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2017
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[2017] ZAFSHC 200
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Mehloane and Others v S (A198/2016) [2017] ZAFSHC 200 (7 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A198/2016
In
the appeal between:
ITHUMELENG
MEHLOANE
First
Appellant
POKEDI
POKEDI
Second Appellant
XOLANI
MOMANI
Third Appellant
and
THE
STATE
Respondent
CORAM
:
REINDERS,
Jet
LEFENYA, AJ
JUDGEMENT
:
REINDERS, J
HEARD
ON
:
28 AUGUST 2017
DELIVERED
ON:
7 SEPTEMBER
2017
[1]
The appellants were arraigned in the Bloemfontein Regional Court on
the following counts:
Count
1: Robbery with aggravating circumstances
Count
2: Attempted murder
[2]
Heads of argument was drawn by Mr Kambi on behalf of Mr Mehloane
(First Appellant) and by Mr Vander Merwe in respect of Messrs
Pokedi
(Second Appellant) and Xolani Momani (Third Appellant). Mr Reyneke
appeared on behalf of First Appellant before us, whilst
Ms Kruger
represented the Second and Third Appellants. In their oral
submissions both Mr Reyneke and Ms Kruger stood with the submissions
contained in the heads of argument as to why the court a quo erred in
convicting the appellants.
[3]
The appellants pleaded not guilty to the charges. On 12 April 2016
the appellants were acquitted on count 2, but convicted as
charged on
count 1. On the same date they were each sentenced to fifteen years
imprisonment. Leave was granted by the court a quo
against both the
conviction and sentence in respect of all three appellants.
[4]
Ms
Sekoena on behalf of the State supported both the
convictions and the sentences of all three appellants on the papers
and in argument
before us. She contended that the trial court did not
misdirect itself in any way.
[5]
The magistrate found it to be common cause and not in dispute that a
robbery took place at Steers Bloemfontein on 17 January
2014.
Obviously the learned magistrate in this regard was correct and no
one tried to convince us that he erred in this regard.
What is in
dispute is the identity of the perpetrators.
[6]
The magistrate was impressed with the evidence of Mr Leholonolo
Masotho who at the time was a petrol attendant at the
Engen
garage situated closely to the Steers business in question.
Mr Masotho became suspicious
about the
driving of a Toyota Corolla motor vehicle. The vehicle after driving
past and turned near the butchery came and
stopped in the
driveway of the fuel station
where one of the
occupants alighted and asked
for a tap. He saw four people in the vehicle of which he could
see three in court that day.
The driver was struggling to fix
something on the vehicle's rear view mirror and one of the passengers
later went into the
Engen quick shop. As he was suspicious of
the vehicle he took down the registration number thereof and
one of his colleagues
pressed the panic button as they were concerned
that they were going to be attacked or
robbed. Approximately
30 minutes later the
police arrived and informed them that the registration number
furnished to the police
was involved in a robbery at Steers. At a
later stage after the first appellant was arrested, the witness
identified appellant
one as the driver of the motor vehicle. He also
identified appellant two as the person who went into
the quick
shop. Appellant 3 according to his testimony was seated in
the back of the motor vehicle. The magistrate
considered his evidence with extreme caution and found that his
evidence was clear and satisfactory in every aspect and he did
not
contradict himself in any way.
[7]
The magistrate also had no hesitation in accepting the evidence of
Constable Mkhuzangwe. He was in the patrol car who received
information of a suspicious vehicle and shortly after information
that the occupants of the vehicle had been involved in a robbery
at
Steers. They rushed in that direction and near the dumping site they
identified the vehicle as it skipped robots speeding. They
shot at
the vehicle and at some stage identified Second appellant in the
fleeing vehicle shooting at them. The driver of the vehicle
in chase
apparently lost control over it and its occupants got out and ran
away. The court found that Constable Mkhuzangwe substantially
corroborated the evidence of Mr Masotho.
[8]
The magistrate summarised the evidence of other witnesses whose
evidence I for purposes hereof do not intend to repeat.
[9]
First Appellant testified and confirmed the evidence of the petrol
attendant Mr Masotho that he himself on the evening in question
was
the driver of the vehicle. First Appellant likewise in his testimony
confirmed Mr Masotho's evidence that Second and Third
Appellants were
two of the passengers in his vehicle. He however exonerated himself
by testifying that he was merely requested
by Second and third
appellant to transport them to the Steers to buy food and he was an
innocent participant who had no knowledge
of the robbery.
[10]
Second and Third Appellants also testified and each called a witness,
relying on a complete alibi, and stating that they knew
nothing of
the robbery. The evidence by the alibi witnesses were found to be
contradictory and evasive and were rejected by the
magistrate who was
in the circumstances satisfied that the identification of the three
appellants were correct. The version of
the First Appellant's that he
merely transported Second and Third appellants and knew nothing of
the robbery was likewise rejected
by the magistrate after alluding
extensively to the reasons why the version of First appellant cannot
be reasonably possibly true.
Second and Third Appellants' versions
were rejected similarly.
[11]
In a well-reasoned judgment the learned magistrate dealt fully with
the evidence by the state witnesses as well as the appellants.
He was
alive to the fact that there were some inconsistencies in the
testimonies of the state witnesses, but was satisfied that
they
offered satisfactory explanations for these. He looked at
corroboration by other witnesses and at the evidence in total.
See:
S
v Chabalaa
2003(1) SACR 134
(SCA) at 139i-j.
[12]
The learned magistrate was satisfied from the totality of evidence
before him that the
truth had
been told and rejected the appellants' versions as
not reasonably possibly true. 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
the appellants must convince
us, on adequate grounds, that the trial
court was wrong in accepting the evidence of the state witnesses.
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
supra
1991 (1)
SACR 198
(A) at 204c-e.
[13]
On appeal before us it was contended that the magistrate erred in
rejecting the three appellants' versions. From the short
summary of
evidence above I have no doubt that the magistrate did not misdirect
himself on any aspect. He carefully considered
all the evidence and
the probabilities and
was,
correctly, satisfied that the
appellants' guilt had been established beyond reasonable doubt.
The appellants did not succeed
in convincing me that the trial court
erred in convicting the appellants as charged. Accordingly the appeal
against the convictions
cannot be sustained and stands to
be dismissed.
[14]
The next enquiry is whether or not the sentences imposed in respect
of the appellants are just, regard being had
to the cumulative
impact of mitigating and aggravating factors inclusive of the
interests of society. ft 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).
See
also:
S v Makondo
2002 (1) Alf SA 431(A).
[15]
It is evident from the record that the learned magistrate had regard
to the appellants' personal circumstances, the prevalence
of the
crime, the interest of society as well as the gravity of the offence
in considering just sentences. He took into account
the fact that the
First and Second appellants were first offenders, that there were no
injuries sustained in the commission of
the crime. The magistrate was
alive to the guidelines enunciated in
S v
Malgas
2001 (1) SACR 469 (A) in respect
of the imposition of a prescribed minimum sentence and found that
there existed
no substantial and compelling circumstances to deviate
from the prescribed fifteen years imprisonment. I am of the view that
the
sentences imposed by him are not shockingly inappropriate, harsh
or disproportionate or that the trial court committed a material
misdirection. He did a thorough weighing up of all the trite factors
to be considered in coming to a balanced and just sentence
and
finding no substantial and compelling circumstances. I am satisfied
that the sentence imposed by the trial court cannot be
faulted in any
way.
[15]
I therefore come to the conclusion that the appeal of appellants
against their convictions and sentences should fail.
[16]
I accordingly make the following order:
The
appeals of each appellant in respect of conviction and sentence are
dismissed.
____________________
C.
REINDERS, J
I
concur.
____________________
B.
LEFENYA, AJ
It
is so ordered.
On
behalf of the First Appellant:
Mr. D. Reyneke
Instructed by:
Justice Centre
BLOEMFONTEIN
On
behalf of the Second
and
Third Appellants:
Ms. S. Kruger
Instructed by:
Justice Centre
BLOEMFONTEIN
On
behalf of the Respondent:
Adv M. Sekoena
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN