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[2016] ZAKZPHC 42
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Gungiah and Others v S (AR613/14) [2016] ZAKZPHC 42 (20 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR613/14
DATE: 20 MAY 2016
NOT REPORTABLE
In
the matter between:
PREGASEN
GUNGIAH
.......................................................................................
FIRST
APPELLANT
CLAUDE
OLIVER
DANIEL
..........................................................................
SECOND
APPELLANT
TYRON
RAMSAMY
...........................................................................................
THIRD
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Delivered
on: Friday, 20 MAY 2016
OLSEN
J (XOLO AJ concurring)
[1]
Each of the first two of the three appellants before us in this
appeal holds the rank of Warrant Officer in the South African
Police
Service. Each has 23 years’ service. The third appellant was
presented to the court
a quo
,
the Regional Court at Durban, as a police informer. He is not a
member of the South African Police Service. In the court
a
quo
the appellants were accused of
having robbed two Pakistani nationals of cell phones, laptops, a
watch, and some cash. Two counts
of robbery were put, relating
respectively to a Mr Nadeem and Mr Raza. The appellants were
convicted on both counts, which were
taken as one for the purpose of
sentence. Each of them was sentenced to five years imprisonment. The
appellants appeal against
both their convictions and sentences with
the leave of the court
a quo
.
[2]
The State called three witnesses, namely the two complainants and a
Warrant Officer Denver Daniels, who was the investigating
officer.
Each of the appellants gave evidence. Each was represented at the
trial by his own lawyer.
[3]
As already mentioned, both the complainants are Pakistani nationals.
Mr Raza is a 23 year old man who is employed by a company
called
Dotcom Holdings in the information technology field. When the events
in question took place in March 2011 Mr Raza shared
a flat with the
other complainant, Mr Nadeem, in a building in the North Beach area
of Durban. Mr Nadeem is about 30 years of age
and is an accountant.
He has been in South Africa for about 10 years, and was at the time
working for a firm known as Khan Salejee
and Company.
[4]
I commence with an account of the State case. At about 11pm on the
night of Friday, 11 March 2011 Mr Raza was busy working at
home on
his laptop. At the time Mr Nadeem was either asleep or dozing on his
bed. Mr Raza heard a knock at the door (which was
open) and on
enquiring he was told that the three men there were police and that
they were acting on information that the occupants
of that flat had
drugs. The doorway to the flat was secured by a gate which was
unlocked by Mr Raza in order to admit the three
men, who, it is
common cause, are the three appellants. The first and second
appellants were dressed in uniform. Judging from the
record, at that
time the occupants of the flat would have regarded the third
appellant as a plain-clothes policeman. Mr Nadeem
woke up when these
three men were already in the flat talking to Mr Raza. He heard them
saying something about drugs. According
to the complainants the first
and second appellants then started searching their flat. The third
appellant was inside the flat,
but initially at the door.
[5]
The search revealed nothing. Once that was established the second
appellant took notice of the laptop computer on which Mr Raza
had
been working, and asked him for the receipt for it. Mr Raza said that
he did not have one as the computer was old, whereupon
the second
appellant struck him three or four times. The second appellant
appeared to have become angry.
[6]
The first appellant then picked up Mr Nadeem’s laptop which was
lying next to his bed, and also demanded a receipt. Mr
Nadeem told
him that the laptop belonged to his employer, that he was an
accountant, and that he could only produce a receipt for
the computer
when he returned to work on Monday.
[7]
By this time the third appellant had now come right into the flat,
and enquired about some cash that was lying on the table
next to the
bed. He asked to be handed the cash and that was done. He counted it
and found it to be R700, 00, and announced that
he regarded that as
too little and that he wanted more cash. The money in question
belonged to Mr Raza. In the meantime the second
appellant took Mr
Nadeem’s Sony cell phone from his hand where he was holding it
and put it in his pocket. He asked Mr Nadeem
for a receipt for the
cell phone and Mr Nadeem told him that he could not produce one. At
about that time or perhaps a few minutes
later the first appellant
searched Mr Raza’s bed and there found his cell phone. He took
possession of it. When Mr Raza asked
for it back he was slapped on
his face by the first appellant.
[8]
The second appellant then asked the third appellant to search the
persons of the two complainants. During that process the third
appellant found Mr Nadeem’s wallet and extracted the money in
it (R300, 00) which he kept.
[9]
The complainants were then asked to produce the keys to the flat.
These were used to lock the complainants in the flat whilst
the
appellants went outside. On Mr Raza’s evidence it is possible
that the first appellant left a little in advance of the
second and
third appellants.
[10]
Mr Nadeem had another cell phone and he used it to telephone the
police. He was just about to explain the emergency situation
to a
woman who had answered the telephone when the second and third
appellants returned. Mr Nadeem cut off the call. The second
appellant
saw that Mr Nadeem had another cell phone and snatched it from his
hands. He then said to the complainants that the two
of them were
going to be locked up, without telling them on what account that was
to be done. They took the laptops with them,
and accompanied the two
complainants downstairs to a waiting car then occupied by the first
appellant in the driver’s seat.
The two laptop computers
were in laptop bags.
[11]
The first appellant drove the car to the Durban Central Police
Station, but stopped in a parking area outside the main gate.
There
the second appellant got out of the car and opened the rear door and
started punching, kicking and otherwise assaulting Mr
Nadeem. Mr
Nadeem sustained injuries on his body and face and by consent a Form
J88 was handed in, reflecting a medical examination
which
corroborated Mr Nadeem’s account of his injuries. During the
course of the assault the complainants were told that
they were not
to report the events of the night.
[12]
The appellants apparently then decided that they should take the
complainants back to or near the block of flats in which they
lived,
and on their way back the second appellant continued with his assault
upon Mr Nadeem, warning both complainants that they
were not to
report the incident. When they arrived at a point near the block of
flats and were told to get out of the car, Mr Raza
became concerned
about his hard-drive (presumably an external hard-drive) which was in
the same bag in which his laptop had been
taken from him. The laptops
were in the boot of the car. He had a lot of his work on that
hard-drive and asked for it to be returned,
and that was done. The
appellants kept the computers. When they returned to their flat the
two complainants were traumatised and
at that stage Mr Nadeem noticed
that his gold citizen watch had also gone missing. He had seen the
second appellant looking at
the watch when he was searching, but had
not seen the second appellant take it.
[13]
Mr Nadeem had a friend in the block of flats whom he then went to
see, and who telephoned the police at the request of Mr Nadeem
to
make a report about what had happened. The period during which the
events unfolded in the flat was somewhere around 40 minutes.
(That
appears to be common cause, although the appellants’ versions
of events are obviously somewhat different to those of
the
complainants.) The police responded to the call and one sees that Mr
Nadeem signed a statement shortly after midnight at about
01h35 on 12
March 2011. Mr Nadeem was medically examined the next day.
[14]
Some weeks after the property of the complainants was taken all of it
except the money was returned. The complainants received
a message
from the security guard at their block of flats that a parcel had
been delivered for them and they collected it. It was
a box from
which their computers, cell phones and the watch were recovered. The
money was not recovered.
[15]
When he gave evidence the third appellant sought to distance himself
from many of the events of the night in question. He claimed
not to
have entered the flat at all; to have stood instead outside in the
passage from where he could not observe what was going
on inside; and
therefore said that he was unable to admit or deny the complainants’
version as to what took place inside
the flat. He admitted carrying
the two bags out of the building and down to the car, but claimed
that when they got to the parking
lot outside Durban Central Police
Station he had to go and relieve himself, and therefore could not say
whether an assault was
perpetrated whilst the car was parked in the
parking lot.
[16]
Accordingly one must look to the evidence of the first and second
appellants in order to unravel the defence version. In broad
outline
it was as follows. The first and second appellants received a report
from the third appellant that he had heard that two
Indians were
selling drugs in the flat which turned out to be the one occupied by
the complainants. On the night of 11 March 2011
they went there. As
they approached the flat on the third floor they noticed a very
strong smell of dagga. The only open door was
the one to the flat to
which they were being directed by the informer. The informer (the
third appellant) accompanied them to the
flat but stayed in the
doorway once they entered. The appellants’ account of their
entry was substantially the same as that
of the complainants. As to
the smell of dagga which they mentioned, their evidence does not
extend to claiming that the inside
of the flat was found to be the
source of the smell. (Under cross-examination the second appellant
said that he had smelt the hands
of one of the complainants, and
found no sign of dagga, an allegation which was absent from his
account of events until he was
pressed in cross-examination.)
[17]
The appellants agree that the complainants made no objection to the
proposition that their flat should be searched, and also
that the
search proved fruitless, save for one issue which I will mention
shortly. They agree that they asked for a receipt for
one computer,
and that they accepted the explanation that if it was required it
could only be obtained on the following Monday.
[18]
The defence version is that during the course of the search the two
policemen found two bags containing documents, and inside
those bags,
apparently with the documents, pieces of orange bin bags (the bags
had been cut into small pieces) and also small bank
packets, which,
from their experience, are used by people who sell drugs. But no
drugs were found. These bags are of some importance,
as they are the
ones allegedly carried out of the flat, containing not computers, but
these documents and these small pieces of
plastic or polythene.
[19]
According to the first and second appellants they then enquired after
the status of the two complainants in South Africa. The
complainants
claimed to be in the country legally and were asked to produce what
the appellants called their permits. The complainants
said that their
permits were amongst their documents. At that stage the first and
second appellants decided to take the complainants
to Durban Central
Police Station in order to verify their status in the country. The
two bags were carried out of the block of
flats and, during the
apparently short journey to the Durban Central Police Station, were
in the back of the car with the two complainants,
who rifled through
the bags searching for their permits. (This is an issue to which the
third appellant could speak as he was also
in the car. He gave
evidence to the effect that the complainants were searching through
their bags on their way to the police station.)
On arrival at the
police station the complainants are said to have produced their
permits. They were examined by the first and
second appellants (or
perhaps one of them) and found to be satisfactory. This was done
whilst the third appellant carried out an
instruction to throw away
the bits of orange plastic which had been found in the bags. The
complainants were then driven back to
the vicinity of the block of
flats in which they lived.
[20]
The appellants denied that anything at all had been taken from the
complainants. They denied that there was any assault, and
indeed
denied that there were any signs of injury to be seen on Mr Nadeem.
[21]
The account of events furnished by the appellants raises two material
issues which go to the probabilities of the case, and
which played a
part in the magistrate’s finding that the appellants’
version could not reasonably possibly be true.
Firstly, the
appellants’ version offers no explanation for the injuries
which Mr Nadeem was proved conclusively to have suffered.
The answer
to this furnished by counsel for the appellants is that they had no
duty as accused persons to explain anything. One
supposes that there
is little else counsel could have said in order to overcome the
difficulty that the appellants
confronted
on this issue. The injuries were consistent only with the
complainants version, unless one postulates that they were in effect
self-inflicted for the purposes of supporting a false accusation of
robbery against the appellants. In considering that remote
speculative proposition it should not be overlooked that on either
version the complainants would not have got back to the flat
until
after midnight, that they telephoned the police immediately, and that
the promptness of the report of the events of that
night is reflected
in the fact that the preliminary statement taken from Mr Nadeem was
completed at 01h35. Secondly none of the
appellants were able to
explain why, if in fact the complainants asserted that their
immigration documentation was amongst the
documents in the bag, a
search was not made there and then, in the flat, either by the
appellants or by the complainants, in order
to find and produce the
documents which the complainants are alleged to have found whilst on
the journey from their block of flats
to the parking lot outside the
police station. It should be noted that the complainants denied under
cross-examination that any
enquiry was made of them in their flat or
otherwise as to whether they were in the country legally.
[22]
The entire State case was revealed to the court through the evidence
of the first witness, Mr Nadeem. At the end of his cross-examination
by three counsel, two of whom represented the first two appellants
who were on both versions in the flat throughout, the only things
revealed to the court about the defence case were the following.
(a)
The proposition that the first and second
appellants wanted documentary proof of the legal status of the two
foreign complainants
in the country (but not that they were unable to
produce it).
(b)
The proposition that the entire account of
events given by Mr Nadeem was a fabrication developed or put together
with the assistance
of a few corrupt members of the police force.
As
to this latter contention it was later contended that in fact the
investigating officer, Warrant Officer Daniels, was either
the
responsible police officer or perhaps the principal author of the
conspiracy, despite the fact that this was not even hinted
at when he
gave evidence.
[23]
It is plain from the record that once Mr Raza had given his evidence
in chief the instructions from especially the first and
second
appellants to their counsel had become more certain. As pointed out
by counsel for the State in arguing the appeal, it was
put to Mr
Raza, but not to Mr Nadeem,
inter alia
,
(a)
that there was a smell of drugs in the
vicinity of the complainants flat;
(b)
that the complainants were not only asked
for documentary proof of the legitimacy of their residency in South
Africa, but were unable
to produce papers;
(c)
that it is in this context that the
complainants gave the appellants bags of documentation which were
taken so that the appellants
could search them (which were
propositions not put precisely in accordance with the evidence
ultimately given by the first and
second appellants).
[24]
Counsel for the State has also pointed out that the allegation that
the complainants were arrogant during the course of these
interchanges was not put to them. The first appellant’s
evidence that both complainants refused to produced documentation
relating to their status was not put to either of them. The
allegation as to the discovery in the flat of small pieces of
orange
plastic bags, and small bank packets, was not put to the
complainants. It was put to Mr Raza that packages for sealing drugs
(whatever that may mean), with which the police were familiar, were
discovered during the search and placed in a plastic bag together
with some documents that had been found in the complainants’
flat. That did not accord with the appellants’ evidence,
which
was that bags of documents, rather than documents which were then
placed in bags, were found; and that the orange pieces
of plastic
were found in those same bags. It was put to neither of the
complainants that they spent their journey between the block
of flats
and the parking lot at Durban Central Police Station rifling through
the two bags of documents to find documentary proof
of their status.
It was put to Mr Raza only that eventually these permits were found
at the police station.
[25]
What emerges from the record is that the defence version carries all
the hallmarks of one fabricated during the course of the
trial, to be
presented (somewhat imperfectly) only when confidence was achieved as
to the content of the State case.
[26]
The attack upon the credibility of the evidence of the complainants
made before us on appeal was characterised by what might
be called
forensic hyperbole.
(a)
It is said that the complainants told a
“remarkably different story” when a statement was made on
the night the incident
occurred that R1000,00 had been taken from Mr
Raza, whereas their evidence before court was that R700,00 was taken
of Mr Raza’s
money and R300,00 of Mr Nadeem’s money.
Errors in very broad but nevertheless short statements taken
immediately after an
event such as this are inevitable. Yet counsel
for the appellants characterised the explanation that such mistakes
creep in when
the police are interviewing traumatised victims as
“unconvincing to say the least”, ignoring altogether that
when a
statement was carefully taken on 16 March 2011 (four days
after the event) it recorded that R700,00 had come from Mr Raza’s
money and R300,00 from that of the other complainant.
(b)
There is said to be a “notable”
and “serious” contradiction between the evidence of the
two complainants,
because one testified that the sum of R700,00 which
was lying on a table was made up of R100 and R50 notes; whereas the
other said
it was made up of those notes as well as R20 and R10
notes. It was Mr Raza’s money. Mr Nadeem was watching money
being counted
and could easily have come under the impression (which
was his evidence) that there were R100 and R50 notes which made up
the sum
stolen. Counsel also ignores the fact that Mr Raza said that
the money was in R100 and R50 denominations, and that he also had
some “loose change …R20, R10”.
(c)
It was said to be an “important
contradiction” in the description of the incident that whereas
Mr Nadeem “gave
the impression” that the first appellant
remained in the flat until he left to fetch the police car, Mr Raza
saw him leave
(for what must have been a short while) before he
returned and found Mr Raza’s telephone at the former’s
bed. In the
description of events which were taking place, assuming
there is any contradiction at all, it is hardly surprising that one
complainant
would notice a brief absence of the first appellant from
the flat, but not the other.
(d)
There is said to be a “most material
contradiction” over the question as to how the second appellant
got the third cell
phone from Mr Nadeem. Mr Nadeem said it was
snatched from his hand whereas Mr Raza said it was given to the
second appellant when
he asked for it. That, counsel argues, shows
that Mr Nadeem was exaggerating and embellishing, and that the
evidence is fabricated.
[27]
In my view none of these arguments undermine the credibility finding
made in favour of the complainants by the magistrate.
They are minor
matters – minor contradictions the absence of which, or the
absence of the like of which, might have caused
the trial magistrate
to wonder whether indeed this was a carefully contrived fabrication.
[28]
Counsel for the appellants has argued that there are inherent
improbabilities in the account of events given by the complainants.
It is said that the magistrate overlooked them. It is said that the
complainants’ version that they were taken to the parking
lot
outside the Durban Central Police Station where Mr Nadeem was
assaulted for no apparent reason is improbable. The argument
overlooks the fact that if the appellants were going to keep the
goods they had taken from the complainants flat,
then they had to ensure that the
complainants did not report the evening’s events. According to
the complainants the appellants
sought to achieve that,
inter
alia
, through the brazen assault on Mr
Nadeem in the car park which the appellants made plain at the time
was carried out to reinforce
the instruction that there should be no
report made by the complainants.
[29]
It was argued on behalf of the appellants that the magistrate
overlooked that if the complainants’ account of events
was a
fabrication, they would have to account for the fact that they
continued to retain possession of their computers and cell
phones,
and had to invent the story of the items being returned in a box as
it would be possible to trace these articles through
technology
available to the police. But of course exactly the same
considerations would have encouraged the appellants to return
the
articles once they realised that the incident had been reported, as
they would have the same problem if they retained possession
of them.
Furthermore, trying to get rid of them other than by returning them
to the complainants would carry the risk that the
stolen property may
be found; with the result that the defence that there was no removal
of property other than documents would
be difficult indeed to
maintain.
[30]
Counsel for the appellants argued that the magistrate overlooked that
it was improbable that the police would confront foreign
nationals in
their flat (in this case over an alleged drug issue) and not make
enquiries as to the legality of their status in
this country. That
criticism of the magistrate’s approach overlooks that if, as
the complainants say, the appellants were
about the business of
stealing the complainants’ property, the legality or otherwise
of the presence of the complainants
in this country would be of no
interest to the appellants.
[31]
The magistrate did make one mistake in his account of the evidence.
He was under the impression that the third appellant
had denied
carrying anything out of the flats until confronted with photographic
evidence (emanating from CCTV cameras), when he
conceded that he
carried the two bags out of the building. In fact, as counsel for the
appellants points out, if one examines the
record one sees that the
third appellant did not at any time deny having carried articles out
of the block of flats. In my view
that minor error does not in any
way undermine the magistrate’s ultimate decision, and open the
door to a complete reassessment
of the facts of the case by this
appeal court. The applicable principle is well known. As put by
Marais JA in
S v Hadebe and Others
1997 (2) SACR 641
(SCA) at
645
E-F
,
“…
in
the absence of demonstrable and material misdirection by the 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.”
In
my view it is by some margin that the appellants fail to show a
demonstrable and material misdirection justifying interference
by
this court with the magistrate’s findings of fact. I take the
view that a careful consideration of the record reveals
that the
magistrate’s decision was correct. He rightly rejected the
appellants’
version and accepted that of the complainants.
[32]
Counsel for the appellants argues that if the case is to be decided
on the version of events provided by the complainants,
then there
should have been convictions not of robbery, but of theft and
assault. (The argument proceeded along the lines
that there
need not be an equal distribution of those convictions amongst the
three appellants, but in the view I take of the matter
it is not
necessary to decide that question.) In convicting the appellants the
magistrate relied on the judgment of the then Appellate
Division in
S
v Yolelo
1981 (1) SA 1002
(A)
. He
relied in particular on the passage in the English version of the
headnote
at page 1004
H
which appears to me to be a satisfactory rendition of the original
Afrikaans statement of the principle in the judgment at page
1015
G-H
.
In that case the thieves had got relatively insecure control over the
goods they proposed to steal, and still needed to get them
out of the
complainant’s house. They assaulted the complainant in order to
ensure that the complainant, or somebody who might
hear her crying
out, would not obstruct their efforts to get the stolen goods out of
the premises. It was found that robbery had
been proved even though
the violence followed the initial possession of the stolen goods. The
principle relied upon by the magistrate
is set out as follows in the
headnote referred to above.
“
Robbery
can also be committed if violence follows on the completion of the
theft in a juridical sense. In each case an investigation
will
have to be made into whether, in the light of all the circumstances,
and especially the time and place of the (accused’s)
acts,
there is such a close link between the theft and the commission of
violence, that they can be regarded as connecting components
of
substantially one action. This is also applicable to a threat
of violence in so far as it can be an element of robbery.
The
question whether the intention of the offender in the commission of
violence must be directed towards the retention of possession
or
control of the goods which the thief has already taken – as
opposed to merely flight – raised by not decided.”
[33]
In this case possession of some of the goods was taken before the
complainants and the appellants left the flat. Possession
of the
computers was taken by the third appellant who carried them out of
the block of flats and such possession was maintained
by placing them
in the boot of the car. The principal assault upon Mr Nadeem, which
was directed at ensuring that the theft would
not be reported,
occurred in the car park and on the way back to the flats. It is
plain that the appellants intended to steal everything
they had taken
at and from the flat. But the execution of their plan to deprive the
complainants permanently of their property
would be near impossible
if the complainants reported what had happened to the police, as,
given the account of events set out
earlier in this judgment, the
risk of being identified and caught was far too high. That meant that
the complainants had to be
persuaded not to report the matter to the
authorities. The violence at the car park and on the way back to the
flats was perpetrated
to achieve that aim. It seems to me that the
connection between the theft and the violence makes them components
of substantially
one action, with the result that robbery was the
correct verdict.
[34]
However the criticism of the magistrate’s reliance on
Yolelo
does not address the implications of the assaults which took place in
the flat. More than one assault took place in the flat during
the
course of the events there, and in my view it is clear that the
exhibition of force was intended to and did have the effect
of
subduing the complainants. In fact, Mr Nadeem’s evidence
reveals that the first blow struck upon Mr Raza preceded the
taking
of any of the stolen items. (The gold watch may be an exception to
this.) The appellants were dealing with Pakistani nationals
in a
foreign country. Two of the appellants were dressed in a uniform
which proclaimed the authority and the power of the State.
They
showed quickly that they would use violence for no reason at all.
They took advantage of the power thus achieved over the
complainants.
Even the third appellant appeared to overcome whatever reticence he
might initially have had when keeping to the
doorway, and joined in.
It is fallacious in these circumstances to argue that there was no
direct evidence linking a particular
assault with a particular
upliftment of an article which was stolen. It is clear that the
conduct of the appellants, and especially
the first and to a greater
extent the second appellant, was aggressive and directed at inducing
a sense of shock and fear in the
complainants. If the expression of
an inability to produce a receipt for an old computer generated an
assault, the complainants
could have been in no doubt as to what the
consequence would be of offering any resistance to the taking of
their property. If
there was any doubt about that, the assault upon
Mr Raza in response to a mere request that his cell phone should be
returned illustrates
both the intention behind the violence
perpetrated in the flat and the existence of a real and intended
threat of more to come
if the arrogant appropriation of the property
of the complainants executed under their very eyes was resisted in
any way.
[35]
The complainants’ version establishes that the three appellants
were acting in concert at the time. The leadership came
from the
first and second appellants. The third appellant adopted as his own
the advantage of the submissive attitude of the complainants
achieved
by violence and threats of further violence, and personally
participated in taking the property. He had the opportunity
to turn
around and walk away when the first blow was struck. He chose not to
do so.
SENTENCE
[36]
There is plainly merit in the argument advanced by counsel for the
appellants that the magistrate misdirected himself in failing
to draw
a distinction between the third appellant and the two policemen as
regards culpability or moral blameworthiness. It is
plain from the
evidence of the complainants themselves that the third appellant
acted under the influence and direction, if not
the command, of the
first and second appellants. On the evidence before the court he had
no say in the question as to whether violence
would or would not be
used. He went along with it without himself participating in it,
albeit that he took advantage of the assaults
and the threat of
further violence, to share in the spoils of the robbery. The third
appellant was a first offender, 28 years of
age, married with one
child. He cannot be tarred with the same brush, or fixed with the
same moral blameworthiness, as the first
and second appellants. In my
view a wholly suspended prison sentence would be the appropriate
sentence, giving the third appellant
cause to reflect on where he
went wrong, and at the same time good reason to keep his slate clean
in the future.
[37]
Turning to the first and second appellants, the magistrate was
furnished with details of their personal circumstances and took
them
into account. Each of them was in his early 40’s, divorced and
remarried and obliged to support dependents. Each had
23 years of
service and, as far as can be seen from the material put before the
magistrate, had financial commitments. Neither
had previously been
convicted of any crime. Nevertheless the magistrate was rightly
concerned about the high level of moral blameworthiness
evident in
the conduct of the first and second appellants, given their duties as
police officers to protect members of the public.
The magistrate also
made the observation that he found it disconcerting and disturbing
that more and more police officers are being
charged with serious
offences, using their status to generate opportunities to commit
crimes. He therefore stressed that this was
a case in which a
sentence should be passed which would also operate as a deterrent to
other members of the South African Police
Service. He expressed the
view that direct imprisonment was required and that he could not pass
a more lenient sentence than five
years imprisonment.
[38]
Counsel for the State has argued that if the magistrate erred at all
he erred on the side of leniency. However there is no
dispute between
counsel concerning
the
principle that sentencing is
pre-eminently a matter for the trial court. There is no appeal made
by the State with regard to sentence,
and at the same time no general
submission made by counsel for the appellants that, by virtue only of
its quantum, the sentence
imposed by the magistrate is shockingly
inappropriate.
[39]
Regarding the first appellant, counsel has submitted that the
magistrate misdirected himself in failing to take account of
what
counsel called his lesser degree of participation, especially in the
assaults. In my view, that argument has no merit. It
is true that the
second appellant was the major perpetrator of violent acts, but
equally true that on the evidence before the court
the first and
second appellants were acting together, with equal responsibility and
seeking the same benefits from their unlawful
conduct. The
distinction already drawn between the first and second appellants (on
the one hand) and the third appellant as regards
moral
blameworthiness cannot be drawn as between the first and second
appellants themselves. In my view, on the evidence before
the court,
both the first and second appellants dominated the events of that
night. Both breached the trust placed in them by society.
[40]
Much of the argument on the question of sentence from counsel for the
appellants was structured around the proposition that
the convictions
in this case ought to have been convictions of assault or theft.
Concerning the appropriate sentences for the first
and second
appellants on a conviction of robbery, counsel’s argument
focused
on correctional supervision.
[41]
As mentioned earlier, before the magistrate each of the appellants
had his own lawyer. None of them argued for a sentence of
correctional supervision under
s 276(1)(h)
of the
Criminal Procedure
Act,
51 of
1977
; and accordingly none of them asked that the appropriate report
required by
s 276A
of that Act be acquired. It is unsurprising, given
the facts of this case and the matters already referred to, that the
magistrate
expressed a conviction that a custodial sentence was
required and did not call for a report on the question as to whether
s 276(1)(h)
might be appropriate in this case. In this appeal counsel
for the first and second appellants has suggested that such an order
would be appropriate and has asked us to remit the matter to the
Regional Court to consider the issue of sentencing afresh. His
submission is that a sentence under
s 276(1)(h)
of the
Criminal
Procedure Act would
“address all of the requirements of
sentencing in this matter, namely punishment, deterrence, retribution
and rehabilitation.
At the same time the appellants would be able to
maintain their employment.” I must confess to some difficulty
in understanding
the proposition that punishment, deterrence and
retribution would characterise the imposition of such a sentence. We
are not dealing
with peculiar circumstances such as featured in the
case of
S v Kasselman en ‘n Ander
1995 (1) SACR 429
(T) to which counsel for the appellants referred
us. The crimes in this matter were committed by two seasoned and
senior members
of the South African Police Service who could not have
claimed to have required more time or experience in their lives, or
the
benefit of further instruction, in order to understand the moral
turpitude which attaches to crimes of the type they committed.
Counsel has not drawn our attention to any advantage which might be
expected to flow from correctional supervision which would
not
already have been given to warrant officers of 23 years experience in
the South African Police Service.
[42]
Concerning
s 276(1)(i)
of the
Criminal Procedure Act, the
submission
of counsel for the appellants is that a sentence under that section
is not suited to the first and second appellants
because it will
unnecessarily disrupt their employment, family lives and probably
lead to their dismissal. But he submits
further that it would
certainly be preferable to a sentence of five years direct
imprisonment. (Of course this latter statement
is somewhat at odds
with a judgment relied upon by counsel for the appellants, namely
S
v Truyens
2012 (1) SACR 79
(SCA) where
in paragraph 27 it is said that there is a misconception that a
sentence under
s 276(1)
(i) of the Act is a “softer option than
an ordinary sentence of direct imprisonment”.) Counsel has not
addressed the
question at all of why it should be supposed or assumed
that there is a realistic expectation that any correctional
programmes
available to the Commissioner would surpass or add
anything to the training and experience which the first and second
appellants
have had over a period of 23 years of service as police
officers.
[43]
With reference to the case of
Truyens
,
and also such cases as
S v Scheepers
2006 (1) SACR 72
(SCA),
S
v Oosthuizen
2007 (1) SACR 321
(SCA)
and an unreported judgment in this Division, namely
Bester
v S
[2014] ZAKZPHC 22, counsel for the
appellants argues that the failure of the magistrate to deal in his
judgment with the option
of a sentence under
s 276(1)(i)
of the Act,
leads to the inference that he did not consider it, and therefore
constitutes a misdirection justifying interference
with the sentence.
I take the view that counsel carries the argument too far. There are
some convictions which call for a sentence
under
s 276(1)
(i) and
some which do not. The introduction of the option of a sentence under
that section did not extinguish the sentencing option
of five years
direct imprisonment or less. It seems to me that the position is as
stated by Cameron JA in paragraph 10 of the judgment
of
S
v Scheepers
.
“
The
particular advantage of
s 276(1)
(i) should always be in the
foreground when the sentencer considers that a custodial sentence is
essential,
but the nature of the offence
suggests that an extended period of incarceration is inappropriate
.
In such cases,
s 276(1)(i)
achieves the object of a sentence
unavoidably entailing imprisonment, but mitigates it substantially by
creating the prospect of
early release on appropriate conditions
under a correctional supervision programme. This sentencing option
seems tailor-made for
the appellant’s offences. Neither the
magistrate nor the High Court considered its precise advantages.
Their failure to do
so requires us to intervene.”
(My
emphasis)
[44]
In the case of
Scheepers
the court considered an effective sentence of three years
imprisonment on two counts of theft, one involving R130 and the other
R1000. In
Oosthuizen’s
case the court was concerned with an assault with intent to do
grievous bodily harm which had attracted a sentence of 36 months
imprisonment, 12 months of which were suspended. After quoting
paragraph 10 of the judgment in
Scheepers
the court came to the conclusion that a sentence in terms of
s 276(1)
(i) would be appropriate as it would “bring home to the
appellant
and others that behaviour of the kind in question will not be
tolerated. It would promote rehabilitation and will achieve a balance
between the
appellant’s
interests and those of society”.
[45]
It seems to me, based on these authorities, that whilst an appeal
court is entitled to intervene because the sentencing court
has
failed to consider a sentence under
s 276(1)(i)
of the Act as an
option before imposing a sentence of direct imprisonment of
five years or less, whether it should do so
depends on the answer to
the question as to whether the case is suitable for the substitution
of a sentence in terms of
s 276(1)(i)
, or for that matter under
s
276(1)(h).
[46]
In the present case the magistrate expressed clearly his conviction
that what Cameron JA referred to in
Scheepers
as “an extended period of incarceration” is appropriate.
This is a case in which general deterrence is prominent. It
is a case
in which a service of vital public importance was compromised, and a
clear signal needs to be sent to others who may
think that they will
be treated leniently if they are caught committing the very crimes
which their office is supposed to prevent
and investigate. Here two
uniformed senior members of the police service invaded the home of
two members of a vulnerable class,
and robbed them. Violence was
employed both to subdue them and convey to them that two foreigners,
far from their home countries,
would be best advised not to confront
the might of the South African Police by reporting the robbery. It
would have been unsurprising
if the complainants had succumbed, and
not reported the crimes. Given what happened it may be assumed that
it required courage
on the part of the complainants to make their
report.
[47]
The magistrate recorded that he had been as lenient as he could,
(that is that he had mitigated the sentence as far as he could)
in
imposing the sentence of five years imprisonment. Imposing the same
sentence under
s 276(1)
(i) would have mitigated it further and
substantially by “creating the prospect of early release”
(see
Scheepers
at paragraph 10). In my view the magistrate cannot be faulted for not
doing so. In my view the sentencing option under
s 276(1)
(i) is not
“tailor-made” for the crimes for which the magistrate
imposed the sentences he did.
The
following order is made.
(1)
The appeals against conviction are
dismissed.
(2)
The appeals of the first and second
appellants against sentence are dismissed.
(3)
The appeal of the third appellant against
sentence is upheld. The sentence of five years imprisonment imposed
on the third appellant
is set aside and the following sentence is
substituted.
“
The
third appellant is sentenced to three years imprisonment, wholly
suspended for a period of five years on condition that the
third
appellant is not convicted of theft or robbery committed during the
period of suspension”.
OLSEN
J
XOLO
AJ
Date
of Hearing: TUESDAY, 19 APRIL 2016
Date
of Judgment: : FRIDAY, 20 MAY 2016
For
the Appellants : Mr J E Howse
Instructed
by: Sunil Singh & Associates
Appellants’
Attorneys
46
McKenzie Road
Windermere
(Ref.:
SS/AD/R203)
(Tel
No.: 031309 8338)
c/o
SANGHAM INC
188
Retief Street
Pietermaritzburg…3201
KwaZulu-Natal
For
the Respondent: Adv. D Naidoo
Instructed
by: Director of Public Prosecutions
Respondent’s
Attorneys
325
Pietermaritz Street,
Pietermaritzburg
KwaZulu-Natal
(Ref.
Adv D Naidoo)
(Tel.:
033 – 845 4400)