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[2017] ZAGPPHC 312
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Tshebesebe v S (A566/16) [2017] ZAGPPHC 312 (25 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A566/16
DATE:
25 April 2017
JOHN
MOGODI
TSHEBESEBE
Appellant
V
THE
STATE
Respondent
JUDGMENT
MABUSEJ
:
[1]
This is an appeal against both the conviction and sentence,
leave so to appeal having been granted on petition
by
Jansen J and Lebala AJ.
[2]
The appellant appeared before a regional court magistrate in Cullinan
where he was charged
with
robbery with aggravating circumstances as contemplated
in s 1 of Act 51of 1977 ("the CPA")
read with the
provisions of s 51 (2) of the Criminal Law Amendment Act
105 of 1997 ("the Minimum
Sentence
Act"). He was accused of having committed
the offence on 16 October
2013 at Refilwe when he
unlawfully and intentionally assaulted one AA Mename and there
and then with force, when he took
certain items, to wit R1500.00
cash, airtime to thev alue of R800.00 and cigarettes to the value of
R750.00, the property at the
time in the lawful possession of
the said AA Mename by use of a firearm or a dangerous weapon. It is
also contended by the
State that during the said robbery serious
injuries were inflicted on the said AA Memane.
[3]
The appellant, who pleaded not guilty to the charge enjoyed
legal representation during the entire trial.
Despite his plea of not guilty to the charge he was convicted
accordingly and pen conviction, sentenced to 15 years imprisonment.
[4]
The offence against the appellant arose from the following
circumstances. On 16 October 2013 the said Adisa
Adam
Adade Mename (the complainant) was in the shop
selling and waiting for customers
at Refilwe.
He was being assisted by his brother, Adamaje Tamras
Gabore ("Gabore") who
at the specific stage had gone to the
toilet. It would appear that the toilet was
outside the shop building.
While he was still waiting for
his customers, one walked in. It was a black man.
He produced
a R20.00 note, told him that he wanted
a Vodacom R12.00 airtime and gave him R20.00. He took the
R20.00
note and bent down to fetch the airtime.
[5]
Immediately when he rose from where he had fetched the airtime and
when he was preparing to give such airtime to the first black
man two
other men walked into the shop. One of these men
was armed with a firearm. The man who had
a firearm
pointed it at him, told him to come out behind the counter and
to lie down on the floor. He obliged and lay
face down on the floor.
After lying down the first black man firstly stood on his back and
thereafter sat on it. The
other two then went behind the
counter and took airtime and money and cigarettes. The
first black man who was the accused
in the court
a quo
and now
the appellant in this appeal stabbed
him with a knife once on his left shoulder and asked
him where the
other money was. He screamed and as he did so they all ran out, the
appellant ran into the direction of his brother
and the
other two into a different direction.
The brother caught the
appellant. Members
of the community came. The police
were called.
The knife was found in
his possession. That is the knife that the appellant
had while
he was fleeing. The community
members took the knife from the appellant and gave it to the police.
[6]
The robbers took cash, airtime and cigarettes from the shop to the
value of R1550.00.
[7]
As a consequence of being stabbed with a knife on the shoulder
he sustained an injury and bled. He was
detained
for two months, first at a hospital in
Bronkhorstspruit and later at Steve Biko
Academic Hospital here
in Pretoria for medical treatment.
[8]
During cross-examination he testified that
the people who came to rob him
spoke
to the appellant. The appellant's version was put to him that
the appellant gave him a R50.00 note, which
he
denied and gave him a wrong
change and when he queried
the
change he threatened to stab him with the knife, which he also
denied. Again during cross-examination
the J88 was
handed in. In addition and after further scrutiny of the said
document, he testified that he also had sustained
a small cut on his
hand caused by the knife that the appellant had. It was furthermore
put to him that it was not the appellant
who stabbed him with the
knife. He was adamant that it was indeed the appellant who
stabbed him with the knife.
[9]
The appellant testified in his defence. He admitted that on the
date in question he was at the complainant's shop,
having gone
there to buy airtime. He got the airtime plus R8.00
change. He had a fall out with the complainant over
the change that
the complainant had given him. He claimed that when he bought
airtime he gave the complainant
R50.00 but instead of the
complainant gave him a change of R38.00, he gave him only R8.00.
[10]
He denied that he pulled out a knife and stabbed the complainant with
it. He testified that the complainant approached
him with clenched fists as he went out of the shop. As he did
so some members of the public walked into the shop. The
public
walked into the shop when he and the complainant
started to fight. The next thing that he saw was
members of
the public grabbing him and tying his hands with ropes
behind his back. On a question by the court he said
that the
complainant grabbed him by his clothes and hit him with fists.
He hit back.
[11]
The court led the evidence of one July Kleinbooi Maseko ("Maseko").
His evidence related to events that
took place after the robbery.
It will therefore not be helpful to this Court.
[12]
The court
a quo
was satisfied that the State had proved its
case beyond reasonable doubt. Accordingly it convicted the appellant.
The court remarked
during its judgment that it was not denied that
the knife was recovered from the complainant. It was
further not denied
that the appellant was assaulted by the
members of the community until he was saved by
Maseko.
Furthermore
it was never denied that the
complainant had an injury
at the
back of his shoulder. It was also not in
dispute that the complainant was
robbed and it was
common cause that the appellant was assaulted by the community
and suffered some injuries.
[13]
The court remarked that the evidence of the complainant on the
alleged robbery was that of a single witness and of course the
court
was alert against the dangers inherent in the evidence of
a single witness. The court
accordingly
approached the evidence with caution. The impression
that the complainant created to
the court was that it was
alarm individual who gave his evidence in a collective manner.
The only contradiction that
was inherent was that he said he
forgot about the secondary injury. It was a slight injury on
his right hand top of
the finger. The fact that he told the court
that he was two months in hospital is not a contradiction because
the State prosecutor's
remark in re-examination was that he was
an outpatient at Steve Biko Hospital.
[14]
The court remarked that it could not make a justifiable inference
that the complainant was unreliable because
of a
single omission to make reference of a slight
injury on his hand.
According
to it there were no other inherent contradictions
by the complainant or external contradictions
by any
other witness before the court. The
court could not find any
more default in any of the
state witnesses or the court witnesses to falsely implicate the
accused. No one knew the
accused before the incident.
[15]
The court made no adverse inference about the complainant as a
witness nor about his brother. The court was satisfied that
the State
witness testified satisfactorily in all respects. The court stated
that upon a consideration of the totality of the evidence
it was
satisfied that the version· by the
appellant could not be reasonably
possibly
true and that it must be rejected. On that basis it
rejected the appellant's evidence.
[16]
Upon conviction the court
a quo
sentenced the appellant to 15
years imprisonment in terms of the provisions of
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
. The court
a
quo
did not find any substantial
and compelling circumstances to justify
the imposition of a sentence lesser than the prescribed
one. Mr. Moeng argued that the sentence imposed on the
appellant by the court
a quo
should be interfered with and
reduced because the appellant was severely assaulted by the
members of the community.
Such an
assault was unlawful. Taking it into account it would validate
the conduct of the community which was unlawful. It
will make bad
precedents that a suspect can always be assaulted with the hope or
possibility that his sentence before a court
of law may be reduced.
[17]
In imposing sentence we are satisfied that
the court a quo took into account all the relevant factors,
including
the personal circumstances of the appellant and the fact that he had
a clean record. The court
a quo
supported its findings
by reference to decided cases. In our view the court a quo did
not misdirect itself in any manner in
imposition of an appropriate
sentence.
[18]
The following order was made by the court
a qua
''ln
terms of
section 51(2)(a)
, you are sentenced to 15 years'
imprisonment and I state it that 51(2)(a) means in terms of
Section
105
of the 1997, you must continue four fifths of your sentence of 15
years, it is 12 years before you have the right to go on parole."
We
are of the view that by imposing such a sentence the court
a quo
attempted to dictate to the Department of
Correctional Services as to how it
should
conduct its affairs. It was
unnecessary and not appropriate. This Court is at large to vary
the sentence
imposed by the court a quo by jettisoning the
unnecessary appendages. No one Department of the State is
entitled to dictate
to another Department of the State
how the latter must conduct its own affairs.
[19]
Accordingly we make the following order:
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence is upheld.
3.
The sentence imposed on the appellant by the court
a
quo
is hereby set aside and in its place is substituted the
following:
"3.
1
The accused is sentenced to 15 years imprisonment.
“
__________________________
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
I
agree
__________________________
S.C.
MIA
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for the appellant:
Mr. SMoeng
Instructed
by:
Pretoria Justice Centre
Counsel
for the respondent:
Adv. M Molatudi
Instructed
by:
Director of Public Prosecutions
Date
Heard:
25 April 2017
Reasons
furnished on:
25 April2017