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[2016] ZANCHC 78
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Kammies v S (CA&R51/2015) [2016] ZANCHC 78 (20 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE
HIGH
COURT
OF
SOUTH AFRICA
Northern
Cape
Division,
Kimberley
Case
number:
CA
&
R
51/2015
Date
heard:
07
I
03 /
2016
Date
ava
i
l
able:
20/ 05
/ 2016
In
the matter between:
GRAHAM
KAMMIES
Appellant
And
THE
STATE
Respondent
Coram:
Phatshoane,
J
et
Erasmus,
AJ
JUDGMENT
ON APPEAL
Phatshoane,
J
[1]
The 33 year old appellant was arraigned before Regional Magistrate V
Smith in the Kimberley Regional Court, Northern Cape, on
one count of
Robbery read with the provisions of
s 51(2)(a)
or (c) of the
Criminal
Law Amendment Act, 105 of 1997
. He is accused of unlawfully and
intentionally assaulting the 61 year old Ms S. M. S. and forcibly
taking her diamond "ring"
worth R436,000.00 on 16 October
2014 near Aviva and Cronin Streets, Hadison Park, Kimberley.
[2]
The appellant pleaded not guilty to the charge. In his plea
explanation he acknowledged that he had been present on the robbery
scene but denied that he was involved in the commission of the
offence. He therefore denies assaulting the complainant or taking
anything from her. He claimed that he assisted her by intervening
when she was attacked but was instead physically manhandled by
a
civilian man.
[3]
On 06 August 2015 the appellant was found guilty as charged and a day
thereafter was sentenced to 7 (seven) years imprisonment.
With leave
of the court below he is before us on appeal against his conviction
only. Principally his grounds of appeal
are that the trial
court erred in finding that the State proved its case beyond a
reasonable doubt and rejecting his version as
inherently improbable.
[4]
The State's case was that Ms S. M. S., the wife of a jeweller shop
owner (the complainant), was driving along Aviva Road on
the drizzly
afternoon of 16 October 2014 when she heard a bang (blikgeluid)
behind her vehicle. She looked in the rear view mirror
and noticed a
white vehicle very close to hers. She thought that this vehicle had
possibly bumped her vehicle. She stopped to investigate
if there was
any damage to it. As she got to the back of her vehicle a man
alighted from the driver's side of the said trailing
vehicle. This
person insisted that there were scratch marks on the complainant's
vehicle whereas she could not observe any. The
complainant told the
man to wait while she fetched her umbrella to shield herself and
assess the damage properly. She removed the
car-keys from her
vehicle. She spotted another man standing on the opposite side of her
vehicle, where she had parked, on the pavement.
[5]
The complainant opened the boot but before she took out the
umbrella she was lifted off the ground (toe het ek my voete
in the
lug begin beweeg). The assailant forcibly removed her uninsured ring
worth R436 000.00 from her finger. She
screamed. One man
ordered the other to shut the complainant's mouth to muffle her
screams. There were other men in the white
vehicle but she cannot
identify them.
[6]
Mr Dawid Johannes Van Heerden was resident at the corner of
Aviva and Cronin Streets. He had just parked his vehicle
at his
residence when he heard a scream approximately a block away. He moved
to a vantage point and saw movement in the street
but could not make
a proper observation of these people because the gate obscured his
view. They moved quickly to and fro whilst
the screaming continued.
He went to the gate for a better view of the situation and saw two
men with their backs towards him. He
noticed a white Mercedes with an
open boot. He also saw a female's legs kicking about.
[7]
Van Heerden hurried unobtrusively towards the scene. As
he approached he noticed another vehicle parked left "vanwaar
die vrou onder die man se bene gele het". The driver of this
vehicle was keeping a watchful eye over the scene. Another man
crouched over the complainant with the other next to her. Van Heerden
unfolded a clasp knife he had with him. As he stalked
the two
men the driver in the other vehicle sped off.
[8]
Van Heerden pounced on the appellant, who had been crouching
over the complainant, and grabbed him by the chest. He brandished
the
knife causing the second man to flee from the scene. Van Heerden
called his landlord and requested him to bring cable ties
which he
used to tie the appellant's wrists and ankles. The complainant was
very confused "ontsettend verbouereerd".
She cried and was
hyperventilating. She tried to speak but she was almost voiceless.
She later managed to say that she feared that
they would shove her
into the boot. People started to gather in the street and the police
were summoned to the scene. Van Heerden
denied that the appellant
tried to rescue the complainant from her assailants.
[9]
The State also called W/O Marcus Mafaro, the Investigating Officer.
He stated that the appellant exercised his right to remain
silent and
did not give any explanation or warning statement to the Police. This
is remarkable given his version of the events.
[10
]
Following an unsuccessful attempt for his discharge in terms
s 174
of
the
Criminal Procedure Act, 51 of 1977
, the appellant took the
stand. He claimed that he was walking on the pavement when he
saw two vehicles collide close-by.
He passed the trailing vehicle and
proceeded to the complainant's vehicle to check the extent of the
damage to it. The complainant
alighted from her vehicle. He showed
her a mark on the bumper of her vehicle. She fetched the car keys
from her vehicle to open
the boot. At the moment that she opened the
boot some unknown men, who came from nowhere, subdued her. He moved
away from her.
A tussle ensued between the complainant and these men.
He did not touch the complainant or assist these men or take
anything
from her.
[11]
The appellant conceded having crouched over the complainant as
described by Van Heerden. He said after the complainant had
fallen he
attempted to help her and enquired "what was going on". He
says that the complainant did not respond to him
because she was
confused. It is illogical that the appellant made this enquiry when
he had all along been present on the scene
and witnessed what had
transpired.
[12]
In terms of the appellant's evidence he only attempted to assist the
complainant after the attackers had run away. He then
contradicted
himself and said that when Van Heerden grabbed him one man fled the
scene. Later on under cross-examination he claimed
not to have known
what happened to these men because he focused on Van Heerden.
[13]
The appellant also conceded under cross-examination that when Van
Heerden arrived at the scene two men were bending over the
complainant. Realising that he might have painted himself in a
corner he quickly changed course and said that his thoughts
were not
on other people on the scene but on the complainant. He went on:
"...ek was deurmekaar gewees vir die ding wat ek
nou gesien het.
Die een oomblik
ry
die
een kar - die voertuig in die ander voertuig, die volgende oomblik
vat hulle Ms Stokes se ring".
[14]
The appellant further stated that he did not know what happened to
the driver of the white vehicle or whether the driver alighted
from
his vehicle because he did not keep an eye on him. None of the
unknown men attacked him.
[15]
The appellant says that Van Heerden choked and manhandled him. He was
facedown. He struggled to breath and was therefore unable
to tell Van
Heerden that he was merely assisting the complainant. He did not give
any witness or warning statement to the police
after the incident
because his erstwhile attorney advised him against it.
[16]
Mr Bence, for the appellant, argued that in view of the fact that the
incident in issue happened on a rainy day, it was probable
that the
complainant was concentrating on the road and did not keep a proper
look-out for the pedestrians in the vicinity of the
scene. He
contended that it was not improbable that the appellant came from the
direction of the vehicle that collided with the
complainant's vehicle
to check the extent of the damage to the vehicle. Counsel
further argued that it made no sense that
the appellant did not
follow the complainant when she retrieved the keys from her vehicle
to open the boot. On this score, he contended,
the appellant's
conduct is inconsistent with that of a person who was at the scene to
rob the complainant. He argued further that
there is no evidence that
the appellant had harmed or took anything from the complainant.
Counsel was of the view that no finding
could be made with regard to
the man who stood next to the appellant when Van Heerden pounced on
the appellant or where he came
from because he did not get into the
robbers vehicle, which was few paces way, but merely ran away.
[17]
Mr Bence further argued that the Magistrate's reasoning that the
robbers did nothing to the appellant is without any basis
because
there were several of them. In any event, he contended, there was
nothing to suggest that the appellant stood in their
way or hindered
in or attempted to thwart their plans. In addition, he argued, it
cannot be expected of an innocent bystander to
intercede in a robbery
and expose himself to a risk of harm.
[18]
There is one inconsistency in the complainant's version which the
defence devoted much attention on in an attempt to discredit
her. She
was confronted with the following statement to the police: "Ek
kan nie se of hy agter die stuurwiel geklim het maar
ek kan wel se
dat hy vanaf die regterkant van die voertuig gekom het". She
later conceded that she did not know whether the
appellant came out
of this vehicle but he was on its right side and came straight to
her. Regard being had to the complainant's
traumatic experience it
cannot be expected that her recollection of this aspect would be
perfect. In
S
v
Nyembe
1982 (1) SA 835
(A) at 842E-G Diemont JA had this to say:
"Having
analysed these contradictions he
came to the conclusion that they did
not
warrant
'either
in isolation or
cumulatively a credibil
i
ty
finding favourable to the
accused
or against the
State'.
I
can find
no merit
in counsel's
criticism
of
this
conclusion,
particularly
when
it
is
borne
in
mind
that
the
contradict
i
ons
related
to
events which had happened some eight months previousl
y
.
Moreover
the
contradict
i
ons
were of a trivial nature. I
am always surprised that
witnesses
can,
or
think they can,
after a
passage of weeks and months,
recollect how they
were
seated
in a
motor
car,
what
route
they
travelled
and
at
what
time
they
reached
their venue.
I am
not surprised,
however,
when
they
fall
into
contradiction.
The
wise
trial
Judge knows
that human
memory is
only
too
fallible."
[19]
In
S
v Hadebe
and
Others
1998 (1) SACR 422
(SCA) at 426e - h the SCA cited with approval
the following dictum in
Moshephi and Others v R
(1980 -
84)
LAC 57
at 59F - H on the correct approach to evidence and held:
"The
breaking
down
of
a
body
of evidence
into
i
ts
component
parts
is obviously a
useful aid to
a
proper
understanding
and
evaluation of
i
t.
But,
in doing
so, one must
guard against a
tendency to
focus too intently upon
the separate and
individual
part
of
what
is, after
all, a
mosaic
of
proof.
Doubts
about
one
aspect
of
the
evidence
led
in a
trial
may
arise
when
that
aspect
is
viewed
in
isolation.
Those
doubts
may be set
at
rest when
it is evaluated
again together
with
all the other
available
evidence.
That
i
s
not
to
say
that
a
broad
and
indulgent approach
is
appropriate when
evaluating evidence. Far
from
it.
There
is
no
substitute
for
a
detailed
and
critical
examination
of
each
and
every
component
in
a
body
of
evidence.
But,
once
that
has
been
done,
it
is
necessary
to
step
back
a
pace
and
consider
the
mosaic
as
a
whole.
If
that
is
not
done,
one
may
fail to see the wood
for
the trees.'
[20]
The appellant placed himself on the scene. Before the complainant
felt suspended above ground she was with him. The complainant's
evidence as corroborated by Van Heerden was that, apart from the
driver of the white vehicle who was keeping a watchful eye, there
were only two people on the scene, the appellant and one man who
stood on the pavement after the complainant had fetched her car
keys.
It was never disputed that one of these persons ordered the other man
to shut the complainant's mouth when she began screaming.
It is
therefore probable that either the appellant or his companion made
these utterances. This is proof that the robbers acted
in tandem and
in concert.
[21]
It is trite that in the absence of demonstrable and material
misdirection by a 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. See
S
v
Hadebe and
Others
1997 (2) SACR 641
(SCA) at 645e - f;
R
v
Dhlumayo and Another
1948 (2) SA 677
(A) at
705 - 706.
[22]
Having considered the eye witness testimony of the complainant and
Van Heerden and having drawn certain inferences from the
facts the
Magistrate rejected the appellant's version as not reasonably
possibly true. He reasoned:
22.1
Firstly, that if the appellant's version was true, the robbers ought
to have noticed him on the scene. They did nothing
to him. They did
not push him out of their way or assault him. They were not scared of
him nor did he raise the alarm.
22.2
Secondly, the Magistrate found that the man who stood next to the
appellant when Van Heerden arrived on the scene was
one of the
robbers. When this assailant became aware of Van Heerden's presence
he and the driver of the white vehicle, who the
Magistrate also found
was part of the group that robbed the complainant, fled the scene.
22.3
Thirdly, the Magistrate found no reason why, if the appellant was
innocent as he claimed, he was unable to make certain
observations on
the scene. For instance, he did not check who the driver of the white
vehicle was or if there was a driver in that
vehicle or other
occupants. The Magistrate was, in the end, convinced that the
appellant was part of the group of persons that
robbed the
complainant.
[23]
The conclusion by the Magistrate that the simulated motor vehicle
collision, in which the complainant's vehicle was purportedly
involved in, was merely a ploy to bring her vehicle to a halt cannot
be faulted. What should be added is that the robbers must
have known
her, knew about the exquisite and expensive ring she wore, observed
her movements, followed her to the place where she
would be
relatively isolated, simulated the accident and robbed her.
[24]
Our law did not require that a Court had to act only upon absolute
certainty, but merely upon justifiable and reasonable convictions.
See S
v
Nts
e
l
e
1998 (2) SACR 178
(SCA). The appeal must fail.
[25]
In the result I make the following order:
ORDER:
1.
The
appeal
against
conviction
is dismisse
d
.
_________________
MV
PHATSHOANE J
I
agree
_________________
SL
ERASMUS AJ
On
behalf of the appellant: Mr HMA Bence (instructed by Fletcher's
Attorneys)
On
behalf of the
respondent:
Adv M Makgaga (Instructed
by
the NDPP)