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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2017] ZAKZPHC 34
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Shange v S (AR803/2016) [2017] ZAKZPHC 34 (24 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: AR803/2016
In
the matter between:
MLUNGISI
THOKOZANI
SHANGE
APPELLANT
and
THE
STATE
RESPONDENT
Coram
: Seegobin J et Chili J
Heard
: 17 August 2017
Delivered
: 24 August 2017
ORDER
On
appeal from the Regional Court, Port Shepstone (sitting as a court of
first instance):
The
appeal against both conviction and sentence is dismissed.
2
SEEGOBIN
J:
[1]
This is an appeal against conviction and sentence. The appellant who
was 32 years old at the time was convicted in the Regional
Court,
Port Shepstone, of one count of robbery with aggravating
circumstances. Having found that substantial and compelling
circumstances
were present the learned magistrate sentenced the
appellant to twelve years imprisonment instead of the prescribed
sentence of
fifteen years.
[2]
The robbery in question occurred on 28 April 2010 when a Toyota motor
vehicle belonging to a driving school was taken from the
two
occupants at gunpoint. It was common cause that more than one
assailant was involved in the robbery itself. While the two occupants
of the vehicle viz
Ms
Mokwena
and
Ms
Dludla
were
unable to identify any of the assailants involved, they did, however,
testify that one of the assailants walked with the aid
of a crutch
and/or had a bandage on one of his legs.
[3]
Approximately five days later on 3 May 2010 the appellant and his
co-accused were found in possession of the vehicle and were
arrested.
The police officers who testified confirmed that a crutch was found
in the vehicle and that the appellant was found with
a cast/bandage
on his leg making it difficult for him to move about. In attempting
to provide an explanation for his possession
of the vehicle, the appellant testified that the vehicle was brought
to him for repairs. Having repaired the vehicle, he was approached
by
his brother (accused 2) as well as accused 3. His brother requested
transport to convey some goods for him to the home of his
children at
Murchison. It was while the appellant was performing this task that
he was arrested. He denied being involved in the
robbery nor did he
bear any knowledge thereof. He further denied that he was using a
crutch or that his leg was bandaged or in
a cast at the time.
[4]
In convicting the appellant, the learned magistrate placed reliance
on the evidence of the two occupants of the vehicle as well
as the
two policemen who arrested the appellant and recovered the motor
vehicle five days later. The learned magistrate found the
state
witnesses to be credible and reliable. He found the appellant to be
an atrocious witness whose evidence he rejected as being
false beyond
a reasonable doubt. On the evidence the learned magistrate inferred
correctly, in my view, that the appellant’s
recent possession
of the motor vehicle coupled with the evidence of the two women who
witnessed the robbery when it occurred, proved
beyond a reasonable
doubt that the appellant was the main perpetrator and that it was he
who had pulled Ms Dludla out of the vehicle
and jumped into the
driver’s seat and drove off with the vehicle. In my view, this
reasoning on the part of the learned magistrate
which was based on
the evidence before him cannot be faulted in any way. While the
evidence was circumstantial in nature, it established
the guilt of
the accused beyond a
reasonable doubt. Mr
Marimuthu
who
appeared on behalf of the appellant was constrained to concede that
the case against him was overwhelming and that the appellant’s
version was not without difficulty. It follows, in my view that the
appeal against conviction must fail.
[5]
So too as far as the sentence is concerned. There is no basis
whatsoever to ameliorate the sentence any further. The appellant
can
consider himself fortunate that substantial and compelling
circumstances were found to exist in a brazen robbery in which a
firearm was used.
ORDER
[6]
The order I propose is the following:
“
The
appeal against both conviction and sentence is dismissed.”
_______________
_______________
I agree
CHILI
J
Date
of Hearing : 17 August 2017
Date of Judgment : 24 August
2017
Counsel for Appellant : Mr
Marimuthu
Instructed by : Durban Justice
Centre
Counsel for Respondent : Mr
Cooke
Instructed
by : Director of Public Prosecutions, Pietermaritzburg