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[2016] ZAGPPHC 21
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Morepe v State (A417/14) [2016] ZAGPPHC 21 (22 January 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
REPUBLIC OF SOUTH
AFRICA
CASE NO: A417/14
DATE: 22 JANUARY 2016
In the matter between:
MOSES MMAKASA
MOREPE
.......................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGEMENT
SEMENYA AJ
1. The appellant and his co-accused,
who were legally represented at the trial, appeared before a regional
magistrate on two counts
of robbery with aggravating circumstances as
intended in section 1 of the Criminal Procedure Act 51 of 1977 (the
CPA). He was convicted
as charged on both counts. His co-accused was
however acquitted. The regional magistrate, having taken both counts
as one for sentence
purposes, proceeded to sentence him to an
effective term of ten (10) years imprisonment. The appeal is on both
conviction and sentence
and is with leave of the trial court.
2. On 15 May 2010 at about 15:00, one
Nomaefeso Kgarebe (Kgarebe), a social worker by profession, was on
duty and on her way to
Stanza Bopape Community Hall situated in
Mamelodi. She was in the company of a friend named Suzan Phiri
(Phiri). Kgarebe, who was
the driver of the vehicle they were
travelling in, stopped along the way to ask for directions to the
hall from a group of boys
standing by the road.
3. A male person who was identified as
the appellant approached their vehicle and gave them directions to
the hall. According to
Kgarebe it took her approximately ten minutes
to understand what the appellant was saying due to language barrier.
She was looking
at the appellant’s face as they were talking.
Kgarebe followed the directions given to them but stopped again at
Stanza Bopape
clinic for further assistance. Meanwhile the two
complainants noticed that the appellant and some passengers were
following them
in a Honda Ballade (Honda) which they have found
parked at the place where they initially saw him. The appellant’s
co-accused
was identified as one of the passengers who was occupying
the back seat. The Honda stopped behind their vehicle at the clinic.
The two complainants were directed to the hall which was near the
clinic by a security guard at the clinic.
4. When they were about to alight at
the hall, they noticed that the appellant had stopped alongside their
vehicle. The appellant
disembarked armed with a firearm. He used the
said fire arm to knock on the window on the driver’s side. The
person who was
occupying the front passenger seat also alighted and
approached Phiri. As Kgarebe was opening the window, the appellant
pointed
the firearm at her head and punched her with a fist,
demanding money from her at the same time. Kgarebe opened the boot of
her
vehicle where her bag was and appellant joined his companion on
Phiri’s side. The appellant’s companion pulled Phiri
out
of the vehicle causing her phone to fall. He picked it up and went
for Kgarebe’s phone which was inside the vehicle.
The appellant
drove away with Kgarebe’s gym bag as well as her hand bag.
5. As the Honda was moving way, the two
complainants realised that it had no registration numbers on its rear
side. They nonetheless
proceeded to the police station to report. The
police accompanied Kgarebe and Phiri to the place where they
initially met with
the appellant but they did not find him. The
appellant’s co-accused took the police and the two complainants
to the appellant’s
house. Kgarebe and Phiri identified him to
the police as the driver of the Honda. The appellant and his
co-accused were then arrested.
6. Although Appellant admitted that he
is the person who directed the two complainants to the hall, he
denied that he is the person
who was driving the Honda. He also
denied that he robbed the two complainants of their belongings at gun
point. According to his
version, he remained where he was found by
the two complainants for about 30 minutes and later went home. He
stayed there until
the arrival of the police who arrested him. His
version is, to a large extent corroborated by that of his co-accused
and one Letsoalo
who was a vender at the place where appellant was
found by the two complainants.
7. Counsel for the appellant argued
that the two complainants admitted that they were terrified and
traumatised by the occurrence.
He further argued that the application
of caution dictates that they could not, under those circumstances,
properly see their assailants
and that this fact renders their
evidence of identity to be unreliable. He further argued that there
are discrepancies in the versions
of the two state witnesses
regarding the aspect as to whether the Honda was there where they
first met the appellant or not.
8. It appears from the record of the
proceedings of the court a quo that the regional magistrate was
conscious of the fact that
the main issue before him was the identity
of the robbers and the need to approach the evidence of the two
complainants with caution.
It is further evident that the regional
magistrate indeed diligently and meticulously applied that caution to
their versions. The
trial court found that the proximity of the
complainants to the appellant, both at the time he was directing them
to the hall and
at the hall during the robbery, the time spent with
them, the fact that the incident took place during broad day light
and that
they were able to show the co-accused to the police are
factors that exclude reasonable doubt with regard to the
identification
of the appellant as the person who robbed them - See S
v Mthetwa
1972 (3) SA 766
(A).
9. The regional magistrate dealt
sufficiently with the discrepancies highlighted by counsel for the
appellant and found that Kgarebe,
as the driver of the vehicle and
the person who was careful not to knock against other vehicle was in
a better position to testify
about the presence and position of the
Honda.
10. The approach to be adopted by the
appeal court faced with an appeal against conviction was stated as
follows in S v Monyane
and Others
2008 (1) SACR 543
(SCA) para 15:
“This court’s powers to
interfere on appeal with the findings of fact of a trial court are
limited. It has not been
suggested that the trial court misdirected
itself in any respect. In the absence of demonstrable and material
misdirection by the
trial court, its findings of fact are presumed to
be correct and will only be disregarded if the recorded evidence
shows them to
be clearly wrong. (S v Hadebe and Others
1997 (2) SACR
641
(SCA) at 645 e-f). This, in my view, is certainly not a case in
which a thorough reading of the record leaves me in any doubt as
to
the correctness of the trial court’s factual findings. Bearing
in mind the advantage the trial court has of seeing, hearing
and
appraising a witness, it is only in exceptional cases that this court
will be entitled to interfere with a trial court’s
evaluation
of oral testimony. (S v Francis
1991 (1) SACR 198
(A) at204 e)”.
11.I am unable to find any misdirection
on the regional magistrate’s part with regard to factual
findings. In my view, there
are no material discrepancies between the
versions of the two complainants. They actually say the same thing in
different ways.
This is acceptable in that Kgarebe was the driver of
the vehicle as correctly found by the trial court. Having said that,
I find
that there is no reason to interfere with the trial court
findings that the identity of the appellant, as the person who
committed
the robbery, has been proven beyond reasonable doubt.
12. In S v Kekana
2013 (1) SACR 101
(SCA) at 105[11]d\\. was stated that:
“It is trite that this court will
not interfere with the sentence imposed by the court a quo unless it
is satisfied that the
sentence has been vitiated by material
misdirection or is disturbingly inappropriate”.
13. No argument was presented before
court with regard to appropriateness or otherwise of the sentence
imposed by the regional magistrate.
The trial court was alive to the
fact that the offences the appellant was convicted of attract a
minimum sentence of 15 years imprisonment
as provided for in
section
51
(2) of the
Criminal Law Amendment Act 105 of 1997
in the absence
of substantial and compelling circumstances that justify imposition
of a lesser sentence in terms of
section 51
(3) (a) of this Act.
14.lt appears from the record that the
regional magistrate appraised himself of mitigating and aggravating
factors, more in particular
the personal circumstances of the
appellant and finally arrived at a conclusion that he
lesser sentence is justified. On the
basis of Kekana (supra), I find no reason to interfere with these
findings. I am of the view
that the sentence the regional magistrate
imposed on the appellant does not raise a sense of shock.
15. In the circumstances I propose the
following order:
15.1 The appeal against conviction and
sentence is dismissed.
M.V SEMENYA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA (ACTING)
GAUTENG DIVISION, PRETORIA
1 agree,
N JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA GAUTENG DIVISION, PRETORIA
it is so ordered.
APPEARANCE ON BEHALF OF THE
APPELLANT: Advocate Phahla
APPEARANCE ON BEHALF OF THE
RESPONDENT: Advocate Roos
Date of hearing: 23 November 2015