About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 738
|
|
Joe v S (A706/2016) [2018] ZAGPPHC 738 (16 January 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
CASE
NUMBER: A706/2016
In
the matter between:
SAMUEL
DIPHAPANG
J
OE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
The appellant, a member of the Military
Police in the South African National Defence Force, was arraigned
together with three other
accused persons in the regional court
division of Christiana on a charge of housebreaking with the intent
to steal and theft ("the
housebreaking"). The appellant
pleaded not guilty and raised a plea of necessity.
[2]
The housebreaking took place on the
night of 15 April 2013 at a store known as Ellerines in Christiana.
Various items to the value
of R86 599, 86 were taken from
the store. The appellant in his plea explanation before the trial
court averred that
he was forced at gunpoint to assist one Tsidiso
and one of his co-accused, accused 3 ("Fish"), to transport
stolen goods
from the Ellerines store to the residence of Tsidiso in
Jan Kempdorp. He averred further that he was threatened by the said
Tsidiso
that, should he (the appellant) report the matter to the
police he together with his family would be killed. As a result he
had
no option but to do as he was told. He denied having participated
in breaking and entering the store, stealing from the complainant
(Ellerines), receiving any of the stolen property or any reward for
assisting Tsidiso or Fish. He did not know what was loaded
onto his
bakkie as he was instructed at gunpoint to remain in the
bakkie, and that is where he was whilst the loading
took place.
[3]
An admission was made in terms of s 220
of the Criminal Procedure Act 51 of 1977 ("the
Criminal
Procedure Act"
;) that a fingerprint retrieved by Sergeant Mtaudi
on 16 April 2013 from a Samsung PDP television box which was found by
the police
outside the store, belongs to him.
[4]
In his evidence, the appellant testified
that on the night in question, he, through his wife's
cell phone, received
a call from one Tsidiso who asked the appellant
to accompany him to Christiana to collect his (Tsidiso's) brother.
The appellant
and Tsidiso reside in the same neighbourhood in Jan
Kempdorp. The appellant has a Bantam Bakkie with a canopy. Using this
bakkie,
he went to collect Tsidiso at his house and drove with him to
Christiana. When they arrived in Christiana, Tsidiso produced a
pistol,
threatening the appellant, he informed him (the appellant)
that they were to collect accused 3, who Tsidiso referred to as
Fish,
at Spar because the rest of the group was ready.
At Spar, Fish climbed into the back of the bakkie
and proceeded to direct the appellant to where they were going. They
drove to the back of the Ellerines store where the loading
of the
stolen goods was done. There were two other persons at the Ellerines
store who assisted with the loading; as it was dark
he did not see
their faces. Tsidiso remained in the bakkie
with the appellant pointing a gun at him. As
they were about to drive
off to Jan Kempdorp, the appellant noticed a box leaning against the
bakkie and he requested Tsidiso to
allow him to remove it as it would
scratch the bakkie. He alighted from the bakkie and removed the box
and that is how his fingerprint
landed on the box. The items were
offloaded at Tsidiso's shack in Jan Kempdorp. The appellant
thereafter went home where he narrated
the incident to his wife. His
wife wanted to report the matter to the police but the appellant
informed her about Tsidiso's threats.
The appellant did not report
Tsidiso to the police until he was arrested in November of that year,
that is, six months after the
commission of the offence.
[5]
In support of his defence the appellant
relied on the testimony of his wife Grace Mongale, a
clerk
at the South African
Police Service, who confirmed the appellant's version
that
on the night in question Tsidiso talked to the appellant on her
cell phone requesting to be transported to Christiana and that she
reported the alleged threats by the said Tsidiso to the investigating
officer. Ms Mongale's evidence is that on the
night in
question she was with the appellant when Tsidiso called him on her
cell phone. After talking to Tsidiso the appellant
told her that
Tsidiso has asked him to take him to Christiana to collect his
brother. She allowed the appellant to
accompany Tsidiso. Tsidiso is
known to the appellant and his wife. He is a traditional healer. Ms
Mongale referred to him as their
friend and their sangoma. She
consulted with him during her pregnancy. It was confirmed
during trial that Tsidiso in
fact existed. A certain Constable Dinake
testified that Tsidiso was arrested in another case but none of the
goods in the present
matter were found on him. Ms Mongale informed
the police about this incident only after the appellant was arrested.
[6]
The erstwhile co-accused of the
appellant, accused 2 and 3, were arrested in Jan Kempdorp in
possession of the suspected stolen
property and were eventually found
guilty of the competent verdict of receiving stolen property. Both
were sentenced to five years
imprisonment in terms of
s 276
(1) (i)
of the
Criminal Procedure Act. Accused
1 was found not guilty and
discharged.
[7]
The appellant on the other hand was
linked to the scene of crime by the fingerprint retrieved from the
Samsung PDT TV box found
outside the store. As already said, he
admitted being on the scene of crime but raised a defence of
necessity. The trial court
rejected this plea on the basis that the
appellant did not establish one of the requirements of the
defence of necessity,
that is, the threatening conduct must have
begun, be eminent but it must not have terminated. The trial
court found
that the threatening conduct complained of by the
appellant in this instance ended when Tsidiso allowed the appellant
to go home.
From 15 April 2013, that is, the day on which the
incident occurred, until in November 2013 when he was arrested, the
appellant
did not report the incident to the police nor did he make
the police aware that Tsidiso was involved when he was arrested. The
appellant was as such found guilty as charged. He was sentenced to
seven (7) years imprisonment and declared unfit to possess a
firearm
in terms of
s 103
of the
Firearms Control Act 60 of 2000
.
[8]
The appellant appeared before us
appealing both the conviction and sentence leave to appeal having
been granted on petition to this
court. But, in argument
before us, it was conceded on his behalf, correctly so, that the
findings of the trial court
on conviction are·correct. The
appellant is, thus, before us appealing sentence only.
[9]
It is argued on behalf of the appellant
that the sentence of seven years imprisonment imposed by the trial
court is unnecessarily
harsh and induces a sense of shock.
The argument is based on the following grounds:
9.1
The trial court under-emphasised the
personal circumstances of the appellant in that firstly, as a first
offender the sentence of
seven years imprisonment in
unwarranted; secondly, the trial court ought
to have taken into
account that the appellant has minor children whom
he was maintaining.
9.2
The trial court put too much emphasis on
the fact that the appellant was a law enforcement
officer. The contention is
that the appellant as a
military police officer was not a law enforcement officer and even if
it was so, the offence
was committed outside his scope of employment.
9.3
The trial court erred in treating the
appellant differently to his co accused who were sentenced to a
lesser sentence of five
years imprisonment in terms of
s 276
(1) (i)
of the
Criminal Procedure Act.
[10
]
Punishment is eminently a matter
for the discretion
of the trial
court. The court hearing the appeal should be careful not
to erode such discretion. As such,
the sentence should only be
altered if the discretion has not been judicially and properly
exercised. The question is whether the
sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate.
[11]
I am not in agreement with the
appellant's argument that his employment as a military police officer
does not render him a law enforcement
officer and that the trial
court in its judgment on sentence overemphasised the fact that he is
a law enforcement officer. It is
indeed so that the military police
corps is not recognised in the strict sense as one of the law
enforcement agencies in South
Africa. A military police officer is,
however, expected to maintain law and order and is, in that sense, a
law enforcement officer.
Section 31 (1) of the Defence
Act 42 of 2012 provides for the functions of military police
officials as
(a)
the
prevention and combating of crime;
(b)
... and
(c)
the maintenance of law and order. In
terms of s 31 (2)
(a)
thereof,
a military police official, when performing any function contemplated
in subsection (1) has the same powers and duties
as may be conferred
on or are imposed by law upon a member of the South
African Police Service. On that basis, the
trial court did not
overemphasis that the appellant was a law enforcement officer because
indeed he is one and should at all times
uphold the law. That he did
not commit the offence within his scope of work cannot be taken as a
mitigating factor. Like a member
of the South African Police Service,
a member of the military police is on duty all the time. He is
expected at all times to carry
himself or herself as an outstanding
citizen.
[12]
The individualisation of sentencing is
an important factor in the consideration of sentence. The
principle of individualisation
of punishment, which is firmly
entrenched in our law, requires that a proper consideration of the
individual circumstances of each
accused person be undertaken by the
sentencing court. The trial court cannot be found to have erred where
it individually considered
the merits of each
accused. In the circumstances of this instance, it is clear that the
appellant and his co-accused
were not convicted of a similar offence.
Accused 2 and 3 were convicted of a competent verdict which is a
lesser offence than the
main offence of housebreaking. The appellant
was found guilty of housebreaking and it goes without saying that the
trial court
would impose a stiffer sentence than that of the other
two accused. It is worthy also to consider the moral blameworthiness
of
the appellant in this instance. The appellant was found to have
been directly involved in the commission of the offence; his bakkie
was used to transport the stolen goods from Christiana to Jan
Kempdorp; as such, his participation is far greater than that of
his
being a law enforcement officer, his moral blameworthiness, as
indicated in paragraph [12] of this judgment, and the fact that
the
offence appears to be pre meditated aggravates the situation and
warrants a long term of imprisonment as meted by the
trial court.
There is nothing shocking and inappropriate about this sentence. It
is a fair and just sentence that fits the crime
and the offender and
it is in the interest of society. The sentence should not be
interfered with.
[15]
The trial court's finding declaring the
appellant not fit to possess a firearm was not contested in this
appeal, correctly so. The
appellant has previous convictions which
involves the improper handling of a firearm. The trial court's
findings in this regard
can, thus, not be faulted and the sentence in
this respect should also not be tempered with.
[16]
I make the following order
1.
The appeal on both conviction and
sentence is dismissed.
2.
The conviction by the trial
court and the sentence imposed are confirmed.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
I
concur
D.FISHER
JUDGE
OF THE HIGH COURT
Appearances:
On
behalf of the appellant: Adv P Pretorius
Instructed by:
SCHOEMAN
STEYN ATTORNEYS
c/o VAN ZYL
LE ROUX ATTORNEYS
Monument Office
Park
71 Steenbok
Avenue
MONUMENT PARK
On
behalf of the respondent:
Adv E. W. Coetzer
Instructed by:
DIRECTOR OF
PUBLIC PROSECUTIONS
Presidential
Building
28 Church Square
PRETORIA 0001