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[2016] ZAGPPHC 76
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Mkhabela and Another v S (A328/14) [2016] ZAGPPHC 76 (15 February 2016)
OFFICE OF THE CHIEF
JUSTICE
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION: PRETORIA
A328/14
CASE
NO: 8328/2014
15/2/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
KHULEKANI
MKHABELA FIRST
APPELLANT
BHEKI
PHIRI SECOND
APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
VUKEYA
AJ
INTRODUCTION
[1]
The two appellants were found guilty in the Regional Court Nelspruit,
on four counts of Robbery with aggravating circumstances
read with
the provisions of section 51 (2) of act 105 of 1997. The first
appellant on counts 1, 5, 8 and 10 and he has noted an
appeal against
the convictions and the sentences. The second appellant on counts 1,
3, 8 and 10, he notes an appeal against the
convictions and sentences
on all the charges except on count three where his appeal is only
against the sentence.
[2]
The appellants were sentenced as follows:
The 1
st
appellant: count 1: 7 years
count 5: 4 years
count 8: 5 years
count 10: 5 years; and
The 2
nd
appellant: count 1:7 years
Count 3: 4 years
Count 8: 5years
Count 10: 5 years
[3]
The appellants were unrepresented during the trial because the first
appellant, on the day of the trial his Attorney withdrew
as his
attorney of record and he had to conduct his own defense and the
second appellant terminated his attorney's mandate and
proceeded on
his own. The two appellants, with the assistance of the court,
despite the appellant's submission in this regard,
conducted their
cases properly and did well in challenging the witnesses during cross
examination.
[4]
On the convictions the appellants contend that the Magistrate erred
in finding that the complainants' identification was reliable
and
trustworthy; that the appellants robbed the complainants, that the
state has proved the guilt of the two appellants beyond
a reasonable
doubt and also erred in not considering the serious discrepancies in
the complainants' evidence.
[5]
And on sentence it was contended that the Magistrate erred in failing
to consider that no brutal force was used during the robberies
and no
serious injuries were inflicted on the victims. It was further
contended that the time spent in custody awaiting trial was
not taken
into consideration and that the sentences were shockingly
inappropriate. According to the appellants, the Magistrate
failed to
consider that the value of the stolen property was small; and he
failed to have regard to the cumulative effect of the
sentence
The
facts can be summarized as follows:
[6]
Regarding count 1: Mr Leonard Magagula said that on 05 February 2005
he was robbed in the township of Matsulu. His assailants
pointed a
9cked fire-arm at him and robbed him of his wallet containing R500.
When the fire-arm was cocked for the second time
he realized that the
gun was empty then he chased them and followed the first appellant
until he caught him and handed him to the
police. He knew the accused
very well and also stated that he never lost sight of him when he
started chasing him until he caught
him. He had a good opportunity to
see both of them at the scene as there was enough light coming from
the nearby houses.
[7]
Leonard Magagula was correctly found to be a reliable and honest
witness by the trial court. He was a single witness with regard
to
the robbery and the identity of the appellants. I am of the view that
the cautionary rule applying to the evidence of single
witnesses was
correctly applied and the evidence with regards to the identity of
the accused is satisfactory. These were people
he knew and he chased
and caught one of them immediately.
[8]
Regarding Count 5: Sandile Mabuza was robbed at Matsulu township. He
left the tavern and got into his bakkie and soon thereafter
the first
and second appellants appeared. They were both unknown to him but he
came face to face with them as they robbed him.
The spotlight from
the tavern provided light as it shone directly to where the incident
was happening and there was light all over
the place. At an
identification parade he was only able to identify the first
appellant.
[9]
The trial court correctly found that this witness was reliable and
that his observation of his assailants and his identification
of the
first appellant was satisfactory. The Magistrate rightfully rejected
this witness's observation of the second appellant
because he could
not put any weight on the "dock identification" of the
accused hence the second appellant was acquitted.
[10]
Counsel for the appellants argued that because evidence of the
identification parade of the second appellant was rejected therefore
it should also be rejected in respect of the first appellant. This
view is incorrect because, as the counsel for the state correctly
submitted, the Magistrate's finding was based on the evidence
tendered by Mr Mabuza on how he identified the appellant at the
scene. He concentrated on his observations and was satisfied that
even in the absence of evidence of an identity parade; the first
appellant could be convicted but not the second.
[11]
Regarding Count 8: Mr Mduduzi Nyathi said he was robbed by the
two appellants on the evening of the 30
th
July 2005,
at Matsulu Township. He knew the two for at least 6 years before
the incident. The first appellant stood right
in front of him during
the robbery while the 2"d stood four meters from him. The source
of light which assisted him to identify
the two came from the nearby
houses. In an identity parade he was able to point at the first
appellant.
[12]
The Magistrate rightfully found that the witness's observations of
the appellants when the incident occurred were satisfactory
and that
the circumstances around the identification were enough to satisfy
the cautionary rule.
[13]
Regarding count 10: Norman Lubisi also told the court that he was
robbed by the two appellants on 15 May 2005. He had been
drinking but
said that he was able to identify the two with the assistance of a
High Mass Light which provided enough light as
bright as daylight.
The two appellants were facing him when they robbed him and he even
called the 1
st
by his name. At an identification parade he
identified the first appellant.
[14]
As the two appellant were also known to this witness and the
Magistrate correctly found that he made a satisfactory identification
of the appellants. The Magistrate rightfully found that even though
the witness had a few intoxicating beverages he was not so
drunk that
he could not see what was happening around him.
[15]
The two appellants elected not to testify at the trial and remained
silent.
[16]
Though the accused elected to remain silent during the plea stages as
well at the end of the state's case, it was clear during
cross
examination that the primary bone of contention was the question of
identity in all the counts in which they were convicted.
It is also
clear from their heads of argument in this appeal that they contend
that the magistrate erred in finding that they had
committed the
offences.
[17]
The Learned Magistrate correctly evaluated the evidence before him;
he rightfully approached the evidence as a whole. He was
very
cautious in his evaluation of the witnesses' evidence more especially
those that presented evidence regarding the appellants'
identity.
[18]
He correctly rejected the evidence of identification parades because
they were conducted only in respect of the 1•1 and
not the
second appellant and relied on the evidence of identification given
by the witnesses as they observed their assailants
at the scenes.
This approach has been applied strictly in respect of counts 3 and 5
and it is evident that only accused 2 in count
three was convicted
and only accused 1was convicted of count 5.
[19]
I cannot find any sort of criticism on the evaluation of the evidence
by the trial court nor can I fault the manner in which
such evidence
was assessed leading to the conviction of the two appellants. I am of
the view that the approach to the evaluation
of evidence as it was
stated in
S v Trainor
2003 (1) SACR 35
(SCA) by Navsa JA at
41, in
paragraph 9
as
follows:
"[9)
A conspectus of all the evidence is required.Eidence that is reliable
should be weighed alongside such evidence as may
be found to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered.
In considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated, as must corroborative
evidence, if any.
Evidence, of course,must be evaluated against the onus on any
particular issue or in respect of the case in its
entirety"
was followed religiously.
[20]
The Magistrate in his judgment considered the evidence as a whole,
weighed the reliable evidence alongside that which is not
reliable,
he applied the cautionary rule properly where it had to be applied
and then arrived at a decision that the appellants
were indeed guilty
of the offences they were convicted of and correctly acquitted them
where they needed to be exonerated.
[21]
The discrepancies in the state's case were not material at all, the
Magistrate gave sufficient reasons in his judgment why
he elected to
admit and reject certain evidential material and I am satisfied that
such was done correctly.
AD
SENTENCE
[22]
The appeal is with regards to sentences passed on counts one, three
(in respect of the second appellant) ,five (in respect
of the first
appellant), eight and ten.
[23]
The duty of sentence falls within the judicial discretion of the
trial court. The appeal court will only interfere if the trial
court
has misdirected itself or has committed an irregularity during the
sentencing process which is prejudicial to the accused
and requires
interference or the sentence is so disturbing that it induces a sense
of shock. See S v De Jager and Another
1965 (2) SA 616
(A).
[24]
In the instant case, the appellants were found guilty of offences
referred to in
Section 51
(2) of the
Criminal Law Amendment Act 105
of 1997
as it was found that they used a fire arm when committing the
robberies.
[25]
The Magistrate correctly stated to the appellants in hisremarks that
because of the nature of the offences they had committed
they were
facing 60 years of imprisonment.
[26]
He found that no real harm was done to the complainants as they did
not sustain any serious injuries and also found that the
stolen
property was of a relatively low value. And based on those factors,
he concluded that there were substantial and compelling
circumstances
that justify a deviation from the minimum sentence provision of 15
years for each count.
[27]
The court, having found substantial and compelling circumstances,
correctly deviated from the expected minimum sentence of
15 years
each which would have resulted in the accused serving 60 years if not
ordered to run concurrently.
[28]
The court was referred to the case of
S v Brophy and Another
2007
(2) SACR 56
WLD in order to persuade it to consider the time spent by
the appellants awaiting trial. This decision is noted but not
necessarily
agreed with.
[29]
The fact that a person was in custody awaiting trial for a lengthy
period is not necessarily a "substantial and compelling
circumstance" that justify the imposition of a lesser sentence.
The question is whether the affective sentence proposed is
proportionate to the crime or, (in this case), crimes committed, and
whether the sentence in all the circumstances including the
period
spent in detention prior to conviction and sentencing, is a just one.
See
S v Radebe and Another
2013
(2) SACR 156
(SCA) a decision
which seems to have overruled Brophy
(supra).
[30]
In the premises Ipropose that the following order be made the
following order is made:
That the appeal
against the convictions and sentences is dismissed.
______________
VUKEYA
L D
ACTING JUDGE OF THE HIGH
COURT OF
SOUTH AFRICA GAUTENG
DIVISION PRETORIA
I
agree and it is so ordered.
______________
BAQWA
S A M
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA GAUTENG DIVISION PRETORIA
HEARD
ON: 15 FEBRUARY 2016
DELIVERED
ON:
COUNSEL
FOR PLAINTIFF: ADV
ATTORNEYS
FOR PLAINTIFF:
COUNSEL
FOR DEFENDANT: ADV
ATTORNEYS
FOR DEFENDANT: