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[2018] ZAGPJHC 571
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Chirinda v S (A75/2018) [2018] ZAGPJHC 571 (7 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A75/2018
COURT
A QUO
CASE NO
:
RC310/2015
DPP
REF NO
:
10/2/5/1-(2018/75)
DATE
:
7
th
September 2018
In
the matter between:
CHIRINDA
:
MOSES
Appellant
-
and -
THE
STATE
Respondent
JUDGMENT
ADAMS
J
:
[1].
This is an appeal by the appellant, who was
legally represented during the trial in the court
a
quo
, namely the Randburg Magistrates
Court for the Gauteng North Regional Division (Regional Magistrate
Pretorius), against both his
convictions and sentences. He pleaded
not guilty to the two charges against him and gave no plea
explanation in terms of section
115 of the Criminal Procedure Act 51
of 1977 (‘the CPA’).
[2].
On the 8
th
of November 2017 the appellant was
convicted as follows:
2.1
Count 1: Housebreaking with intent to rob
and robbery with aggravating circumstances, read with the provisions
of section 262(1)
and section 260 of the Criminal Procedure Act 51 of
1977 (‘the CPA’) and sections 51(2), 52(2) and 52B of the
Criminal
Law Amendment Act 105 of 1997 (’the CLAA’);
2.2
Count 2: Sexual assault (attempted rape).
[3].
On the 12
th
of December 2017 the appellant was sentenced as follows:
3.1
Count 1 (Housebreaking with intent to rob
and armed robbery): ten years direct imprisonment.
3.2
Count 2 (Sexual Assault): Eight years
direct imprisonment.
3.3
It was ordered that five of the eight years
of the sentence imposed in respect of Count 2 was to run concurrently
with the sentence
of ten years imposed in respect of count 1, thus
resulting in an effective sentence of thirteen years direct
imprisonment,
[4].
This appeal is with the leave of the court
a quo
.
[5].
The appeal principally turns on the
reliability of the evidence identifying the appellant as the person
who late on the evening
of the 8
th
of August 2015 broke into the house of the complainant and thereafter
robbed and attempted to rape her.
[6].
At about 19:00 on the evening of the 8
th
of August 2015 the complainant, who was housesitting for her
employers at their home in Olivedale, was confronted by a knife
wielding
intruder whilst in the house in the passage just outside her
bedroom. He forced the complainant back into her bedroom and robbed
her of a number of items, notably a laptop, cell phones and cash of
approximately R2000. The complainant also during this time
established that the intruder had already helped himself to the TV
set that she had been watching earlier on the evening. Thereafter,
the complainant was sexually assaulted by the intruder in the garden
of the property. This he did by undressing her and by forcing
his
penis between her thighs. Before the sexual assault the complainant
and her assailant had gone back into the house to get a
condom, which
she had persuaded her attacker to use during the sexual assault on
her person. Just before they went into the house
the assailant, who
up to that point had covered his face with a balaclava, took it off,
thus exposing his face and affording the
complainant an opportunity
to see his face. After retrieving the condom they went back to the
garden and the attacker, after putting
on the condom, attempted to
have intercourse with her. She resisted by closing her legs. This
annoyed the assailant, who shouted
at the complainant, and this drew
the attention of the family dogs, which came from the front of the
yard and interrupted the assault
on the complainant, who took the
dogs into the house, whereafter the intruder left the scene.
[7].
During her evidence, the complainant
explained that her attacker was wearing a ‘blue work suit’,
a balaclava and hand
gloves. He was also armed with a knife, which
she described as one with a red handle and a silver blade. She
confirmed that when
the attacker took off his balaclava she was able
to see his face although not as clearly as she would have liked as
the lighting
in the garden was not that clear. She was however
confident that she was able to see his face. She had a further
opportunity to
look at the face of her attacker when the two of them
were in the main bedroom where they had gone to fetch the condom. The
light
in that room was on and that gave her a chance to have a good
look at the face of her assailant.
[8].
Shortly after the attacker left the police
arrived on the scene and the complainant gave them a description of
the attacker and,
in particular, described to the police what he was
wearing. On the 20
th
September 2015 at an official SAPS Identity Parade the complainant
identified the appellant as the person who attacked her on the
night
of the 8
th
of August 2015.
[9].
At about 21:00 on the same night the
appellant was arrested in the Olivedale area by the arresting
officer, Constable Phanyane,
and his partner. They arrested the
appellant close to where the robbery had occurred because he fitted
the description given by
the complainant to the police of the person
who attacked her. When they saw him for the first time they
recognised his blue clothes,
as fitting the description of that worn
by the robber, and they stopped him with a view to establishing
whether he was the person
who they were looking for. When they
searched him they also found a red and silver knife, again fitting
the description given by
the complainant. He was then arrested.
[10].
On the issue of identity it is necessary to
consider the evidence of the complainant as well as the evidence of
the arresting officers.
The complainant positively identified the
appellant at the identity parade as the person who attacked and
robbed her. Although
no evidence was led by the State as regards the
procedures followed when conducting the identity parade, the evidence
of the complainant
was to the effect that she fingered the appellant
out of a line – up. She also made a ‘dock
identification’.
The complainant remained adamant that the
appellant was the person who robbed her on the day in question. When
it was put to her
that the appellant denies any involvement in the
housebreaking and the robbery, her response was simply: ‘I am
saying that
it was him’.
[11].
The Regional Magistrate approached the
evidence of the complainant concerning identity with the necessary
caution required when
dealing with the evidence because of a single
witness on the robbery and identity (see
S
v Mthethwa
,
1972 (3) SA 766(A)
768
a-b). She correctly held that the evidence of the complainant was
clear, satisfactory, sincere, honest and reliable and that
sufficient
safeguards existed for the acceptance of her evidence (see
S
v Charzen and another
,
2006 (2) SACR
143
(SCA) at 147 (I – J). I cannot find any fault with the
Regional Magistrate’s findings. The safeguards lie therein that
the appellant is linked in time and space to the crime in that he,
fitting the description of the attacker, was apprehended in
close
proximity to where the crime was committed. As submitted by Ms
Buitendacht, Counsel for the State, it is too much of a coincidence
that a balaclava – clad person, wearing a blue ‘work
suit’ and hand gloves, was found at the scene of the crime
and
shortly thereafter found in the vicinity of the crime. The
complainant had sufficient opportunity to make a proper and reliable
observation of the appellant.
[12].
The complainant positively identified the
appellant at the ID Parade, and there is no evidence or suggestion
for that matter that
the identification was rigged or that the
complainant had been coaxed by the police. Although there was no
evidence that the identity
parade was held in accordance with sound
procedural rules, conversely it cannot be said that the integrity of
the identity parade
could and should be faulted. The fact of the
matter is that the complainant pointed out the appellant at the
identity parade.
[13].
The evidence of the arresting officers
stands almost uncontested. Importantly, the appellant, when he was
arrested, was wearing
the clothes described as that worn by the
attacker, notably the blue ‘work suit’, the balaclava and
the hand gloves.
Even more telling is the fact that the proverbial
‘smoking gun’, that being the knife, was found in
possession of the
appellant when he was arrested. These facts
inextricably link the appellant to the robbery of the complainant.
[14].
The version of the appellant is one of general denial. He denies that
he committed the offences which he was charged with.
When the state
witnesses were being cross – examined, it was put to them that
the appellant would deny that he had robbed
the complainant. He in
fact denied that he was at the scene of the alleged crimes.
Bizarrely, his explanation for the balaclava
and the hand gloves was
that these items he possessed and used in his job as a scrap metal
collector. The balaclava helped, so
his version went, with the germs
when he pulls it over his face and the gloves help with him getting
in contact with hazardous
substances.
[15].
It is trite that the State bears the onus of establishing the guilt
of the appellant beyond reasonable doubt, and the converse
is that he
is entitled to be acquitted if there is a reasonable possibility that
he might be innocent (
R v Difford,
1937 AD 370
at 373, 383).
In
S v Van der Meyden
,
1999 (2) SA 79
(W), which was adopted
and affirmed by the SCA in
S v Van Aswegen,
2001 (2) SACR 97
(SCA), it was reiterated that in whichever form the test is applied
it must be satisfied upon a consideration
of all the evidence
.
Just as a court does not look at the evidence implicating the accused
in isolation to determine whether there is proof beyond
reasonable
doubt, so too does it not look at the exculpatory evidence in
isolation to determine whether it is reasonably possible
that it
might be true. In similar vein the following was said in
Moshephi
and Others v R
, LAC (1980 - 1984) 57 at 59F - H, which was cited
with approval in
S v Hadebe and Others,
1998 (1) SACR 422
(SCA) at 426f - h:
'The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees’.
[16].
What is important is the overall picture. If the appellant’s
denial is to be accepted, it would mean that the complainant,
in
concert with various members of the South African Police Services,
concocted the story against him from beginning to end. The
suggestion
is made that the complainant was robbed, which is common cause, and
then in a manner of speaking drew the names of the
appellant from a
hat and resolved to have him charged criminally. This is not tenable.
[17].
The appellant’s defence was also one
of an alibi, which was supported by the evidence of a person who also
lived in the veld
in Olivedale, who testified that, at the time of
the commission of the crime, the appellant was sitting with them at
their informal
place of residence in the veld in Sharonlea /
Olivedale. They were busy preparing food presumably on an open fire.
The appellant
then, according to the witness, went into the veld to
go and collect fire wood, and that was the last time the witness saw
the
appellant. The witness testified that he was with the appellant
up to about 21:00, whereafter the appellant went to collect fire
wood
and then disappeared. This ‘alibi’, if it was an alibi,
was rejected by the court
a quo
on the basis that it did not really add value to the case of the
appellant. We agree with this approach by the Regional Magistrate.
[18].
I am of the view that the Regional
Magistrate, after considering all the probabilities and
improbabilities and particularly the
fact that there is no onus on
the appellant to convince the court of the truth of his explanation,
correctly held that the appellant’s
evidence was inherently
improbable and false beyond a reasonable doubt. The Regional
Magistrate’s finding that sufficient
corroboration existed in
linking the appellant to the crimes of housebreaking, robbery and
sexual assault cannot be faulted. The
improbability or implausibility
of the version of the appellant, particularly the fact that on his
version the complainant and
the police invented stories against him,
is apparent.
[19].
I am accordingly unable to find any reason
for disturbing any of the factual findings made by the court
a
quo
. The case against the appellant was
overwhelming and he was accordingly correctly convicted.
[20].
It follows that the appeal against the
convictions must fail.
Sentence
[21].
As regards the appellant’s appeal
against his sentence, it is trite that an appeal court can interfere
with sentence only
where the sentence is affected by an irregularity
or misdirection entitling this court to interfere. The crimes in
question were
of a serious nature, perpetrated by the appellant who
invaded the complainant’s privacy. I do not consider there to
have
been any misdirection in the Regional Magistrate’s full
and careful judgment on sentence, which would entitle this court to
interfere with the sentences imposed. It moreover cannot be said that
the sentences are unduly harsh or inappropriate (see
S
v Kgosimore,
1999 (2) SACR 238
(SCA)).
[22].
The appellant received an effective
sentence of direct imprisonment for a period thirteen years.
[23].
A convenient starting point is the fact
that the provisions of s 51(2) of the CLAA, read with Part II of
schedule 2 of the said
Act, apply. Section 51(2) provides as follows:
‘
(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall sentence a person
who has been
convicted of an offence referred to in-
(a)
Part II of Schedule 2, in the case of-
(i).
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 20 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years’.
[24].
‘
Robbery, when there are aggravating
circumstances’, is an offence referred to part II of schedule 2
of the CLAA. This means
that a minimum sentence of at least fifteen
years is applicable to the sentences imposed on the appellant herein.
The aggravating
circumstances consist of the use of a knife during
the house robbery. That being the case, the question is whether
substantial
and compelling circumstances exist which justify the
imposition of a lesser sentence. The Regional Magistrate found the
existence
of such substantial and compelling circumstances and
accordingly imposed a sentence less than the minimum sentence for the
armed
robbery conviction.
[25].
It appears that, at the time of the trial,
the first appellant was 35 years of age and a first offender. He was
married at the time
with three children, aged eleven, seven and two
years old. At that time he was ‘living the life of a vagrant’,
meaning
that he lived in the veld and was employed informally as a
metal scrap recycler. He was not maintaining his wife and children,
who, according to the appellant, returned to Zimbabwe, whence the
wife comes from originally.
[26].
The factors which the court
a
quo
found to be substantial and
compelling were in the main the fact that, at age 35 years old, the
appellant was still a first offender.
Also a knife, as against a
firearm, was used to threaten the complainant, who, according to the
Regional Court, was not physically
harmed. The cumulative effect of
the aforegoing the court
a quo
concluded amounted to substantial and compelling circumstances which
warranted a deviation from the applicable minimum sentence.
[27].
I take into consideration what was stated
by the SCA in
S v Vilakazi
,
2009 (1) SACR 552
(SCA). Nugent JA had this to say at par [58]:
‘
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of 'flimsy' grounds
that
Malgas
said
should be avoided. But they are nonetheless relevant in another
respect. A material consideration is whether the accused
can be
expected to offend again. While that can never be confidently
predicted his or her circumstances might assist in making
at least
some assessment. In this case the appellant had reached the age of 30
without any serious brushes with the law. His stable
employment and
apparently stable family circumstances are not indicative of an
inherently lawless character.’
[28].
It was necessary for the court to find the
existence of substantial and compelling circumstances before it was
entitled to impose
a lesser sentence. In considering whether
substantial and compelling circumstances were present, the learned
magistrate had regard
to the appellants’ personal
circumstances. I have already alluded to those above. The court also
had regard to the severity
and the seriousness of the offences
committed by the appellant, and in the end that there were in fact
substantial and compelling
circumstances which warranted a lesser
sentence.
[29].
I am satisfied that the learned regional
court magistrate properly considered whether there were substantial
and compelling circumstances
to deviate from the minimum sentences
provided for in respect of the offences under the relevant provisions
of section 51(2) of
the CLAA as read with part II of schedule 2
thereof, and also carefully considered the triad of factors relevant
to sentencing,
namely the nature of the offence, the personal
circumstances of the offenders including their moral blameworthiness
and the interests
of society by which I include the interests of the
victims. I am also satisfied that the Regional Magistrate was
justified in not
imposing the minimum sentence, and showed the
appellant mercy.
[30].
It follows that the appeal against sentence
must fail.
Order
Accordingly,
I make the following order:-
1.
The appellant’s appeal against his
convictions is dismissed.
2.
The appellant’s appeal against his
sentence is dismissed.
________________________________
L R ADAMS
Judge of the High Court of South
Africa
Gauteng Local Division,
Johannesburg
I
agree,
__________________________
A MILLAR
Acting Judge of the High Court of
South Africa
Gauteng Local Division,
Johannesburg
HEARD
ON:
6
th
September 2018
JUDGMENT
DATE:
7
th
September 2018
FOR
THE APPELLANT:
Adv
Buthelezi
INSTRUCTED
BY:
Legal
Aid South Africa
FOR
THE RESPONDENT:
Adv
T Buitendacht
INSTRUCTED
BY:
The
Office of the Director of Public Prosecutions, Gauteng Local
Division, Johannesburg