S v Maneli (494/07) [2008] ZASCA 50; [2008] 3 All SA 155 (SCA) ; 2009 (1) SACR 509 (SCA) (1 April 2008)

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[2008] ZASCA 50
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S v Maneli (494/07) [2008] ZASCA 50; [2008] 3 All SA 155 (SCA) ; 2009 (1) SACR 509 (SCA) (1 April 2008)

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO: 494/07
In the matter between :
LUVUYO MANELI ...
Appellant
and
THE STATE
... Respondent
__________________________________________________________________________
Before: STREICHER, HEHER JJA & KGOMO AJA
Heard: 3 MARCH 2008
Delivered: 1 APRIL 2008
Summary: Robbery – duplication of convictions.
Neutral citation: Maneli v The State (494/07)
[2008] ZASCA 50
(1
April 2008)
__________________________________________________________________________
J U D G M E N T
__________________________________________________________________________
STREICHER JA
STREICHER
JA
:
[1] The appellant was convicted in
the Regional Court for the Regional Division of the Eastern Cape on
two counts of robbery and sentenced
to 10 years’ imprisonment in
respect of each count with 5 years of the sentence in respect of the
second count to run concurrently
with the sentence imposed in respect
of the first count. An appeal to the High Court, Eastern Cape
Division, was dismissed. With
the necessary leave the appellant now
appeals to this court.
[2] The evidence led at the trial can be summarised as
follows. Five men arrived in a motorcar at the farm of Mr Maske. Two
of the
men, one in police uniform, got out of the car, approached Mr
Mabele, one of the two gardeners who were working in the garden, and
asked him where his employer was. Mabele directed them to Maske’s
office where they enquired whether he employed somebody whose
name
they mentioned. Maske called Mr Joni, the other gardener, to come and
assist but when Joni entered the office one of the men
produced a gun
and asked where Maske’s money was. Maske told them that there was
R1 000 in the top drawer of his desk. In the meantime
he was searched
and his wallet which contained R40 was taken from him. At that point,
Mabele, was also brought into the office. Maske
was then turned
around to face the wall and while he was in that position he got the
impression that two more men had entered the
office. From the sounds
that he heard he gathered that Mabele was being assaulted while he,
Maske, was continually being asked where
his money was. Eventually
Maske and the two gardeners were tied up, the robbers left the
office, closed the door and walked across
to the homestead. Maske and
the gardeners remained quiet until they heard a car driving off. They
then managed to free themselves,
left the office and met the domestic
staff and Mrs Rautenbach, his sister-in-law, who were walking across
from the house to the office.
[3] Mrs Rautenbach was visiting the Maske’s at the
time. She and two domestic servants were the only people in the
house. Maske’s
wife had gone to a meeting. While she was looking up
a telephone number a man with a revolver in his hand entered and
asked her where
the money was. She replied that she did not have
money and was thereupon taken to the laundry where she was tied up.
One of the domestic
servants was already there and the other one was
subsequently brought in. Both of them were also tied up. They heard
screaming outside
and thought that Maske or one of the gardeners was
being killed. Thereafter they heard footsteps coming and going, doors
being banged
and eventually a motorcar that was being driven away. It
was established that a video recorder, a mini hi-fi set and a camera
case,
all of which belonged to Maske, had been taken from the house.
[4] The appellant and one Lindile Magi were subsequently
convicted of having robbed Maske of R1 040 (count 1) and of
having robbed
Mrs Rautenbach of the items that had been taken from
the house (count 2). The appellant appealed against his convictions
and the
sentences imposed. Magi only appealed against the sentences.
Both appeals were to the Eastern Cape Division but they were
separately
heard. The appellant’s appeal was heard on 28 July 2000
and dismissed. A subsequent application for leave to appeal was also
dismissed.
Magi’s appeal was heard on 4 June 2003. Although Magi
had only appealed against the sentences imposed the court was asked
to exercise
its review jurisdiction and set one of the convictions
aside on the ground that the two convictions constituted an improper
duplication
of convictions. The court was of the view that there had
in fact been a duplication of convictions and set the conviction and
sentence
in respect of count 2 aside. In his judgment Chetty J said:
‘
The tying up of Mrs Rautenbach and Mr Maske’s
domestic workers was merely to incapacitate them to facilitate the
removal of Mr Maske’s
possessions, listed in count 2. These
separate acts constituted one continuous criminal transaction and
were not distinct offences.’
[5] The question whether there had been a duplication of
convictions had not been raised in the appeal of the appellant to the
Eastern
Cape Division but on 30 March 2006 leave was granted to him
to appeal to this court. The only issue in this appeal is whether
there
had been such a duplication of convictions.
[6] Robbery consists in the theft of
property by intentionally using violence or threats of violence to
induce submission to its taking.
1
In the present case the appellant and
the men who accompanied him obviously went to the farm with the
intention to steal and to use
violence or threats of violence to
induce submission to the taking of whatever they wanted to take.
There is no reason to think that
they intended to steal only from the
office, which, although detached from the house, would appear to be
close to the house. To the
contrary, all the indications are that the
intention was to steal from the office as well as the house. In order
to achieve their
purpose, common sense dictates that they first had
to incapacitate the owner of the farm and the male employees in the
immediate
vicinity. That is exactly what they did. Two men got out of
the car and the first thing they did was to ask one of the gardeners
where his employer was. Neither of the gardeners saw the other three
occupants of the car get out of the car. They probably did so
immediately after the two gardeners had been called to the office and
it is probably only then that one or more of the robbers entered
the
house. The theft from the office and the theft from the house
nevertheless took place at about the same time. Mrs Rautenbach
had
already been tied up in the laundry when she heard the screaming of
Mabele during the assault on him in the office.
[7] In the light of these facts Maske
was probably tied up, not only to induce submission to the taking of
the money he kept in his
office but also to induce submission to the
taking of goods from his house. In so far as the goods taken from the
house are concerned
the assaults on the people found in the house
were committed with the same object in mind. However, proof of the
assault on Maske
and of the theft of the goods taken from the house
would have proved the robbery in respect of the goods taken from the
house without
any evidence of the assaults on Mrs Rautenbach and the
domestic servants. See in this regard
Ex
parte Minister van Jusitisie: In re S v Seekoei
[1984] ZASCA 89
;
1984 (4) SA 690
(A). In that case the
accused assaulted a woman at her home on a farm and forced her to
point out the keys of her shop. The shop
was approximately two
kilometres from the house. He then tied her to a pole and drove to
the shop with her motorcar where he stole
money and goods. At 707E-G
Rabie CJ said:
‘
In die onderhawige geval, kan in hierdie
verband gesê word, het daar `n tyd verloop tussen die oomblik waarop
die klaagster aangerand
is en die oomblik waarop die goed uit die
winkel gesteel is, en daar was ook `n afstand van ongeveer twee
kilometer tussen die winkel
en die plek waar die klaagster aangerand
en vasgemaak is, maar hierdie verskille in tyd en afstand is van geen
wesenlike belang nie:
die toepassing van die geweld en die diefstal
waarop daardie geweld gerig was en wat deur daardie geweld moontlik
gemaak is, was
wesenlik één aaneenlopende – en daarby één
beplande – optrede wat die misdaad roof uitmaak.’
[8] To determine whether there had
been an improper duplication of convictions the courts have
formulated certain tests. However,
these tests are not equally
applicable in every case. One such test is to ask whether two or more
acts were done with a single intent
and constitute one continuous
criminal transaction. Another is to ask whether the evidence
necessary to establish one crime involves
proving another crime.
2
In the present case, for the reasons
stated above, it is probable that the theft of the money from the
office and from the house by
the use of violence to induce submission
was done with a single intent and constituted one continuous criminal
transaction.
[9] The other test is not applicable,
at least not if literally applied, in the case of the theft of
various articles at the same
time and place. If a person were in
these circumstances charged with a separate offence in respect of
each item stolen, evidence
necessary to prove the one charge would
not prove the theft of the other item. Yet, in such a case a
conviction of an offence in
respect of each item stolen will
constitute an improper duplication of convictions (see
S
v Verwey
1968 (4)
SA 682
(A) at 687F – 688B and 689D-F).
[10] For these reasons I am satisfied that the theft of
the money from the office and the theft of goods from the house by
the use
of violence to induce submission constituted one offence and
that the appellant’s conviction on counts 1 and 2 constituted an
improper
duplication of convictions. It follows that the conviction
in respect of count 2 should be set aside.
[11] The following order is made:
The appeal is upheld. The appellant’s conviction and
sentence in respect of count 2 are set aside.
__________________
P E STREICHER
JUDGE OF APPEAL
CONCUR
:
HEHER JA)
KGOMO AJA)
1
S
v Benjamin and Another
1980 (1) SA 950
(A) at 958H; and J R L Milton
South
African Criminal Law and Procedure
3
ed p 642.
2
S
v Grobler and Another
1966 (1) SA 507
(A) at 511G-H; and
S
v Prins and Another
1977 (3) SA 807
(A) at 814C-E.