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[2016] ZAFSHC 168
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Mahlangu v S (A101/2016) [2016] ZAFSHC 168 (29 September 2016)
THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
A101/2016
In
the matter between:
NTLANTLA
MOKETE
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI,
J
et
MHLAMBI,
AJ
HEARD
ON:
1
AUGUST 2016
JUDGMENT
BY:
MHLAMBI,
AJ
DELIVERED
ON:
29
SEPTEMBER 2016
MHLAMBI,
AJ
[1]
The appellant successfully petitioned this court for leave to appeal
against both his conviction and sentence which was delivered
on 9
November 2012 in the Regional Court at Vrede on the following
counts:
a) robbery
with aggravating circumstances and sentenced to fifteen years
imprisonment;
b)
kidnapping and sentenced to one year imprisonment. The sentences on
both counts were to run concurrently;
c)
possession of an unlicensed firearm and sentenced to three years
imprisonment;
d)
unlawful possession of ammunition and sentenced to six
months imprisonment. The sentences on both counts were to
run
concurrently.
Therefore,
the effective sentence imposed on the appellant was 18 years
imprisonment.
[2]
As regards the conviction, the main ground of appeal is that the
court a quo preferred and accepted the state’s version
of the
events which led to his conviction and rejected his version as not
being reasonably possibly true. The appellant was one
of two accused
who stood arraigned, convicted on the charges preferred against them.
He was tried as accused number 1. His
co-accused was not before
u son appeal. He was legally represented during the trial. He
pleaded not guilty and his plea explanation
was to the effect that
his actions were not unlawful as he acted under compulsion of accused
number two.
[3]
The state based its evidence on the testimony of the complainant and
the policeman who effected the arrest of both the accused.
The
complainant testified that she was on duty on that day the two
accused entered the store. They said they wanted to buy
electricity. The appellant gave her the electricity card which did
not work when she inserted it into electricity coupon dispensing
machine. He went outside saying he was going to phone his house to
ascertain the meter number but came back and reported that there
was
no response from his house.
[4]
Accused number two told the appellant to close the door. The
appellant did so. He, accused 2 took out a firearm,
cocked it
and put it back into the holster clipped to his body belt. He
walked around and took his position behind the counter
where she
stood. The appellant stood by the door. Then accused 2 demanded
the password. After some initial resistance she
pressed the correct
password and established that the remaining electricity was worth
more than a thousand rands. He told her to
switch the machine off as
he was going to take it. As she was scared by this time, she obliged
and helped him to disconnect the
machine. He told the appellant to
take the machine and the appellant took it and put it on the rear
seat of their vehicle outside.
[5]
On his return, the appellant stood at the door once more. Accused
number two started to take the cash. He ordered her to follow
them to
the storeroom in which she was locked up. Accused number two
threatened to shoot her if she screamed. They left and she
heard the
car being driven away.
[6]
During cross-examination she answered that the appellant told accused
2 not to take the money but to restrict himself to what
the latter
had said they should do. According to her, the appellant was an
active participant in the events on that day.
[7]
Constable Mokoena testified that he was stationed at the Memel SAPS.
On 13 August 2009 he was on patrol duty with constable
Kraai. Having
received information they drove in the direction of Vrede and stopped
a BMW, charcoal in colour without registration
number plates at the
back. They introduced themselves and requested the driver’s
permission to search the motor vehicle.
It was granted. A 9mm
Lugger firearm was found under the driver’s seat. A computer,
electricity coupon and many other things
were found in the vehicle’s
boot. On searching both the accused, money and airtime were found on
them. Both did not give
an explanation for the firearm nor the goods
found in the boot. Neither the appellant nor accused 2 asked them for
any help. They
arrested the suspects. During cross-examination the
constable denied that the firearm was found under the passenger’s
seat.
[8] The facts surrounding
the robbery and the kidnapping were not in dispute. The appellant
made formal admissions in terms of section
220 of the Criminal
Procedure Act 51/1977 and admitted the correctness of the contents of
the photo album and the statement in
terms of section 212(4) of Act
51/1977 indicating that the firearm was a semi-automatic weapon and,
together with the 9 parabellum
ammunition, were in a working
condition. The state case was then closed.
[9]
The appellant’s version is that on 13 August 2009 he and the
second accused went to New Castle to visit relatives. They
drove in
his BMW motor vehicle. On their return they stopped at a cash store
at Memel. He was the driver. He alighted, went
to the ATM
adjacent to the cash store, withdrew some money and saw accused
number 2 getting out of the car and going into the cash
store. He
also went into the store to buy an electricity card or electricity.
There was a problem with the serial numbers and he
went outside to
phone. When he returned, accused number 2 was brandishing a firearm
and told him to close the door. He pointed
the firearm at him and the
complainant, ordered him to unplug the computer wires and to take the
computer to the motor vehicle
which was parked in front of the store.
He did and on his return accused number 2 asked the complaint where
the money was and took
the air time vouchers. As they went out,
accused number 2 locked the complaint in a storeroom or similar room.
He did not participate
in the kidnapping and locking up of the
complaint in that storeroom.
[10]
After the robbery, they drove off. He was afraid and did not know
what to do as accused 2 had the firearm in his possession
until they
were pulled over by the police. Accused 2 hid the firearm under the
passenger seat. He knew nothing about the firearm
even though he made
a formal admission that it belonged to his late father and was
inherited by his brother Gift Kubeka. Before
the incident, his
brother had used the car for some weeks, which could explain how the
firearm got into the vehicle. He was so
scared that he was unable to
tell the police, upon his arrest, that at all material time he was
threatened by accused 2 with the
firearm. Secondly, after the arrest,
they would be locked up in the cells.
[11]
On being asked by his counsel why he never ran away when he had the
chance at the time he took the computer to the car, he
said the
complaint was already scared and accused 2 was aggressive. In reply
to the same question during cross –examination
he said that he
was afraid and thought about the complainant. When pressed for an
answer as why he did not seek assistance from
someone to assist the
complainant while he had the chance, he said he did not think about
that.
[12]
It also unfolded during cross-examination that despite his fear and
belief that the presence of the police would bring everything
to
light, he failed to take them into his confidence by instantly
telling them his side of the story. On being pressed for an answer
as
to how everything would come to light if he did not say anything, he
indicated that he was afraid because they were already
arrested and
were to be locked up in the police cells. He disclosed his story for
the first time in court as his previous attorney
had advised him to
remain silent. This is strange as the attorney was not present during
the arrest.
[13]
In argument the appellant’s counsel conceded that some aspects
of the appellant’s actions could probably be frowned
upon
especially his failure to run away or jump into his car and drive
away when he had the opportunity to do so. However, he submitted
that
it was the appellant’s first time to be in such a situation,
overcome by fear and particularly accused number two’s
threats
and conduct made him incapable to consider other options.
[14]
In its rejection of the appellant’s version, and correctly so,
the court a quo stated the following:
”
Dan
blyk dit dat die roof plaasvind in die winkel terwyl beskuldigde nou
daar magteloos toekyk, hy kry geleentheid om weg te hardloop
en weg
te jaag en polisie te gaan roep of hulp te gaan soek deur hy dra die
gesteelde items na die voertuig toe en hy gaan plaas
dit in sy
voertuig hy kom soos ‘n skaap terug en hy gaan maar weer na
beskuldige 1 (sic) waar hy met die vuurwapen staan,
hy kan nie
werklikwaar verduidelik hoekom tree hy so op nie terwyl hy
geleentheid het om weg te kom en hulp te kry. Hy kan ook
nie verklaar
hoekom hy so bang is vir beskuldigde 2 ewe skielik nie in die lig dat
hy beskuldigde 2 baie goed ken en hy ook nie
‘n geweldadige
person is nie………..Hy kry later kans om ‘n
waarskuwingverklaring te maak, vir die
polisiete vertel wat gebeur
het, alhoewel hy ‘n reg het om te swyg kan ‘n mens
aanvaar dat ‘n prsoon in daardie
omstandighede vir die polisie
sal sế maar mense hou my asseblief aan ek is bang vir hierdie
person hy is die person wat die
roof gepleeg het, dit is ‘n
verskrililke voorval wat plaasgevind het dit moet uit jou uitborrel
maar beskudigde besluit om
sy swygreg en verkies om nie vir die
polisie te sế van hierdie voorval nie. Ook vir sy eerste
prokureur sế hy niks
van hierdie dwang van beskuldigde 2 nie.
Hierdie hele verontskuldigende verklaring van beskudigde 1 is so
inherent onwaarskynlik
dat dit so kon gebeur het dat dit verwerp
word”.
[15]
In the heads of argument and oral address, appellant’s counsel
submitted that the appellant’s actions could not
be deemed to
have been voluntary because of
vis
compulsiva
or relative force and that his conduct was, therefore, justified as
he acted out of necessity. This argument cannot be entertained
as it
is hopelessly untenable.
In
my view the appellant’s version was without substance and was
rightfully rejected. The conviction was proper and should,
therefore,
be upheld.
[16]
The effective sentence of eighteen years imprisonment was assailed on
the grounds that it was shockingly inappropriate in the
given
circumstances and that the interests of society were outweighed by
the appellant’s personal circumstances. In passing
sentence,
the court a quo was mindful of the consideration of the appellant’s
personal circumstances to determine the mitigatory
effect thereof
whereafter it would consider the existence of substantial and
compelling circumstances which would justify the imposition
of a
lesser sentence. The appellant was thirty years old, engaged to his
fiance’ with whom they have two minor children.
He was a first
offender and was reasonably employed earning a net salary of one
thousand rands per month. He assisted his mother
with whom he stayed.
[17]
In
S
v Matyityi
2011
(1) SACR 40
(SCA) the court held that the prescribed minimum
sentences are to be imposed unless there are truly convincing reasons
to deviate
from them. Such deviation should not be done for flimsy
reasons. It is incumbent upon a court in every case to assess whether
the
prescribed minimum sentence is indeed proportionate to the
particular offence before it imposes it. In my view it cannot be said
that the court a quo exercised its discretion improperly or
unreasonably. I am also not persuaded that the sentence is shockingly
disproportionate to the nature of the offences so that it can be
typified as gross and thus constitutionally offensive:
S
v Vilakazi
2009
(1) SACR 552
SCA.
[18]
The appeal against the conviction and sentence is dismissed.
______________
J.J
MHLAMBI, AJ
I concur
_____________
M.H.RAMPAI
J
On
behalf of the appellant:
Adv. R Van Wyk
Instructed
by: B.M Jones
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. C
Steyn
Instructed
by:
The
Director of Public Prosecutions
BLOEMFONTIEN