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[2018] ZAGPPHC 447
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Mapela v S (A407/2016) [2018] ZAGPPHC 447 (3 March 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
Appeal Case No:
A407/2016
Court a
quo
Case NO:
14/1894/2011
Date of hearing:
5 February
2018
Date of judgment: d-3
March
2018
In
the appeal between:
RONNY
MAPELA
Appellant
and
THE
STATE
Respondent
JUDGMENT
DIEDERICKS
(AJ)
[1]
This
is an appeal against the conviction of Appellant by the Pretoria
Regional Court in a charge of housebreaking
and theft, that occurred on the 4
th
of February 2011 at the private residence of certain Mr. and
Mrs. Mey, situated at […..], Pretoria, Gauteng.
The
facts:
[2]
Without
going into the detail of all the facts of this case, the relevant
facts that has a bearing on the appeal are the following:
[3]
On
the 4
th
of February 2011 at approximately 03h45 in the morning,
while Mr. and Mrs. Mey (as well as their children)
were
asleep, three persons broke into their house situated
[….], Pretoria.
[4]
Mr.
and Mrs. Mey, the complainants, became aware of the presence of three
persons in their room at that time.
[5]
At
first the room was dark and Mr. and Mrs. Mey saw a "torch light"
that was directly shone in his face.
[6]
According
to Mr. Mey, two of the perpetrators then attacked him, the one
holding his feet, the other one standing next to him, beating
him up.
[7]
The
third person was next to the bed on his wife's side. The complainants
were asked whether they were alone in the house and they
were
informed that the children were asleep in their rooms.
[8]
The
children were then fetched from their rooms and brought to the main
bedroom of the complainants. The whole family was then tied
up in the
bedroom.
[9]
When
the children entered the bedroom, the bed light on Mrs. Mey's side of
the bed was switched on by either Mrs. Mey or one of
the children.
[10]
According to Mr. Mey the bed light was one of those kind of lights
that illuminated the whole room
to such an extent that it was like
broad daylight in the room.
[11]
The
perpetrators then proceeded to rob the complainants of their
belongings listed in the list compiled by the complainants and
attached to the record as
Annexure
"A".
[12]
This
whole incident of robbing lasted approximately ten to fifteen minutes
and during this period the light was illuminating the
room and the
complainants had the opportunity to observe and identify the robbers.
I will deal with this identification
infra.
[13]
After
the robbers left the house, the complainants were tied up again and
their children with nylon strings, since the complainants
were able
to untie themselves while they were robbed.
[14]
The police later arrived at the scene
and started the investigation.
[15]
According
to Mr. Mey fingerprints were lifted at the window
where the perpetrators entered-in
the house, and
from a monitor, the property of the complainants, that was
lying in the yard. This was confirmed later also
in the evidence of
the police and fingerprint experts.
[16]
The
investigating officer in this case was one Sergeant Kampo Ronny
Mogaswha, who has ten years' experience in the police force,
stationed at the Villieria Police Station.
[17]
He
testified that he attended to the crime scene where he found the
complainants still tied up upon his arrival at the crime scene.
He
further testified that fingerprints were lifted at the crime scene by
the fingerprint experts.
[18]
He
later received the fingerprints report back from the forensic
department, indicating a match with the fingerprints of one Thabang
Sefoka, Accused No. 1 in this case.
[19]
He
started searching for Thabang Sefoka and tracked him down at a
certain hostel. He then attended to the address where he found
Accused No. 1.
[20]
He further testified that he asked
Accused No. 1 the question:
"You
were with whom?"
and Accused
No. 1 answered that he was in the company of Ronnie Mapela (Accused
No. 2). This is also the Appellant.
[21]
It
is obvious that what Mogaswha meant with the question was that he was
enquiring from Accused No. 1, Sefoka, who was with him
when the crime
was committed.
[22]
In
that context, Sefoka answered that it was Ronnie Mapela, Accused No.
2.
[23]
After
Mogaswha arrested Accused No. 1, the Accused took him to the house of
Ronnie Mapela and Mogaswha arrested Accused No. 2 on
account of the
information obtained from Accused No. 1.
[24]
Mogaswha
further testified that Accused No. 1 informed him that they sold the
goods to a person who is selling at Denneboom.
Accused
No. 1 told Mogaswha that he would take him to this person to whom
they sold the goods to. This person was identified
as a certain Mr.
Pila.
[25]
Mogaswha
and Accused No. 1 did find Mr. Pila, who mentioned that
"three
boys came
(and)
they
were selling something".
Mogaswha
further testified that Pila pointed at Accused No. 1 (Thabang
Sefoka), saying that Thabang Sefoka was among the three boys
that
came to him.
[26]
Mogaswha further testified that he took
Mr. Pila, together with Mr. Thabang Sefoka, to the Police Station
where Accused 2 was waiting.
Upon arrival at the Police Station, Pila
pointed out Accused No. 2, Ronnie Mapela, as another one of the three
people who was selling
to him.
[27]
Mogaswha
further testified that he there and then enquired from Pila, what
items were the three individuals trying to sell to him
and he
answered that they were in possession of two cameras and a cellphone.
This was said in the presence of the two Accused.
[28] Mr.
A. Pila also testified, and his evidence was in line with what was
testified by Mogaswha.
[29]
It
must, however, be added that in his evidence, Pila testified that it
was in fact Accused No. 2 (Appellant) who did the talking
and
negotiations in respect of the sale of the items.
[30]
For
the sake of completeness, it must be mentioned that Pila informed
Mogaswha that the items were in possession of another person,
who was
at that time in Mozambique and that Pila has his cellphone number.
[31]
Pila
called this individual who, through another person (unidentified),
delivered the camera to Pila, who in turn handed it over
to Mogaswha.
[32]
The
camera was later identified by Mr. Mey as his property that was
stolen on the night of the robbery. The camera had very distinct
features on which Mr. Mey could identify it and it was not in dispute
at the trial that the camera so retrieved was indeed the
property of
Mr. Mey, that was stolen during the robbery.
[33]
David
Mthembu was a further witness led by the State. Mthembu is a shop
owner who does gold and diamond exchange.
[34]
Mthembu
explained that three individuals came to the shop on the 5
th
of February 2011. These people were Thabang, Putuane and
James.
[35]
In
Court he pointed out Accused No. 1 as being Thabang and Accused No. 2
as being James. (It is noted that Accused No. 2's name
is not James,
but Ronny Mtiwana Mapela.)
[36]
He
testified that the third person, who is not in Court, was Mr.
Putuane.
[37]
He
further testified that Thabang, Accused No. 1, was doing the
negotiations in the morning and wanted to sell the following items
to
him, i.e. two rings, earrings of a woman and pearls, two necklaces
(the thin ones) as well as a Seiko gents watch.
[38]
He
explained that Thabang mentioned that he had some trouble at home and
these items belonged to his sister.
[39]
He
explained that the reason why he then asked him about the ownership
of the property was because the two rings tendered, was a
ring of a
woman and the other was a ring of a man.
[40]
He
did, however, purchase the items from
Thabang at the following prices, i.e. R500.00 for the
watch, he
paid for the rings, chains and earrings R1,200.00 because it was 9
carat gold.
[41] He
further testified that James, referring to Accused No. 2,
later came back
at approximately 14h00 and he bought a
Kruger Rand pendulum from James (Accused No. 2) at the price of
R1,400.00.
[42]
It
is noted that all the items referred to in the dealings with Pila and
Mthembu formed part of the stolen items as per
Annexure
"A",
referred to above,
which has been identified by Mr. Mey as his property.
[43]
Accused
No. 2 did testify and he simply denied all allegations against him
during his testifying and also during cross-examination.
It was
merely a bare denial as far as the selling of items and his alleged
part in the robbery was concerned. His account for what
he was doing
when the robbery took place was merely that he was asleep.
Other
aspects of importance in the trial:
[44]
The
following are aspects of importance to this trial, which I also
considered for purposes of this judgment.
1.
There
was an identification parade scheduled, but it was apparently called
off without arrangements for another identification parade;
2.
There
is evidence that the police did see Mrs. Mey to compile an identity
with the assistance of an identity-kit, but the final
result of this
was never tendered as evidence at the trial;
3.
Accused
No. 1 pleaded guilty and did not testify, especially to
confirm what he told the investigating officer regarding
the possible
involvement of Accused No. 2 in the housebreaking that took place
on the 4
th
of February 2011 at [….], Pretoria. That is the
involvement of the Appellant.
[45]
The
Magistrate found Mr. and Mrs. Mey to be credible witnesses whom
he saw and observed in Court. Both these witnesses impressed
the
Court as honest witnesses who displayed no motive whatsoever to
falsely implicate any Accused. The Court found
them to be
honest witnesses.
[46]
As
far as the evidence of the Appellant is concerned, the Court found it
not to be reasonably possibly true and rejected it.
[47]
With
regard to this credibility finding and after having perused the
evidence and cross-examination, I am aware of the fact that
in an
appeal on a factual issue the Court of Appeal is at a disadvantage in
that, unlike the Trial Court, it is unable to see and
hear the
witnesses and is not steeped in the atmosphere of the trial.
Consequently, in the absence of a misdirection on the fact
by the
Trial Judge, the presumption is that his or her conclusion is
correct. The Appellate Court will only reverse the conclusion
if it
is convinced that it is wrong and, in this sense, it may be said that
there is an onus on the Appellant. See:
Protea
Assurance
Co
Ltd
v. Casey,
1970(3) All SA 44
(A); 1970(2) SA 643 (A), 648 D- F
and
it is noted that if the Court a
quo's
findings were based not so much on
credibility of witnesses, but on logical reasoning, a reviewing court
would have greater liberty
to interfere:
Minister
of Safety
&
Security
v. Craig,
2010(1) All
SA
126 (SCA).
[48]
It
is trite that in an appeal on a factual issue, the Court of Appeal is
at a disadvantage in that, unlike the Trial Court, it is
unable to
see and hear the witnesses and is not steeped in the atmosphere of
the trial as mentioned above. This Court finds it
in that very
situation.
[49]
Having
read the evidence and the judgment, I can find no misdirection on the
side of the Magistrate regarding his credibility findings
in respect
of Mr. and Mrs. Mey or the Appellant.
[50]
The
Appellant now approaches the Court,
inter
alia,
on a basis that the
identification of himself was based on a so-called dock
identification and also that the Magistrate wrongfully
rejected
his evidence.
[51]
Appellant
further avers that the Magistrate wrongfully allowed hearsay evidence
from the investigating officer to the extent that
Accused No. 1
informed him that Appellant was involved in the robbery incident,
thereby neglecting to approach this evidence with
the necessary
caution required by law.
[52]
Having
read the whole record, the above is far from the truth.
[53]
To
go further, I must mention that the Magistrate did also deal with the
evidence of Pila, who testified to the effect that Appellant
was in
fact the main negotiator for the sale of the stolen goods.
[54]
Even
the witness David Mthembu places the Appellant on the scene of
selling the stolen goods on two occasions.
[55]
The
Appellant's reaction to this evidence, a bare denial, does his own
credibility no good and this Court does not find it strange
that
Appellant's evidence was rejected.
[56]
I
find no substance for upholding Appellant's ground of appeal based on
"dock identification" and/or
that
the Magistrate erred in relying
on the identification of Appellant
by Mr. and Mrs.
Mey. They had ample time during the robbery to observe their
assailants.
[57]
The
fact that Mr. and Mrs. Mey did not give an exact same description of
the scar on the Appellant's face is, to my mind, indicative
of the
fact that they did not discuss how they would describe this scar
beforehand.
[58]
Under
the circumstances the Appellant's appeal on the conviction is
dismissed.
Ad
sentence:
[59]
The
Appellant also appeals against sentence and to this end his personal
circumstances can be described as follows:
1.
He is a first offender with no previous
convictions;
2.
He was 28 years old;
3.
He is single with two minor children;
4.
He completed Grade 8 at school;
5.
At the time of his arrest he was doing
so-called "piece jobs";
6.
He was arrested on 21 April 2011 and
spent the remainder of the time pending the outcome of the trial on 7
November 2012 in
custody, i.e. one year and six months.
[60]
I
am of the view that his personal circumstances, even cumulatively
seen, does not constitute substantial and compelling reasons
to
deviate from the prescribed minimum sentence of 15 (fifteen) years
imprisonment.
[61]
Subsequently
the Appellant's appeal against his sentence of 15 (fifteen) years
imprisonment is dismissed.
F.
DIEDERICKS
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
I
agree
E.M.
KUBUSHI
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
Advocate for Appellant
.
Adv
F van As
Advocate for Respondent:
Adv
P Vorster