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[2017] ZAGPPHC 95
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Molefe v S (24/2015) [2017] ZAGPPHC 95 (7 March 2017)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Date:
24/2015
Case
no.
24/2015
In
the matter between:
M.
MOLEFE
Applicant
and
THE
STATE
Respondent
JUDGMENT
1.
The Petitioner's petition was denied. The petitioner was accused 3
during the trial. I shall now refer to the salient reasons
for
dismissing the petition.
2.
Accused 2 and 3 were charged with robbery with aggravating
circumstances and attempted murder and convicted on both counts and
sentenced to 15 and 5 year's imprisonment respectively which
sentences were ordered to be served concurrently.
3.
As to the question how the accused came to be in possession of the
compalinant's car, accused 3 testified that he was phoned
by accused
2 on 23 September 2012 from Orange Farm and requested to assist him
with his vehicle which had broken down. He acceded
to the request and
found accused 2 with the Golf motor vehicle. They decided to push the
car to where his cousin, accused 1, resided
and to look at car the
next day.
4.
Later, after the arrest of accused 1, accused 3 made a statement to
the police which was handed in as Exhibit B. In the statement
accused
3, however, lied to the police and said that he knew nothing of the
car.
5.
Accused 1's evidence was important. He testified that he was phoned
by his cousin, accused 3, who said that he was on his way
to Orange
Farm. When he arrived in the company of other men and in three cars,
at between 1:00 and 1:30, accused 3 said to accused
1 he wanted to
park the cars at accused 1's place. Accused 1 opened the garage and
accused 3 parked the Golf in the garage and
the other cars were
parked on the property. It was the complainant's Golf vehicle which
accused 3 was driving and which he parked
in the garage of accused 1.
Accused 1 did not know the six persons with accused 3 who drove in
the other two cars except that accused
2 was one of them. He had seen
accused 2 with accused 3 before. Accused 3 said they were going
drinking and he would be back the
following day to get the car.
Accused 1 was not cross-examined on behalf of accused 3.
6.
It seems clear that accused 3 played the leading role as far as the
hiding of the stolen car at accused 1's place is concerned
and that
the car was in a working condition and that accused 3 was the one who
drove the car into the garage.
7.
Earlier that night, at 21:30 on 22 September 2012, the robbery took
place. At aproximately 2:00 on 23 September Const Sumbana
got the
message to look for the stolen vehicle. At the same time they got the
signal from the vehicle's tracking system. They found
the vehicle in
the garage of accused 1. The burglar gate of the garage was locked.
Accused 1 immediately told Const Sumbana that
the car belonged to his
cousin, accused 3. Accused 1 phoned accused 3 and told him that the
police were there for the stolen vehicle.
The line went dead and
after that accused 3's phone remained off.
8.
Later accused 3 visited accused 1 in jail and told him to deny
everything. Accused 1 got angry because accused 3 brought the
car
there and then denied everything.
9.
Accused 2's verson was that he was phoned by accused 3, who was one
of his employees, and requested to go with him to a client
who owed
them money. Accused 3 directed him to the complainant's place.
Accused 3 got out and went to the complainant who was outside
his
house. They walked away from the house and accused 3 told accused 2
to follow them. The complainant apparently owed accused
3 money.
According to accused 2 the complainant and accused 3 knew each other
and he added that he had seen the complainant at
accused 3's place in
Orlando. According to accused 3 the business with the complainant did
not go as anticipated and according
to accused 2, accused 3 then
produced a firearm and pointed it at the complainant.
10.
The complainant grabbed the firearm and they struggled for possession
thereof. The firearm fell on the ground and accused 2
went back to
their car. He then heard a shot. Accused 2 drove off and later
phoned accused 3 asking him what had happened.
According to accused 2 he was not with accused 3 when he parked the
stolen Golf at accused 1's place.
11.
As mentioned before accused 3 testified that accused 2 phoned him to
come and assist him with his car that had broken down and
couldn't
start. He went to accused 2, then took his own car to his
grandmother's place. That is the place where accused 1 was residing.
He went back to accused 2 and they pushed the broken down Golf
vehicle to accused 1's place.
12.
The version that accused 3 parked his car at accused 1's place and
then walked back to where accused 2 was, was never put to
accused 1.
It was also not put to accused 1 that the complainant's car was
pushed and not driven, when he testified that accused
3 had driven
the car.
13.
Accused 3 could also not explain adequately why the car could start
and run perfectly well the next day if it could not start
the
previous night and had to be pushed, according to his version.
14.
There is no doubt that the evidence of accused 1 has to be accepted.
According to his evidence accused 3 was in control! of
the stolen car
and drove the car and put it in accused 1's garage before going to
town with his friends, including accused 2.
15.
Furthermore, accused 3's version is riddled with improbabilities. To
suggest that accused 2 would have called him to come out
in the early
hours of the morning if the car was starting and running perfectly,
has to be rejected. Furthermore, accused 3 and
accused 2 would hardly
have pushed the car to accused 1's home if the car was running
perfectly well. The whole basis for accused
3's defence, namely his
reason for being on the scene, was destroyed by these simple facts.
Furthermore, once it is accepted that
there was nothing wrong with
the car's engine, it destroys accused 3's version as to why he went
to Orange Farm in the first place
because then accused 2 would not
have phoned him to assist him with his breakdown.
16.
Accused 3 admitted that accused 1 phoned him when the police were
there to arrest him. His explanation why he did not phone
accused 1
back or went to him, was not adequately explained to him.
17.
Later he was phoned by accused 1 who told him he had been arrested.
He could not get hold of accused 2 and went to the police
station. He
told the police that "we" left the car at accused 1's
house. Accused 3 was arrested. The police told him
the car had been
hijacked and that the owner had been shot and killed. According to
accused 3 he then panicked and therefore left
the car there.
18.
Accused 3 thus admitted that he was one of the persons who took the
car to accused 1. By doing so he tried to convince the police
of
accused 1's innocence. But he could hardly have done so without
having had knowledge of he car. And why would he panick if he
had
done nothing wrong. He lied to the police before he was even
implicated.
19.
In fact, in his statement to the police he denied any knowledge of
the car. Why would he deny all knowledge if he had done nothing
wrong.
20.
It is necessary to again refer to the status of the complainant' car.
The complainant said there was no problem with his car
when he found
it after the robbery. There was also no suggestion of anything
being wrong with its engine prior to the robbery.
Thus accused 3's
allegation that accused 2 phoned him to come and fix the Golf and
that it couldn't start, cannot be true. Furthermore,
accused 2 was a
mechanic himself and according to accused 2 he would have been able
to fix mechanical problems himself. Furthermore,
how would they get
the car to accused 1's place if it had mechanical problems. Accused 3
said they pushed the car after he had
left his own car at accused 1's
place. But, as I have already mentioned, it was never put to accused
1 that accused 3 was at his
place twice, once to leave his own car
and again when they pushed the car there. If they had fixed the car,
why would they leave
the car with accused 1 in the early hours of the
morning only to return the next day.
21.
I cannot fault the Magistrate's acceptance of the evidence of the
complainant and of accused 1 and describing them as good witnesses.
I
also agree with the Magistrate's rejection of the evidence of accused
3 and the reasons for doing so. Accused 3 tried to distance
himself
from the hijacked vehicle but he failed dismally in his efforts. His
evidence was, as against the accepted evidence of
the complainant and
accused 1, not reasonably possibly true and in my view no other court
would reasonably come to a different
finding.
22.
I consequently cannot fault the Magistrate's finding that accused 2
and accused 3 acted in concert when they committed the robbery
and
when accused 2 shot the complainant and in my view accused 3 has no
reasonable prospects of succes in any appeal proceedings.
23.
Consequently, the petition was denied.
________________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT
I
agree
________________________
D.
S. MOLEFE
JUDGE
OF THE HIGH COURT