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[2017] ZAKZPHC 43
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Mweli and Others v S (AR827/16) [2017] ZAKZPHC 43 (27 October 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR827/16
In
the matter between:
MHLENGI
MWELI
First
Appellant
HLUKWENZA
DLADLA
Second
Appellant
MHLENGI
GOODMAN
SHEZI
Third
Appellant
ZWELI
ERIC
NTSHABA
Fourth
Appellant
MLINDENI
MBHELE
Fifth
Appellant
and
The
State
Respondent
JUDGMENT
GOVINDASAMY
AJ:
[1]
The five appellants were convicted of one count of robbery with
aggravating circumstances read with the provisions of
sections 51(2)
,
52
(2),
52
(A) and
52
(8) of the
Criminal Law Amendment Act 105 of 1997
further read with
Part II
of Schedule 2 of the said Act, by the
Regional Magistrate sitting at Nongoma.
[2]
With the leave of the court
a quo,
the appellants appeal
against their conviction and sentence.
[3]
It is not in dispute that the bottle store managed by the
complainant, Sizakele Nozipho Dlamini ('Dlamini'), was robbed on 07
July 2014 at 10h40. A bag containing the sum of R53 000 was taken,
together with liquor, cell phones, a laptop and a further sum
of R2
000.
[4]
What is in dispute is whether the five appellants were the
perpetrators of the robbery. In this regard, the fifth appellant
placed in issue his identity and the question is whether the single
witness, Dlamini properly identified him. All the appellants
denied
their involvement in the offence.
[5]
It is common cause that Dlamini's evidence, if accepted as true,
would render the fifth appellant guilty of robbery with aggravating
circumstances and his conduct would fall within the provisions of the
minimum sentencing legislation. This appeal consequently,
among other
issues, is whether Dlamini's evidence was rightfully accepted by the
trial court.
[6]
The thrust of the argument by Ms
Marais,
who appeared for the
appellants, is that Dlamini is a single witness to the robbery and
her evidence must be treated with caution.
Dlamini's evidence was
criticised on the basis that she was not in good position to
adequately observe the fifth appellant because:
(a) from the onset of her ordeal
the complainant was grabbed, pushed into a motor vehicle and
strangled;
(b) thereafter she was hit with
both a firearm and an open hand and again grabbed;
(c) by the time she reached the
gate of the shop, she was so confused that she could not see who came
to open the gate;
(d) she was again grabbed and
hit with an open hand and a firearm on the head.
Ms
Marais
further submitted that because an identification parade
was not held, it is doubtful whether the fifth appellant was properly
identified.
[7]
I do not propose to deal with each of the points of criticism
advanced against Dlamini's evidence. It will suffice to refer
at
random to some of her evidence in order to illustrate their nature
and substance (or lack of it) as follows:
(a) In her evidence-in-chief,
Dlamini stated it was in broad daylight when she came face to face
with the fifth appellant.
She spoke to the fifth appellant after he
enquired 'where petrol was sold'. The fifth appellant followed her as
she got back to
her vehicle. The other appellants who were with him,
came closer.
(b) She said that the appellants
did not hide their faces. She was able to identify one of them, the
fifth appellant, because
he took her out of the motor vehicle, kept
on beating her and he also hit her with a firearm.
(c) She could not see the
others, because they were far from her.
(d) She identified the fifth
appellant as dark in complexion, with red eyes and traditional
incisions (scars) on his face.
He had a firearm on him. Two of the
others also had firearms.
[8]
Under cross-examination, Dlamini admitted that she may not have told
the police that she was assaulted and that the appellants
had
firearms because she was shocked and confused. She insisted however
that she was able to identify the fifth appellant.
[9]
The omission in her statement to the police that she was assaulted
and that the fifth appellant had a gun and so did two of
the other
appellants, assumes little importance when considering that the fifth
appellant was in direct contact with her when he
enquired about the
sale of petrol. At that stage she was not assaulted or strangled.
When the fifth appellant followed her to her
vehicle, she again came
into contact with him. It was only then that he grabbed her, pushed
her into the vehicle, strangled her
and pointed the firearm at her.
Above all, the fifth appellant was with her all the time until he and
the other appellants left
the liquor store. Clearly her observation
of the fifth appellant was not fleeting in nature.
[10]
She conceded that she could not see whether Zanele or Cebile opened
the door of the shop because she was confused. This however
does not
mean that she could not identify the fifth appellant.
[11]
She was honest when she testified that she could not identify the
other appellants. She could quite easily have said that she
that she
could identify them because they were unmasked.
[12]
In my view the trial court delivered a careful and well-reasoned
judgment. It is apparent from both the terms of the judgment
and the
evidence of the judgment, that the court was at all times aware, when
considering Dlamini's evidence, that she was a single
witness to the
robbery and that her evidence had to be treated with caution, taking
into account the dangers inherent in such evidence.
It was indeed
alive to the shortcomings in her evidence and the criticisms directed
at her evidence.
[13]
I agree with the learned Regional Magistrate that it is not fatal to
the state case, if an identification parade was not held.
On the
contrary, the evidence of Dlamini is clear, she identified the fifth
appellant because of his red eyes, dark complexion
and his
distinctive facial marks. She was in contact with him for a
considerable period of time, in broad daylight. Noteworthy,
none of
the other appellants were identified with the same facial features
and marks of the fifth appellant. In this regard I am
mindful of the
words of Holmes JA in
S v Mthethwa
1972 (3) SA 766
(A) at
768A-C
'Because of the fallibility of human
observation, evidence of identification is approached by the Courts
with some caution. It is
not enough for the identifying witness to be
honest: the reliability of his observation must also be tested. This
depends on various
factors, such as lighting, visibility, and
eyesight; the proximity of the witness; his opportunity for
observation, both as to
time and situation; the extent of his prior
knowledge of the accused; the mobility of the scene; corroboration;
suggestibility;
the accused's face, voice, build, gait, and dress;
the result of identification parades, if any; and, of course, the
evidence by
or on behalf of the accused. The list is not exhaustive.
These factors, or such of them as are applicable in a particular
case,
are not individually decisive, but must be weighed one against
the other, in the light of the totality of the evidence, and the
probabilities. . . .'
[14]
The fifth appellant was correctly identified, in my mind, by Dlamini
during the robbery and the property which was stolen from
the liquor
store was equally identified by her. If anything, the fifth appellant
is guilty beyond a reasonable doubt. His explanation
as to how he
found himself in Zondo's taxi was rightly rejected by the Court a
quo, as false. The version of Zondo, despite some
of its
inconsistencies, was correctly accepted by the Court of quo,
especially in light of the evidence by Dlamini and the police.
[15]
What is in dispute, therefore is whether, on the circumstantial
evidence, all five appellants robbed the bottle store at Nhlungwane
in Ulundi on 07 July 2014.
[16]
The following facts are not in dispute and are common cause:
(a) On 7 July 2014 at about 12h45, a
white Mazda 323 motor vehicle, with registration No CM05GWGP was
stopped by the police along
the N11, Ngogo area, Newcastle.
(b) The first witness, Nkosinomusa
Zondo ('Zondo'), drove the motor vehicle in which the five appellants
were passengers, when they
were on their way to Johannesburg.
(c) The motor vehicle was searched
after it had been stopped by the police.
(d) All the occupants of the vehicle,
including Zondo, were searched by the police.
(e) All five appellants, including
Zondo, were arrested by the police and were taken to Ngogo Police
Station.
(f) The fifth appellant was identified
with facial incisions, known in isiZulu as
isiNxabo.
(g) The five appellants were staying
at the Benoni Hostel in Johannesburg, Gauteng.
(h) The second witness, Dlamini, was
robbed on the day in question and the property recovered by the
police was identified by her.
[17]
The version of the appellants is that of a mere denial. In their
testimony each of them had the following to say:
(a) First appellant (Accused 2
in the Court a quo) denied that on 7 July 2014 he robbed Dlamini at
the liquor store in Ulundi.
He told the court that on the day he was
at his sister's house at KwaGrace area, Ncome. He slept there
overnight as he had attended
a funeral. He does not know Dlamini, nor
does he know Zondo in this case. He was hitchhiking and hitched a
lift with Zondo's vehicle
at Ncome. He was going to Johannesburg. He
denied Zondo's version that he and the other appellants hired Zondo's
taxi, from Johannesburg
to Ulundi, in order to see a traditional
healer.
(b) Second appellant (Accused 3
in the Court a quo) testified that on the day in question he left his
home at Washbank in
the family car, which was driven by his brother
Amos. Both were travelling to Johannesburg. On the way to Newcastle
their motor
vehicle broke down. He therefore had to hitch a lift a
lift to Johannesburg from the motor vehicle driven by Zondo. When he
boarded
Zondo's vehicle he found three people inside, including the
Zondo.
(c) Third appellant (Accused 4
in the Court a quo) testified that on 7 July 2014 he left Nongoma in
the company of fourth
appellant (Accused 5 in the Court a quo) to
board a vehicle, belonging to his employer, at Vryheid as they were
going to Johannesburg.
When his employer's vehicle failed to fetch
them, they hitched a ride to Ngogo, in Newcastle where they boarded
Zondo's vehicle,
which was proceeding to Johannesburg. After driving
for a short distance, Zondo's vehicle was stopped by the police who
ordered
them to get out of the vehicle and to lie down, whereafter
they were searched. Thereafter they were taken to the police station
at Ngogo.
(d) Fourth appellant (Accused 5
in the Court a quo), told the court that he was with the third
appellant (Accused 4) when
they hitchhiked from Vryheid to Ngogo on
their way to Johannesburg. At Ngogo, they hitched a lift with Zondo.
They found First
Appellant (Accused 2), Second Appellant (Accused 3)
and Fifth Appellant (Accused 6) in Zondo's vehicle.
(e) After driving for a short while
the police stopped Zondo's vehicle, whereafter they were ordered to
get out the vehicle. The
vehicle was searched and they were beaten up
by the police. They were then taken to the police station at Ngogo in
the police van.
They were not given any reasons.
(f) Fifth appellant (Accused 6 in the
Court a quo) said that he was with appellants 1, 2, 3 and 4 in the
motor vehicle driven by
Zondo when he was arrested at Ngogo, in
Newcastle. At the time of his arrest he did not know the other
appellants. After the motor
vehicle had been stopped by the police,
they were made to lie down on the ground outside the vehicle and the
police officers searched
them.
(g) Thereafter he left his home in
Ladysmith and was hitchhiking to Johannesburg. At Dundee, the motor
vehicle driven by Zondo stopped
for him. He boarded it and found the
first appellant inside the vehicle. Along the road to Newcastle they
found the second appellant
who was hitchhiking. The vehicle stopped
and he boarded it. When they reached Ngogo crossroads, the third and
fourth appellants
boarded the vehicle.
(h) Zondo travelled for a short
distance and overtook a police van. Shortly thereafter Zondo's
vehicle was then stopped by the police
who were driving in the same
police van. Zondo got out of the vehicle and spoke to the police.
They were never informed that property
was found in the boot of the
vehicle. The police officers assaulted them. At Ngogo police station,
they heard that some property
was recovered from Zondo's vehicle.
[18]
It is of fundamental importance to a proper evaluation of the
appellants' defence, to reflect upon the evidence of the first
state
witness, Nkosinomusa Zondo, as it provides a factual background to
the present appeal, even though he was not an eyewitness
to the
robbery.
[19]
Essentially, Zondo's evidence was to the following effect:
(a) He is a meter taxi driver. On 6
July 2014, he was at KwaThema Hostel, in Springs, Johannesburg where
he resides when he was
approached by one Mchunu, who also resides at
the same hostel. He knows Mchunu who told him that there are people
who want to go
to Ulundi. He agreed to transport them provided they
pay him.
(b) He and Mchunu left to Benoni in
his taxi, a white Mazda 323 with registration number CM05GWGP to go
and see the people who wanted
to hire his services. The taxi belonged
to one Mbatha, his employer.
(c) He later met all the
appellants in a house in Benoni. It was the first time that he saw
them that day. They spoke about
him taking them to Ulundi.
(d) Although he has never been to
Ulundi before, he agreed a price of R3 000 with them because they
said it was not that far.
(e) On the way to Ulundi, with all
five appellants in the vehicle, they told him that they were going to
see a traditional healer.
They brought along two bags used for
carrying clothing. They did not pay him there and then.
(f) On 7
th
July 2014, in
the morning, they arrived in Ulundi. He left them at a place, up a
hill, on a gravel road and they took the bags
with them.
(g) They returned with the two bags.
Thereafter he drove to a Shell Garage where he wanted to fill petrol.
At the garage, they put
the two bags in the boot of the vehicle and
they asked him for the speaker of the radio which they took away with
them.
(h) He did not know what they were
doing as he was busy with the petrol attendant. When they returned
with the speaker, he lifted
it up and found that it was heavy. At one
stage because he suspected something 'fishy', he opened the bags and
found bottles of
liquor in them. He believed that they were stolen.
(i) He was scared and did not do
anything. Thereafter they proceeded back to Johannesburg.
(j) On the way, he passed a police
van. One of the appellants, before he passed the police van, asked
Zondo to turn but he did not
listen. He was stopped by the police in
police van.
(k) He produced his driver's license.
The white Mazda 323 taxi was searched. In the bags, the police found
liquor, a laptop and
cell phones.
(l) They were all arrested by the
police officers from Ngogo and taken to Newcastle where they were
detained and appeared in Court,
the next morning.
(m) Subsequently, they were taken to
Ulundi, where they were interrogated by the police officers from
Ulundi. He told them about
the speaker and that something was inside
the speaker.
(n) After spending a night in the
police cells at Ulundi, he was taken back to Newcastle, to the pound,
where his taxi was kept.
After recovering the speaker from the taxi,
the police found money and three firearms inside the speaker.
(o) He was not paid for the trip.
[20]
Under cross-examination by the legal representative for the second
appellant, Zondo denied that:
(a) he picked up Mlindeni
Mbhele, fifth appellant, as a hitch-hiker in Dundee (he said that he
had never been to Dundee);
(b) he picked up Mhlengi Mweli,
first appellant, who hitched a lift with him at Neoma; and
(c) he picked up, MhlengiGoodman
Shezi, third appellant, at Newcastle.
He
also disputed that from Mahlabathini to Johannesburg, one will have
to pass, Neoma, Dundee and Newcastle.
[21]
Under cross-examination by Mr Mbehle, for the fourth and fifth
appellants, Zondo said that:
(a) he was paid for the trip;
(b) he received R3 000 for the
trip, from fourth appellant, plus petrol money;
(c) although he resides in
Johannesburg, he comes from the Msinga area;
(d) he met Mchunu in
Johannesburg but he doesn't know where he comes from;
(e) all the accused know Mchunu;
(f) there is a problem
with his written statements made to the police, in that some of the
things mentioned in his police
statement are problematic as they
'were not said by him';
(g) the appellants were involved
in the robbery; and
(h) he denied picking up the
third and fourth appellants at Newcastle, before Majuba Village, on
the way back to Johannesburg.
[22]
It was submitted by Ms
Marais
that Zondo's evidence should be
treated with caution. He was a suspect who drove the motor vehicle
when he, together with the appellants,
was arrested by the police;
stolen property was found in his vehicle. He was Accused 1 in the
Court a quo, but was absolved from
prosecution when the trial
commenced.
[23]
There are clearly certain unsatisfactory features in Zondo's evidence
which emerged during his cross-examination. There was
a conflict in
his evidence as to whether he was paid for the trip. He was extremely
vague as to whether the appellants were seated
inside the house in
Benoni before they left for Johannesburg. His version as to why the
appellants wanted the speaker from his
taxi is nonsensical. It is
also strange why he did not immediately tell the police that there
was property concealed in the speaker
when the police found other
stolen property in the motor vehide.
[24]
Whilst there are some contradictions in the evidence of Zondo, they
should not be over-emphasised in that they are not material
contradictions, when considering his evidence as a whole.
[25]
It is necessary, I believe, to consider Zondo's evidence, in the
light of the evidence of Dlamini and that of the police officers
in
order to determine whether any corroboration may be found for Zondo's
evidence. It is fitting to refer to
S v Gentle
2005 (1) SACR
420
(SCA) para 18 where the Court said:
'It must be emphasised immediately
that by corroboration is meant other evidence which supports the
evidence of the complainant,
and which renders the evidence of the
accused less probable,
on the issues in dispute
(cf
R v W
1949 (3) SA 772
(A) at A 778-9). If the evidence of the
complainant differs in significant detail from the evidence of other
State witnesses, the
Court must critically examine the differences
with a view to establishing whether the complainant's evidence is
reliable. But the
fact that the complainant's evidence accords with
the evidence of other State witnesses on issues not in dispute does
not provide
corroboration.'
[26]
The Regional Magistrate correctly found that Zondo's evidence to the
effect that the fifth appellant alighted from the vehicle,
is
corroborated by Dlamini, who identified him as the one of those that
robbed the liquor store. Furthermore, Zondo testified that
he had
dropped off the other appellants, near the liquor store. Dlamini,
corroborated his evidence when she said that although
she could not
identify each one of the robbers, she saw others with the fifth
appellant during the robbery.
[27]
Zondo also testified that the speaker from his vehicle was removed.
When it was returned to him, it felt heavy and it appeared
that
things were placed inside the speaker. His evidence is corroborated
by the police in that at the car pound and in his presence
and of
other policemen, three firearms were found inside the speaker.
Noteworthy, Dlamini in her evidence said that 'these people
including
the fifth appellant were carrying firearms.'
[28]
I believe that the Court a quo was correct in accepting the evidence
of Zondo which is both probable and in most respects corroborated
and
not contradicted by the evidence of Dlamini and the police officers.
[29]
Returning to a consideration of the appellants' defence of
non-involvement in the robbery, it is important to record the common
cause facts or those facts that are not in dispute:
(a) Zondo was a taxi driver.
(b) Zondo was in the vicinity of
the crime scene at the time of the robbery was committed at about
11:00.
(c) The Appellants were found in
the motor vehicle, driven by Zondo, when they were arrested by the
police from Ncome.
(d) Zondo was arrested with the
appellants a few hours after the robbery.
(e) Zondo's motor vehicle was
searched.
(f) A laptop, various cell
phones, liquor, the sum of R53 000 and three firearms, were found in
the vehicle.
[30]
The appellants' version of how they found themselves in Zondo's motor
vehicle when the police stopped the vehicle is strikingly
different
to Zondo's version. I agree with the reasoning of the Court a quo
that it is bizarre that five people, some of whom are
complete
strangers to each other and who came from different places in
KwaZulu-Natal, namely, two of them are from Nongoma, one
is from
KwaGrace at Ncome, one is from Washbank and the last one is from
Ladysmith, found themselves as hitchhikers in Zondo's
vehicle and
coincidently all of them were heading to one place, namely, Benoni
Hostel, in Johannesburg. I find their version to
be too much of a
coincidence and is thus a fabrication, designed in order to justify
how they all happened to be in one motor vehicle
at the time when
they were stopped by the police.
[31]
The appellants' version is the tainted with further improbabilities.
They testified that:
(a) after Zondo's vehicle was
stopped on the road, the police started beating them up;
(b) the police then ordered them
to get into the police van, without any explanation to why they had
to do so; and
(c) when Zondo's vehicle was
searched, the property that was found in the vehicle was not shown to
them.
[32]
The evidence of the third appellant (Accused 2) exposed their web of
lies, when he testified that the police told them that
they had
robbed a certain place in Ulundi. When it was pointed out to him that
this could not be possible as the police from Ncome
were not aware at
this stage of any robbery at Ulundi.
[33]
I agree with the Court a quo that it is difficult to believe that the
police officers did not show the appellants the property
they found
in Zondo's vehicle, and that the police officers did not explain to
them that they were arrested for being in possession
of suspected
stolen property. The appellants' version is highly improbable.
[34]
When the police officers asked the appellants to identify which of
the nine cell phones belonged to each appellant, no one
was able to
do so. The only vague explanation from the appellants was that the
cell phones belonged to them. The police were not
satisfied with the
answers they got from the appellants. Thereafter they were arrested
and charged with the offence of possession
of suspected stolen
property.
[35]
If Zondo's evidence is to be rejected, then logically he and the
police officers conspired to trap the appellants when they
were
stopped in Newcastle. This is far fetched, as it will mean that
the police in Ulundi were also involved in the conspiracy
to trap the
appellants and implicate them in a robbery in Ulundi.
[36]
On a balance, I am satisfied that the Court a quo was correct in
preferring the evidence of Zondo and the police as opposed
to the
evidence of the appellants, especially in regard to how they found
themselves in Zondo's motor vehicle and how the spoils
from the
robbery came to be in the vehicle. I am of the view that the Court a
quo correctly rejected their version as false beyond
a reasonable
doubt.
[37]
As is clearly established by the evidence the property and money were
found in the motor vehicle driven by Zondo a few hours
after the
robbery, when the police stopped the vehicle, which points to the
circumstantial nature of the evidence. Where the case
against the
Appellants is based upon circumstantial evidence, then the doctrine
of 'recent possession' will be applicable. In S
v Skweyiya
[1984] ZASCA 96
;
1984
(4) SA 712
(A) at 715 C-E, the following general principles were
enunciated, with regard to the doctrine of recent possession:
(a) The property must have been
recently stolen.
(b) The nature of the stolen
property must be of the type which is usually and can easily and
rapidly be disposed of.
(c) Anything beyond a relatively
short period will usually not be recent.
(d) The Court has to determine
whether the property is one which could easily pass from hand to
hand, and whether the lapse
of time is so short as to lead to the
probability that the particular property has not yet passed out of
the hand of the original
thief.
[38]
It is not in dispute that the property was stolen from the liquor
store and that they are of the type which is usually and
can easily
and rapidly be disposed of. It is also not in dispute that the time
between the robbery and the recovery of the stolen
property was less
than a few hours. I am in agreement with the submissions by Mr
van
Heerden,
on behalf of the Respondent that the stolen property did
not pass out of the hands of the appellants when they were stopped by
the
police.
[39]
Assuming for one moment that Dlamini did not properly identify the
fifth appellant who committed the robbery, then the evidence
against
all the appellants is circumstantial which Mr
van Heerden
in
his Heads of Argument submitted is sometimes described as a network
of facts around the accused, it may came to nothing or it
may be
absolutely convincing. In other words, the Court has to determine
whether on the evidence as it stands, it could be said
that the
appellants were guilty of committing the robbery, beyond a reasonable
doubt.
[40]
The question therefore is whether the inference that the appellants
committed the robbery is the only reasonable inference
to be drawn
with the necessary degree of certainty. In
R v Blom
1939 AD
188
at 203, Watermeyer JA held that 'the proved facts should be such
that they exclude every reasonable inference from them save the
one
sought be drawn.' The proved facts in the Court a quo do not exclude
the inference that the appellants were guilty of stealing
the
property found in the vehicle driven by Zondo. The probabilities
strongly suggest that they participated in the actual robbery.
Dlamini saw more than one person, she identified positively the fifth
appellant but not the others. Zondo testified that he drove
all of
them from Johannesburg to Ulundi and refuted their version that he
picked them up at various points on the road between
Ncome and
Newcastle, when he was on his way to Johannesburg, returning from
Ulundi. In my mind, the Court a quo, correctly rejected
the
explanation by the appellants that they hitched a lift with Zondo.
Counsel for the appellants correctly, in my view, did not
criticise
the finding of the Court a quo in this regard.
[41]
From the evidence, as a whole, the only other inference to be drawn,
is that Zondo was the one that committed the robbery in
Ulundi and
that the appellants were innocently implicated in the robbery, when
they hitched a lift with Zondo. But this possibility,
attractive as
it seems, does not fit in with the evidence implicating the fifth
appellant who was positively identified by Dlamini
during the
robbery. His version that he hitched a lift was correctly rejected by
the Court a quo. By the same token, the version
of the other
appellants, which is similar to the story of the fifth appellant, was
also rightfully rejected. It is a strange co-incidence
that all the
appellants were hitching a lift at various points on the N11, unknown
to each other except for the fourth and fifth
appellants, and they
were all going to the same place, namely, Benoni in Johannesburg.
This version cannot be reasonably possibly
true in light of the
totality of the evidence.
[42]
What is equally striking is the failure by each of the appellants,
when asked by the police, to identify the other cell phones
which
were found in the vehicle. They were reluctant to do so even though
they claimed that the cell phones belonged to them. If
they
identified their cell phones, then this would have at least given
some credibility to their version. The weight of the circumstantial
evidence against them is unshakable and their failure to proffer any
reasonable explanation for how the stolen property came to
be in
their possession soon after the robbery, leads to the inexorable
conclusion that the appellants robbed Dlamini at the liquor
store in
Ulundi.
[43]
In the result I agree with the findings of the learned Regional
Magistrate that, on the evidence, the only reasonable inference
is
that the appellants perpetrated the robbery in question, in that,
firstly, this inference is consistent with all the proved
facts, and
secondly, the proved facts exclude every other reasonable inference
from them except that the appellants who are the
perpetrators of the
robbery.
[44]
I now turn to the appeal against convictions.
[45]
The appellants were convicted of robbery with aggravating
circumstances which falls within
Part II
of Schedule 2 of
Criminal
Law Amendment Act, 1997
. Therefore the Court a quo would have been
obliged to impose a minimum sentence of 15 years' imprisonment unless
the trial court
found substantial and compelling circumstances to
justify a departure from the prescribed minimum sentence.
[46]
It is trite that sentencing is pre-eminently in the discretion of the
trial court and an appeal court will not likely interfere
in such a
discretion, unless such a discretion was not exercised judicially. In
this regard, the words of the Supreme Court of
Appeal in S
v
Barnard
2004 (1) SACR 191
(SCA) para 9 are apt:
'It is trite that sentence is a matter
best left to the discretion of the sentencing court. A Court sitting
on appeal on sentence
should always guard against eroding the trial
court's discretion in this regard, and should interfere only where
the discretion
was not exercised judicially and properly. A
misdirection that would justify interference by an appeal Court
should not be trivial
but should be of such a nature, degree or
seriousness that it shows that the Court did not exercise its
discretion at all or exercised
it improperly or unreasonably'
[47]
The Court a quo took into account the triad of factors set out in
S
v Zinn
1969 (2) SA 537
(A), namely, the personal circumstances of
each of the appellants, the offence for which the appellants were
convicted, and the
interests of the community. In my view the Court a
quo gave sufficient weight to each of these factors in determining
whether there
were substantial and compelling circumstances to depart
from the prescribed minimum sentence.
[48]
In a detailed judgment on sentence, the learned Magistrate outlined
the personal circumstances of each of the appellants and
notably that
each one of them were first offenders. It was argued on their behalf
that the appellants were driven by youthfulness
to commit the offence
in question and that the Court a quo should deviate from the minimum
sentence.
[49]
In
S v Muller
&
another
2012 (2) SACR 545
(SCA),
Leach JA said at para 7 that:
'It hardly needs to be emphasised that
armed robberies of this nature are a plague in this country and a
bane to society. By their
very nature, they are severe offences
deserving of heavy punishment. It is not without significance that,
although the
Criminal Law Amendment Act 105 to
1997 was introduced
after the incidents in question, under that Act offences of this
nature now attract a prescribed minimum sentence
of 15 years'
imprisonment.'
[50]
The aggravating factors which were taken into account by the Court a
quo was that the Appellants were armed with firearms which
they used
to overcome any resistance. The Appellants showed no remorse and the
brazenness and callousness of their attack on the
complainant in
broad day light is disturbing, to say the least. The Appellants
displayed no respect for the property and that the
robbery was
meticulously planned by them.
[51]
As far as the commission of the offence of robbery with aggravating
circumstances is concerned, it has to be said that the
offence has
become so common, especially in and around not only our large cities
and towns but also in our rural areas that innocent
men and women go
about their business everyday with great fear and anxiety. The brutal
acts of robbers cause enormous damage to
our country and cast a dark
shadow over the confidence of a community in policing, prosecution
and administration of justice.
[1]
[52]
In
S v Malgas
2001 (1) SACR 469
(SCA) para 25, Marais JA made
it plain that the courts:
'. . .are to respect, and not merely
pay lip service to, the Legislature's view that the prescribed
periods of imprisonment are
to be taken to be ordinarily appropriate
when crimes of the specified kind are committed.'
[53]
I am of the view that the learned Magistrate was correct in finding
that there were no substantial and compelling circumstances,
in that
the aggravating factors outweighed the mitigating factors.
[54]
The sentence imposed by the learned Regional Magistrate suffers none
of the defects and must accordingly stand.
[54]
In the result the appeal against conviction and sentence is
dismissed.
__________________
GOVINDASAMY
AJ
I
Agree,
__________________
NKOSI
J
Date
delivered
19
September 2017
27
October 2017
Appearances:
For
the Appellant
: Adv L
Marais
Instructed
by
: Justice
Centre Pietermaritzburg
For
the Respondent
: Adv F
van Heerden
Instructed
by
: The
Director of Public Prosecutions
Pietermaritzburg
[1]
S v Khambule
2001 (1) SACR 501
(SCA).