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
>>
2017
>>
[2017] ZAGPPHC 822
|
|
Maredi v S (A210/2016) [2017] ZAGPPHC 822 (20 February 2017)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: All0/2016
Date:
20/02/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SALIE CLIFFORD
MAREDI
Appellant
And
THE
STATE
Respondent
Date
heard:
Date
delivered:
JUDGEMENT
DE
VOS J:
1.
The appellant was convicted by the Regional Court, Benoni, on six
counts, to wit:
1.1 Count 1:
Attempted housebreaking with intent to steal and theft;
1.2 Count 2:
Possession of housebreaking implements;
1.3 Count 3:
Pointing of anything which is likely to lead a person to believe it
is a firearm (C/S 120(6)(b) of Act 60 of2000);
1.4 Count 4: Assault
with intent to do grievous bodily harm;
1.5 Count 5: Assault
with intent to do grievous bodily harm;
1.6 Count 6: Assault
with intent to do grievous bodily harm.
2.
The appellant was sentenced as follows:
2.1 Count 1: Four
years' imprisonment;
2.2 Count 2: Two
years' imprisonment;
2.3 Count 3: Three
years' imprisonment;
2.4 Count 4: Three
years' imprisonment;
2.5 Count 5: One
year imprisonment;
2.6 Count 6: Three
years' imprisonment.
The
court ordered that the sentence imposed on count 2 was to run
concurrently with the sentence imposed on count 1; the sentence
imposed on count 3 was ordered to run concurrently with the sentence
imposed an count 4; and the sentence on count 5 was ordered
to run
concurrently with the sentence imposed on count 6. The effective
sentence is ten years' imprisonment.
3.
The appellant was granted leave to appeal against his sentence on 05
February 2016.
4.
The facts pertaining to the conviction on counts 1 and 2 can be
briefly summarised as follows. On the 10th March 2011, at or
near
Etwatwa, the appellant wrongfully and intentionally attempted to
break open and enter the business premises of Mr Motha by
removing
the iron sheets covering the roof of the business. On the same day
the appellant was arrested and found in possession
of implements or
objects to wit a side cutter, pliers and a screwdriver, in respect of
which there is a reasonable suspicion that
it had been used or is
entitled to be used to commit housebreaking, of which the appellant
was unable to give a satisfactory account
of it. It is common cause
that Mr Motha, the complainant on count 1, is the owner of a bottle
store as referred to above. At about
23h45 at night, a nearby
neighbour, Mr Bangiso, saw the accused and another person on top of
the roof, removing the corrugated
sheets. Although it was dark there
was an Apollo light which illuminated over the bottle store. The
Apollo light was about 10 metres
away. Mr Bangiso's house is about 15
- 20 metres away from the particular bottle store. He tried to phone
the Police but they did
not respond. Another Police vehicle, which
was patrolling in the area, then went past his house and he stopped
them and reported
what he saw. When the Police approached the house,
the appellant apparently spotted them, he jumped from the roof and
jumped over
the gate. He also tried to shoot at them and then the two
suspects ran into different directions. The Police gave chase and the
appellant was arrested. At the time the appellant was arrested, he
was still wearing "handyman" gloves, which he was
wearing
whilst trying to break into the shop. The owner of the bottle store,
Mr Motha, testified and confirmed that after he was
alerted he went
to his business and he found the Police and Mr Bangiso at the scene
with the arrested appellant. He testified that
the damage caused by
the appellant and his accomplice was about R4600.
5.
Counts 3, 4 and 5 were committed on the 22°d April 2011, also
near Etwatwa, when the accused assaulted Nosiphiwe Mtebele
and her
sister, Thuli Mtebele. Count 6 relates to an incident that occurred
on the 21" May 2011 when the accused again assaulted
Nosiphiwe
Mtebele. The complainant in counts 4 and 6, Nosiphiwe Mtebele, is the
former girlfriend of the appellant. She testified
that the appellant
is the father to her child. They are no longer involved. On the 22nd
April 2011 she was coming from church when
the appellant phoned her.
The appellant requested her to go outside her house with her sibling.
He then told her that they must
meet at the garage as he wanted to
give her money for the child. However, he did not hand the money to
her, but gave it to the
sibling directly. He told her that he wanted
to talk to her. At that stage he was carrying a firearm; the firearm
was placed on
his waist. She then said that she wanted something to
drink and he told her to take some of the money that he handed to the
sibling
to go and buy herself something to drink at the garage. At
that stage he accused her that she has given her cell number to
another
man called Cheese. She refused to go with him as she was
afraid of him. He then started hitting her with a fist on the bridge
of
her nose, she started bleeding and he insisted that they must go.
She still refused. When people approached them he decided to place
the firearm that he has taken from his waist, back on his waist. The
people then reprimanded him and pleaded with him to leave
her. When
she broke loose from him, he grabbed her by the trousers. She,
however, managed to break loose again and ran to the neighbours.
She
learnt later that the appellant also assaulted her sister Thuli
Mtebele (the complainant in count 5) who was pregnant at the
time. An
ambulance had to be called to take her sister to hospital. She also
testified that the appellant had pointed the firearm
at her chest
area as he was standing just in front of her and he held her by the
collar of her clothes and he struck her with a
fist which made her
nose bleed. As a result of the assault her face became swollen up,
her eyes were red and she sustained what
is normally called "black
eyes" on both sides. Her sister was taken by ambulance to the
hospital. After examination at
the hospital she was discharged.
6.
Count 6 relates to an incident that occurred on the 21st May 2011
between the appellant and his ex-girlfriend Nosiphiwe Mtebele.
Although the charge sheet alleges that it also happened on the 22nd
April 2011, according to the evidence the date should read
21st May
2011. Nosiphiwe Mdeble testified that on that day and after work she
and Sweetness, her friend, went to buy bunny chow
at a certain
premises. They then met the appellant. The appellant then called her
a bitch and told her not to go to that place.
He then approached her.
She refused to listen to him. The appellant walked across the street
and hit her with a beer bottle to
such an extent that she felt dizzy.
He then grabbed her and pushed her against a wall. When she fell
down, he kicked her. She grabbed
his legs and managed to stand up
while he was still continuing hitting her. He hit her several times
on her head with fists while
she was pleading with him that he should
leave her. He left her but then again started to hit her. The
appellant then disappeared
when the Police emerged. She was bleeding
to such an extent that the Police took her to hospital and there she
received stitches
on her head and also on her ear, which was cut. She
then went back to the Police station to lay charges.
7.
Thuli Mtebele, the complainant on count 5, also testified. She
confirmed that her sister was beaten on 22 April 2011 and when
she
rushed to the scene to see what was happening the appellant told her
that it is none of her business. She also confirmed that
the
appellant had a firearm and that he held it in his right hand whilst
he was busy hitting her sister. She then tried to intervene,
which
gave her sister a chance to run away. The appellant then pushed her
and kicked her while her sister was running away. When
he pushed her
she fell down, and he then kicked her on her stomach, although she
was clearly pregnant at that time.
8.
Constable Lesiba Lekoto also testified and confirmed that on the 11th
March he arrived at the bottle store and arrested the appellant
while
he was fleeing from the scene. They also found a pair of side cutter
pliers as well as a screwdriver and gloves and a woollen
hat
which
were
in the possession of the appellant. He further confirmed
that he personally saw the appellant on the roof of the bottle store
when
they arrived at the scene. He further confirmed that they
arrested the appellant approximately 30 metres away from the bottle
store
as he was trying to run away.
9.
The appellant's version denying that he attempted to break into the
bottle store was rejected by the court a quo. According to
the
appellant he was coming from a tavern when the police stopped next to
him because he had dumpies in his hands. The other person
who
accompanied him ran away because he was scared that he may be
arrested for public drinking. He also denied that he had any
housebreaking equipment in his possession. He also denied committing
the offences of assault or having a firearm in his possession.
The
Magistrate rightfully rejected the appellant's version.
10.
On behalf of the appellant it is argued that the court failed to
treat the appellant as a first offender and therefore should
have
imposed a lesser sentence. It is quite clear from the judgement on
sentence that the Magistrate recorded that the previous
conviction
has got no relation to the present offences. It can therefore be
accepted that it had no influence on the Magistrate
when he sentenced
the appellant.
11.
The second ground of appeal is that the court overemphasised the
seriousness of the offence and the prevalence of the offence.
It is
contended that the Magistrate, without any evidence, concluded that
the appellant wanted to steal whatever was inside the
store. It is
contended that this is an assumption. A person removing the roof
sheets of a bottle store at 3 o' clock in the morning
clearly has the
intention to break into that bottle store and to remove whatever is
inside. There is no merit in this argument.
I
12.
It is further contended that the Magistrate also overemphasised that
the appellant had no respect for other human beings. The
facts of the
matter speak for itself. The appellant had no hesitation to assault
the mother of his child, as well as her obviously
pregnant sister.
The way he acted proves beyond a reasonable doubt that he has an
aggressive nature and does not hesitate to inflict
injury on whoever
crosses his way.
13.
It is further contended that the court paid lip-service to the
personal circumstances of the appellant. A list of personal
circumstances was then tabulated in appellant's heads of argument. It
is clear from the judgement that all these personal circumstances
were duly considered by the Magistrate.
14.
It is further submitted that the court overemphasised the nature of
the offence and the interests of society at the expense
of the
personal circumstances of the appellant. In my view there is no merit
in this argument. The court a quo carefully weighed
up the personal
circumstances of the appellant against the merits of the case.
15.
A person going around at night, breaking into business premises, can
and will never be tolerated by this society. When the same
person
walks around carrying a firearm, which he is prepared to point at
people, and use brutal force against undefended women,
he should not
expect any leniency from the courts.
16.
It is contended that the appellant can be rehabilitated. I find it
extremely difficult to understand how it can be said that
a person
can be rehabilitated if he denies all the allegations against him.
Rehabilitation can only work if a person confesses
to his wrongdoings
and is prepared to change his ways.
17.
Having regard to the cumulative effect of all the sentences imposed,
and the deterrent effect sought by the court a quo, there
is no room
for a lesser sentence to be imposed. Despite overwhelming evidence
against him, the appellant failed to take responsibility
for what he
had done and he sought to make the witnesses liars.
18.
There can be no doubt that the offences, especially counts 1 and 2,
were carefully planned and the appellant, knowing that there
will be
obstacles in his way to succeed in his evil deeds, came prepared with
all the necessary tools at hand to execute his crime.
There is
furthermore no link between the appellant's personal circumstances
and the commission of the crimes. In the light of the
cumulative
effect of all the aforementioned factors, the court a quo did not act
unreasonably in imposing the sentence it did.
19.
The appellant was arrested on counts 1 and 2 on 10 March 2011. He was
released on bail, but failed to appear in court and his
bail was
therefore forfeited. The appellant was then re-arrested in December
2012 and was in custody until his date of conviction.
The appellant
awaited trail for 18 months. It is contended that the date of
sentence should be antedated to the date of his arrest.
I disagree
with this submission. The Magistrate was entitled to ignore such
fact, as it played no role to rehabilitate the appellant
and can
safely be ignored.
Accordingly,
and in my view, the appeal against sentence should be dismissed.
I
THEREFORE PROPOSE THE FOLLOWING ORDER:
1.
The appeal against sentence is dismissed.
DE VOS J
JUDGE
OF THE GAUTENG DIVISION
OF
THE HIGH COURT OF SOUTH AFRICA
I
agree.
____________________
KUBUSHI
J
JUDGE
OF THE GAUTENG DIVISION
OF
THE HIGH COURT OF SOUTH AFRICA
It
is so ordered.