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[2018] ZAKZPHC 38
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Ngcobo and Another v S (AR570/2017) [2018] ZAKZPHC 38 (27 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL
CASE NO:
AR570/2017
In
the matter between:
MTHOBISI
ERIC
NGCOBO
First
Appellant
NKANYISO
PANI
HLELA
Second
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
Delivered on: 27 August
2018
Mbatha
J (Gyanda J concurring)
[1]
The appellants were convicted by the Regional Court sitting at
Pietermaritzburg on 27 January 2016, on one count of robbery
with
aggravating circumstances, read with the provisions of s 51 and
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
. The court
found that there were substantial and compelling circumstances and
imposed sentences of eight and twelve years’
imprisonment
respectively. With the leave of the court a quo, the appeal is
against the convictions in respect of both appellants
and sentence in
respect of second appellant.
[2]
The incident giving rise to the convictions and sentences of the
appellants arose from the commission of the robbery on 20 February
2013, near Pietermaritz Street, Pietermaritzburg.
[3]
The robbery occurred at day break at about 05:15am outside the place
of employment of Mr Yasseen Essop, (the complainant) where
he had
parked his truck in preparation for a trip to deliver goods in the
Eastern Cape. He was confronted by six men, two got onto
his truck to
search for his personal items, whilst the other four assailants
robbed him of his possessions which he had on his
person. His
testimony was that the assault lasted for about five minutes. He had
fallen down during the assault. As he got up he
saw four of his
assailants fleeing towards the beerhall.
[4]
He got into his truck and gave chase. His testimony was that he lost
sight of the assailants only for a very short time, but
as he got
onto Berg Street, he saw the assailants run into the beerhall. He
called the police and remained on the street next to
where his
assailants had fled into. At the arrival of Warrant Officer Ngubane,
who was in the vicinity of the beerhall, they entered
the beerhall in
search of the complainant’s assailants. As the complainant and
Warrant Officer Ngubane were leaving the beerhall,
the complainant
shouted as he spotted one of his assailants, pointing to the first
appellant, who was still wearing the same pair
of jeans and a short
sleeved shirt which he had been wearing when the robbery took place.
When the first appellant was searched,
the cigarette lighter which
the complainant identified as his came out from one of the pockets of
his jeans. The first appellant
was then arrested.
[5]
It was undisputed that the complainant was robbed by six African
males on the day in question of a gas gun, a cigarette lighter
and
other valuable personal possessions and that he was also assaulted
during the robbery. It is also common cause that shortly
after the
robbery the first appellant was arrested and later on the second
appellant was found in possession of a gas gun which
led to his
arrest.
[6]
The entire appeal rests on the identification of the appellants as
the persons who committed the robbery against the complainant.
The
court a quo found that the complainant had positively identified both
the appellants, on the basis that the first appellant
was known to
the complainant, he had pointed him out to the police shortly after
the incident and that the second appellant was
found in possession of
a gas gun belonging to the complainant.
[7]
On 25 February 2013 the complainant was called to make a photo
identification of his assailants, where he positively identified
the
appellants. He identified the second appellant by a mark on his face
near the eye area. The second appellant was subsequently
arrested at
his home. When the second appellant was arrested, he was found in
possession of a gas gun, which fitted the description
given by the
complainant. The complainant identified it with the serrated marks,
which he had scratched on the sides.
[8]
The complainant’s evidence was that he was able to positively
identify his assailants as it was day break, the streetlights
and
lights from the shop also illuminated the area. Furthermore he
testified that he had seen the first appellant a number of times
before going past his place of employment. On the day in question the
first appellant was wearing jeans and a short sleeved shirt
which the
complainant described as a vest, and that upon his arrest the
complainant’s cigarette lighter came out of the appellant’s
pocket.
[9]
The first appellant denied that he was one of the robbers. He
described his arrest as unfortunate in that he was at the wrong
place
at the wrong time, as he had gone to the beerhall to fetch water to
wash a taxi. His defence was rejected by the court a
quo as he could
not explain the absence of water taps in the area where he was
arrested. The second appellant’s defence met
the same fate as
he failed to explain why he had not informed his legal representative
that he had bought the gas gun on the day
when the complainant was
robbed, which was the very same day of his arrest. It was never
suggested to the State witness that that
was the case.
[10]
As previously pointed out, at the heart of this appeal is the
identification of the appellants and the correct evaluation of
the
evidence. There is nothing to suggest that there was a misdirection
on the part of the court a quo when it accepted that the
complainant
positively identified the appellants as he never lost sight of his
assailants, visibility was good, the first appellant
was identified
and arrested within the vicinity of the robbery. Both appellants were
positively identified in the photo identification
by the complainant.
[11]
The court a quo found that the second appellant’s possession of
the gas gun and the photo identification by the complainant
linked
him directly to the robbery. It correctly found that the doctrine of
recent possession applied to the second appellant.
The second
appellant was arrested by Warrant Officer Mchunu who, whilst
performing community services at the Plessislaer Police
Station,
received a report that someone was in possession of a firearm at
Sweetwaters. This led to the search of the room of the
second
appellant in his presence, where the gas gun belonging to the
complainant was found in his possession. This finding happened
on the
very same day of the robbery, by the police officers, not linked to
the arrest of the first appellant. I find that the court
a quo
correctly rejected the second appellant’s defence that he had
bought it from someone else, as that version was never
suggested to
any of the state witnesses.
[12]
The issue of recent possession is a factual question. In
S
v Mavinini,
[1]
possession of a motor vehicle less than 24 hours after the robbery
taken together with the accused’s conduct was accepted
as
suggesting his involvement in the robbery. The Supreme Court of
Appeal in
S
v Mothwa
[2]
affirmed
the principles in
S
v Skweyiya
[3]
in that 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 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.’ (Footnote
omitted)
[13]
In
Zwane
& another v The State
,
[4]
quoted with approval in
Mothwa
above,
the court stated:
‘
The inference that a person
found to be in possession of recently stolen property is the thief or
one of the thieves (or, in this
instance, one of the robbers) can
only be drawn as the only reasonable inference where the nature of
the goods stolen and the time
lapse between the theft (or robbery)
and the discovery of the goods in that person’s possession lend
themselves to such a
finding (see
S
v Parrow
1973 (1) SA 603
(A) at 604B-E;
S v Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(A) at 715 C-D;
S
v Mavinini
2009 (1) SACR
523
(SCA) para 6). The crucial question would be whether the items
concerned are of the type which can easily and quickly be disposed
of, in which event anything beyond a relatively short time lapse
cannot be said to be recently stolen (see
Skweyiya
at 715E). In my view the items found in the trunk of the car had
little or no value to the robbers and are of the type that can
be
disposed of quite easily. These items were found in the trunk the
very next evening after the robbery. It is in my view a sufficiently
short time lapse to justify invoking the doctrine of recently stolen
property. But that is only one side of the case. The other
side is
the defence evidence of the first appellant and Ms Mathlaba, set out
above.’
In
general, objects such as firearms and cellphones exchange hands very
quickly. In the present case, it is important to note that
this was a
gas gun without the magazine and the police who recovered it
described it as a ‘toy gun’, in that regard
it could not
be disposed as quickly as possible or at all by the second appellant.
[14]
The court a quo considered the discrepancies, the contradictions with
regard to the evidence of the complainant and Warrant
Officer Ngubane
as to the type of shirt that was worn by the first appellant. The
court correctly found that these were not material
discrepancies and
had no effect on the totality of the evidence. There was no
misdirection on the part of the court a quo in finding
that the
versions of the two appellants were a fabrication. In conclusion we
are satisfied that the court’s approach to the
evaluation of
evidence was correct. It considered the totality of the evidence. The
court a quo correctly concluded that the appellants
were positively
identified and that the versions given by the first and second
appellants were false.
[15]
It is trite that a court will only interfere with sentence if the
trial court misdirected itself in passing sentence. Moreover,
a
misdirection alone does not suffice for a court of appeal to
interfere. A misdirection should be material, as expressed by Trollip
JA in
S
v Pillay.
[5]
In
S v
Malgas
[6]
the court stated that:
‘
A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its
exercise of that discretion, an
appellate Court is of course entitled to consider the question of
sentence afresh. In doing so,
it assesses sentence as if it were a
court of first instance and the sentence imposed by the trial court
has no relevance. As it
is said, an appellate Court is at large.
However, even in the absence of material misdirection, an appellate
court may yet be justified
in interfering with the sentence imposed
by the trial court. It may do so when the disparity between the
sentence of the trial
court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that it can properly
be described as “shocking”,
“startling” or “disturbingly inappropriate” .
. . in the latter
situation the appellant court is not at large in
the sense in which it is at large in the former. In the latter
situation it may
not substitute the sentence which it thinks
appropriate merely because it does not accord with the sentence
imposed by the trial
court or because it prefers it to that sentence.
It may do so only where the difference is so substantial that it
attracts epithets
of the kind I have mentioned. No such limitation
exists in the former situation.’
[16]
The court found substantial and compelling circumstances in respect
of both appellants, which led to the sentences of eight
and twelve
years’ imprisonment respectively. It found that the first
appellant had good prospects of rehabilitation as he
had no previous
convictions. The only difference in the sentences lay with the fact
that the second appellant was no stranger to
the courts’ of
law. He already had two previous convictions for robbery. In my view,
because of his previous brushes with
the law, the sentence of twelve
years imprisonment imposed by the court a quo still shows that the
aims of sentencing being the
general deterrence, personal deterrence,
rehabilitation and retribution were taken into account. It is clear
to me that the second
appellant had not learnt any lesson from his
previous convictions. I find that there was no discrepancy in
sentencing.
[17]
I am therefore of the view that the sentence imposed by the court a
quo on the second appellant does not induce a sense of
shock.
[18]
Accordingly,
I make the following order:
1. The
appeal against conviction in respect of the first appellant fails.
2. The
appeal against conviction and sentence in respect of the second
appellant fails.
3. The convictions and
sentences imposed on both the appellants by the trial court are
confirmed.
__________________
Mbatha
J
__________________
Gyanda
J
Date
of hearing
: 17
August 2018
Date
Delivered
: 27
August 2018
Appearances
For
the Appellants: Mr BC Mbatha
Instructed
by: Justice Centre
Pietermaritzburg
For
the Respondent: Adv J Khathi
Instructed
by: The Director of Public Prosecutions
Pietermaritzburg
[1]
S v Mavinini
2009 (1) SACR 523 (SCA).
[2]
S v Mothwa
2016
(2) SACR 489
(SCA) para 8.
[3]
S v Skweyiya
1984 (4) SA 712 (A).
[4]
Zwane & another v
The State
[2013] ZASCA 165
para 11.
[5]
S v Pillay
1977 (4) SA 531
(A) at 535E-H.
[6]
S v Malgas
2001 (1) SACR 469
(SCA) para 12.