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[2017] ZANCHC 43
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Bruin and Another v S (CA&R7/17) [2017] ZANCHC 43 (19 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGHT COURT KIMBERLEY)
Case
number:
CA&R 7/17
Date
heard:
08/05/2017
Date
delivered:
19/05/2017
In
the matter of:
BAZIL
DE BRUIN
1
st
Appellant
NATHAN
ARENDS
2
nd
Appellant
and
THE
STATE
Respondent
Coram:
Williams J et Snyders AJ
JUDGMENT
SNYDERS,
AJ
1.
The appellants were convicted on 12 August
2016 in the Kimberley Regional Court on 02 charges, viz housebreaking
with the intent
to steal (read with the provisions of s 262(1) and
264 of the Criminal Procedure Act, 51 of 1977 (“the CPA”))
and robbery
with aggravating circumstances.
2.
On said date, the appellants were both
sentenced to 15 years imprisonment. Both counts were taken together
for the purpose of sentencing.
The court
a
quo
granted leave to appeal to this
court on both conviction and sentence on 26 October 2016.
3.
The appellants have taken no issue with the
conviction of housebreaking with the intent to steal. Adv
Buthelezi who appeared
for the appellants contended that the only
issue regarding the conviction was whether the appellants were
properly convicted of
robbery.
4.
I must therefore determine whether
the facts justified the conviction of robbery with aggravating
circumstances, and if it
did not, whether it should be set aside. I
must also determine whether there were substantial and compelling
circumstances present
to deviate from the prescribed minimum sentence
of 15 years.
5.
On 22 October 2015, grocery items belonging
to the complainant were stolen out of his tuckshop. On said date, the
complainant left
the tuckshop to buy airtime at a tuckshop next door.
He left the light on in the tuckshop and only closed one of the doors
as he
did not intend to be gone long.
6.
Upon his return some 15 minutes later, the
complainant heard voices in his tuckshop. The complainant attempted
to close the burglar
door to trap the two appellants inside the
tuckshop. The 2
nd
appellant stabbed the complainant to prevent the
complainant from closing the burglar gate. The 2
nd
appellant then ran away with the bag containing the stolen groceries
while the 1
st
appellant exited the tuckshop and stabbed the complainant multiple
times.
7.
Although the appellants denied the theft
and assault during the trial, it was conceded in the appeal that the
appellants broke into
the complainant’s shop, stole his
property and assualted him.
8.
The appellants however, state that the
Magistrate erred in finding that violence need not precede the theft
in order to constitute
robbery. Thus the assault on the complainant
after the items had been stolen could not result in a conviction of
robbery.
9.
Robbery
can be defined as the theft of property by unlawfully and
intentionally using violence to take the property from somebody
else,
or threats of violence to induce the possessor of the property to
submit to the taking of the property.
[1]
In the discussion of said definition, the author CR Snyman, writes
that the violence must precede the theft.
[2]
10.
However,
the Appeal Court held in
S
v Yolelo
[3]
that robbery can also be commited if violence followed the theft. The
court further went on to find that in each case, an investigation
will have to be made into whether, in light of all the circumstances,
especially the time and place of the appellant’s acts,
there is
such a close link between the theft and the commission of violence
that they can be regarded as connecting components
of substantially
one action.
11.
Therein, the Appeal Court raised the issue
that it must be determined whether the intention of the offender in
the commission of
the violence must be directed towards the retention
of possession of the goods, as opposed to mere flight. This point was
however
not decided upon.
12.
In
the appellate division matter of
R
v Magao
[4]
,
the court held that even though the goods were not taken in the
presence of the person assaulted, the taking of the goods under
the
circumstances still amounted to robbery. In that matter, the gardener
was assaulted and tied up in the servant’s room.
The servant’s
room was a little distance from the house where the theft took place.
However, the court held that the assault
on the gardener was
necessary to obtain the stolen property or to prevent resistance to
its being stolen.
[5]
13.
In this matter, the complainant left the
light on in his shop and only closed one door. He went next door for
airtime. When he returned,
he found the appellants in the shop armed
with knives. This shows the appellants accepted that the complainant
might return and
showed that they were prepared for his return and
prepared to use violence.
14.
At the time that the complainant returned,
the items were in the 2
nd
appellant’s bag, but were still on the premises. The
apellants thus had limited control or possession of the items.
There
were cigarettes lying around the shop, which clearly showed that the
theft was still in progress when it was interrupted
by the
complainant. After stabbing the complainant, the appellants left the
premises with the bag. Thus the violence was applied
to retain
possession or control over the items, as well as to prevent
resistance to its being stolen. I am satisfied that there
is such a
close link between the theft and the commission of the violence, to
connect the two components as substantially one action
herein.
15.
It
is trite that the prescribed minimum sentences should not be departed
from lightly and for flimsy reasons
[6]
.
The prescribed sentence herein is 15 years imprisonment. Thus, this
sentence shall be imposed unless the trial court is satisfied
that
substantial and compelling circumstances exist to deviate from the
sentence as prescribed.
16.
The learned magistrate in the court
a
quo
properly took into account all
factors to be considered before sentencing. On reviewing all of the
factors, especially the appellants
personal circumstances, I can find
no substantial and compelling circumstances to justify a deviation
from the prescribed sentence.
17.
Instead, the circumstances are aggravated
by the injuries sustained by the complainant, in that he will never
have full and proper
use of one of his hands. Both the appellants had
relevant previous convictions. The 1
st
appellant had two previous
convictions of theft and had two previous convictions of
housebreaking with the intent to steal and theft.
The 2
nd
appellant had one conviction of
assault with the intent to do grievous bodily harm and one
coniviction of assault. The learned
Magistrate did not misdirect
himself regarding sentence.
18.
I therefore make the following order:
THE
APPEAL BY BOTH APPELLANTS ON CONVICTION AND SENTENCE IS DISMISSED.
_____________
J.A
SNYDERS
ACTING
JUDGE
I
concur
___________
C.C
WILLIAMS
JUDGE
On
behalf of Appellant:
Mr A Buthelezi (Legal Aid SA)
On
behalf of Respondent:
Adv JJ Cloete (DPP)
[1]
Criminal Law, CR Snyman, 6
th
ed, Lexis Nexis at p 508
[2]
See Snyman at p 509
[3]
1981 (1) 1002 (A) at 1015 G - H
[4]
1959(1) SA 489(A) at 493 H
[5]
At 493 G
[6]
S v
Malgas 2001(1) SACR 469 (SCA) at 481 J