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[2019] ZAFSHC 72
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Filda v S (A245/2018) [2019] ZAFSHC 72 (31 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A245/2018
In
the matter between:
THEMBA
FILDA
Appellant
and
THE
STATE
Respondent
CORAM
:
CHESIWE, J
et
OPPERMAN, J
HEARD
ON:
11 FEBRUARY
2019
JUDGMENT
BY:
CHESIWE, J
DELIVERED
ON:
31 MAY 2019
Summary:
Appeal - Conviction and Sentence -
Housebreaking with intent to steal and theft
[1]
The Appellant was charge in the Regional Court, Zastron on two
counts. Count 1 - charge of housebreaking with intent to steal
and
theft; Count 2 - charge of possession of suspected stolen goods in
terms of section 36 of the General Law Amendment Act 62
of 1995.
He pleaded not guilty. He was convicted on Count 1 and was sentenced
to 12 years imprisonment, and on count 2 he
was found not guilty and
discharged.
[2]
The trial court granted leave to appeal against both conviction and
sentence. Therefore, the appeal lies against conviction
and
sentence.
[3]
The Appellant’s grounds of appeal are that the trial court
erred in drawing the inference that the Appellant was part
of the
people who robbed the Complainant; that the trial court erred in
finding that the State had proven its case beyond reasonable
doubt
and that the pointing out was made freely and voluntarily.
[4]
The Appellant was in person at the trial court.
[1]
The Presiding Officer made the Appellant aware of his rights to legal
representation, however, the Appellant chose and insisted
to conduct
his own defence. The trial court explained to the Appellant his
rights throughout the trial as well as his rights
to cross-examine
the state witnesses. The Appellant was satisfied with the
court’s explanation in respect to his rights
to a fair trial
and proceeded to conduct his own defence. The Presiding Officer
thoroughly and in detail assisted the Appellant.
The Appellant
was assisted throughout the trial and the Presiding Officer explained
each and every procedure, in spite of the fact
that the Appellant had
a history of appearances before the courts. The Presiding
Officer ensured that he was not prejudiced.
[2]
[5]
The background on this matter is briefly that the Complainant left
for Johannesburg on 1 July 2016. On 9 July 2016 he
received a
phone call from his employee who informed him that there has been a
break-in at his house. The Complainant came
back to Zastron to
report the matter at the South African Police Services and
simultaneously notified his friends and asked them
to assist him to
find his stolen items. The value of the stolen items was
R41 400. The Complainant received a
phone call that
informed him that some of the stolen liquor was recovered at
Elizabeth Lekhula’s house (Mother of a friend
of the
Complainant). The Complainant followed up on this information and
found two bottles of Champagne at Lekhula’s house
where he was
informed that the Appellant brought the Champagne to Lekhula’s
house. On further investigation by the
SAPS and the
Complainant, the rest of the items were found in the veld next to the
dam as pointed out by the Appellant in the presence
of the police.
[6]
Counsel on behalf of the Appellant submitted that State’s case
was based on circumstantial evidence as there was no direct
evidence
that linked the Appellant. However, he said it was clear that the
items were found and the places where it was found was
pointed out by
the Appellant. He further submitted that only a person who had
knowledge of where these items were hidden,
would be able to point
them out. He mentioned that the trial court found the State’s
witnesses to be credible and did
not falsely implicate the accused,
thus the trial court’s finding cannot be faulted.
[7]
Counsel on behalf of the Respondent submitted that there is no
misdirection on the part of the trial court. He indicated
that
the Appellant’s aggravating factors far outweighs the
mitigating factors and submitted that the conviction and sentence
be
confirmed.
[8]
It is trite that the onus rests on the State to prove its case beyond
reasonable doubt and the Appellant is only expected to
give a version
which is reasonably possibly true, and if he has done so, he is
entitled to an acquittal.
[9]
Indeed it is so that the State’s case was entirely based on
circumstantial evidence
[3]
. It
was stated in
S
v Cooper,
[4]
that:
“
Adjudicators
of fact must be careful when dealing with circumstantial evidence and
inferences must be drawn from it. They must be
careful to distinguish
between inferences and conjecture or speculation. There can be no
inferences unless there are objective
facts from which to infer the
other facts which are sought to be established.”
[10]
In
State
v Reddy,
[5]
the court stated that: “
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon piece-meal basis and to subject
each
individual to consideration of whether it excludes the reasonable
possibility that the explanation given by an accused is
true. The
evidence needs to be considered in totality. It is only then that one
can apply the often-quoted dictum in
R
v Blom
1939
A 188 at 202-3, where reference is made to two cardinal rules of
logic which cannot be ignored. These are firstly, that the
inferences
sought to be drawn must be consistent with all the proven facts; and
secondly, the provided facts should be such that
they exclude every
reasonable inference from them save the one sought to be drawn.”
[11]
The Complainant did not know the Appellant, was it not for Lekhula
who called the Complainant to inform him that the Appellant
brought
Champagne to her house.
[6]
Lekhula could not have mistaken the Appellant’s identity,
as she knew the Appellant very well, he was a regular visitor
at
Lekhula’s house and used to drink alcohol at Lekhula’s
house. This is noted on her testimony on page 92 line
17 to 24
of the transcribed record:
“
Prosecutor:
Who brought the alcohol? Accused 2, did your worship Prosecutor: Do
you know accused 2…… Yes, Your Worship,
I know him.
Prosecutor: How
so? We are used to each other at the township, he was also use
to visit my place. So, accused 2 brought the
two bottles of wine to
your house? He was there with a blue bag.”
[12]
The transcribed record further shows that Lekhula did not know the
Complainant,
[7]
thus it cannot
be said that she and the Complainant colluded with each other to
implicate the Appellant.
[8]
Lekhula and her son had
no
time to conspire against the Appellant, as they did not know who
broke into the Complainant’s house.
[13]
The stolen items were well hidden in the
veld, to the extent that when the Appellant went with the police to
point out, he sat in
the front seat of the police vehicle in order to
provide them with directions to the specific areas. Indeed, it
is only a
person with knowledge who will know where these items were
hidden. The Appellant knew very well were the items were hidden
and took the police and the complainant to the first scene, which was
closer to the complainant’s house and the following
items were
found: two TV’s, a Red Bull touring bag, Russians, watches,
Jameson, chicken and an amplifier. Then Appellant
took the
complainant and the police to another area, this time next to the dam
to point out a travelling bag, amplifier, DVD and
remotes.
[14]
According to Constable Veldsman, the investigating officer, the
Appellant was informed of his rights before the pointing out,
[9]
as the Appellant wanted to impressed on the trial court that the
pointing out was not done freely and voluntarily. I am indeed
satisfied that the pointing out was done in accordance with justice,
and the Appellant was informed of his rights.
[15]
The trial court’s evaluation of the evidence demonstrates that
it was alive to the fact that the State witnesses were
reliable,
truthful and had no reason to falsely implicate the Appellant.
The Appellant exercised his right to remain silent
and did not
testify at the trial court therefore the court only had the evidence
of the State before it.
[16]
It is trite that an appeal
court will only tamper with the trial court’s findings if it is
shown that the findings made by
the trial court were clearly wrong.
It has not been submitted that the trial court committed any
misdirection of fact. Furthermore,
when consideration is paid to all
inconsistencies and improbabilities, there is no reason to doubt the
correctness of the credibility
findings made by the trial court.
I am satisfied that the state at the trial court proved its case
beyond reasonable doubt.
In my view the trial court correctly
convicted the appellant and there is no reason to tamper with the
trial court’s findings
on the conviction.
[17]
Counsel on behalf of the Appellant submitted that a sentence of seven
(7) years would be appropriate, and counsel on behalf
of the
Respondent submitted that the 12 years imposed on the Appellant is
appropriate and is supported.
[18]
It is trite that the sentence of an accused person must be balanced
between the interest of society, the offence and the personal
circumstances of the accused. The Appellant’s personal
circumstances are that he is 50 years of age; has two minor children
who are staying with the paternal grandmother. He does not know
the whereabouts of the children’s mother. In
respect of
mitigating factors, the property was recovered and that nobody was
injured. However, the aggravating factors are
that the
Appellant has been classified a habitual criminal and was on parole
when he committed the offence. Thus, the aggravating
factors far
outweighs the mitigating factors.
[19]
The Appellant’s previous convictions reads like a book. It
seems that the Appellant has not learnt from the previous
sentences
that were imposed on him. Nor has the previous sentences
deterred him from committing further crimes. The Appellant
in spite
of being declared a habitual criminal continued unabated to commit
new offences. The previous sentences that were
imposed on the
Appellant seemed not to have rehabilitated him. The Appellant
seemed not to have respect for the law or the
courts, the fact that
the offence
in casu
was committed while he was on parole.
[20]
It
is trite that a court of appeal should not interfere with a sentence
imposed by the trial court. The court of appeal will
only
interfere with sentence in limited circumstances.
[10]
This will be in situations whereby the trial court misdirected itself
or committed an irregularity or the sentence is shockingly
inappropriate. This means the discretion of the court was executed
wrongly.
[21]
The trial court had regarded as aggravating factors that the
Appellant has several previous convictions and was declared a
habitual criminal in 2001. The Appellant committed his first offence
when he was 15 years, and continued to commit offences, whereby
different sentences were imposed on him. The Appellant has shown no
remorse.
[22]
Housebreaking is the invasion of another person’s privacy and
removing that person’s property. Though food
was also
stolen, there were also items of high value stolen that is the
expensive watches and Champagne. The Appellant committed
all these
offences within the district of Zastron. The trial court took into
consideration the interests of the community in sentencing
the
Appellant, that the sentence is not to satisfy public opinion, but to
serve the public interests and considered that the sentence
should
not be harsh and simultaneously not too lenient.
[23]
It is trite that a court of appeal should not replace the sentence
imposed by the trial court with its own, unless it is justified
to do
so.
[11]
[24]
In view of the
aforesaid, I am persuaded that the trial court did not misdirected
itself nor committed any irregularity for this
court to tamper with
the imposed 12 years sentence.
[25] I accordingly make
the following order.
1.
The appeal against
conviction and sentence is dismissed.
2.
The sentence of 12
years imposed by the trial court is confirmed.
_______________
S.
CHESIWE, J
I
concur.
________________
M.
OPPERMAN, J
On
behalf of Appellant: Adv. P.L. Van Der Merwe
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of Respondent: Adv. Shale
Instructed
by:
The
Director of Public Prosecution
BLOEMFONTEIN
[1]
Page
1 line 10 – 20 of the transcribed record.
[2]
This
is noted from the transcribed record from the plea stage, sentencing
stage and the application for leave to appeal. Page
1 to 226.
[3]
S
v Reddy 1996 (2) SACR (1) (A) 8c-g.
[4]
1996
(2) SA 875 (T).
[5]
1996
(2) SACR (1) (A) 8 c-g.
[6]
Page
92 line 10 – 20 of the transcribe record.
[7]
Page
92, Lekhula’s son called her that his friend’s place has
been broken in, that if someone comes to sell any stuff,
she must
call her son.
[8]
Page
94 line 2, she said; “the owner of the staff arrived….
The very same one who was looking for my child.”
[9]
Page
141 line 10 – 24 of the transcribed record.
[10]
S
v Pillay
1997 (4) SA 531
A at 535 e-g and S v Peters
1987 (3) SA 717
(A) at 728 B-C.
[11]
S
v Obisi
2015 (2) SACR 35
W at 35i-j.