About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 496
|
|
Mubeka v S (154/2013) [2018] ZAGPJHC 496 (25 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO. 154/2013
Not
reportable
Not
of interest to other judges
Revised.
25/9/2018
In
the matter between:
MUBEKA,
SAMUEL
Appellant
and
THE
STATE
Respondent
JUDGMENT
Van
Vuuren AJ (Fisher J concurring):
Background
[1]
This matter arises from what was initially
planned to be a staged robbery of cash to replenish an ATM at a
supermarket in Bredell,
Kempton Park. An employee of FG
Security Services (“Fidelity”) had planned the staged
robbery with some erstwhile
colleagues, but reconsidered his position
and informed a superior at Fidelity of the planned robbery who
contacted the South African
Police Service (“SAPS“).
Various SAPS members organised themselves during a prior briefing and
strategically positioned
themselves in anticipation of the planned
robbery.
[2]
When the cash-in-transit vehicle arrived at
the supermarket and the Fidelity personnel moved the cash to the ATM,
the four assailants
who arrived in a VW Jetta motor vehicle set out
to execute their planned crime.
[3]
Members of the SAPS announced their
presence which was followed by various rounds being fired. This led
to one of the assailants
suffering fatal gunshot wounds at the hands
of a member of the SAPS.
The charges and the trial
[4]
The three surviving assailants stood trial
in the Regional Court in Kempton Park on the following counts:
[4.1] Count 1: Attempted robbery with
aggravating circumstances which related to the attempted robbery of
money in Bredell, Kempton
Park;
[4.2] Count 2: Robbery with aggravated
circumstances which related to the taking a cellular phone and a
firearm from Mr Latie Motanya,
a Fidelity employee;
[4.3] Count 3: Murder which related to
the death of Mr Peter Maseko alleged to have been one of the
assailants;
[4.4] Count 4: Attempted murder of
Constable Louis de Bruyn;
[4.5] Count 5: Attempted murder of Mr
Deal Robert Haswell;
[4.6] Count 6: Attempted murder of Mr
Petrus Lafras Daniël Truter;
[4.7] Count 7: Unlawful possession of
firearms;
[4.8] Count 8: Unlawful possession of
ammunition; and
[4.9] Count 9: Theft of a VW Jetta
motor vehicle in Mokopane.
[5]
The
appellant was accused 3 before the Court
a
quo
.
He was legally represented during the trial and pleaded not guilty in
respect of all counts. The appellant with accused
1 and 2
sought, and were granted, a discharge under section 174 of the
Criminal Procedure Act
[1]
in respect
of count 7.
[6]
The appellant closed his case without
giving evidence or calling any witnesses as he was entitled to do.
So did accused 1
and 2.
The sentence
a quo
[7]
The learned Regional Magistrate
a
quo
sentenced the appellant on
9 September 2010 in comparable terms to the sentences of the 1
st
and 2
nd
accused. The appellant’s sentence was as follows in
respect of each of the counts:
[7.1] Count 1: 10 years imprisonment;
[7.2] Count 2: 15 years imprisonment;
[7.3] Count 3: Life imprisonment;
[7.4] Counts 4, 5 and 6: These were
taken together for purposes of sentencing - 10 years imprisonment;
[7.5] Count 8: 5 years imprisonment;
and
[7.6] [Count 9: 8 years imprisonment.
[8]
Although the appellant did not testify, the
court
a quo
was presented with various mitigating and factual circumstances in
relation to the appellant for purposes of sentence.
[9]
He was 38 years of age at the time of
sentencing (34 years of age at the time of the robbery). He is
married and his wife
is employed and earned approximately R4 000
per month at the time. The accused was self-employed as a
fitter of tiles
and ceilings, from which he earned approximately
R6 000 per month. They lived in Mamelodi in their own
home. The accused
and his wife have three children, a boy aged 17 in
grade 11, a girl aged 5 in grade R, and a 1-year old girl who was not
attending
pre-school at the time.
[10]
The accused was supporting his aged mother
and his nephew aged 7.
[11]
He was previously found guilty of
possession of an unlicensed firearm on 26 March 2002, which the
court
a quo
was told was pursuant a plea of guilty.
Leave to appeal
[12]
On 4 December 2012 an application for leave
to appeal against the judgment
a quo
was brought. At the time of that application, leave to appeal
had previously been sought by accused 1 and 2 and, leave having
been
granted, their appeals were heard before the Honourable Justices
Coppin and Moshidi JJ. In granting leave to appeal
the learned
Regional Magistrate considered the judgment in that appeal. The court
a quo
granted leave on these counts on the basis that this Court could
reasonably reach similar conclusions on sentencing as was reached
by
the Court of appeal in the cases of the 1
st
and 2
nd
accused.
[13]
A distinguishing feature between the
appeals brought by the 1
st
and 2
nd
accused and the appellant related to the finding on count 9 of theft
of the motor vehicle. The learned Regional Magistrate
granted
the appellant leave to appeal the conviction on count 9 on the basis
that this Court might come to a different conclusion.
It was argued
at the application for leave to appeal that the two week period was
too long a period between theft and appellants
possession thereof for
a presumption of theft to arise. As such, so the learned Regional
Magistrate explained, the vehicle stolen
from Mr Gerrit Pretorius may
not have been stolen by the appellant – and accordingly that
reasonable doubt may exist as to
whether it was indeed the appellant
who stole the vehicle from Mr Pretorius in Mokopane on 18 or 19 July
2007.
Particular facts relevant in
considering the appeal
[14]
The robbery and its aftermath occurred on
the morning of 3 August 2007 at around 09h00 at the supermarket
in Bredell described
above. This, as stated, occurred whilst
members of Fidelity were about to replenish an ATM of ABSA Bank on
the premises.
One of the assailants had taken a handgun from
Mr Lucky Mothale, a member of Fidelity’s personnel, and forced
him to
lie face down at gunpoint. Firearms were also pointed at
the other Fidelity employees.
[15]
During these events a shooting ensued which
resulted in the fatal wounding by a police officer of the deceased
referenced in count
3. Others, including the 1
st
and 2
nd
accused sustained gunshot wounds at the scene. It was
subsequently found, according to a ballistics report admitted into
evidence, that all 35 spent cartridges found at the scene were fired
by the SAPS.
[16]
Ultimately the SAPS overpowered, subdued
and arrested between 10 and 15 suspects. Some suspects were
released and the 3 accused
were charged.
[17]
The 3
rd
accused was held to have been the driver of the VW Jetta motor
vehicle used in the robbery. The court
a
quo
, in my view, correctly dealt with
the evidence of Constable De Bruyn who mistakenly identified the
driver of the Jetta as accused
1. The 3
rd
accused was, however, properly identified as the driver of the Jetta
by Constable Haswell. This was also confirmed by Constable
Olympia Keswa. Constable Keswa saw the appellant driving the
Jetta motor vehicle earlier that morning at the Bredell Supermarket
and again during the robbery.
Contentions on behalf of the
appellant in respect of the convictions
[18]
Before us counsel for the appellant
confirmed the appropriateness of the court
a
quo’s
convictions on counts 1, 3,
4, 5 and 6 but contended that the convictions on counts 2, 8 and 9
ought to be set aside on appeal.
I deal with these counts in turn:
Count 2
[19]
Mr
Hodes SC argued that the learned Regional Magistrate erred in
convicting the appellant on count 2. He correctly contended
firstly that the evidence did not indicate that the cellular
telephone, to which this count related in part, was ever taken, and
secondly, that the taking of the firearm by a fellow assailant was in
order to facilitate the robbery of the money. I agree
with the
submission that the conviction on count 2 amounted to an improper
splitting of charges.
[2]
As such,
the conviction and sentence in respect of count 2 ought to be set
aside.
Count 3
[20]
Mr Hodes SC for the appellant agreed that
the convictions on counts 3, 4, 5 and 6 were legally correct, even
though the police had
shot the deceased. I agree with his reasoning.
The conduct of the police in preventing the robbery was lawful whilst
the conduct
of the assailants which was causally linked to the death
of the deceased was not.
[21]
On behalf of the appellant it was submitted
that the sentence imposed upon the appellant, for an effective term
of imprisonment
for life, was inappropriate. In contending that
a 20 year imprisonment sentence was more appropriate, Mr Hodes
argued that in the context of the assailants’ common purpose,
parity of sentences imposed upon all three accused would be
just.
[22]
It is of course correct that the particular
mitigating and aggravating circumstances that relate to each accused
ought to be considered
in addition to a factor such as their common
purpose.
[23]
The
appellant did not testify in mitigation of his sentence, but counsel
representing him in the court
a
quo
placed his personal circumstances before the court which were not
disputed by the prosecutor and consequently duly accepted by
the
court
a
quo
.
[3]
[24]
In
respect of count 3, the learned Magistrate imposed the minimum
prescribed sentence. In my view, having regard to the
particular
circumstances and mitigating factors, which include the
appellant’s personal circumstances, the intent in the form of
dolus
eventualis,
the
fact that the deceased entered into the common pursuit, and having
considered the judgment on appeal in respect of the 1
st
and 2
nd
accused,
[4]
it is
my view that the Regional Court ought to have come to the conclusion
that the sentence of life imprisonment for the death
of one of the
appellant’s accomplices was not proportionate and that the
imposition of a lesser sentence in respect of that
crime was
justified. There was no evidence that the appellant fired any
shots in this failed robbery.
[25]
In argument before us the State motivated
for a sentence of 20 years imprisonment, as did counsel on behalf of
the appellant.
[26]
I am
of the view that a disturbing disparity in sentences exists in
circumstances where the participation of the three assailants
was
more or less equal and that an appropriate sentence on count 3 is 20
years’ imprisonment.
[5]
Where the
principle of common purpose applies with comparable personal
circumstances, a parity of sentences imposed upon all three
accused
would be just.
Count 8
[27]
In the 1
st
and 2
nd
accused’s appeal, the court held that the charge for possession
of ammunition only related to Mr Makunyane, the 1
st
accused. That court duly set aside the conviction of the 2
nd
accused, and by parity of reasoning, so should the conviction on
count 8 be set aside in respect of the appellant. Ms Britz
for
the State agreed that the court
a quo
ought to have acquitted the appellant on count 8.
Count 9 – Theft of the VW
Jetta motor vehicle
[28]
The Volkswagen Jetta motor vehicle
found in possession of the appellant at the time of the robbery was
allaged to be a stolen
vehicle. A certain Mr Pretorius had
reported the theft of his vehicle to the SAPS in Mokopane.
[29]
Mr Pretorius identified the vehicle
depicted in the photograph shown to him in the trial as similar
to his stolen VW
Jetta. The registration plates of the vehicle used
in the robbery were, however, different. The plates could have been
changed,
but this aspect was not adequately addressed.
[30]
In cross-examination Mr Pretorius testified
that he has not seen the vehicle since it was stolen. He accepted
that he could neither
identify the engine number nor the registration
number of the vehicle used in the robbery.
[31]
To my mind there is merit in the argument
that there was insufficient evidence before the court
a
quo
in relation to whether the vehicle
was that stolen from Mr Pretorius .
Recent possession
[32]
Even on the premise that the vehicle was
that stolen from Mr Pretorius, the doctrine of recent possession
should be considered in
the context of the present factual matrix.
[33]
In this regard, the accused operated
as a gang with a common purpose to commit the robbery and period
of more than two
weeks passed between the theft of the vehicle and
the robbery.
[34]
The
following was stated by the Honourable Mr Justice Mathopo JA, who
wrote for the Court in
S
v Mothwa
:
[6]
“
There is
no rule about what length of time qualifies as recent. It
depends on the circumstances generally and, more particularly,
on the
nature of the property stolen. If the property stolen is common
place the time might be very short as it is always
easy to trade it.
It can thus change hands easily and much more quickly. Property
such as money and motor vehicles
are easily circulated.
”
[35]
The
learned Judge of Appeal continued:
[7]
“
[8]
The
doctrine of recent possession permits the court to make the inference
that the possessor of the property had knowledge that
the property
was obtained in the commission of an offence and in certain instances
was also a party to the initial offence.
The court must be
satisfied that (a) the accused was found in possession of the
property; and (b) the item was recently stolen.
When considering
whether to draw such an inference, the court must have regard to
factors such as the length of time that passed
between the possession
and the actual offence, the rareness of the property, and the
readiness with which the property can or is
likely to pass to another
person.
”
…
[10]
Courts
have repeatedly emphasised that the doctrine of recent possession
must not be used to undermine the onus of proof which always
remains
with the State. It is not for the accused to rebut an inference
of guilt by providing an explanation. All that
the law requires
is that, having been found in possession of property that has been
recently stolen, he gives the court a reasonable
explanation for such
possession
.
[36]
Having particular regard to the Supreme
Court of Appeal’s recognition that both money and motor
vehicles are easily circulated
and the present circumstances where
the vehicle was found in the appellant’s possession during a
robbery in a different province
more than two weeks later, too much
uncertainty remained to have convicted the appellant of theft of Mr
Pretorius’s vehicle
in Mokopane on 18 or 19 July 2007 by mere
application of the doctrine.
[37]
The conviction on count 9 ought accordingly
be set aside based on reasonable doubt arising from: the
‘identification’
of the motor vehicle depicted in the
photograph by Mr Pretorius as his vehicle; the difference in
registration numbers which were
not adequately explained; and the
lapse of time of some 17 days during which the vehicle may have
changed hands between the date
of theft of Mr Pretorius’s motor
vehicle and the date of the robbery (assuming for purposes of the
latter that it was indeed
Mr Pretorius’s vehicle that was found
in possession of the appellant).
Sentences to run concurrently
[38]
The offences committed by the appellant all
form part of the same events committed by the assailants on 3 August
2007 and consequently,
in order to address their cumulative effect,
it would be proper to order that the sentences in respect of counts
1, 4, 5 and 6
run concurrently with the sentence imposed upon the
appellant in respect of count 3. As such an effective sentence
of 20
years imprisonment is appropriate in the circumstances of this
case.
The order
In
the premises I make the following order:
1.
The appellant
’
s
appeal against his conviction and sentence in respect of counts 2, 8
and 9 is upheld.
2. The convictions and sentences in
respect of counts 2, 8, and 9 are set aside.
3. The appellant’s appeal
against his conviction in respect of counts 1,3,4,5, and 6 is
dismissed.
4. The appellant’s appeal
against the sentence imposed in respect of count 3 is upheld.
The sentence of life imprisonment
in respect of count 3 is set aside
and is substituted with a sentence of 20 years imprisonment.
5. The appellant’s appeal
against the sentences imposed in respect of counts 1,4,5 and 6 is
dismissed.
6. The sentences imposed in respect of
counts 1, 4, 5 and 6 are to run concurrently with the sentence
imposed in respect of count
3 (20 years imprisonment).
7. The appellant is sentenced to an
effective 20 years imprisonment and the sentences are antedated to 9
september 2010.
8. The appellant’s unfitness to
possess a firearm is confirmed.
______________________
E Van Vuuren AJ
Acting Judge of the High Court
Gauteng Division, Johannesburg
I agree,
______________________
Fisher J
Judge of the High Court
Gauteng Division, Johannesburg
APPEARANCES
Counsel for the appellant: Adv L M
Hodes SC
Instructed by: E T Paile Inc Attorneys
Counsel for the respondent: Adv C
Britz
Date of hearing: 13 September 2018
Date of judgment: 25 September 2018
[1]
Criminal
Procedure Act 51 of 1977
[2]
S v Toubie
2004 (1) SACR 530
(WLD) 545G – 547I
[3]
S v Caleni
1990 (1) SACR 178
(C) 181E-G
[4]
See Reginald Tlhoaela and Lucky Makunyane v The State GSJ case no.
A29/12 – a judgment of Justices Coppin and Moshidi JJ
delivered on 31 May 2012.
[5]
S v Giannoulis
1975 (4) SA 867
(A) 873F-G and 874B-E
S
v Marx
1989 (1) SA 222
(A) at 225B – 226E
[6]
S v Mothwa
2016 (2) SACR 489
(SCA) at [9]
S
v Madonsela
2012 (2) SACR 456
(GSJ) at [6]
Zwane
and Another v The State (426/13)
[2013] ZASCA 165
(27 November 2013)
at [11]
[7]
Mothwa
at [10]