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[2017] ZAFSHC 90
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Ramoeletsi v S (A193/2016) [2017] ZAFSHC 90 (8 June 2017)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A193/2016
In
the appeal between:
BOSMAN
TSHEPISO
RAMOELETSI
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J
et
RAMDEYAL,
AJ
JUDGEMENT:
REINDERS, J
HEARD
ON:
29
MAY 2017
DELIVERED
ON:
8
JUNE 2017
[1]
The appellant, who was legally represented, was arraigned before the
Regional Court at Parys with three co-accused.
[2]
Appearing as accused number 2 on the charge sheet, he stood accused
of the following charges:
Count 1: Robbery with
aggravating circumstances
Count 2: Robbery with
aggravating circumstances
Count 3: Assault with the
intent to cause grievous bodily harm
Count 4: Assault
Count 5: Malicious damage
to property
[3]
On 1 November 2013 Appellant pleaded not guilty to the charges but
was convicted on 13 March 2015 on charges 1 to 4. On the
same day he
was sentenced as follows:
Count 1: Fifteen (15)
years imprisonment
Count 2: Twelve (12)
years imprisonment
Count 3: Three (3) years
imprisonment
Count 4: Six (6) months
imprisonment
In
terms of sec 280(2) of the Criminal Procedure Act 51 of 1977 (the
“Act”) seven years on count 2 and both the sentences
imposed on counts 2 and 3 were ordered to run concurrently with count
1, with an effective sentence of twenty years imprisonment
to be
served by appellant.
[4]
Leave to appeal was refused by the trial court but granted on
petition by this court in respect of the conviction on count 4
(assault) and the imposed sentences in respect of all four charges.
[5]
All of the crimes of which the appellant were convicted, were
committed on 6 April 2013 in the suburb Tumahole in Parys. In
respect
of count 4 it was alleged that appellant assaulted the complainant Mr
Conrad Boy-Boy Marumo (Marumo) by hitting him with
open hands and
kicking him. The State’s version, as accepted by the trial
court, as to what transpired in the early morning
hours of 6 April
2013 was to the effect that Marumo was assaulted by appellant,
accused number 1 and 4 after his (Marumo’s)
ostensible attempt
to take the complainant in count 3, Mr Teboho James Mia (Mia) to
safety after he (Mia) had been assaulted by
accused number 1, 4 and
appellant.
[6]
The State supports both the conviction on the assault charge and the
sentences on all four charges. Mr Simpson contended that
the trial
court did not misdirect itself in any way.
[7]
Heads of argument on behalf of appellant was prepared by Mr Makhene
but Mr Reyneke appeared before us in court. On the papers
it was
contended that the court a quo erred in convicting the appellant as
Marumo was a single witness in respect of the assault
on him, and he
cannot be said to be a competent or credible witness.
[8]
An application of the necessary caution in respect of a single
witness requires, in essence, that the court satisfy itself that
despite the defects, shortcomings and contradictions in such
evidence, the truth has been told and that the complainant’s
evidence is trustworthy.
See:
S v
Sauls
1981 (3) SA 180
(A)
[9]
It is trite that in the absence of an irregularity or misdirection by
the trial court, a court of appeal is bound by credibility
findings
thereof, unless it is convinced that such findings are clearly
incorrect. In order to succeed on appeal appellant must
convince us,
on adequate grounds, that the trial court was wrong in accepting the
evidence of the complainant. Bearing in mind
the advantage which the
learned magistrate had of seeing, hearing and appraising witnesses,
it is only in exceptional cases that
an appeal court will be entitled
to interfere with a trial court’s evaluation of oral testimony.
See:
S v Francis
1991 (1) SACR 198
(A) at 204c-e.
J
v S
[1998] 2 All SA 267
(A) at 271c.
[10]
Marumo was confronted with discrepancies between his evidence in
court and a statement which he allegedly made before a police
officer. The learned magistrate warned the defence council that
cross-examining would be allowed provisionally, but the author
of the
statement should be called to testify. Same was not done and as such
the statement was not proven. Accordingly the magistrate
correctly
disregarded the alleged contradictions and discrepancies between
Marumo’s evidence in court and the statement.
In his
evidence-in-chief Marumo initially indicated his assailants as
follow:
“
Nou
wie is hierdie mense van wie u praat?---Dit was Papi, Tshipiso en
Nula.
Is
daardie mense hier? ---Ja.
Kan jy hulle aan die hof uitwys, wie
is Papi?---Daardie een met ‘n goud hemp.
Waar meneer?---Die eerste beskuldigde.
Ja?---Tshipiso
is die beskuldigde die beskuldigde nommer 3, hy is nou die 2de van
die linkerkant af van die mense wat in die beskuldigdebank
sit.”
Later
on in his evidence-in-chief and during cross-examination Marumo
however consistently referred to the appellant as accused
number 2 as
being one of his assailants. The court a quo was clearly satisfied
that the reference to the appellant as accused number
3 was a slip of
the tongue or that there might have been a problem with the
allocation of numbering of the accused before court,
or no numbering
at all. What is clear from the evidence is that Marumo identified
appellant as one of his assailants by his name
as Tshepiso. From his
judgment it can be gleaned that the trial court did not consider this
to have an impact on the identification
by Marumo of appellant. That
the defence also holds this view is clear from the fact that the
point was not laboured by the defence
on papers or orally before us.
[11]
The magistrate found that Marumo made a good impression on him in the
witness stand and was an honest, credible and reliable
witness. The
finding by the magistrate that Marumo was a credible witness can in
my view not be faulted. The only question that
remained was whether
it was the appellant who assaulted Marumo and therefore whether he
was a reliable witness in as far as he
testified
that
the perpetrator was the appellant. Mr Reyneke indeed submitted that
the attack on the finding of the learned magistrate was
not as much a
question of credibility but rather the reliability of Marumo’s
evidence.
[12]
The court a quo was well alive to the fact that the reliability in
particular of Marumo should be considered to exclude the
reasonable
possibility of a mistake of the identity of his assailant. As far as
count 4 is concerned the magistrate dealt with
counts 3 and 4
simultaneously in his evaluation thereof as he evidently considered
it to be closely related in time and place,
as both assaults took
place in the same street and in the early morning hours of 6 April
2013. In accepting the evidence of both
the state witnesses Marumo
and Mia, the magistrate was aware of discrepancies between their
evidence, of which the most important
aspect was whether Marumo alone
took Mia to his home after being assaulted or whether he (Marumo) had
assistance in doing so.
The magistrate did not find same to be
material but rather pointing away from a conspiracy to falsely
implicate the appellant as
hinted by the defence. The magistrate also
found that Mia and Marumo corroborated each other in as far as Marumo
confirmed that
at least accused number 1 and appellant assaulted Mia
when he arrived at the scene, whilst Mia also testified that he had
known
accused no 1 and the appellant before the assault. These
corroborations place appellant at the scene where the assaults took
place.
[13]
Marumo’s inherent honesty was found by the magistrate in the
fact that he testified that he couldn’t identify accused
3 as
one of his assailants. From his judgment it can be gleaned that the
court was satisfied that there was adequate lighting at
the crime
scene for Marumo to identify the appellant and the totality of the
evidence sufficiently indicated that Marumo was not
mistaken as to
the identity of his assailant. The conviction by the trial court can,
in my opinion, not be faulted insofar as it
undertook a holistic
consideration of the evidence and was, correctly, satisfied that the
truth had been told and that appellant’s
guilt had been
established beyond reasonable doubt. I am not convinced that the
magistrate erred or was wrong in the approach followed
by him and the
appeal against the conviction cannot be sustained.
[14]
The next enquiry is whether or not the sentences imposed are just,
regard being had to the cumulative impact of mitigating
and
aggravating factors inclusive of the interests of society. It is
trite that the powers of a court of appeal to interfere with
the
sentence imposed, are limited insofar as it can only interfere where
the sentence is disproportionate, harsh or the sentencing
court
committed a material misdirection or did not exercise its discretion
properly or at all.
See:
S v Pieters
1987(3) SA 717 (A)
S
v Makondo
2002
(1) All SA 431
(A).
[15]
Mr Reyneke referred us to
S
v Moswathupa
2012 (1) SACR 259
where it was held that a court must not lose sight
of the fact that the aggregate penalty imposed must not be unduly
severe when
dealing with multiple offences to be punished. The
effective sentence of twenty years imprisonment in total imposed is a
hefty one. However, the appellant was convicted on two counts of
robbery with aggravating circumstances. The magistrate took into
account that appellant was not a first offender. He has previous
convictions which includes housebreaking with the intent to steal
and
assault, both of which are directly relevant to his convictions
in
casu
.
The magistrate had regard to the appellant’s personal
circumstances and took into account that appellant had been in prison
awaiting trial for almost 2 years.
[16]
On count 1 the court a quo found no substantial and compelling
reasons to deviate from the prescribed minimum sentence of fifteen
years. Individualising the sentences as is expected of him, such
circumstances were found to be present in the particulars of the
crime itself. If the magistrate erred on count 2 it was in favour of
the appellant by not finding the prescribed minimum sentence
is
applicable and imposing a lesser sentence of 12 years. The sentences
imposed on count 3 (three years) and count 4 (six months)
cannot be
faulted in any way. Having imposed the various individual sentences,
the magistrate applied the provisions of sec 280(2)
of the Act and
considered 20 years to be an appropriate and proper sentence.
[17]
As mentioned the sentence is hefty but it does not induce a sense of
shock. The question is not whether I would have imposed
the same
sentence but whether the magistrate misdirected himself. I do not
find any misdirections. Had I to impose a sentence as
court of first
instance, I would not have imposed a sentence which differs in
duration so much that it would entitle me to conclude
that the
disparity is of such a considerable nature entitling me to
interfere. Accordingly the appeal stands to be dismissed
in this
respect as well.
[18]
It follows that I am satisfied that the sentence imposed by the trial
court cannot be faulted in any way.
[19]
Consequently I make the following order:
The
appeal against both the conviction on count 4 as well as the appeal
against the sentences on counts 1, 2, 3 and 4 are dismissed.
______________
C.
REINDERS, J
I
concur.
______________
T.
RAMDEYAL, J
It
is so ordered.
On
behalf of the appellant: Mr. D. Reyneke
Instructed
by: Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. A. Simpson
Instructed
by: Director: Public Prosecutions
BLOEMFONTEIN