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[2017] ZAFSHC 221
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Livanje v S (A143/2017) [2017] ZAFSHC 221 (19 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A143/2017
In
the Appeal between:
BERNARD
ANTONY
LIVANJE
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI,
J
et
DANISO, AJ
HEARD
ON:
9 OCTOBER 2017
JUDGMENT
BY:
DANISO,
AJ
DELIVERED
ON:
19 OCTOBER 2017
[1]
The appellant and his co-accused appeared in the Hoopstad Regional
Court where they were indicted on three charges, namely,
housebreaking with intent to commit a crime unknown to the state,
attempted murder and illegally entering and/or remaining in the
Republic of South Africa. The state alleged that they committed the
offences at Hoopstad on Tuesday 09th October 2014 and that
the scene
of the crime was on farm a known as Witpan.
[2]
After pleading not guilty to the first and second charges, the
appellant tendered a plea explanation. He admitted that he was
indeed
on the farm known as Witpan on the day in question. His admission was
accordingly recorded by the regional magistrate in
terms of
section
220
of the
Criminal Procedure Act 51 of 1977
“the
Act”). With regard to the third charge, he pleaded guilty in
terms of
section 122
(2) of the Act.
[3]
On 15
th
July 2015 all three
accused were convicted on the strength of the
evidence in respect
of charge 1 notwithstanding their plea and on
their own plea of guilty in respect of charge 3. Each of the accused
was subsequently
sentenced to 10 and 2 years imprisonment in respect
of the first and the third charges respectively.
[4]
The appellant was aggrieved by his conviction in
respect of the first charge. He applied unsuccessfully
for
leave to appeal against his conviction and sentence.
His application was dismissed by the court
a
quo
on
the 05
th
July 2016. However, leave to appeal
was subsequently granted on 24 March
2017
by Lekale J
et
Mbhele
J on petition in terms of
section 309C
of the Act.
[5]
The complainant was asleep in his house when at or about 1am his
alarm went off. He woke up to investigate but found nothing
peculiar.
He went back to bed and slept. About an hour later, he was woken up
by the noise of what sounded like a breaking window.
He jumped out of
his bed, got hold of his firearm and rushed to his mother's bedroom
where his mother and sister were sleeping.
He found them also awake
and he realised that the window of his mother's bedroom was also
broken. He then saw a shadow outside
that window and then he also
noticed that the curtain was moving. It appeared to him as if a
person wanted to enter the house through
that window. He immediately
fired two shots while he was in the bedroom. Then there was silence.
[6]
It was not in dispute that the appellant was the person who was shot
by the complainant; that a few hours after the shooting
he was found
lying under a tree; that the tree in question was on the
complainant's farm, a short distance from the farmhouse;
that he was
wounded and also bleeding; that there was no trail of blood detected
between the farmhouse and the tree in question;
that his van was
found parked in town approximately 12 km from the farmhouse and that
his 2 co-accused were found hiding in the
forest on another farm
about 15 kilometres away.
[7]
The appellant however denied that when he was shot he was at the
complainant's house. According to him when the bullet struck
him he
was about 500 meters away from the complainant's house. He and his
co-accused were at that stage walking back to their vehicle
after
chasing a gold dealer who had conned them out of R14 000.00 by
selling them fake gold.
[8]
As regards substantive merits, the appellant challenges his
conviction on the following grounds:
(a)
The state's evidence failed to prove that the appellant is
guilty of the crime of housebreaking
with the intention to commit
robbery, in that the state failed to prove that the appellant entered
the house and/or what the intent
of the appellant
was;
(b)
The trial court erred in finding the appellant guilty on
circumstantial evidence, when in the circumstances
it was not
the only inference that could be drawn;
(c)
The trial magistrate erred in finding that the circumstantial
evidence against the appellant excluded
any other conclusion;
(d)
The trial magistrate erred in rejecting the appellant's
evidence as being not reasonably true.
(e)
It was also argued by the appellant's counsel that the fact that no
blood was found next to the complainant's
window supported the
appellant's version that he was not standing next to the complainant’
s window when he was shot.
(f)
He further argues that because the appellant's vehicle was parked in
town far away from the complainant's
house showed that their
intention was not to rob, as they would otherwise have obviously
needed the vehicle to transport the stolen
goods.
[9]
The issue on appeal was whether the evidence established, beyond
reasonable doubt, all the elements of the offence of housebreaking.
We were specifically called upon to determine whether the element of
physical entry into the complainant's house by an intruder,
whoever
he might have been, and the element of criminal intent to rob were
established.
[10]
It is trite law that a court of appeal will not interfere with or
temper with the trial court's judgment or decision regarding
conviction unless it (court of appeal) finds that the trial court
misdirected itself as regards its findings of facts or the law.
See
R
v
Dhlumayo
&
Another 1948
(2) SA 677 (A)
.
The principle
was also reaffirmed in
S v Mlumbi
1991 (1) SACR 235
(SCA)
at
247g, as follows:
(g)
"Dit is gevestigde reg dat indien daar geen wanvoorligting op
die feite is nie, die vermoede bestaan dat die verhoorhof
se
evaluering van die getuienis korrek is, en dat 'n Hof van appel
alleenlik daarmee sal inmeng indien dit oortuig is dat daardie
evaluasie
verkeerd is".
[11]
On the facts germane to this matter, in convicting the appellant the
court a quo relied on the evidence presented by the six
state
witnesses, namely: the complainant, Mr Ettiene
Le Roux, his sister, Ms Venter,
and four police
officers who responded to the housebreaking complaint.
[12]
The court a
quo
found that the state witnesses were good
witnesses, that they corroborated each other in material respects and
that there was no
reason to doubt the veracity of their evidence. The
proven facts showed that there were people outside the complainant's
home during
the night in question; that they first broke into the
store room where they removed the spade before they proceeded to the
farmhouse.
They then used the spade to break the complainant's
windows. Initially they smashed the window of the lounge. Later on
they smashed
that of the bedroom.
[13]
The evidence showed that the complainant had securely locked all the
doors and securely latched all the windows the previous
evening.
However, one bedroom window was found open. One of the window panes
of the same window was found broken after the incident.
The spade was
found lying down on the ground next the window. The regional
magistrate deduced from those objective facts that a
burglar must
have smashed the window pane with the spade, inserted his hand or
some kind of an instrument into the bedroom through
the hole in the
broken window pane, unlatched the window and pushed the window to the
outside in order to get into the house. Since
the window latch was on
the inside, the burglar naturally had no option but to insert his
hand into the house to turn it. That
was the only manner to unhook
it. The insertion of either the burglar's hand or instrument into the
house in that manner constituted
sufficient entry in law. The finding
of the court a qua to that effect is one which I cannot, on appeal,
hold to be wrong.
[14]
The learned author
Snyman; Strafreg on page 547 of the
Sixth
Edition
states the following-:
"Die
Binnetrede. Die blote oopbreek van ·n struktuur sender ·n
binnetrede is nie voldoende om die misdaad daar
te stel nie, alhoewel
dit kan neerkom op paging om ·n misdaad te pleeg. Net soos
"gebou of struktuur"
en
"die oopbreek”,
is ook
"die binnetrede"
‘n hoogs tegniese
begrip. Die binnetrede is voltooi die oomblik wanneer X ‘n
deel van sy liggaam of enige instrument
wat hy vir daardie doel
gebruik, deur die opening steek met die opset om sodoende beheer oor
die inhoud (of ‘n gedeelte daarvan)
van die gebou of struktuur
uit te oefen."
I
am in respectful agreement.
The
appellant's contention that the complainant's mother or sister might
have opened the window after the complainant had closed
it was
not borne out by the facts. Besides it was never put to Ms Venter or
even to the complainant.
[15]
The appellant was the only witness who testified for the defence.
However, he did not impress the trial court. The court found
that he
was not an honest witness; that he contradicted himself with regard
to the exact spot where he was when he was shot and
that his version
was marred by inherent improbabilities. The court was of the view
that if it were to accept his version, then
it would have
to accept that someone else broke into the complainant's property at
the very same time that the appellant
and his co accused were
pursuing their gold dealer in the same vicinity of the
complainant's house. The trial
court correctly found that such a
proposition was, on the facts, highly unlikely.
[16]
It was highly improbable that the appellant and his accomplices would
drive over hundred kilometres for the purpose of clinching
a
dubious gold transaction at a place they have never been before. The
appellant had no constructive knowledge whatsoever of the
personal
particulars of the alleged seller. He hardly knew anything about the
essential details of the product such as quantity,
quality and the
price. Moreover, he could not give any sound reason as to why they
had to meet the mysterious gold smuggler on
the property of someone
else at such an awkward time of the night. The evidence that
Hoopstad, unlike Welkom, was not known for
illegal gold activities
was uncontroverted.
[17]
It was quiet peculiar that the appellant had in
his possession R15 000.00 cash which he carried all
the way
from Gauteng by share intuition, which amount ultimately happened to
be the exact price that the seller asked for. All
this despite the
fact that he had never had any prior discussion with the buyer
regarding the transaction. The appellant would
not have been
indifferent to the dangers of wandering abound on strange farms
during the odd hours of the night. The court a quo
was correct in
saying that the appellant probably knew or ought to have known that
rural farming communities were troubled
by farm attack offences
which are often committed at night.
[18]
The state also relied on circumstantial evidence to prove that the
appellant and his co-accused were the perpetrators
who
broke into the complainant's house. Such evidence consisted of three
sets of shoeprints which the complainant and the
police detected near
the complainant's house. The appellant's shoeprints matched of
the suspicious sets of shoeprints. Moreover,
two of those shoeprints
led the police the forest or woods on another farm. Believing that
the suspects were hiding in the thick
forest, the police set it
alight. Lo and behold! Two men were flushed out of the forest by the
heat of the fire. They turned out
to be the wanted suspects, the
appellant's companions. The patterns of the soles of their shoes
matched those of the suspicious
shoeprints found in the vicinity of
the crime scene.
[19]
In the light of the shoeprint evidence, the court a
quo
was
correct in finding that it placed the appellant and his co-accused on
the scene of the crime. The conduct of his companions
strongly
militated against his alleged innocent presence on the farm in
relation to the occupants of the farmhouse. If they had
no criminally
evil intentions against the occupants, as the appellant wanted the
court a qua to believe, they would probably have
done all they
could to help their wounded companion. Those pieces of circumstantial
evidence seriously implicated the appellant.
They justified an
inference of guilt as correctly drawn by the regional
magistrate. In my view the appellant's defence
was correctly
rejected as being not a reasonably true account of the circumstances
underlying his presence on the farm.
[20]
As appears from
S v Mkhabela
1984 (1) SA 556
(A)
at
5638-F evidence of shoe/footprints is admissible. However, the
court must be cautious in relying upon such evidence especially
where
it is the only evidence against the accused. The cogency of such
evidence must depend upon all the circumstances of the case.
In this
matter the appellant has admitted that he was indeed in the vicinity
of the complainant's house and that he was shot by
one of the bullets
there. It seemed quite improbable that the complainant would have
ventured out of his house which was under
siege to confront the
appellant in the veld some distance away from his safe haven where
the appellant was pursuing a swindler.
The mere absence of a trail of
blood on the concrete slap or paving around the farmhouse does not
really assist the appellant.
From experience, it is
a known phenomenon that, at times
gunshot wounds do not
always cause their victims to instantly bleed.
I suppose much depends on the part of the body actually wounded. In
this instance,
the appellant was shot in the hip.
[21]
The appellant contended that the evidence tendered by the respondent
did not establish the requisite criminal intend to rob.
In developing
that argument further, Mr Peyper submitted that the fact that the
appellant had left his light delivery van in town
coupled with the
fact that no weapons were found in his possession or in his
companions', were indicative of lack of such criminal
intent.
[22]
The fact that no weapons were found in their possession is immaterial
as they were caught hours after the incident. As they
took to flight
from the crime scene, they had every reason to believe that the
police would be on the lookout for them. Therefore,
they had to get
rid of whatever weapons they might have had in their possession
because if they were found with weapons in their
possession, the real
purpose of their mission to Witpan Farm would have been relatively
easy for the police to figure out. In other
words weapons would have
betrayed their state of mind. I have every reason to suspect
that they were probably armed. About
an hour before the shooting,
they were well aware that the inmates were home. But that did not
deter them. If they were not armed,
they would probably have called
off their mission. But they did not. Their audacious determination to
break in at all costs, was
a clear indication that they were
adequately equipped to deal with any resistance by the occupants in
defence of what was theirs.
In the light of these considerations,
my guess is that the appellant's
companions stashed such
weapons away somewhere in the
forest where they were hiding.
[23]
The mere fact that the appellant and his companions walked instead of
driving to the farm, was actually more incriminating
than
exonerating. An essential aspect of any criminal enterprise to rob is
the element of surprise. Obviously, driving to a remote
farm at night
would have defeated that purpose - hence the appellant's van was left
in town some 12 long kilometres away from the
targeted farmhouse.
Those of us who have had many dealings with the so-called "farm
attacks" know that farm attackers
are not really interested in
heavy pieces of household goods such as fridges, washing machines,
plasma television sets, kists and
so on. Almost invariably farm
attackers always demand money, jewellery and firearms. No truck is
required to ship any of those
valuables away from the crime scene.
[24]
In view of all these considerations, I'm not persuaded by the
argument that the regional magistrate materially erred in coming
to
the conclusion that the evidence proved all the elements of the crime
of burglary with intent to rob. It follows, therefore
that the two
issues were determined in favour of the respondent.
[25]
In
S v Hlongwane
1992 (2) SACR 484
(N)
the essential
elements of the offence of housebreaking were defined as follows:
"(a)
the
"breaking,, of premises in
the legal
sense
by the
displacement of any obstruction to
entry of
a
structure which forms part of the premises
-
such
as a
store room or outbuilding; that for 'breaking' to take place no
actual damage to the structure need to be inflicted;
so
that even pushing open
a
closed or partially open door to
enter, qualifies for 'breaking' in the legal sense if done unlawfully
and with the intention of
unlawfully breaking in and committing some
other crime;
(b)
the entry of the premises by means of any part of the
person;
(c)
the unlawfulness of the conduct complained of; and
(d)
the intention to
commit an offence."
[26]
I am therefore. satisfied that the trial court was correct in finding
that the state had proven, beyond a reasonable doubt,
all the
elements of the charge of housebreaking with intent to commit
robbery. There was credible, reliable and probable evidence
which showed that all the doors and windows of the complainant's
house and the store room were locked before the complainant went
to
bed. However, the appellant gained access to the store room. He
removed the spade from there and proceeded to the farmhouse.
He then
probably used that spade to break the windows of the farmhouse
knowing that the occupants were present in there. The burglary
was
certainly inspired by an intention on the part of the housebreakers
to rob the occupants.
[27]
I am not persuaded that the court a quo committed any material
misdirection as regards the substantive merits. Therefore, I
am
inclined to dismiss the appeal on the merits.
[28]
As regards the sentence. the principal ground of the appellant's
appeal was that he was never informed that upon conviction
he would
face the prescribed minimum sentence of direct imprisonment. The
offence the appellant has been convicted of attracts
a prescribed
minimum sentence in terms of
section
51(2)
of the Criminal Law Amendment Act, 105 of 1997
("the
CLAA") read together with Part IV of Schedule 2 thereto. The
trial court was, therefore, obliged to impose the
said sentence
unless it found substantial and compelling circumstances justifying
the imposition of a lesser sentence as provided
for in section
51(3)(a) of the CLAA.
[29]
Punishment is pre-eminently a matter for the discretion of the trial
court. The court of appeal must approach an appeal against
sentence
with due deference to the trial court. It may interfere when the
discretion was injudiciously or improperly exercised.
The discretion
would be wrongly exercised if the trial court committed an
irregularity, misdirected itself or imposed a sentence
that is
disturbingly inappropriate.
[30]
In this matter. the main ground of appeal was that because the
appellant was never informed of the prescribed minimum sentence
of 10
years imprisonment, applicable to him, the trial court should have
deviated from imposing such a prescribed minimum sentence.
In support
of this argument, the Appellant referred to
Mabite v S (CAF
4/2016) [20161 ZANWHC 24: 2017 (1) SACR 325 (NWM), Magano
v S (849/12)
2013 ZASCA 192
where
sentences were set aside on the basis that the indictments did not
refer to the prescribed minimum legislation and further
that, the
appellants were not forewarned about its applicability.
[31]
In this matter the indictment stated the following;-
"COUNT
1: HOUSEBREAKING WITH THE INTENT TO COMMIT A CRIME
UNKNOWN
TO THE STATE
IN
THAT the accused are guilty
of
the crime
of
Housebreaking
with the intent to commit
a
crime unknown to the State (read
with the provisions of
Section 262(2)
of the
Criminal Procedure Act
511977
)
IN
THAT upon
or
about the 09th October 2014 at or near Witpan in
the District
of
Hoopstad in the Regional Division of the Free
State, the accused did unlawfully and intentionally break open and
enter the house
of and/or property or in the lawful custody of
Ettiene Le Roux with the intention to commit
a
crime unknown
to the State."
[32]
In
S v Legoa
2003 (1) SACR 13
(SCA)
the court, after an
examination of its earlier judgments, concluded that under the common
law it was 'desirable' that the charge-sheet
should set out the
facts the state intended to prove to bring the accused within the
enhanced sentencing jurisdiction. At
paragraph 20 the court held the
following;-
"Under
the common law it was therefore 'desirable' that the charge-sheet
should set out the facts the State intended to prove
in order to
bring the accused within an enhanced sentencing jurisdiction. It was
not, however, essential. The Constitutional Court
has emphasized that
under the new constitutional dispensation, the criterion for
a
just criminal trial is
'a
concept of substantive
fairness which is not to be equated with what might have passed
muster in our criminal courts before
the Constitution of the Republic
of South Africa Act 108 of 1996 came into force'. The Bill of Rights
specifies that every accused
has
a
right to
a
fair
trial. This right, the Constitutional Court has said, is broader than
the specific rights set out in the sub-sections of the
Bill of
Rights' criminal trial provision. One
of
those specific rights
is 'to be informed of the charge with sufficient detail to answer
it'. What the ability
to
'answer'
a
charge encompasses this case not
require us to determine. But under the constitutional
dispensation is can certainly be no less desirable than under the
common law that the facts the State intends to prove to increase
sentencing jurisdiction under the 1997 statute should be clearly set
out in the charge-sheet."
[33]
The indictment in this matter clearly made no reference to the
applicability of the provisions of section 51(2) of Act No 105
of
1997. However, in
S v Ndlovu
2003 (1) SACR 331
(SCA)
at
paragraph 12 Mpati JA, endorsing
the approach laid down in
Legoa,
supra went further and stated the following:
'The
enquiry, therefore, is whether,
on
a vigilant examination of
the relevant circumstances, it can be said that an accused had
a
fair trial. And I think it is implicit in these observations that
where the state intends to rely upon the sentencing regime created
by
the Act, a fair trial will generally demand that its intention
pertinently be brought to the attention of the accused
at the outset
of the trial, if not in the charge-sheet then in some other form,
so
that the accused is placed in
a
position to appreciate
properly in good time the charge that he faces as well as its
possible consequences.'
[34]
The
onus was, therefore, upon the appellant to show that this error or
the omission to forewarn him had prejudiced him.
[1]
His notice of appeal contains no such an averment. On the available
facts, I can discern no prejudice to the appellant as a result
of the
omission. The trial court was thus not precluded from sentencing the
appellant in terms of Act 105 of 1997 notwithstanding
that the fact
that the indictment made no reference to section 51
(2).
[35]
The
proper approach where a prescribed minimum sentence is applicable is
now well developed, it was illustrated by the Supreme
Court of Appeal in
S
v Malgas
2001
(1) SACR 469
(SCA),
which
has since been followed with approval in various matters.
[2]
In paragraph 9 it was held that;-
"it
is impermissible to deviate from the prescribed sentence 'lightly and
for flimsy reasons which could not withstand scrutiny'
but, this
apart, all factors relevant to determining sentence remain relevant
when the Act applies and
a
sentencing court must look to the
'ultimate cumulative impact of all of these factors in
order to determine
whether a departure
from the
prescribed sentence is
justified'.
The court may impose a lesser sentence
only when it is convinced that the imposition of the prescribed
minimum sentence
would be unjust or disproportionate to the crime,
the criminal and the legitimate needs of society, Malgas, supra,
(22).
[36]
In this matter the court a
quo
duly considered the traditional
sentencing factors, namely, the nature of the offence, the personal
circumstances of the accused,
and the interests of society when
deciding in terms of section 51(3} whether there were substantial and
compelling circumstances.
[37]
The
appellant's personal circumstances are purely generic.
[3]
He was 34 years old. He was a married man with two dependent minor
children. He was self-employed as a motor vehicle dealer. His
earnings
fluctuated
between R6000 and
R10
000
per
month.
[38]
It was indeed a mitigating factor that he had been in custody
awaiting trial since he was arrested, that except for the damage
to
the windows of complainant's house, nothing was stolen
and that, the occupants of the house were not injured.
However, the
offences of farm attacks are prevalent in rural communities of this
province. They often cause wide public outrage.
The general society
looks up to the courts for the protection of the rural communities.
The appellant did not express any response.
Notwithstanding the
verdict, he persisted with his protest that he was not guilty.
[39]
The aggravating factors were also considered. The court a quo
took into account that the appellant was an illegal
immigrant.
He was not a first offender. He had a previous conviction of theft in
respect of which he was sentenced
to three years
imprisonment on the 15th July 2015.
[40]
In my view, the court a
quo
was correct in finding that there
were no substantial and compelling circumstances to justify a
sentence less severe than the prescribed
sentence. It cannot be said
that the trial magistrate did not exercise his discretion judiciously
or properly. I consider the sentence
of 10 years imprisonment to be
proportionate. I am not persuaded that it was disturbingly severe. In
my view the court a quo committed
no misdirection in sentencing the
appellant.
[41]
Accordingly I propose the following order:
41.1
The appeal is dismissed;
41.2
The conviction and the sentence are confirme
__________________
NS
DANISO, AJ
I
concur and it is so ordered
__________________
MH
RAMPAI
On
behalf of appellant:
Attorney M Peyper
Instructed
by:
Peyper Buitendag Ing
Bloemfontein.
On
behalf of respondent:
Adv. S Giorgi
Instructed
by:
Director: Public Prosecutions
Bloemfontein
[1]
See also the unreported matter of Moses Tshoga v The State
(635/2016)
2016 ZASCA 205
delivered on the 15
th
December 2016
[2]
S v Dodo 2001(1) SACR 594 CC, S v Vilakazi
2009 (1) SACR 552
SCA
[3]
See
paragraph
58
in
S
v
Vilakazi
supra
at
1;
"in
cases
of
serious
crime
the
personal
circumstances
of
the
offender,
by
themselves, will
necessarily
recede
into
the
background.
Once
it becomes clear that
the
crime
is
deserving
of
a
substantial
period
of
imprisonment
the
questions
whether
the
accused
is
married
or
single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to
what
that
period
should
be,
and
those
seem
to
me
to
be
the
kind
of
'flimsy'
grounds
that
Malgas
said
should
be
avoided."