About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2016
>>
[2016] ZANCHC 50
|
|
Anthony v S (CA&R99/16) [2016] ZANCHC 50 (15 December 2016)
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Reportable: YES
Circulate
to Judges: YES
Circulate
to Magistrates: YES
Case
No:
CA&R
99/16
Heard:
05-12-2016
Delivered:
15-12-2016
In
the matter between:
SHANE GREGORY
ANTHONY
Appellant
v
THE
STATE
Respondent
Coram: Kgomo JP et Williams
J
JUDGMENT
ON APPEAL
KGOMO JP
[1]
The
appellant (who was accused 2) was arraigned with two others (accused
1 and 3) before Regional Magistrate (Mr D Schneider), in
Kimberley,
on two counts. The allegations against them were:
1.1
That,
in Count 1, they attempted to rob Hencor Dairies using a dangerous
weapon (a firearm) on 28 July 2009. The provisions
of s 1 of
the Criminal Procedure Act (the CPA), 51 of 1977, were invoked.
1.2
That,
in Count 2, between the period 23-28 July 2009 they broke into the
house of Mr David Edward Benjamin and stole therefrom his
licenced
Noringo Pistol, that was confiscated from Accused 1 during the
botched robbery in Count 1.
[2]
The
appellant was convicted as charged in respect of the Attempted
Robbery but acquitted for the Housebreaking charge. Accused
3
was discharged at the close of the state case, in terms of s 174 of
the CPA. Accused 1, whose s 174 of the CPA application
was
turned down, decamped and was still a fugitive from justice at the
end of the trial. The appeal against both the conviction
and
the sentence is with the leave of the trial Court.
[3]
The
appellant elected not to set out the basis of his defence. His
counsel at the trial who also argued his appeal before
us, Adv I J
Nel, by way of a plea-explanation intimated that the appellant denies
all the allegations against him. During
the trial it emerged
that the appellant suggests that he was falsely implicated by Mr
Tello Molefe, a registered and paid police
informer. In
testifying the appellant also, somewhat, raises an alibi to the
effect that he was elsewhere when the alleged
attempted robbery
unfolded.
[4]
At
the commencement of his evidence Molefe, or more correctly the state,
did not disclose that he was an informer nor that he was
a so-called
accomplice. He was therefore not warned in terms of s 204 of
the CPA and did not, accordingly, enjoy any immunity
from
prosecution. When his informer cover was blown under
cross-examination Molefe found himself in an invidious position
and
initially, ill-advisedly, denied his informer status. He
ultimately conceded this to be so (the true state of affairs)
which
also explains why he was never charged with appellant and his fellow
participants mentioned above.
[5]
Senior
state counsel, Adv JJ Cloete, who is very experienced and fair-minded
observed in his written heads that (translated):
“
7.3
This matter has been handled in a clumsy manner by the police.
Molefe should have been treated as an ‘agent’
from the
inception of the investigation in accordance with the provisions of
s
252A
of the
Criminal Procedure Act, 51 of 1977
. His evidence
should also have been presented in that manner (by the prosecution)
before court. He should not have
been placed in the invidious
position which inevitably caused him to suppress what his true role
was.
7.4 In any
event, notwithstanding the fact that his evidence must be treated
with caution on this basis, and also
because of his (initial)
untruth, there are still adequate circumstances or guarantees
reducing the risk of a wrong conviction.
These guarantees are
located in the objective facts, corroborating evidence and the
probabilities.”
[6]
The
submission in para 7.4 accords with what was stated in
S
v Artman and Another
1968 (3) SA 339
(A) at 340H-341D where Holmes JA stated:
“
I
pause here to observe that there is no rule of law requiring
corroboration in criminal cases: [See
sec. 208
of the CPA]. There is
a cautionary rule of practice, in regard to the testimony of
accomplices, --- , and young children, in terms
of which trial courts
must:
(a) Warn themselves
of the dangers inherent in their evidence.
(b)
Require
some safeguard reducing the risk of wrong conviction. The safeguard
need not consist of corroboration, but if corroboration
is relied
upon as the safeguard, it must go the length of implicating the
accused in the commission of the crime.
See S v Hlapezula,
1965 (4) SA 439
(AD) at p. 440D - H, and R v
Manda,
1951 (3) SA 158
(AD) at pp. 162E to 163E.”
The
Court went on later to say:
“
I
would add that, while there is always need for this test in such
cases, the ultimate requirement is proof beyond reasonable doubt;
and
courts must guard against their reasoning tending to become stifled
by formalism. In other words, the exercise of caution must
not be
allowed to displace the exercise of common sense.”
THE
EVIDENCE OF TELLO MOLEFE.
[7]
Molefe
testified that on or about 28 July 2009 the appellant phoned him and
requested that they meet at Shoprite, Barkly Road, Galeshewe,
because
he has a task that he wishes Molefe to perform. They duly met at the
nominated venue. The appellant drove a distinctively
painted
(or coloured) green “Golf 3”. The appellant invited
him into the vehicle and informed him that he wanted
to interest him
in a robbery that he was planning.
[8]
Molefe
(as passenger) drove with the appellant towards Homelite and stopped
along the road. The appellant phoned. A
man that he later
knew as Rahim (it is common cause his correct name is Rashid) emerged
from a nearby yellow house. The two
had a conversation but away
from Molefe. The appellant asked him to wait for him where he
stood outside the vehicle whilst
he and Rashid drove off. The
two later re-emerged from the same house. Rashid occupied the
front passenger seat.
The appellant asked Rashid where the bag
was to which Rashid replied that he had forgotten it and fetched it
from the same yellow
house, which appears to be his as he moved in
and out of it. It was a black bag. He produced a firearm
from it, a 9mm.
[9]
The
appellant dropped them off on a corner next to the “
Moslem
Church”
,
meaning a mosque. He drove about 60 meters away where it was
arranged they would rejoin him after the robbery. The
appellant
had informed them that a van would deliver money to Hancor Dairies,
situated next to the mosque. They had to rob
it. They
went round to survey the situation at Hancor Dairies and retreated
therefrom having done so. The police then
surprised and
arrested them. The appellant then sped off. The firearm
was confiscated from Rashid by the police.
[10]
The
arrangement was that Rashid would use or point the firearm at the
transit money carriers. Molefe would remove the money
bag from
the van and the appellant would drive the getaway car.
According to Molefe he did not know the third person, accused
3, who
was discharged at the close of the state case.
[11]
Molefe
says he at no stage saw the silver van that they were expected to
rob. Because his arrest was not genuine, but a mere
pretence,
Molefe was subsequently set free.
THE
EVIDENCE OF SGT JOHN PHINDILE TOISI.
[12]
Mr
Toisi is a sergeant in the South African Police Service (SAPS). He
is attached to the Criminal Intelligence Gathering Unit
(CIGU). He
confirmed that Molefe was a registered informer and he was Molefe’s
handler. During the afternoon of 28
July 2009 Molefe reported
to him that a robbery was being planned at Hancor Dairies that same
afternoon and that he was due to
meet the conspirators later at
Shoprite, Barkly Road, Kimberley. A description of the
appellant’s vehicle, a green
Golf 3, was supplied.
[13]
Sgt
Toisi drove to Shoprite, Barkley Road, in an unmarked police vehicle
to look incognito. He spotted the described vehicle
in the
parking lot with a single occupant. He then kept observation on
what was going to unfold. After waiting for
about 15 minutes he
noticed Molefe approaching on foot and headed for the Golf 3 and got
into its backseat. After about 10
minutes they drove in the
direction of Homelite. Sgt Toitsi tailed them unobtrusively.
[14]
The
vehicle stopped opposite a yellowish house, clearly the same house
described by Molefe. Molefe alighted. Rashid
emerged from
that house and approached the vehicle empty handed. Rashid
returned to the house, surely his house, and thereafter
departed with
the appellant leaving Molefe behind. In the meantime Sgt Toisi
had driven past Rashid’s house not to
raise any suspicion.
In due course he was joined by his colleague, Const David Lani.
Molefe used his isolation and
reported telephonically that he had not
noticed any firearm in the possession of the plotters. Sgt
Toisi nevertheless summoned
backup.
[15]
The
appellant returned from wherever he went to and picked up Molefe.
Rashid then re-emerged from his house carrying a black
bag and
occupied the front passenger’s seat. It appears that the
appellant had not fully briefed Molefe on where exactly
the robbery
would take place, maybe for tactical reasons. However, they
ended up at Hancor Dairies. Molefe signalled
to Toisi that
everything was on course. Toisi then communicated with the
backup police, of the Dog Unit, to pounce and intercept
the would-be
robbers, which they did. The 9mm firearm stolen from the
premises of Mr David Benjamin was found in possession
of Rashid, a
common cause factor.
[16]
Sgt
Toisi says he looked around for the green Golf but it was nowhere to
be seen.
THE
EVIDENCE OF PETRUS ERASMUS SERFONTEIN.
[17]
Mr
Serfontein is the owner of Hancor Dairies which is situated at Number
22, St Augustine Way, West End, Kimberley.
[18]
The
appellant was well known to him. He regularly refuelled at
Bagbro Motors, a Shell Garage, which is also owned by Hancor
Dairies. He knew the appellant’s vehicle. It was a
Volkswagen Golf. It has unmistakable fancy mag wheels
(shiny
and black). The colour was a distinctive green. On its
front windscreen was imprinted the words “John
Black”
prominently.
[19]
Serfontein
had a meeting at Quick Spar with its manager at around 18h00 on 28
July 2009. Quick Spar is adjacent to Hancor
Dairies. He
noticed the appellant’s vehicle next to the mosque with two
occupants. He recognized the appellant
who was behind the
steering wheel. He was unable to identify the appellant’s
passenger. He passed next to them,
a distance of 4 or 5 meters.
[20]
Less
than 30 minutes into his meeting with the manager of Quick Spar the
manager of Hancor Dairies and Bagbro, Mr Guy Smook, who
is also his
brother-in-law, phoned him concerning police activity at Hancor
Dairies. On his arrival he found that two men,
unknown to him,
had been arrested on an allegation of an attempt to rob Hancor
Dairies or the transported money. The
appellant and his
vehicle had disappeared from where he had seen them shortly before.
THE
EVIDENCE OF GUY SMOOK.
[21]
Mr
Smook stays close to Hancor Dairies, St Augustine Way. In fact
he stays only a few houses away in the same street.
It had been his responsibility for the past two years (before 28 July
2009) to cash-up (check the money) after the morning and
late
afternoon shifts and lock it up in a safe. He personally
transported the money consisting predominantly of cash (over
80%)
from Bagbro Motors to Hancor Dairies. The money transit usually
took place between 17h00 and 19h00, depending on the
amount of the
cash takings, how busy the business for the day was and other
circumstances. Hancor Dairies produced dairy
products and
processed fruit juices. Their transactions were also
predominantly conducted on a cash basis. He usually
transported
between R40 000.00 and R100 000.00 per trip.
[22]
Smook
knew the appellant and the vehicle he drove. In addition to the
description already given Smook says the “John
Black”
stuck on the windscreen is reflected on a small banner in handwritten
form. He saw this vehicle parked next
to the mosque the
previous day (27/07/2009) with two occupants inside. He can’t
say who they were nor whether the appellant
was Moslem or had gone to
worship. He did not notice this vehicle in the vicinity of
Hancor Dairies on 28 July 2009.
[23]
Both
Serfontein and Smook were oblivious of the fact that an operation was
in progress to thwart the robbery allegedly planned for
Hancor
Dairies.
[24]
There
is no need to deal with the evidence of the other arresting officers
as it is largely common cause and does not contribute
materially to
the outcome of the case.
THE
EVIDENCE OF THE APPELLANT: SHANE GREGORY ANTHONY
.
[25]
The
appellant testified that a few days before 28 July 2009 he phoned
Molefe, the informer, to demand that Molefe pay him the R500.00
for
the magwheels that the appellant sold to him two months before.
On 28 July 2009 he noticed four or five missed calls
emanating from
Molefe on his phone. He returned the calls whereupon Molefe
suggested that they meet at Shoprite, Barkly Road,
where he would
settle the debt. Appellant says he was accompanied by “
my
vriend, beskuldigde 1 [Rashid].”
Who had been at his (appellant’s) home. He drove his own
vehicle, “
groen
Volkswagen 3.”
[26]
At
Shoprite, Barkley Road, while waiting for Molefe he or Rashid (he
could not recollect) bought napkins and baby milk,
inter
alia
,
for his child. Appellant again phoned Molefe who then arrived
shortly. They drove to and stopped at Bloemanda where
Molefe
said he would collect the money from his uncle. Molefe left the
car for the money and reported on his return that
his uncle was at
West End. Molefe carried a bag and said it contained his
gym-outfit, he wanted to work out or exercise afterwards.
[27]
On
their way to West End a tyre suffered a puncture. They replaced
the wheel with the spare one. Molefe was agitated
and said his
uncle just communicated that he wanted to leave. This to me
suggests, if the appellant is to be believed, that
Molefe and his
uncle, so-called, had telephonic contact. At “
St
Augustine Straat se hoek het [Molefe] gesê --- ek moet hier
stop, hom oom bly daar.”
Because his girlfriend pestered him with telephone calls he asked
Rashid to receive the money from Molefe and that he will
collect it
from him on his return. Like a courier the appellant dispatched
the articles to his girlfriend at Roodepan.
He says he went
“
terug
Homevalley toe”
to
his friend where he waited for a call from Rashid that he be
collected. This Homevalley friend is not his girlfriend
to whom he delivered the baby articles.
[28]
Appellant
says first his girlfriend and later the police phoned him that he was
wanted in connection with an attempted robbery.
He submitted
himself to the Transvaal Road Police Station, Kimberley, where he was
arrested and charged. If the appellant
was not already on the
run for the abortive robbery it then becomes curious why he did not
just wait at his girlfriend’s
home for Rashid’s telephone
call. More credibly he should have collected Molefe and Rashid
outright where he allegedly
dumped them.
EVALUATION
OF THE EVIDENCE
[29]
Having
regard to the summary, the distilled salient features, of the
evidence sketched hereinbefore and the assessment of the evidence
as
a whole the question arises whether the Regional Magistrate
misdirected himself in any material respect. Of cardinal
importance are these remarks in his judgment (translated):
“
It
cannot be gainsaid that there are certain untruths in the
evidence-in-chief of Molefe. I have traversed his evidence
meticulously
with a magnifying lens pertaining to the contradictions
in his evidence. It is clear to me that the inconsistencies
revolve
essentially 100% around his responsibilities or functions as
an informer. If those aspects are for the time being left out
of the reckoning then it becomes evident that Molefe related a
version to the Court which, in my view, does not exercise credulity
to its outer limits.”
I
agree. This is why.
[30]
Molefe
concealed the fact that he was an informer. However, when he
was confronted with his statement made to the police,
in which he was
transparent and frank about his informer status, he readily
acknowledged his indiscretion on the aspect.
The Magistrate
then later proceeded (also translated):
“
The
question arises naturally, what precisely went on in the mind of the
witness, Molefe, when he (so) testified. Did he not
realise
that he would be confronted with his statement, a statement wherein
he unequivocally declared that he is an informer.
It is
difficult to speculate on the motivation. I imagine, in the
circumstances, that there is only one inference to be drawn
from the
facts. This is, when Molefe stood in the witness box, with a
packed gallery and the accused confronting him, his
courage had
deserted him. He at that moment decided not to disclose his
informer status to the Court.
Apart
from this remissness Molefe’s evidence is exceedingly
credible. I consider in the circumstances, that his evidence
cannot, without more, be rejected in that he ostensibly merely
endeavoured to protect his informer status.”
[31]
Let
us now examine the cogency of the Magistrate’s expressions:
31.1 It is common cause that
Molefe and the appellant knew each other very well to the extent that
they had exchanged cellphone
numbers before this incident;
31.2 It is common cause that
they arranged telephonically to meet at Shoprite, Barkly Road;
leaving aside for the moment who
initiated the call and what the
purpose of the proposed meeting was;
31.3 It is common cause that
pursuant to the telephonic discussion in para 31.2 (above) Molefe and
the appellant met and that
the latter was in the company of Rashid
(accused 1 who decamped during the trial);
31.4 It is common cause that
the party of three (named in para 31.3) drove to Hancor Dairies in
the very distinctive green
Volkswagen Golf 3 belonging to and driven
by the appellant;
31.5 It is common cause that
the appellant dropped off Molefe and Rashid next to Hancor Dairies
and drove off. This
is so irrespective of why they were left
there and why the appellant left and where he went to;
31.6 It is common cause,
whether on the version of Molefe and Sgt Toisi or that of the
appellant, a black bag, irrespective
of what it contained, was
introduced into the appellant’s car with which they drove
around; and
31.7 It is common cause or not
disputed or it was proven that a 9mm firearm was confiscated from
Rashid (whom appellant called
his friend and with whom he came) next
to Hancor Dairies. This firearm belonged to Mr Edward David
Benjamin whose house was
burgled a few days before 28 July 2009 and
the weapon stolen therefrom.
WHY
THE APPELLANTS VERSION MAKES NO SENSE AND IS ULTIMATELY FALSE.
[32]
The
defence denies that a conspiracy to rob Hancor Dairies, or any other
target for that matter, was hatched and was in the process
of
execution. The appellant, in his entire evidence does not
accuse Molefe, the informer, of staging the robbery for any
informer’s reward or to get the appellant into trouble.
Any suggestion to that effect would, in any event, lack a
foundation. If that was Molefe’s scheme he would have
ensured that the appellant remained on the scene of crime and
not in
the getaway car, out of sight.
[33]
Molefe,
on his and Sgt Toisi account, notified Sgt Toisi on the spur of the
moment, shortly before 16h00, when Toisi was already
on his way home
after he knocked off duty about the planned robbery. The point
made is that if Molefe initiated a money-making
scheme he would have
consulted timeously with Sgt Toisi and only then lured the appellant
into a trap.
[34]
The
appellant states that he discovered several missed calls from Molefe
on his cellphone. When he returned the call Molefe
informed him
that he has the R500.00 that he (Molefe) owed the appellant for
magwheels he bought. If this was so common sense
dictates, even
for someone who is slow in the uptake, that Molefe should have taken
the money to the appellant or
vice
versa
.
After all, appellant claims, they had transacted before and were in
telephonic contact. The round-tripping, therefore,
away from
their respective homes, to Shoprite (Barkly Road), then to Molefe’s
uncle’s home at Bloemanda (which turned
out not to be his home)
and culminating at Molefe’s uncle’s actual home, which
per chance was in close proximity to
Hancor Dairies, also in St
Augustine Way, is puerile and “
hogwash
”.
[35]
The
appellant states that before they reached Molefe’s uncle’s
“
actual
home”
his uncle phoned and warned him that they must hurry up as he is due
to leave for an engagement elsewhere. What this implies
is
that:
35.1 Molefe and his uncle were
in telephonic contact and that the Bloemanda trip could have been
avoided;
35.2 Secondly, Molefe’s
uncle knew about the R500.00 he had to advance to Molefe and had the
money;
35.3 All that Molefe had to do
was to collect the money from his uncle, because this is where
appellant drove them to; release
his impatient uncle, and settle his
debt with the appellant. This scenario therefore makes the
appellant’s excuse that
he was pressured by his girlfriend to
deliver the baby items, even for a henpecked man, irritatingly
hollow. The simple truth
is that the appellant fled from the
crime scene.
35.4 According to the
appellant having delivered the baby items in Roodepan, far away from
Molefe’s uncle’s home,
he did not return to collect his
companions and his money. Instead he undertook another trip to
another friend at Homevalley.
His explanation? He wanted
Rashid to phone him to collect them. The truth is that he was
on the run.
35.5 The alleged first trip to
Molefe’s uncles home at Bloemanda (that turned out not be be
his home) was merely brought
in as a ruse by the appellant to shift
the blame to Molefe that he brought the firearm in the black bag,
which he claimed carried
his gym outfit. The evidence by Molefe
and Sgt Toisi is overwhelming that Rashid brought the firearm from
his home (the yellow
house). The appellant knew about it
because, according to Molefe, when Rashid came empty handed to the
vehicle the appellant
sent him back to collect the bag with the
firearm that was in due course found in Rashid’s possession.
Toisi also observed
the second trip to the yellow house.
35.6
It was common cause that (the now known armed) Rashid and Molefe did
not know each other and that Rashid was brought
along by his friend,
the appellant. The appellant delivered his armed friend next to
Hancor Dairies while he waited in the
getaway car. Serfontein,
the owner of Hancor Dairies, saw appellant and another person at this
strategic location hardly
30 minutes before the would-be robbers were
intercepted.
[36]
The
appellant, apart from the evidence of Molefe and Serfontein, also
places himself on the scene. His alibi, if his defence
can be
read to be such, is “
gone
with the wind”.
See:
S
v Mlati
[1984] ZASCA 88
;
1984 (4) SA 629
(A) at 632 A-D; and 640E-I;
S
v Thebus and Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) from 349c-354b (paras 59-78);
S
v Shabalala
1986 (4) SA 734
(A) at 736C-D. See also Full Bench Judgment
Steward
v S
(CA&R83/15) ZANCH 18 (9 September 2016) at paras 42-45.
[37]
The
proper approach in the evaluation of evidence in a criminal trial has
been enunciated in this manner by Heher AJA in
S
v Chabalala
2003 (1) SACR 134
(SCA) at 139i-140b (para 15):
“
[15]
The trial court's approach to the case was, however, holistic and in
this it was undoubtedly right: S v Van Aswegen
2001 (2) SACR 97
(SCA). The correct approach is to weigh up all the elements which
point towards the guilt of the accused against all those which
are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities
on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as to exclude any reasonable
doubt
about the accused's guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such
as the
failure to call a material witness concerning an identity parade) was
decisive but that can only be an ex post facto determination
and a
trial court (and counsel) should avoid the temptation to latch on to
one (apparently) obvious aspect without assessing it
in the context
of the full picture presented in evidence. Once that approach
is applied to the evidence in the present matter
the solution becomes
clear.”
See
also
S
v Trainor
2003 (1) SACR 35
(SCA) at 41b-c.
[38]
The
Regional Court’s approach is correct and his reasoning is
sound. He has not misdirected himself in any material
respect.
This being the case we, as a court of appeal cannot intervene.
The appeal must fail.
ON
SENTENCE.
[39]
The
Magistrate has blotted his copy book by also granting leave to appeal
on sentence. He sentenced the appellant to 10 (ten)
years
imprisonment, 5 (five) years of which was suspended for 5 (five)
years on certain conditions.
[40]
The
appellant has previously been sentenced to 9 (nine) years whereof 3
(three) years were suspended for 5 (five) years on certain
conditions
for a robbery he committed on 09 April 2000. Judgment on appeal
in that case was delivered on 10 March 2004.
[41]
Mr
Nel, for the appellant, fairly conceded that he cannot argue that the
sentence was shockingly excessive. In my view appellant
was
lucky to have had five years of the ten suspended.
[42]
I
make the following order:
The
appeal on both the conviction and sentence is dismissed.
__________________
F DIALE
KGOMO
JUDGE
PRESIDENT
Northern
Cape High Court, Kimberley
I
concur.
__________________
C C
WILLIAMS
JUDGE
Northern
Cape High Court, Kimberley
Counsel:
For
the Appellant:
Adv I.J Nel
Instructed
by:
C M DE BRUYN AND PARTNERS
For
the Respondent:
Adv J.J Cloete
Instructed
by:
DIRECTOR PUBLIC PROSECUTIONS