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[2017] ZAFSHC 243
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Mosepele v S (A162/2017) [2017] ZAFSHC 243 (30 October 2017)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Case Number: A162/2017
In the
matter between:
ISMAEL PULE
MOSEPELE
Appellant
and
THE
STATE
Respondent
CORAM:
VANZYL, J
et
MURRAY,
AJ
HEARD
ON:
30 OCTOBER 2017
JUDGMENT
BY:
MURRAY, AJ
DELIVERED
ON:
21 DECEMBER 2017
[1]
The Appellant was convicted in the Regional Court, Bloemfontein, by
Mrs Nulliah on
15 November 2013, of Robbery with Aggravating
Circumstances and Attempted Murder. The two charges were taken
together and the Appellant
was sentenced to 15 years' imprisonment.
He appeals against both conviction and sentence.
[2]
Adv Strauss appeared for the State and Mr Tshabalala represented the
Appellant. The
State supports the conviction and sentence, while the
Defence avers that the State failed to prove the Appellant's guilt
beyond
a reasonable doubt and submitted that the Appellant should be
acquitted if there is any reasonable possibility that he might be
innocent.
[3] The
court a
quo
found the facts that were common cause on the
evidence to be: that Mr Booysen ("Booysen") was robbed on
21 September 2012;
that he was assaulted by being kicked, hit and
dragged; that he was stabbed with a knife and sustained stab wounds;
that the Appellant
was present during the incident; that he ran away
from the scene; what the nature and value of the items stolen were
and that the
canister of pepper spray looked exactly like the one
which Booysen had given the Appellant. The court a
quo
listed
the facts in dispute as: whether the Appellant acted in concert with
the other two men in assaulting and robbing Booysen;
and whether the
inclusion of the second charge of attempted murder amounted to a
duplication of charges.
[4] The
Appellant was an ice-cream vendor in the employment of Booysen, the
owner of Will's
Ice Cream in West Burger Street, Bloemfontein.
Booysen's version is that on 21 September 2012 he waited for the
Appellant, who
had by then worked for him for five weeks, to return
from his daily rounds on his vending bicycle. He was late and it was
already
18:00 when he arrived, and Booysen reminded him that he had
warned him about returning late just the day before.
[5]
As soon as Booysen opened the gate for him, two men charged at him
from outside and
pepper-sprayed him in the face and eyes. After
emptying the canister on him, they kicked and hit him, slamming his
head against
the ground. When he shouted to the Appellant to help
him, the Appellant merely shouted back: "I'm not helping you,
I'm helping
them!"
[6] The
Appellant joined the other two assailants. While continuing to kick
and hit
Booysen, they dragged him away from the gate, towards the
shop, and left him lying on the cement, face down, with one assailant
restraining him with one foot on his neck. They removed his necklace,
worth R83 000, his bracelet, worth R48 000, his watch of
R7000 and
took his laptop, cell-phone, jacket and the keys to his pick-up
truck.
[7] When
he tried to escape through the front door of the shop, the Appellant
blocked the
exit and stabbed him five times with an Okapi knife:
three times in the shoulder, once in the neck and once next to his
eye, while
threatening "ek gaan jou f----n doodmaak"
("I'm
going to f------g kill you').
[8] The
three attackers then ran away, upon which Booysen ran outside and
asked two
unknown passers-by for help. They had by then already
called the police and the ambulance, and one of them gave him his
cell-phone
to call his wife. He later saw that person giving a
statement to the "black policeman", Const. Lukasa, while he
gave
his statement to W.O. Breytenbach.
[9] Booysen
testified, furthermore, that he had seen the Appellant before that
day with
the Okapi knife which the police found at the scene with
opened blade with blood on it. He also identified the green canister
of
pepper spray which the police recovered from the scene as a
distinctive type of imported canister which he buys in Johannesburg
and which he had provided to the Appellant and his other employees
for self-defence. He testified, moreover. that the Appellant's
bag
with his street wear was still at the ice cream shop where he had
left it during the attack on 21 September 2012.
[10]
The
court a
quo
correctly
handled Booysen's evidence with caution since he was a single witness
regarding parts of the events, whilst keeping in
mind that the
evidence of a single witness needs to be satisfactory, not
perfect.
[1]
Mr Strauss submitted, and I agree, that the trial court was correct
in finding that Booysen's evidence was corroborated by other
witnesses on the material aspects of the case. Thakoli, Booysen and
the J88 all confirmed Booysen's injuries. Even the Appellant
in
certain respects corroborated Booysen's version, but only to the
extent that it did not implicate the Appellant himself inthe
incident.
[11]
Thakoli (the passer-by who had given Booysen the use of his phone)
testified that on 21 September 2012
he saw Booysen in his office when
he walked past the shop. He confirmed that a little later, on his way
back, he saw from across
the street, three men running out of and
away from the shop, shouting "Waar's daai man?" (
'Where
is that man?').
He saw the Appellant whom he later identified
from a photo in an identity document, run ahead and open the
'tralie-gate' for the
other two. He described the Nestle uniform
which the Appellant was wearing as a blue shirt with a red logo, a
blue cap with a red
logo and black formal pants, and stated that one
of the persons with the Appellant was a tall dark man in a maroon
uniform jacket.
The latter fell at the street-corner as they were
running away, then got up and ran after the other two, with the
Appellant running
ahead of them all.
[12]
Thakoli testified, furthermore, that he saw Booysen emerge from the
premises with blood streaming from
his ear, his neck and his
shoulde.r He called the ambulance and the police on his friend's
phone, and lent Booysen his phone to
call his family. He testified
that he stood next to Booysen when the ER24 paramedics bandaged
Booysen's head, and that he gave
his statement to a black police
officer while the white police officer took Booysen's statement. He
did not know the Appellant
before the incident, but identified him at
the scene from an ID photo and in person in the dock. Since he did
not know the Appellant,
he had no motive to falsely implicate him.
[13]
W.O. Breytenbach also corroborated Booysen's version. He testified
that he and Constable Lukasa responded
to Thakoli's call. He stated
that Booysen's son and the ER24 crew were already there when they
arrived. They had already bandaged
Booysen whose upper body and face
were covered in blood, with a knife wound to the left shoulder,
under the left ear and next
to his left eye. He testified that the
shop floor was covered in drops of blood, and stated that they
recovered from the steel
gate on the right side of the steps an Okapi
knife with an opened blade with blood on it, and from the other
corner a green can
of pepper spray, as well as the gold pendant of
Booysen's necklace which he left in the care of Booysen's son because
he was afraid
it would disappear from the evidence room if he handed
it in. He admitted that Booysen did not describe his attackers, but
stated
that he gave the police his employee's (the Appellant's) name.
[14]
The
Court a
quo
applied
the principles set out in
Stellenbosch
Farmer's Winery Group Ltd and Another v Martel
[2]
regarding
the evaluation of credibility, namely that:
"... the
court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the
witness. That in
turn will depend on a variety of subsidiary factors ... such as (i)
the witness' candour and demeanour in the
witness box, (ii) his bias,
latent or blatant, (iii) internal contradictions in his evidence,
(iv) external contradictions with
what was pleaded or put on his
behalf, or with established fact or with his own extra-curial
statements or actions, (v) the probability
or improbability of
particular aspects of his version, (vi) the calibre and cogency of
his performance compared to that of other
witnesses testifying about
the same incident or events."
[15] In
doing so, the Court a
quo
found Breytenbach1s evidence. as
well as that of the "bystander" Thakoli, that Booysen was
stabbed, and robbed, to "corroborate
and emphasise the
consistency or Booysen's version. The Court regarded this "evidence
of corroboration and consistency as
emphasising the honesty and
credibility of the complainant". The Court held that Breytenbach
corroborated the nature and position
of the injuries sustained by
Booysen, the greater part of Booysen's testimony regarding what
transpired when he was attacked and
assaulted; his evidence about
being robbed of his jewellery, pepper-sprayed and stabbed with an
Okapi knife and the theft of the
charm of his necklace which was
recovered.
[16] The
court a
quo
effectively addressed the discrepancies between
Breytenbach's evidence and that of Thakoli. Breytenbach averred, for
instance, that
there were no members of the community at the scene
when they arrived, only the paramedics and Booysen's son, whereas
Thakoli stated
that he was there while the ER24 paramedics bandaged
Booysen's head, and when the two police officers arrived. He
testified that
he gave his statement to Breytenbachs' partner while
Breytenbach was taking Booysen's statement, averring that Breytenbach
even
joked with him about a pen at the time. His version corroborated
Booysen's who stated that he saw the 1 black policeman' (Const.
Lukasa) take Thakoli's statement while he was giving his to
Breytenbach.
[17]
The Court a
quo
did not attach undue weight to the
contradiction between Breytenbach's evidence that Booysen had told
him that the Appellant had
pepper-sprayed him whereas in court
Booysen testified that the other two assailants had sprayed him. The
Court ascribed the discrepancy
to the lapse of time and the
viciousness of the attack. It viewed the differences as independence
of recall and found no evidence
of collusion between any of the
witnesses.
[18]
The Court also did not regard the contradiction between Breytenbach's
and Thakofi's evidence
that there were no members of the public
present, as significant. It found Thakoli to have been consistent in
his testimony and
under cross-examination with reference to the
location, the time of the incident, and as to what happened while he
was present
at the scene. He was found not to have been hesitant or
evasive, and the Court stated that he was able to point out
unhesitatingly
from the photographs shown to him the door and the
gate from which Booysen and his attackers ran out.
[19]
The Court a
quo
found Booysen to have been a credible witness.
The inconsistencies in his version were thoroughly and objectively
considered and
assessed by the Court. His evidence was found to be
clear and concise and his version to have been corroborated by that
of Breytenbach
and Thakoli. The Court pointed out that he was able to
identify the Okapi knife as belonging to the Appellant, as he had
seen it
before and was consistent during cross examination. He
did not unnecessarily implicate the Appellant and was honest in
stating
that he did not see the Appellant give the other two the
pepper spray. He was adamant that even though he did not know who did
what to him during the attack all three of the Appellant participated
in the attack.
[20]
In
S
v Francis
[3]
the Court held that a
court of appeal's power to interfere with findings of the trial court
on credibility are limited:
"... bearing in
mind the advantage which a trial court has in seeing, hearing and
appraising a witness, it is only in exceptional
cases that this court
will be entitled to interfere in the trial court's evaluation of oral
testimony."
[21]
The Court a
quo
in this case found the demeanour of all three
State witnesses to have been impressive and their evidence to have
been given in a
straightforward manner and unhesitatingly. He found
them to have corroborated each other in all material respects and the
contradictions
that did occur, not to be material when regard was had
to the totality of the evidence in conjunction with the Appellant's
own
version.
[22]
I cannot fault the Court a
quo's
approach to the State1s
evidence. In my view, too, none of the discrepancies were material
enough to detract from the credibility
of the State's version,
whereas there were so many contradictions and improbabilities in the
Appellant's version that the latter
can clearly be dismissed as a
fabrication devised after hearing the evidence of the State
witnesses.
[23]
The Appellant pleaded not guilty. He offered no plea explanation and
opted to "reserve
the basis for his defence". He admitted
to having been at the scene, but averred that he merely witnessed the
attack on Booysen
from under the veranda where the bikes were parked.
According to him, he was already in the premises and on his way to
the bicycle
storage area with Booysen still trying to close the gate,
when he heard Booysen scream "Pule!" and saw him being held
by two men. He averred that he simply hid where he had parked his
bicycle and watched while the men hit Booysen and dragged him
to the
building because he was too scared to help or to go for help because
he would have had to pass the attackers.
[24]
He described in detail how he saw the perpetrators take Booysen's
gold chain, bracelet,
wallet and phone, and saw one of them exiting
the shop with a laptop while Booysen was still lying outside with the
other assailant
stepping on his neck. The Appellant denied either
knowing or speaking to the attackers. He maintained that when the two
attackers
left through the back gate, Booysen and he got up, and he
then allegedly followed the two attackers through the back gate and
chased
them up to Hoffman Square, but was unable to catch up with
them. There he allegedly searched for them for half an hour before he
went home.
[25]
It is extremely improbable, however, that the Appellant, who had on
his own version been
so afraid of the attackers that he hid all
through the robbery, would suddenly chase the same men for a
considerable distance and
thereafter search for them for another half
an hour. It is as inconceivable that he, who allegedly witnessed
everything and who
described the attackers' actions in detail, would
not mention seeing anyone stab Booysen. That begs the question as to
where the
blood drops all over the floor would have come from, and
when and by whom the wounds had been inflicted, since the three of
them,
even on his version, all left together immediately after the
robbery. It was evident, furthermore, that he was at pains to aver
that they all left through the back gate because Thakolli had
testified that he saw them emerge from the front entrance.
[26]
As improbable, furthermore, is the Appellant's allegation that he was
no longer wearing
his Nestle uniform at the time of the attack
because he had already removed it and changed into his own clothes at
17h00 (in other
words while he was still riding along on his vendor
bicycle since he on his own version only arrived at the gate at
17h45). According
to him at the time of the attack he was wearing a
striped brown-and-white long-sleeved T-shirt, black Nike pants and
sneakers,
which he had worn under his Nestle uniform. On his own
improbable version, he removed the uniform before entering the
premises
and put it in the lunchbox when he got back to the shop at
17:45 (in other words during the attack, since on his own version he
left with the attackers).
[27]
According to him, he neither carried a knife, nor recognised the
knife that the police
had found, and did not take the green pepper
spray with him on that day. It is most improbable, furthermore, that
if the Appellant
had really been a mere innocent onlooker to the
robbery as he averred, he would not have returned to the shop to
collect his casual
clothes at some time since the robbery. It is as
improbable that he would just happen to have been there at the time
of the robbery
and been allowed to watch it, unscathed. Equally
improbable is it that he would have taken such trouble to pursue and
search for
the assailants, only to go home without informing the
police of the attack on his employer or of the robbery, never to
return to
work again.
[28]
In my view the Court a
quo
complied with the
requirements for finding the Appellant guilty of the offences of
which he was convicted that were set out in
S
v Van der Meyden
[4]
,
namely that:
"The
onus
of
proof in a criminal case is discharged by the State if the evidence
establishes the guilt of the Appellant beyond reasonable
doubt. A
Court does not look at the evidence implicating the Appellant in
isolation in order to determine whether there is proof
beyond
reasonable doubt, and so too does it not look at the exculpatory
evidence in isolation in order to determine whether it
is reasonably
possible that it might be true. A process of reasoning which is
appropriate to the application of the proper test
in any particular
case will depend on the nature of the evidence which the Court has
before it. What must be borne in mind, however,
is that the
conclusion which is reached (whether it be to convict or acquit) must
account for all the evidence. Some of it might
be found to be false;
some of it might be found to be unreliable; and some of it might be
found to be only possibly false or unreliable;
but none of it may
simply be ignored."
[29]
I agree with Mr Strauss, therefore, that the Court a
quo
followed
the correct approach when it analysed the evidence, namely to:
"... weigh up
all the elements which point towards the guilt of the Appellant
against all those which are indicative of his
innocence, taking
proper account of the inherent strength and weaknesses, probabilities
and impossibilities on both sides, and
having done so, to decide
whether the balance weighs so heavily in favour of the State so as to
exclude any reasonable doubt about
the Appellant's guilt."
[5]
[30]
As the Court a
quo
correctly pointed out, there could be no
mistake about the Appellant's identity since on his own admission he
was present during
the robbery and ran out of the premises. Thakoli,
for instance, identified the Appellant in the dock as the person who
had worn
the ice cream shop uniform. He was very certain of what he
saw and when the Appellant's version was put to him that he did not
participate in the robbery, he firmly stated that "all that he
knew was what he saw which was that the [Appellant] was running
out
of the shop". The only issue to be proved, therefore, was that
the Appellant took part in the robbery and that he committed
the
subsequent stabbing of the Booysen.
[31]
The Court indicated that although it could not fault the Appellant's
demeanour in the witness box,
there was "much fault to be found
in his testimony" and found the Appellant's version "to
contain substantial improbabilities".
The Court found it strange
and suspicious that the Appellant disputed that he wore the Nestle
uniform and averred that he took
it off before he reached the
premises while admitting that he was the only employee on the
premises and that he was the one who
had chased after the two men.
[32]
It was never disputed that Booysen was stabbed. The Court found it
surprising that the Appellant focused
with such remarkable clarity on
how the assailants stepped on Booysen's neck, removed his necklace,
then removed his bracelet,
then emptied his pockets, and even
remembered the colour and make of their clothing, but that he never
saw any stabbing. As improbable,
furthermore, was his averment that
he ran after the two men all by himself despite his earlier statement
that he did not get involved
in the attack because he was scared of
them; that he would chase the two men for such a distance and look
around for them for half
an hour, but never report the incident to
the police, return to the shop to make sure that his employer was
alright, to go back
to work or to collect his clothes.
[33]
The
Court accordingly found the Appellant to be an unimpressive witness
and to be "an opportunist who tainted or adapted his
evidence to
suit the circumstances". The Court held the Appellant's version
to contain substantial improbabilities to the
extent that it was
satisfied that his version was so improbable as not to be a
reasonable possibility. This the Court decided after
having
considered the totality of the evidence. The possibility that the
Appellant was falsely implicated was, furthermore, in
the Court's
view "so remote that it can safely be disregarded". I could
find no reason to disagree.
[34]
With
regard to the submission that the Appellant's conviction of two
distinct offences amounted to a duplication of charges, I agree
with
the Court a
quo
that Booysen's stabbing occurred after the
robbery had already been completed, and therefore constituted a
separate offence. Booysen
testified that he was trying to escape when
he was stabbed, and this was never disputed. It was clear from the
evidence that Booysen
was indeed not offering any resistance at that
stage to either the Appellant or the other two assailants. This was
clearly borne
out by the fact that he ran in the direction away from
them after all three of them had already subdued him and removed his
property.
The use of a knife to stab him therefore evidently was not
necessary and the evidence showed, as the Court a
quo
held,
that the act of stabbing Booysen could not be regarded as being
committed in order to facilitate the robbery, and therefore
as part
of one and the same action or offence.
[35]
The evidence was that the Appellant chased after Booysen,
blocked his path by standing in front of the door to prevent him from
escaping, then stabbed him when he was not offering any resistance to
the taking of the property. On the contrary, he was at that
stage
actually running away from the Appellant and the other two men. He
was therefore no longer any threat or impediment to their
purpose to
rob Booysen of his property. Accordingly the Court a
quo
correctly
found that it cannot be said that Booysen's stabbing was causally
connected to the taking of the property or that, but
for the stabbing
of Booysen, the Appellant and the other two men would not have been
able to obtain or retain the property. In
my view, too, the only
inference to be drawn from the particular circumstances of this case,
as the court a
quo
correctly found, was that the Appellant did
attempt to murder Booysen, as was confirmed by his words: "Ek
gaan jou f-n doodmaak".
[36]
I agree with the court a
quo,
therefore, that the Appellant
was indeed faced with direct and credible evidence implicating him in
both the offences, and that,
on the totality of the evidence, the
State had been able to establish his guilt beyond reasonable doubt
regarding both charges.
I support its conclusion that, having regard
to the totality of the evidence, any reasonable doubt as to the
Appellant's guilt
had been excluded, and therefore find that the
Appellant was correctly convicted of both Robbery with Aggravating
Circumstances
and Attempted Murder. The appeal against the conviction
therefore has to fail.
[37]
It is a trial court's prerogative to impose a sentence which it,
after an objective weighing up of all the
relevant circumstances,
considers to be just and proportionate to the crime. The Appellant
was sentenced to an effective term of
imprisonment of 15 years.
In
S
v Pillay
[6]
the
Court stated that:
"It is trite
Jaw that the Appeal Court will only interfere with sentence if it is
of the opinion that such sentence is unreasonable,
unjust or vitiated
by irregularity or that the trial court has misdirected itself.•
[38]
The State supports the sentence imposed by the court a
quo.
Mr
Strauss submitted that the aggravating circumstances outweigh the
mitigating factors and that the trial court's finding that
the
mitigating factors were such that they do not constitute compelling
and substantial circumstances to justify a departure from
the
prescribed minimum sentence cannot be faulted.
[39]
The test for what constitutes substantial and compelling
circumstances was articulated in
S
v Malgas
[7]
.
The
Court in that matter emphasised that the Legislature has ordained the
prescribed minimum sentence that should in the normal
course be
imposed in the absence of weighty justification to depart from. In
S
v Matyityi
[8]
it
was held that courts should not depart from the provisions of the
Criminal Law Amendment Act 105 of 1997, (“the Act)”
for
flimsy or unconvincing reasons. The provisions of the Act are
applicable to Count 1, Robbery with Aggravating Circumstances,
and a
sentence of 15 years' imprisonment is determined for first offenders
in the absence of substantial and compelling circumstances.
[40]
The crux of the appeal before us is that the court a
quo
is
alleged to have erred in not finding compelling and substantial
circumstances to exist. The basis for this submission was the
numerous personal circumstances raised on behalf of the Appellant,
namely that: he was 39 years old on 1 November 2013; he is unmarried;
both his parents are deceased; before his arrest he stayed with his
girlfriend and their 11 year old daughter; he has another child
that
was 3 years old at the time of his sentence; he suffers from TB and
HIV; he had been in custody for at least 13 months; he
is a member of
the Salvation Army Church; his previous convictions with reference to
offences involving violence were committed
before 2012 and his
pre-sentence report dated 1 November 2012 stated that he had no
previous convictions (obviously erroneously.)
Mr Tshabalala submitted
that the appellant’s personal circumstances should have caused
his punishment to have been tempered
with some measure of mercy and
averred that his sentence of 15 years' imprisonment should be set
aside.
[41]
The Court gave serious consideration to each of the various
potentially mitigating factors
and properly motivated each decision
to discard a particular factor or factors as neutral or less weighty
in view of the particular
circumstances. Those factors to which more
significance were attached, were that he was suffering from
tuberculosis, that he was
HIV positive, and that he had spent more
than a year in custody. The fact that the appellant has two minor
children, the Court
considered to be of less significance since he
did not contribute to their maintenance on a regular basis, and due
to his numerous
previous convictions, he had already spent the
greater part of their lives in prison, which implied that renewed
incarceration
would have little or no impact in their lives. That was
weighed, furthermore, against the fact that the elder of the two
children
does not reside with him and there was no evidence before
the Court that the mother of the 3 year old child could not be
employed
and support the child.
[42]
I agree with the Court
a quo
that there was nothing in the
appellant's family or background which needed special sympathy or
which lent significant weight to
the cumulative effect of the
personal circumstances on the mitigation side of the scale,
especially in view of his lengthy criminal
record. It was evident,
too, that Correctional Supervision was not a viable sentencing
option1 since it had not prevented him on
a previous occasion
committing further offences.
[43]
The Court a
quo
weighed the totality of the mitigating factors
against the totality of the aggravating ones. It regarded as
aggravating, first of
all, that the Appellant pleaded not guilty to
both of the charges of which he has been found guilty and persisted
with his claim
of innocence even during the sentencing, and in so
doing depriving himself of the opportunity to express genuine
remorse, which
would have been a weighty factor in considering an
appropriate sentence.
[44]
The Court regarded the gravity of the offence to have been
exacerbated by Booysen having
been the Appellant's employer; by the
stabbing attack on Booysen having been completely unnecessary, and by
Booysen having sustained
extensive injuries to his person. The Court
a
quo
accordingly held the weightiest of the aggravating
factors to have been the "remorseless, unscrupulous and brutal
attack''
on the Appellant's employer and the fact that the Appellant
showed him no mercy even though on the evidence of both Booysen and
the Appellant, Booysen had appealed to the Appellant to help him.
[45]
The Court considered it to be significantly aggravating, furthermore,
that the robbery
was pre-planned and that this type of offense was
becoming more and more prevalent in this area. It also took into
consideration
the fad that the Appellant was clearly not a first
offender and that he persisted during his testimony in "being
contradictory,
opportunistic and manipulative in the evidence that he
gave".
[46]
It
then found the aggravating circumstances to have outweighed the
mitigating ones and was unable to find substantial and compelling
circumstances which allowed it to impose a lesser than the prescribed
minimum sentence on the first charge. The Court further justified
the
imposition of the 15-year sentence by explaining that it found the
imposition of the prescribed minimum sentence to be just
and
proportionate to what it would have imposed even if the minimum
sentencing legislation had not been enacted.
[47]
The
Court
a quo
applied
the triad principle laid down in
S
v Zinn
[9]
.
It took into
consideration the purposes of sentencing, namely deterrence,
prevention, rehabilitation and retribution. In doing so,
it
considered the personal circumstances of the appellant, the gravity
of the offences of which the Appellant had been found guilty,
and the
interests of society. It applied those criteria in a balanced way and
introduced an element of mercy by taking the two
offences together to
impose a sentence of 15 years' imprisonment instead of imposing two
sentences to be served consecutively.
[48]
Despite
the submissions by Mr Tshabalala on behalf of the Appellant,
therefore, I am satisfied that the court a
quo's
approach was correct
and that it exercised its discretion reasonably. I find no evidence
of any improper exercise of its sentencing
discretion
[10]
,
[11]
and therefore find no justification for interference in the Court a
quo's
exercise
of such discretion.
[49] Consequently
I find that the appeal against both conviction and sentence ought to
be dismissed.
WHEREFORE
I make the following order :
1.
The appeal is dismissed.
2.
The conviction and sentence are confirmed.
H.
MURRAY, AJ
I concur
C.
VAN ZYL, J
On behalf
of the State: Adv
M Strauss
Office of the
Director of Public Prosecutions
BLOEMFONTEIN
On behalf
of the Appellant
ZM Tshabalala
Bloemfontein Justice Centre
Southern Life Plaza
1
st
Floor South Wing
Charlotte Maxeke Street
BLOEMFONTEIN
[1]
S v Abdoornham
1954 (3) SA 163
{N); S v Sauls and Others 1981(3) SA
172 (A).
[2]
2003 (1) SA 11 (SCA)
[3]
1991(1) SACR 198 (A) at 204
c-
a
[4]
1999(1) SACR 447 (W)
[5]
S v Chabalala
2003 (1) SACR 134
(SCA) at 140 a· b
[6]
1997 (4) SA 531(A)
at 535 d
-
g
[7]
2001 (2) SA 1222 (SCA)
[8]
2011 (1) SACR 40
(SCA)
[9]
1969 (2) SA 537 (A)
[10]
S v Pieters
1987 (3) SA 717
(A) at 728 b - C
[11]
S v Pillay
1997 (4) SA 531(A)
at 535 e - g