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[2017] ZAGPPHC 60
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Sithole v S (A206/2011) [2017] ZAGPPHC 60 (28 February 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
28/2/2017
CASE
NUMBER: A206/2011
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
ZITHO
SITHOLE APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
The appellant was convicted of one count of robbery with aggravating
circumstances read with the provisions of s 51 (2) of the
Criminal
Law Amendment Act 105 of 1997 ("the Act"); and one count of
kidnapping. He was subsequently sentenced, in respect
of count 1, to
fifteen (15) years imprisonment and in respect of count 2, to five
(5) years imprisonment. Both sentences were ordered
to run
concurrently.
[2]
The appellant is before us having been granted leave to appeal both
convictions and sentence by the trial court.
[3]
The factual matrix is that on 22 January 2007, the complainants - Mr
Ernest Van der Merwe senior ("Mr Van der Merwe snr"),
Mrs
Betty Van der Merwe ("Mrs Van der Merwe") and Mr Ernest Van
der Merwe junior ("Mr Van der Merwe jnr") were
attacked by
four male persons in their house. They were assaulted and robbed of
their property valued at approximately R54 000
at gun point. Among
the property that was stolen was a cell phone which belonged to Mr
Van der Merwe jnr. That cell phone was found
in the possession of the
appellant four days after the robbery. Warrant Office Magathla ("Mr
Magathla"), the policeman
who found the cell phone in the
possession of the appellant arrested the appellant and with the
assistance of the appellant was
able to arrest one other suspect, Mr
Antonio Khoza ("Mr Khoza").
[4]
At the time of the hearing of this matter Mr Khoza had already been
convicted and sentenced of the offences in this case. He
was
therefore called as a witness by the respondent to testify against
the appellant. The evidence of Mr Khoza was the only evidence
that
tied the appellant to the commission of the offences as to identity,
the other two witnesses, Mr Van der Merwe snr and Mrs
Van der Merwe
could not positively identify the appellant as one of their
assailants on that night. Mr Khoza's evidence is that
during the
robbery one of the three cell phones they had taken from the
complainants went missing. An argument ensued amongst them
(the
suspects) as to who could have taken the cell phone. Three days after
the robbery he saw the appellant using that cell phone
and a day
after that they were arrested together with the appellant. According
to Mr Khoza that cell phone is what led to their
arrest when it was
found in the appellant's possession.
[5]
After the robbery Mr Van der Merwe jnr was forced to drive the four
assailants with his motor vehicle to a place in Daveyton
where the
stolen property was offloaded. He was then allowed to go home without
being hurt. This complainant did not testify at
the trial, it was
said that he was in hospital.
AD
CONVICTION
[6]
The issue that the trial court had to grapple with was whether the
appellant was one of the culprits who committed the crimes
and
whether the appellant borrowed Mr Khoza R400 and whether Mr Khoza
gave a cell phone as security to the appellant.
[7]
It is common cause that the two state witnesses, Mr Van der Merwe snr
and Mrs Van der Merwe could not identify the appellant
as one of
their assailants. As such the respondent had to rely on the evidence
of Mr Khoza to prove that the appellant was one
of the culprits in
this instance.
[8]
In convicting the appellant, the trial court rejected his evidence as
being not reasonably possibly true. The trial court found
that the
appellant's version on how he happened to be in possession of a
recently robbed item (the cell phone) was full of improbabilities
in
that:
8.1
It was improbable that 'just a day after making a loot valued at
about R54 000, 00 Mr Khoza somehow found himself penniless
that he
had to borrow R400, 00 from the appellant'. According to the trial
court it would have made sense for the appellant to
be borrowing
money from Mr Khoza.
8.2
It made little or no logic at all for a person to borrow another
person so much money while they are not friends, they hardly
knew
each other. They only knew each other by meeting at a tavern.
8.3
It made no sense that the appellant would make use of the cell phone
which was given to him as security for the money he had
borrowed Mr
Khoza. It made less sense that Mr Khoza would put up a stolen cell
phone as security rather than sell it and make use
of the proceeds.
[9]
I am inclined to agree with the trial court's findings that the
appellant's version is not reasonably possibly true and was
correctly
rejected. When reading the record it became quite clear that the
appellant's evidence should not have been accepted as
a true version
of how come the stolen cell phone was found in his possession. His
evidence is contradictory and kept developing
as and when it suited
him when he was giving evidence.
[10]
For instance, in regard to the cell phone that was found in the
appellant's possession by Warrant Officer Magathla, the evidence
of
Mr Magathla is that when he first asked the appellant about the phone
the appellant said it was his phone, the appellant only
told Mr
Magathla that the cell phone belonged to Mr Khoza much later when he
was informed that the cell phone was stolen. The appellant's
testimony, on the other hand, is that he told Mr Magathla
'there
and then'
that the cell phone belonged to Mr Khoza. This,
however, was never said in evidence in chief or put to Mr Magathla
when he was testifying.
I should also add that in evidence in chief
the appellant testified that he borrowed Mr Khoza money this was
never put to Mr Khoza
to admit or deny. Mr Khoza denied in his
evidence ever having borrowed money from the appellant.
[11]
Again, under cross examination the appellant first testified that he
does not know where Mr Khoza stays, but when it was put
to him that
it was odd that he would give R400 to someone he did not even know
where he stays, he changed his testimony. He first
said he knows the
area where Mr Khoza stays and when it was getting difficult for him
changed and said that he knows the house
where Mr Khoza stays. Later
again he testified that he did not know where Mr Khoza stayed but
lzaia showed him the place on the
same day that he borrowed Mr Khoza
the money.
[12]
When the appellant was asked why he used the cell phone which was
given to him as security, he first answered by saying it
is because
he did not have a cell phone and when pressed for an answer he said
he used the cell phone after Mr Khoza had allowed
him to do so.
[13]
The appellant's contention is that the trial court wrongly convicted
the appellant through the evidence of Mr Khoza, an accomplice
in the
commission of the offence, by failing to apply the cautionary rules.
In failing to apply the cautionary rules the trial
court failed to
satisfy itself that the story told by Mr Khoza was essentially true,
so it is argued.
[14]
It is established judicial practice for trial courts to apply
cautionary rules when evaluating the testimony of an accomplice.
The
purpose of the cautionary rules is said to be to assist the court in
deciding whether or not guilt has been proved beyond reasonable
doubt.
[1]
The cautionary rule
does not require that triers of fact should be told, or should warn
themselves about the application of the
rules. What is required is
for a court to look for a safeguard which would reduce the risk of
wrongful conviction.
[2]
[15]
In this instance, the trial court, in reducing the risk of wrongful
conviction, found safeguards in other independent evidence
and the
truthfulness of Mr Khoza's testimony. Firstly, Mr Khoza's explanation
of how the cell phone came to be in the possession
of the appellant
is borne out by the evidence of Mr Van der Merwe snr. Mr Van der
Merwe snr testified that at some stage their
assailants argued
amongst themselves as they could not account to all the three cell
phones taken from them. Secondly, a cell phone,
which was found to
belong to Mr Van der Merwe jnr, was indeed found in the possession of
the appellant. Mr Khoza's testimony that
the appellant had hidden one
of the cell phones and saw it in the possession of the appellant
three days later was never denied
by the appellant. Lastly, when
evaluating Mr Khoza's evidence the trial court found him, correctly
so in my view, to be 'a
credible and reliable witness who stood
firm and intact in his evidence even under lengthy cross
examination'.
[16]
In argument before us, the appellant's counsel submitted that the
trial court erred in concluding that there were five suspects
who
attacked the complainants instead of four as it was testified.
Counsel referred to a passage in the trial court's judgment
where the
trial court referred to five suspects. The version of the respondent
as testified by Mr Van der Merwe snr, Mrs Van der
Merwe and Mr Khoza
is that there were four assailants. It is clear from the reading of
that passage that there was an error by
the trial court when
analysing the evidence of Mr Khoza. The trial court, mistakenly so,
referred to five suspects, when in fact
Mr Khoza has been talking
about four suspects. But, this does not mean that there was
misdirection by the trial court in rejecting
the version of the
appellant.
[17]
A further submission by the appellant's counsel is that the offence
of kidnapping has not been proven. Counsel's basis of contention
is
that the person who was kidnapped, Mr Van der Merwe jnr, did not
testify. Whilst it is so that the person who was kidnapped
did not
give evidence at the trial, there is, however, unchallenged evidence
presented at the trial by the respondent which proves
that Mr Van der
Merwe jnr was kidnapped. This evidence was tendered by Mr Van der
Merwe snr, Mrs Van der Merwe and Mr Khoza. The
evidence remains
uncontested.
[18]
The other argument by the appellant's counsel that the trial court
erred in that it expected that only the appellant should
tell the
truth is unsubstantiated. Counsel was at pains to show evidence in
the record where the trial court indicated that only
the appellant
was expected to tell the truth.
[19]
I could find no evidence that the trial court misdirected itself in
any way in convicting the appellant as it did. The appeal
on both
convictions ought to be dismissed.
AD
SENTENCE
[20]
As regards sentence, the appellant's grounds of appeal at set out in
his heads of argument are that:
20.1
The trial court misdirected itself in failing to exercise its
sentencing discretion properly and reasonably and the sentence
induced a sense of shock.
20.2
The trial court's sentence of the appellant to direct imprisonment
for fifteen (15) years and five (5) years induced a sense
of shock.
[21]
In argument before us, the appellant's counsel only argued the second
ground that the sentence imposed induces a sense of shock
and should
be reduced to a period of eight (8) years imprisonment. The
submission by counsel being that the trial court failed
to take into
account that the appellant had already spent a period of about twelve
months in custody awaiting trial.
[22]
It is not in dispute that initially the trial court had sentenced the
appellant to fifteen (15) years imprisonment on count
1 and five (5)
years imprisonment on count 2. The said sentences were ordered to run
concurrently, as such, the appellant is to
serve a period of fifteen
(15) years only.
[23]
Having perused the trial court's judgment on sentence I could find no
misdirection on the part of the trial court when it imposed
the
sentence it imposed. The trial court considered all the traditional
factors required to be taken into account when passing
sentence.
[24]
The personal circumstances of the appellant as set out by his legal
representative were first considered. The appellant was
26 years old
at the time of sentencing; he was unmarried and had one child aged
eleven years; he did not have any direct family
in South Africa -
most of his family, his parents as well as the mother of his child
resided in Mozambique; he came from Mozambique
and has been in the
country since 2003 due to economic hardships in that country and the
difficulty to procure employment there;
since his time of arrival in
this country he worked as a builder on an
ad hoc
basis;
approximately a year or so before his arrest he had been receiving
employment from East Rand Walling on a contractual basis
earning a
salary of about R40
per
day; he was in custody awaiting trial
for well over a year and was a first offender.
[25]
The trial court took into account the nature and seriousness of the
offences. The circumstances surrounding the commission
of the
offences were considered: the cruel manner in which the robbery was
committed - the whole house was ransacked and items
(valued at
approximately R54 000) that took years to gather, were taken away
never to be recovered except one cell phone; the complainants
were
traumatised - the whole ordeal took three hours; one of the
complainants (Mr Van der Merwe snr) was injured when he was hit
with
the butt of a firearm on the head even though it is said he complied
with all the orders given to him; the humiliation suffered
by Mr Van
der Merwe snr - as head of the family being subjected to the bad
treatment in the presence of his wife and son; and the
prevalence of
the type of offences.
[26]
The interest of society was not left out. The moral outrage of the
society against offences of this nature and their frequency
and the
fact that such offences violate the dignity and self-esteem of
members of society. The trial court then opted for a sentence
that
will deter others from committing similar offences as well as other
offences in general.
[27]
In this regard it is my view that there is no misdirection on the
part of the trial court, it considered all the factors.
[28]
Count 1 was read with the provisions of s 51 (2) of the Act which
means that the application of the minimum sentences' regime
comes
into play. In terms of the legislation governing the minimum
sentences' regime, where a convicted person is a first offender
the
trial court is entitled to impose a sentence of fifteen (15) years
imprisonment unless there are substantial and compelling
circumstances warranting deviation from that sentence. The trial
court was entitled therefore, to impose the sentence of fifteen
(15)
years imprisonment (the appellant was a first offender) unless there
were substantial and compelling circumstances warranting
deviation
from such a sentence.
[29]
The appellant's counsel submitted that due to the relative youth of
the appellant at 26 years, the fact that he was a first
offender and
capable of rehabilitation, the trial court should have considered
such factors as substantial and compelling circumstances
and deviated
from the minimum sentence. However, the trial court, correctly so,
was not convinced that such factors warranted deviation
from the
minimum sentence and as such proceeded to impose the minimum sentence
of fifteen (15) years imprisonment.
[30]
It is not correct that the trial court did not consider the period in
custody the appellant spent awaiting trial when passing
sentence. It
is apparent from the personal circumstances of the appellant that the
trial court considered that fact but did not
find it to have more
weight than the other factors it had to consider. Sight should also
not be lost that the sentence imposed
by the trial court was supposed
to have been twenty (20) years imprisonment but the trial court
ordered the two sentences to run
concurrently. It can as well be said
that this covers the period the appellant spent in custody awaiting
trial.
[31]
The sentence imposed is appropriate. In the circumstances of this
matter the personal factors of the appellant are by far outweighed
by
the aggravating factors. There is nothing shocking, startling or
disturbingly inappropriate with the sentence imposed by the
trial
court. It must stand.
ORDER
[32]
In the premises, the appellant's appeal on both convictions and
sentence should be dismissed.
[33]
I would propose the following order:
33.1
The appeal on both convictions and sentence is dismissed.
33.2
The convictions and sentence imposed by the trial court are
confirmed.
E.
M. KUBUSHI
JUDGE
OF THE HIGH COURT
I
concur and it is so ordered
N
KOLLAPEN
JUDGE
OF THE HIGH COURT
Appearances:
On
behalf of the appellant: MR
J. MALESOENA
Instructed
by:
PAT
SITHOLE ATTORNEYS
Crandway
Building
Cnr
Tom Jones & Cranbourne Avenue
Benoni
1500
On
behalf of the respondent: ADV
M. MASHUGA
Instructed
by:
DIRECTOR
OF PUBLIC PROSECUTIONS
Presidential
Building
28
Church Square
PRETORIA
0001
[1]
See S v Snyman
1968 (2) SA 582
(A) at585C-G.
[2]
See R v Mpompotshe & another
1958 (4) SA 471
(A) at 476E-F.