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[2016] ZANCHC 41
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Bezuidenhout v S (CA&R76/2016) [2016] ZANCHC 41 (2 December 2016)
I
N
THE H
I
GH
COURT OF SOUTH AFRICA
(NORTHERN
CAPE H
I
GH
COURT, K
I
MBERLEY)
CASE
NO.
:
CA&R
0
0
1
15
Matter
heard:
31
-
10-2016
Delivered
:
09-12-2016
In
the
Appeal
of:
China
Leshope
1
st
Appellant
Thabalakhe
Grond 2
nd
Appellant
And
THE
STATE
Respondent
WILLIAMS
J
et
ERASMUS
AJ
J
U
D
G
M
E
N T
WILLIAMS
J:
1.
The
appella
nt
s
,
Messrs China
Leshope
and
Thabalakhe Grond
,
were
convicted
in the
Regional
court,
Galeshewe
on
a
charge
of
robbery with aggravating
circumstances
and were sentenced each
to
15
years
imprisonment.
This
appeal
lies
against
both the
conviction and sentences
i
mposed
.
2.
The
appeal
against
the
convictions
hinges
on the
issue
of
i
dentity
.
The
appellants maintained
from
the
outset
,
in
their
plea explanation and
their
evidence
that
they were walking
peacefully, albeit
inebriated
,
from a
tavern when
they
were
approached
in
the
street
by
patrolling
police
officers
who arrested them for
no reason and placed them
in
the back
of
the
police
van
where
they
were
l
ater
i
dentified
by
the
complainant and his witness
as
the
men
who committed the
robber
y
.
3.
The state's case
is
briefly as follows:
3.1
The complainant Mr
I
saac
Mdoloza and
his
friend
Mr Katlego
Thipa
testified
that
they
were
walking
together
along
a
footpath
through
the
veld
in
club
2000
at
around 22
:
00
on
the
night
in
question
.
Mr
Thipa
had fallen
slightly
behind since
he
had
to
attend
to
a
call
of
nature
,
when
four
men
approached
the
m
.
Three
of
these
men
went for the complainant and one
ran
to
Thip
a
.
3.2
According
to
the
complainant
the
first
appellant
grabbed him by the
pants
,
took
out
a
knife and
stabbed
him
once
in
the chest
while
the two
other
assailants
who were
also armed with
knives
stood to the side
.
3.3
The
second
appellant returned
from
Thipa
and
started
searching
through
the
complainant's pockets
.
He
took
the complainant
'
s
cellphone, cash
in
the amount of
R450
,
00
and
his
Daniel Hechter
cap
before the
four
men
ran
away
.
3.4
The
complainant
,
who had
collapsed
to
his
knees
,
was
joined
by Thipa who
almost
immediately saw a police van
approaching
and
which
he
stopped
for
assistanc
e
.
The
two
were told to wait for an ambulance at a nearby house
.
3.5
A short
while
l
ater
the police
van returned
with
two
people
in
the back of
the
va
n
.
The complainant recognized
them
as
two of the robbers -
the
two appellant
s
.
The second
appellant was wearing the complainan
t
'
s
Dan
i
e
l
Hechter
cap
,
which
was
also
the
only
property
he
received
back
.
3.6
Thipa
who
had
managed
to fight
of
the
second
appellant
,
who
was
also
armed
with
a
knife
,
testified
that
whi
l
e
he was
looking
for
stones
to
throw
at
the
second
appellant he
heard
one
of
the
men
with
the
complainant
shouting
"
China
kom
ons
hol
weg
".
When
his assailant turned
and
ran
off
Thipa
assumed
that
his
name
was
China
.
As
it
turned out the first appellant's
name
is
Chin
a
.
3.7
.
Be
that
as
it
may
,
Thipa
then
went to
the
complainant
whom
he
found
had
been
robbed
and stabbe
d
.
He
managed
to
stop
a
pol
i
ce
van
and
informed
the
police
of the
robber
y
.
The
pol
i
ce
van
l
eft
them waiting for
an
ambulance. When
the
van
returned
Thipa
heard
voices
from
the back
of
the va
n
.
He
peered
i
n
,
saw two
men
and real
i
sed
that one
of
the men
was
the person
who had attempted
to
rob
him
.
He
then
informed
the
police
officers present.
3.8
Two
of
the
pol
i
ce
officers
involved
in the
arrest
of
the two appellants
testified
.
Constable
Moitsemang
was
the
driver of
the
police
van,
who with
two colleagues constables
Nhaleni
and
Lekweni
,
patrolled
the
streets
of
Club
2000
.
While
driving
around
the
area
they
saw
four
men
running
away
after
they
had
noticed the
pol
i
ce
va
n
.
Moitsemang
gave chase
.
At some point Nhlaleni
and
Lekweni
alighted
the
van
and
chased
after
the
men
on
foot.
Whi
l
e
driving the
van
to
a
position
where
he
could b
l
ock
off
the
road
,
Mo
i
tsemang
encountered
Thipa
,
who
stopped him
and
informed him
of
the
robber
y
.
Mo
i
tsemang
called
an
ambulance
and
drove
back
to
his colleagues whom
he
found
had arrested
the
appellant
s
.
3.9
The
appellants
were
loaded
i
nto the
back
of
the
van
and Moitsemang
drove
back
to where
he
had left the
bleeding
complainant
and
Thipa
.
It
was
then
that
the
two
appellants were
i
dentified
as
the
perpetrator
s
.
Moitsemang
also
testified
that
a
knife was
found
on
one
of
the
appellants
.
Moitsemang
stated
that
i
t
was pure coincidence that they
had arrested the perpetrators of the
robbery
since
he
did
not
even
real
i
se
the
link
between them and
the complainant.
3.10
Lekweni
testified
that
when
he
and
Nhlaleni
caught
the
two
appellants
,
the
second
appellant
threw
a
knife
awa
y
.
Lekweni fortunately
managed to
retrieve the
kn
i
fe
.
When Moitsemang
went
back
with
the
van
to
pick
them
up
he
informed
Lekweni and
Nhlaleni
about a man
who
had
been
stabbed
and
that
they
should go
back there to
attend to the man whilst waiting for
the
ambulance
.
It was
there
that
the
complainant
saw
the
two
appellants
in the
back
of
the
van
and
identified
them
as
having
been
involved in
the robbery. The complainant
also pointed out to Lekweni
that
one
of
the
appellants was still
in
possession of his cap.
4.
During
argument
Mr
Van
Tonder
who appeared
for
the
appellants
contended
that
the
circumstances of
that
evening were
not
i
deal
for
a
proper
identification
of
the
perpetrators
in that:
the perpetrators
were unknown
to
the
complainant
and
Thip
a
;
the
events
unfolded
quickl
y
;
the
complainant
suffered
from
dizziness
after
the
attac
k
;
and
neither
of
these
witnesses
could
point
out any specific
i
dentifying
features
of
the perpetrators. For these
reason
s
,
the
argument
goes
,
the
evidence
regarding
the
identity
of
the
appellants
is
not
reliable
and the convictions should
be set aside
.
5.
It
i
s
so that
evidence
of
the
i
dentity
of
a
perpetrato
r
should
be
treated
with
cautio
n
.
In
S
v
Mthetwa
1972(3) SA
766
(A)
at
768
Holmes
JA
stated
"
Because
of
th
e
fallibility
o
f
human
observation
,
evidence
of
identification
i
s
approac
hed
by
the
Courts
w
ith
some
caut
i
on
.
It
i
s
not
enough
for
the identifying
wi
tne
ss
to
be
hon
es
t:
th
e
reliability
of his
observation
must
a/so
be tested
.
This
depends
on
various
factors
,
such
as
lighting
,
vis
ib
ility
,
and
eyesigh
t
;
the
prox
imit
y
of
th
e
witness
;
his
opportunity
for
observation
,
both
as
to
time
and
s
itu
a
ti
on
;
the
ex
t
en
t
of
his
prior
knowledge of
the
acc
u
sed
;
t
h
e
m
o
bi
l
it
y
o
f
th
e
sce
n
e
;
corrobora
ti
on
;
suggestib
i
lity
;
the
accuse
d
'
s
f
ace,
vo
i
ce
,
build
,
ga
it
,
a
nd
d
ress
;
th
e
result o
f
identifi
c
ation
pa
r
a
d
es
,
i
f
a
n
y
;
a
n
d
,
o
f
co
ur
se,
t
h
e
ev
i
dence
by or on beha
lf
of the
acc
u
sed.
T
he
l
is
t
is
n
o
t
ex
h
a
u
s
t
ive
.
Th
ese
f
ac
t
ors
,
or s
u
ch
o
f
them
as
are
app
li
ca
bl
e
i
n
a pa
rti
c
ul
ar
case
,
are
n
o
t
i
nd
i
vidua
l
ly
decisive
,
but
must
be
weig
h
ed
o
n
e
aga
in
s
t
th
e
ot
h
er,
i
n
t
he
l
ig
ht
of
the
t
ota
l
ity
of
the
evidence
,
and
th
e
p
r
o
b
abi
lit
ies
;
see
cases
s
u
ch
as
R.
v
.
M
asemang
,
1950 (2)
S.A.
4
88
(A.
O
.)
;
R.
v
.
Dl
ad
l
a
a
n
d
O
th
e
r
s
,
1
9
62
(
1
)
S
.
A.
307
(A.O.) at p.
3
1
0C
;
S
.
v
.
M
e
hl
ape
,
196
3
(2) S
.
A.
2
9
(A.
O
.)
.
6.
I
n casu
the
factors
wh
i
ch
point
to
the
r
eliab
i
l
i
ty
of
the
evidence are the followin
g
:
6.1
Four
men
took
part
i
n the
robbery
,
shortly
thereafter
and
in
the same vicinity fou
r
men
ran away when
they
saw the
police
van
;
6.2
One
of
the
two
men
who
were
ar
r
ested
is
called
Ch
i
na
,
the same
name Thipa heard one of the perpet
r
ato
r
s
usi
n
g
when
calling an accompl
i
ce
;
6.3
The second appellant
had a kn
i
fe
-
knives
were used
i
n
the
robbery
;
6.4
The second appellant was
found in
possession
of
the complainan
t'
s
cap
;
and
6.5
Furthermor
e
the
identification
of
the
appellants
was
spontan
e
ous
and made within
minutes
o
f
the
robbery
.
7.
I
n
my
view
there
c
an
ha
r
dly be
any doubt about the rel
i
abi
l
ity
o
f
the
evid
e
nce of
the
i
dentity
of the appellants -
i
n
fact
i
t w
o
uld
be
far-fetched to
conceive
of
all
the
above
factors as
being
merely
an
unfortunate
coincidence.
It
follows
that
the
appeal against the conviction
cannot
succee
d
.
8.
With regard to the sentences
imposed
it was contended that the
trial
court
misdirected
himself in
finding
that there were
no
compelling and substantial
circumstances
present which would
justify
a
departure from the m
i
nimum
prescribed sentence of
15
years imprisonment.
9.
I
t
is
trite
that
sentenc
i
ng
in
pre-eminently
a
matter
for the discretion
of
the
trial
court
and
that
a
court
of
appeal
will
only interfere
i
f
the
discretion
has
not
been
exercised
properly
or
there
i
s
a
misdirection
or the sentence
is
disturbingly
inappropriate.
I
n
casu
,
and
despite
the
dicta
l
aid
down
in
S
v
M
a/
g
as
2001
(1)
SACR
469
SC
A
,
the
trial
court
still
equated substantial
and
compelling
circumstances
with
exceptional
circumstances
"
uitsonderlike
omstandighede
"
and
found
that
there
were
none
.
This
misdirection of
the
trial
court
l
eaves
us at large to
reconsider
sentenc
i
ng
afres
h
.
10.
The
appellants
were
both
20
years
old
at
date
of
sentencing
.
Both had been
permanently
employed
before their
arrest -
the first
appellant
as a panel
beater and the second appellant
as a mechanic. Both the appellants are
single and have no previous
convictions.
All
in
all
they
have very
good
personal
circumstances
and can no doubt be rehabilitated
.
On the other
hand the crime they committed
is
a
very
serious one
.
The stab
wound
inflicted on the complainant could so easily have cost him his life
and it is just pure luck that the wound required only
one suture and
ointment after which the complainant was discharged from hospital.
11.
The
trial
court
correctly
attached considerable weight
to
the
interest
of
the
community and
the
prevalence
of
this
type
of
offence
,
however
such
considerations should
not
override
justice.
12.
In our
view
the youthfulness
of the appellant
s
,
their
clean
records,
the
fact
that
they
were
under
the
influence
of
liquo
r
,
their good personal
circumstance
s
,
the
fact
that
the
complainant suffered
no serious
harm and the fact that there
is
a
reasonable
prospect
of
rehabilitatio
n
,
qualify
cumulatively as
substantial and compelling
circumstances
.
13.
We
are
of the
view
,
in all the
circumstances
of this
case that
a
sentence of
10 years
imprisonment
is appropriate
.
The
following orders are made
:
a)
The appellants
appeals against their
convictions are dismissed.
b)
The
appellants
appeals
against
their
sentences
imposed
are
granted.
c)
The sentences
i
mposed
are
set
aside
and
replaced
with
the follow
i
ng:
"The
first
and
second accused
are
sentenced each
to 10 years imprisonment.
"
d)
The sentences
are antedated to 30 March 201
1
.
______________________
C
C WILLIAMS
JUDGE
I
concur
_____________________
L
ERASMUS ACTING
JUDGE
For
Appellant:
Mr A Van Tonder
Legal Aid Board
For
Respondent: Adv N A Mxabo
Office of the Director of
Public Prosecutions