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2016
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[2016] ZAFSHC 222
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Leeto v S (A268/2015) [2016] ZAFSHC 222 (22 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A268/2015
In
the appeal between:-
KGOSILETSILE
LEETO
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA, JP
et
CHESIWE, AJ
JUDGMENT
BY:
MOLEMELA, JP
DELIVERED
ON:
22 December 2016
Introduction
[1]
This is an appeal against conviction and sentence. Leave to appeal
was granted by the trial court.
Litigation
history
[2]
The appellant was arraigned in the District Court in Bloemfontein on
a charge of robbery. During the testimony of the complainant,
it came
to light that a weapon was used during the robbery. The appellant was
then warned about the more serious nature of robbery
with aggravating
circumstances and the applicable minimum sentences. He was
subsequently convicted of robbery with aggravating
circumstances.
After his conviction by the District Court, the matter was
transferred to the Regional Court for sentencing.
After a delay
of about nine months, during which period the appellant was in
custody, the Regional Court sentenced the appellant
to 5 years’
imprisonment. The appellant immediately brought an application for
leave to appeal. Leave to appeal was granted
and he was released on
bail. The appellant was legally represented throughout the trial.
[3]
There were delays in prosecuting the appeal, partially because the
arrangements for the transcription of the record were made
at a very
late stage. The appellant has attributed that delay to a lack of
funds to pay his attorney’s fees. Further
delays were
apparently due to the reconstruction of record pertaining to the
sentencing part of the proceedings. As a result of
the delay in
prosecuting the appeal, the appeal
was
argued approximately seven years after the appellant was sentenced.
He is currently out on bail, which was
granted on
the day on which sentence was imposed.
Application
for condonation
[4]
The appeal was initially enrolled for April 2016 but was struck off
the roll when the appeal panel realised that the appellant
had failed
to apply for condonation for the late filing of the Notice of Appeal.
The Notice of appeal was filed eighteen months
after the granting of
leave to appeal. The appellant’s attorneys subsequently filed
an application for condonation, which
was not opposed by the State.
Having considered all the circumstances, this court finds that
condonation ought to be granted.
Facts
giving rise to the appeal
[5]
An account of the incident leading to the appellant’s
arraignment was related by the complainant as follows: On
the
morning of 10 December 2004 the complainant went to a mall with the
intention of withdrawing money from an automated teller
machine
(ATM). Upon approaching the banking section of the mall he
noticed four persons in the vicinity of three ABSA Bank
ATM’s.
Two were standing next to each other, one was standing at the ATM and
the fourth person, whom the complainant
later identified as the
appellant, was standing in a corridor. The complainant joined
the queue. While waiting in the
queue, the appellant whistled
to him signalling to him that he should use the other ATM.
Using sign language, the complainant
signalled to the appellant that
he preferred to stand in that same queue.
[6]
According to the complainant, when the person who had been standing
at one of the ATM’s left the machine, the complainant
approached the machine and inserted his bankcard. Just after he
had punched in his personal identification number (PIN),
someone came
from under his shoulder and punched a number in. When he looked at
him he realised that this was one of the persons
he had observed in
the corridor when he was approaching the ATM section. He shoved this
person aside, but a second person rushed
at the same ATM and punched
a number in. He realised that he was being robbed and tried to
resist. While he was embroiled in a
scuffle with these two persons,
the appellant rushed at him and tripped him, as a result of which he
fell. The appellant started
kicking him. During this scuffle,
the three persons, including the appellant, were communicating with
each other in Sesotho.
He could not understand what they were
saying, as he is Afrikaans speaking. He saw one of them passing
his bankcard on to
the appellant. The appellant grabbed the
card and went to the ATM. He was still trying to fight these
persons off when
one of them drew a knife. He tried to fight back but
was overpowered when a third one joined in.
[7]
He continued putting up a fight until he managed to disarm his
assailant of the knife. At that point, the appellant left
the
ATM and tried to run past him. He stabbed the appellant with a
knife. The appellant then threw the card over his
shoulder and
ran out of the mall. The appellant’s accomplices fled in
a different direction. The complainant
jumped onto his bicycle
and pursued the appellant. At that point the complainant’s
uncle came from around the corner.
To avoid being cornered, the
appellant ran in the direction of the police station, with the
complainant and his uncle in hot pursuit.
The appellant ran
into the police station. The complainant reported the matter to
the police. The appellant was searched
and several bankcards
bearing different names were found in his possession. The
police questioned him about the cards but
he could not give an
explanation. The appellant was then arrested. The
complainant then went back to the ATM with the
card that the
appellant had thrown over his shoulder. Later in the day he
used his ATM card to draw his bank-statement and
discovered that an
amount of R1 000 had been withdrawn from his bank account at the
time of the incident.
[8]
The arresting police officer was also called as a state witness.
He corroborated the complainant’s statement regarding
how the
appellant ended up being arrested. He further testified that at
the time when the complainant reported that the appellant
had robbed
him, the appellant tried to run out of the other door of the charge
office but was cornered just outside the building.
When the police
asked the appellant why he was running away, he did not give any
explanation. It was at that stage that the
police searched the
appellant and discovered several bankcards in his possession.
When he was questioned about these bankcards,
the appellant said they
were his own. When questioned why they bore other people’s
names, he could not account.
[9]
In his own version the appellant admitted having been present at the
ATM section of the mall at the time when the complainant
was robbed.
He admitted witnessing the robbery and seeing the robbers fleeing
from the scene. He denied having participated
in the robbery.
He saw the complainant and his friend chasing after the person who
had robbed him. He watched them
until they turned around the
corner and then proceeded to the ATM to withdraw money. Before
he could do any transactions
on the ATM the complainant approached
him, riding a bicycle and stabbed him while he was on his bicycle.
He ran away without
asking any questions. The complainant
chased after him until he entered the police station. When the
complainant entered
the police station, he jumped over the counter.
At the time when he was searched by the police, only his own bankcard
was
found in his possession.
Grounds
of appeal
[10]
The appellant’s grounds of appeal are that the state did not
prove its case beyond reasonable doubt and that the trial
court erred
in rejecting his version. The basis of the appeal against
sentence is that the sentence imposed was shockingly
inappropriate.
Evaluation
[11]
It is trite law that the state bears the onus of proving an accused
person’s guilt beyond reasonable doubt
[1]
.
Considering the advantage which a trial court has of hearing and
appraising witnesses, a court of appeal will not tamper
lightly with
the trial court’s credibility findings. It will do so if
it is shown that the findings made by the trial
court were clearly
wrong
[2]
.
The trial court’s evaluation of the evidence demonstrates that
it was alive to the fact that the complainant was a single
witness in
respect of the robbery. It is evident from the record that the trial
court scrutinised the complainant’s evidence
and applied the
cautionary rule to it on account of the complainant being a single
witness and in relation to his identification
of his robbers. It
found the complainant’s evidence satisfactory in all material
respects
[3]
.
It also correctly found that the appellant acted with common purpose
with two other persons. Indeed, the evidence revealed the
appellant’s
active association from the time the appellant arrived at the ATM
section. He is the one that tried to direct
the complainant to a
specific ATM; he is the one that tripped the complainant after his
bankcard had been grabbed from the machine.
He communicated with the
other two perpetrators throughout the incident. He is the one that
was given the appellant’s bankcard
for purposes of withdrawing
the money from the ATM while the complainant was being threatened
with a knife.
[12]
The conspectus of the record reveals that the complainant presented a
cogent account of events that was not seriously challenged
under
cross-examination. It is evident from his evidence that
before his attack, he had had sufficient opportunity
to make
observations at the banking section of the mall. His evidence
is detailed and describes the position of and the role
played by each
of his assailants from the time he arrived at the ATM up to the time
the three robbers fled in different directions,
from which time his
attention was focussed on the appellant.
[13]
As the trial court correctly pointed, all observations made by the
complainant before the robbery were made while he was calm
and not
under any threat of attack. It is also evident that the
complainant was vigilant from the moment he arrived at the
ATM’s.
He maintained his vigilance despite his assailant’s efforts to
distract him. He described the scuffle
in great detail and was able
to explain the role played by each assailant. It is clear from
his description of the incident
that the appellant acted with a
common purpose with the other two assailants. He is the
one that came to his accomplices’
assistance by tripping the
complainant. He is the one that the card was handed to during the
scuffle. When it became evident that
the complainant was trying to do
everything in his power to retrieve his bankcard, he was threatened
with a knife in order to subdue
him while the appellant was
withdrawing money. The incident happened in the morning and
visibility was not disputed. It is
also evident from the
appellant’s narration of the incident that he had a vivid
recollection of the incident. The reliability
of the
complainant’s evidence of identification is beyond reproach and
passes muster.
[4]
[14]
With regards to the appellant, he placed himself at the scene and
gave a highly improbable version. Although he initially
indicated that the complainant was robbed by one man who pretended to
be a security guard, he later changed tack under cross-examination
and claimed that the person who impersonated a security guard was in
the company of an accomplice. His description of how the complainant
attacked him and how he reacted to the attack are highly improbable.
His behaviour at the police station was not of an innocent
victim of
assault. The police officer’s evidence of his strange behaviour
in attempting to run away from the safety of the
police station after
the complainant had identified him as the person who had robbed him
was not challenged in any way. It was
only at the stage of his
evidence in chief that the appellant denied that the police officer
who testified about his reaction was
present at the police station.
He could not satisfactorily explain why he did not give his legal
representative proper instructions
in this regard. The trial court
found him to be evasive and untruthful.
[15]
It is trite law that a court of appeal will not tamper lightly with
the trial court’s credibility findings. This is on
the
acceptance that the trial court would have the advantage of hearing
and appraising the witnesses. The credibility findings
will be
tampered with if it is shown that the findings made by the trial
court were clearly wrong
[5]
.
It has not been submitted that the trial court committed any
misdirection of fact. Furthermore, when consideration is paid to
all
inconsistencies, improbabilities and contradictions in the
appellant’s evidence, there is no reason to doubt the
correctness
of the credibility findings made by the trial court.
I am satisfied that
t
he
state proved its case beyond reasonable doubt. Furthermore, the trial
court correctly found the appellant to be an untruthful
witness and
correctly rejected his version as false beyond reasonable doubt. The
concession made by the appellant’s representative
in relation
to the appellant’s conviction was thus properly made.
There is therefore no reason to tamper with the appellant’s
conviction.
[16]
As regards sentence, it is established law that a court with
appellate jurisdiction has limited powers to interfere with the
sentence imposed by the trial court
[6]
.
The sentencing discretion lies with the trial court and its sentence
will be interfered with on appeal only if the discretion
in question
was not exercised judicially and properly
[7]
,
or if there is disparity between the sentence imposed and the one
that the court of appeal would have imposed had it been the
trial
court. In
S
v Malgas
[8]
the court stated as follows:-
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it.
To do
so would be to usurp the sentencing discretion of the trial court.
Where material misdirection by the trial court vitiates
its exercise
of that discretion, an appellate court is of course entitled to
consider the question of sentence afresh. In
doing so, it
assesses sentence as if it were a court of first instance and the
sentence imposed by the trial court has no relevance.
As it is
said, an appellate court is at large. However, even in
the absence of material misdirection, an appellate
court may yet be
justified in interfering with the sentence imposed by the trial
court. It may do so when the disparity between
the sentence of
the trial court and the sentence which the appellate court would have
imposed had it been the trial court is so
marked that it can properly
be described as “shocking”, “startling” or
“disturbingly inappropriate”
It
must be emphasised that in the latter situation the appellate court
is not at large in the sense in which it is at large in the
former.
In the latter situation it may not substitute the sentence which it
thinks appropriate merely because it does not accord
with the
sentence imposed by the trial court or because it prefers it to that
sentence. It may do so only where the difference
is so substantial
that it attracts epithets of the kind I have mentioned.”
[17]
It is evident from the record that the trial court properly
considered the triad of sentence. The appellant’s personal
circumstances were that he was 30 years old at the time of commission
of the offence, that he was a first offender, that he was
in a
relationship and had two minor children and that he was gainfully
employed at the time of the incident. In determining
the
appropriate sentence, the trial court also considered that even
though the appellant acted with common purpose, he was
not the
one that was in possession of a knife. It also took into account that
the appellant was stabbed by the complainant and
suffered injuries.
To the appellant’s advantage, the trial court accepted that the
knife was only produced after the complainant
had been dispossessed
of his bank card.
[18]
In as far as aggravating factors are concerned, the trial court took
the prevalence of the kind of robbery committed into account
and
rightly so. It also correctly took into account that the
offence was well-planned by the three perpetrators. As
the
appellant was employed at the time of commission of the offence, it
can be accepted that his deed was not motivated by need.
His lack of
remorse for his actions impacts negatively on his chances of
rehabilitation. The aggravating factors far outweigh the
mitigating
factors. Having considered all these circumstances, I am satisfied
that the trial court did not err or misdirect itself
in any way.
As I see it, there also exists no disparity between the sentence
imposed by the trial court and one which this
court would impose if
circumstances so warranted or if it was the trial court. There is
therefore no reason to tamper with the
sentence imposed. The delay of
six months in transferring the matter from the district court to the
regional court is indeed deplorable
and is a matter of grave concern.
The same applies to the delays in the prosecution of the appeal. It
is clear that although part
of the delay was due to a lapse of the
judicial system, the appellant also had a hand therein. His
prejudice was relatively
minimal as he was in custody for only nine
months while awaiting trial. This period was duly taken into account
when sentence was
imposed on him by the trial court. The appellant
has been on bail ever since he was granted leave to appeal, shortly
after his
sentencing. He was legally represented and would have known
that if he did not have sufficient money to pay his attorney, he
could
apply for legal aid. He was at some point aware that his appeal
had been withdrawn and chose to ask his attorney for a refund of
the
money he had already paid, instead of taking steps to advance the
finalisation of the appeal. The delay cannot under such circumstances
warrant tampering with either the conviction or the sentence.
[19]
In the result, the following order is granted:
1.
The
appeal against conviction and sentence is dismissed.
2.
The
conviction and sentence imposed on the appellant are confirmed.
__________________
M.
B. MOLEMELA, JP
I
concur.
______________
S.
CHESIWE, AJ
On
behalf of appellant:
Adv. P. R. Cronje
Instructed by:
Lovius Block
BLOEMFONTEIN
On
behalf of respondents:
Adv. S. Giorgi
Instructed by:
The Director:
Public Prosecutions
BLOEMFONTEIN
/eb
[1]
S v V 2000 (1) SACR 453 (SCA)
[2]
S v Mkhohle
1990 (1) SACR 92
at 100e
[3]
S v Sauls
1981(3)
SA 172
; Pistorius v S
[2014] ZASCA 47
[4]
S v Mthethwa 1972
(3) SA 766 (A)
[5]
S v Mkhohle (supra)
[6]
S v Salzwedel & Others 1
999(2)
SACR 586 (SCA) at 591 F-H
[7]
S v Rabie
1975
(4) SA 875 (AD)
[8]
2001 (1) SACR 469
(SCA) at 478 d-h