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[2016] ZAKZPHC 75
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Zincume v S (AR126/2016) [2016] ZAKZPHC 75 (1 September 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
CASE NO:
AR126/2016
DATE: 1
SEPTEMBER 2016
NOT
REPORTABLE
In the
matter between:
NTUTHUKO
MAGIC
ZINCUME
...................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram : Seegobin J et Radebe J
Heard : 23 August 2016
Delivered : 01 September 2016
ORDER
On appeal
from the Regional Court, Ngwelezane, (sitting as a court of first
instance):
The appeal
against conviction and sentence is dismissed.
JUDGMENT
SEEGOBIN J
(Radebe J concurring):
[1] The
appellant, who was legally represented, was arraigned in the Regional
Court at Ngwelezane on a charge of robbery with aggravating
circumstances read with the provisions of section 51 and Schedule 2
of the Criminal Law Amendment Act 105 of 1977. At the
conclusion of all the evidence the appellant was duly convicted.
No substantial and compelling circumstances having been
found, he was
sentenced to 15 years imprisonment. The present appeal, with
leave of the court
a quo
, is against conviction and sentence.
[2] The
State’s case rested on the evidence of the complainant who was
a single witness to the offence in question.
It also called the
evidence of
Constable Cele
, the investigating officer who
arrested the appellant and recovered a plastic toy gun from him.
Apart from pleading not guilty
to the charge the appellant averred
that the complainant was mistaken about his identity as he was not
involved in robbing her
on the day in question.
[3] There was
no dispute that the offence occurred at about 18h00 on 20 October
2012 in broad daylight. The complainant was
accosted by two
males as she proceeded to her homestead after leaving her place of
employment. One of the males approached
her from the front.
He produced a firearm and pointed it at her. The complainant
was dispossessed of her bag which
contained her cellphone, cash and
certain medication. The complainant was warned not to take the
same direction she was proceeding
in but to take another instead.
[4] The
complainant testified that she immediately knew who the assailant in
front of her was and that she would be able to identify
him if she
saw him again. It seems that she did not know his name at the
time. A few days later the same person came
to the tuck-shop
where she was employed. She recognized him as the person who
robbed her on the day in question. She
telephoned the
investigating officer at once and informed him as such. She was
told by the investigating officer that if
she saw the person again
she should call him. As it turned out, a few days later in
early November 2012, she saw the person
walk past the tuck-shop.
She then requested one
Mandla
, whom she knew, to accompany her
as she wanted to follow the culprit in order to see where he
resided. They followed the
appellant until he entered the
Mavimbela homestead. Mandla then informed her that the
assailant’s name was Magic.
She telephoned the
investigating officer and gave him this information. The
appellant was arrested on the following day.
[5] The
investigating officer, Constable Cele, confirmed that he arrested the
appellant based on information provided by the complainant.
He
also recovered a plastic toy gun from the appellant which he entered
into the exhibit register. Constable Cele testified
that
inasmuch as the complainant had identified the appellant as the
assailant, he nonetheless held an identification parade to
satisfy
himself that she had identified the right person. This was more
so because the appellant’s surname was actually
Mavimbela
whereas the appellant used the surname Zincume.
[6] While the
appellant disputed the complainant’s evidence of his
identification throughout, he surprisingly testified that
he knew the
complainant for about 10 years as they resided in the same area prior
to 20 October 2012. He eventually conceded
under
cross-examination that there could be no question of a mistaken
identity on the part of the complainant. This was contrary
to his
defence pleaded at the commencement of the trial.
[7] In the
circumstances, the court
a quo
was correct in finding that the
identity of the appellant had been established beyond a reasonable
doubt. In my view, the findings
of the trial court cannot be assailed
in any way and the appellant was correctly convicted. It follows that
the appeal against
conviction must fail.
[8] As far as
the appeal against sentence is concerned, it is trite that an appeal
court will only interfere with a sentence of
the trial court in
circumstances where it finds that the court
a quo
either
misdirected itself or that the sentence imposed is shockingly
inappropriate or is unduly harsh.
[9] The
appellant was convicted of a very serious offence in which a firearm
was used. The trial court was correct in finding that
there were no
substantial and compelling circumstances present which would have
justified the imposition of a lesser sentence.
I can find nothing
wrong in the trial court’s findings in this regard. In my view,
the appeal against sentence as well must
fail.
ORDER
[10] The
order I make is the following:
The appeal
against conviction and sentence is dismissed.
I agree
RADEBE J
Date of Hearing : 23 August 2016
Date of Judgment : 01 September 2016
Counsel for Appellant : Mr Marimuthu
Instructed by : Durban Justice Centre
Counsel for Respondent : Mr Mthembu
Instructed by : Director of Public Prosecutions
Pietermaritzburg