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[2017] ZAFSHC 195
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Maxala v S (A166/2017) [2017] ZAFSHC 195 (19 October 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A166/2017
In
the appeal between:
DATHINI
SOLOMON
MAXALA
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J etMATHEBULA, J
JUDGMENT
BY:
MATHEBULA, J
HEARD
ON:
16 OCTOBER 2017
DELIV
E
RED
ON:
19 OCTOBER 2017
[1]
These were appeal proceedings with leave granted by members
of this court on petition. The appellant was convicted
in the
regional court, Welkom, on two (2) counts namely assault with intent
to do grievous bodily harm and attempted robbery. He
was sentenced to
five (5) and three (3) years direct imprisonment respectively.
In terms of section
280 of Act 51
of 1977 both sentences were ordered to run
concurrently. The
appeal is against both
convictions and sentences.
[2]
On the 28th February 2015 at Thabong, Welkom, T. M. a boy aged
fifteen (15) years was walking in the street heading home from
school. It was Saturday afternoon. He came across two (2) male
persons and one of them accosted him. This assailant held him by
his
waist belt and demanded that he hand over his wrist watch. Initially
he resisted and the assailant pulled out a knife. Instead
he offered
to give him the R9.00 in his possession. The assailant commented that
it was meagre and pressed ahead his demand for
the wrist watch. He
started scratching him on the face with the knife and inflicted a
stab wound on the fourth finger of the right
hand which required one
stich.
[3]
The complainant decided to defend himself and hit the assailant with
a fist. A scuffle ensued and both fell on the ground with
the
assailant still armed with a knife. As they continued locking horns,
the assailant managed to stab him on the back sustaining
a deep
wound. At some stage they both stood up and the assailant fled the
scene empty handed. The complainant was taken to hospital
for medical
attention.
[4]
The appellant denied any involvement and put his identity in dispute.
The complainant was approached by two persons that he
could describe
as short and tall. The incident occurred during broad daylight with
no impediment whatsoever on visibility. He testified
that he was
surprised by the conduct of the tall assailant and he endeavoured to
have a proper look at him. Both of them did have
a conversation with
each other prior to the complainant sustaining injuries. He was dark
in complexion and had a beard. He was
neither fat nor thin. He was
wearing blue track pants and top. This is the very same persons that
was apprehended and brought to
him by the police at the back of their
van minutes later when he was at the hospital.
[5]
It is on the basis of this evidence that the court a quo convicted
the appellant on two (2) counts of assault with intent to
do grievous
bodily harm and attempted robbery. Leave to appeal was granted
against convictions and sentences precisely due to possible
duplication of charges. The thrust of the appeal is whether the court
a quo erred in convicting the appellant on both counts. Both
counsel
for the appellant and the respondent are in unison that the court a
quo erred in finding the appellant guilty on both counts
whilst the
same facts were used to support both charges. I agree with
their submission on this aspect.
[6]
The appellant approached the complainant with the purpose of
relieving him of his possession. In this case it was the wrist
watch
that was his main objective. The
complainant was unwilling to comply and at first displayed
stubborn
tendencies. In order to subdue him to co-operate, the appellant
resorted to pulling out a knife. The violence exerted
was directed
towards subduing the complainant to co-operate in order to achieve
the ultimate prize. That was to rob him. The entire
episode was a
continuous act from the beginning to the end. The complainant was
scratched and stabbed in an attempt
to compel
him to succumb to the whims of the appellant.
In its evaluation of the evidence placed
on record, the court a
quo noted on page 57 line 11 that the whole purpose was robbery
and as a result the complainant was
injured. It is incorrect to
conclude, as the court a quo did, that the appellant formed different
or separate intentions as he
perpetrated his unlawful acts against
the complainant.
[7]
The requirements of the correct standard to be applied were
articulated as common sense and fairness of the court in
S v
Khuzwayo
1960 (1) SA 340
(A) at 344B.
It is difficult to develop
a set of rules that can be applicable in all circumstances. In
S v
Benjamin
1980 (1) SA 950
(A) at 956 F-G
the court espoused the
enquiry in the following manner:-
"Om
te beslis of daarin
'n
bepaalde geval 'n onbehoorlik splitsing
van aanklagte is, maak ons Howe veral twee praktiese hulpmiddels
gebruik, nl:
(1)
waar meerdere handelinge plaasgevind het, of hulle met 'n
enkele opset verrig is as
'n voorgesette gebeurtenis,
(2)
waar die getuienis om die een aanklag te bewys ook meteen die
ander aanklag
bewys".
Applying
the legal principles as developed, I am convinced that the court a
quo erred and that the conviction on count number 1
is duplication of
charges. I say so on the basis of the reasons advanced in the
preceding paragraphs.
It is
my considered decision that the
conviction and subsequent sentence relating to count number 1 cannot
stand. It ought to be set aside.
As far as conviction on count number
two (2) is concerned, I could find no misdirection
on the part of the court
a quo and the conviction must stand.
[8]
The last issue to be considered is the sentence component of the
appeal on count number 2. The appellant is aggrieved about
the
sentence of three (3) years direct imprisonment imposed for attempted
robbery. During oral argument counsel for the appellant
conceded that
the court a quo did not err in imposing the aforementioned sentence.
It was a commendable submission in the circumstances.
The respondent
on the other hand lamented that the court a quo was too lenient to
impose such a sentence. As there is no cross
appeal to increase the
sentence, the respondent is hamstrung to pursue the argument.
[9]
It is settled law that sentencing is pre-eminently the discretion of
the trial court. The court of appeal will ordinarily interfere
with a
sentence if:
"there
has been an irregularity that results in a failure of justice; the
court below misdirected itself to such an extent
that its decision on
sentence is vitiated; or the sentence is so disproportionate
or shocking that no reasonable court could have imposed
it."
see:
S v Bogaards
2013 (1) SACR 1
at paragraph
41.
[10]
In this matter, I could not find any blemish indicating that the
court a quo exercised its discretion improperly and/or unreasonably.
The appellant attacked an unarmed minor child. The complainant
sustained serious injuries as a result of that wanton attack. He
is
fortunate to be living to tell the tale simply because he mounted a
feisty defence of his life and limb. There is no justification
to
interfere with the sentence imposed in this regard. The appeal ought
to fail.
[11]
Accordingly I make the following order:
Count
number one
11.1
The appeal against count number 1 is upheld.
11.2
Both conviction and sentence are set aside.
Count
number two
11.3
The appeal against count number two (2) is dismissed.
11.4
Both conviction and sentence are confirmed.
______________________
M.
A. MATHEBULA, J
I
concur.
______________________
C.
REINDERS
On
behalf of the appellants:
Mr. P. van der Merwe
Instructed
by:
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv. N. Z. Nameka
Instructed
by:
Director: Public Prosecutions
BLOEMFONTEIN