistrate came to the conclusion that the evidence of the
single
prosecution witness was truthful and satisfactory in all material
respects. The trial magistrate was not impressed by the
version of
the appellant. Consequently the court a quo rejected the version of
the appellant, not only because it was improbable,
but also because
it was not reasonably possible.
[12]
It is trite that factual and credibility findings of the trial court
are presumed to be correct unless they are shown to be
wrong with
reference to recorded evidence. The acceptance by trial court of oral
evidence and conclusion thereon are presumed to
be correct, absent
misdirection. (See
S
v Francis
1991 (1) SACR 198
SCA at 204 e-d.):
“
A court of
appeal may only interfere where it is satisfied that the trial court
misdirected itself or where it is convinced that
the trial court was
wrong.”
(See
R v
Dhlumayo
&
another
1948
(2) SA 677
(A) at 705-706):
It
is so that the powers to evaluate and appraise evidence belong to a
trial court which had an opportunity to see and hear witnesses
and
its conclusions cannot be interfered with simply because a court of
appeal would have come to a different finding or conclusion.
[13]
I am unable to find any demonstrable or clear error on the part of
the trial court to justify interference with its credibility
findings. The trial court was correct in its assessment of evidence
and credibility findings. I cannot find that the trial court
erred in
finding that the appellant’s version is inherently improbable
and that it is not reasonably possible. On the strength
of those
findings it was correctly rejected, in my view.
[14]
The trial court correctly found that the evidence of the complainant
shows that the appellant was the person who broke into
the
complainant’s house and attempted to steal the items mentioned
in the charge sheet. The complainant was truthful, honest
and
reliable. The appellant did not proffer any reasonably innocent
explanation as to why he placed the complainant’s sneakers
in a
plastic bag if his sole and good intention was merely to keep them
from rain. It is inconceivable how the appellant,
who left the
complainant’s house, having done nothing wrong, would stay away
from work for two days during the week immediately
following the
incident if he was still in the complainant’s employ. His
unexplained absence shortly after the incident and
before his arrest,
fortified the complainant’s evidence that she had already
terminated the contract of employment at the
time of the incident.
The argument that the appellant was still in the employ of the
complainant; that he was lawfully on her property
on the day of the
incident; that he did not intend stealing anything from her on that
day; that he did not break into her house;
that he left before her
return and that he was, therefore, not the fugitive intruder the
complainant saw fleeing the scene - falls
to be rejected.
[15]
Above all these, it must be borne in mind that the appellant
confessed the crime to a certain prosecutor at one stage in the
presence of the complainant. According to the undisputed evidence of
the complainant, the appellant lamentably told the prosecutor
that he
was possessed by evil demons to do what he did to the complainant. It
has to be stressed that he openly confessed within
the hearing and
presence of the complainant.
[16]
In the light of all these considerations, I am not persuaded that the
court
a
quo
committed any material misdirection in finding the appellant guilty.
In the absence of any such misdirection, there can be no sound
reason
for us to interfere on appeal. Therefore, I would dismiss the appeal
as regards conviction.
[17]
Now I proceed to consider the second leg of the appeal. It is trite
law that the imposition of a sentence remains the domain
of the trial
court and this involves the exercise of discretion by the sentencing
court. A court exercising appellate jurisdiction
is not free to
interfere with the exercise of that discretion unless it is tainted
by a material misdirection or the sentence is
disturbingly
disproportionate to the crime, the personal circumstances of the
appellant and the interest of society. In the case
of
S
v
Jiminez
2003 (1)
SACR 507
at 512
the court said:
“
However, even
where a sentence does not seem shockingly inappropriate, a court on
appeal is entitled to interfere or at least to
consider the sentence
afresh, if there has been a material misdirection in the exercise of
the sentencing discretion”
[18]
It is so that a mere misdirection is not by itself sufficient to
entitle a court of appeal to interfere with a sentence imposed
by a
trial court. In S
v
Pillay
1997 (4) SA 531
(A) at 531 the court said the following:
“
It
must be of such a nature, degree or seriousness that it shows,
directly or inferentially, that the Court did not exercise its
discretion at all or exercised it improperly or unreasonably. Such
misdirection is usually and conveniently termed one that vitiates
the
Court's decision on sentence.”
[19]
The court a quo has set out in detail the factors it took into
consideration as mitigating factors in order to come to the
sentence
it imposed.
The
appellant was 37 years of age and had a 19 year old son as his sole
dependent. His highest level of education is grade 12.
Before
his arrest he did odd jobs performing garden services.
[20]
The court a quo also took into account the following as aggravating
circumstances: The appellant was not a first offender.
On 19 March
2002 he was sentenced to 3 years imprisonment in terms of section 276
(1) (B) for housebreaking with intent to steal
and theft; 15 year
imprisonment for armed robbery; 18 month imprisonment for indecent
assault and 10 year imprisonment for rape.
The regional court
directed that those sentences should run concurrently in such a way
that he serve an effective prison term of
18 years. On 20
October 2003 he was sentenced to a fine of R1000 or 60 days
imprisonment for possession of dependence producing
substance. He was
also sentenced to 9 month imprisonment for trespass.
[21]
The long list of the appellant’s previous convictions shows
that he has no respect for law. Just a year into his 18 years
prison
term he came into conflict with the law. Upon perusal of the record,
it appears that he was a parolee when he was convicted
in October
2014 and when he committed the present offence in December 2015
seeing that sentence of 18 years in prison was supposed
to run until
March 2020. He was afforded a chance to rehabilitate outside prison
but he failed to use it to his advantage.
[22]
The appellant has been convicted of a very serious offence which has
an element of invading its victims’ privacy to the
extreme. He
abused the trust the complainant had in him when she allowed him
access to her house while he was still in her employ.
The offence of
housebreaking undermines the safety and security victims. This crime
is not only prevalent in the area of jurisdiction
of this court but
throughout the country.
[23]
In
S
v Mahlatsi
2013 (2) SACR 625
(GNP) at (???} where the court said the following
about armed robbery:
“
[9]
Ordinary citizens cannot be blamed for constantly living in fear for
their lives, never mind the safety of their possessions,
so much so
that they either spend thousands of rands to try and create safe
havens to live in and vehicles to travel in; emigrate;
take the law
into their own hands; or simply cringe at the thought of venturing
out onto the streets or even to stay at home, because
it would appear
that there is nowhere to hide and no way in which one can properly
defend oneself……”
The
above dictum finds relevance in housebreaking matters where citizens
are forced to incur huge expenses towards security to improve
their
safety.
[25]
It is my view that the court
a
quo
correctly balanced the personal circumstances of the appellant
against the seriousness of the offence and the interest of society
when imposing the sentence.
[26]
I cannot, therefore, find that the court
a
quo
committed any misdirection in imposing the sentence herein or even
still, that the sentence imposed was disproportionate to the
crime,
the personal circumstances of the appellant and the interest of
society. The appeal against the sentence must also fail.
[27]
The following order is made:
[27.1]
The appeal fails in toto;
[27.2]
The conviction and sentence are confirmed.
_______________
N.M.
MBHELE, J
I
concur and it is so ordered
_______________
MH RAMPAI, J
On
behalf of appellant: Attorney T.J. Modise
Instructed
by: Bloemfontein Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. R Hoffman
Instructed
by: Director: Public Prosecutions BLOEMFONTEIN