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[2016] ZAGPPHC 289
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Luvuno v S (A474/2015) [2016] ZAGPPHC 289 (22 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A474/2015
DATE:
22 MARCH 2016
NKOSINATHI
LUVUNO
.................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
KHUMALO J
INTRODUCTION
[1] The Appellant is
with leave of this court appealing against his conviction and
sentence by the Regional Court in Piet Retief
on a charge of
housebreaking with intent to steal and theft. The court imposed a
sentence of 5 years imprisonment. The Respondent
opposes the appeal.
[2] According to the
charge sheet, the charge proffered against him and a co- Accused, was
that on 23 December 2011 near Sakhisiswe
Primary School
("Sakhisiswe") in Driefontein, in the region of Mpumalanga
they unlawfully and intentionally broke into
the school of the
Department of Education or that of Clifford Winston Twala and went
in, with the intention to steal and had unlawfully
and intentionally
stolen to wit, 2 Computers, a radio, DVD player and a TV, property
with a total value of R23 000.00, that was
in the lawful possession
of the Department of Education and Clifford Winston Twala.
[3] The Appellant
was legally represented and pleaded not guilty to the charge. He
denied committing the offence. Appellant's co-accused
(who is
hereinafter referred to as "Accused
1" as he was
referred in the court quo) alleged that the computer that was found
in his possession was sold to him by the Appellant
whilst Appellant
denied selling stolen items or anything to Accused 1. Appellant
denied everything calling upon the state to prove
his guilt beyond
reasonable doubt.
[4] He was convicted
following the evidence led by the four state witnesses, which are Mr
Clifford Winston Twala, the principal
of Sakhisizwe who is the
complainant ("Twala", Mbangiseni Hlatshwayo, a friend of
Appellant's co-accused ("Hlatshwayo")
and the two police
officers that investigated the matter Maria Yende ("Yende")
and Mbongiseni Khumalo ("Khumalo")
plus the evidence of
Appellant's co-accused. The court a quo found the evidence of the
state witnesses to be credible and ail of
them to have been
impressive witnesses, notwithstanding being subjected to a vigorous
cross examination.
[5] Appellant on the
contrary alleges that the state's case was full of material
contradictions, inconsistencies and discrepancies
that are
irreconcilable. It was argued on his behalf that all the evidence by
Twala was hearsay and had to be treated with caution.
The learned
magistrate was said to have misdirected himself when he allowed his
knowledge and experiences to overshadow his judgment
whilst
neglecting to consider the evidence in front of him. The state was
criticized for not calling the clerk at the school to
come and give a
full description of the stolen items, their value and the gardeners
who are said to have been the first one at
the scene. The full
grounds and arguments that were advanced are dealt with hereafter.
[6] The approach to
be adopted by the court of appeal when it deals with factual finding
of a trial court are well illustrated in
R v Dhlumayo and Another
1948 (2) SA 677
(A) where the then Appellate Division stated that:
"a court of
appeal will not disturb the factual finding of the trial court,
unless the latter has committed a misdirection.
Where there has been
no misdirection on facts by the trial judge, the presumption is that
his conclusion is correct. The appeal
court will only reverse it
where it is convinced that it is wrong. In such a case, if the appeal
court is merely left in doubt
as to the correctness of the
conclusion, then it will uphold it."
BACKGROUND FACTS AND
EVIDENCE LED
[7] Sakhisizwe
Primary School was broken into and a television, radio, computer and
keyboard stolen. The guards at the school noticed
that and reported
to Twala, the principal. According to Twala a classroom number 11 was
broken into and access gained through the
ceiling to classroom 12
next door, from which a computer and a radio were stolen. He saw the
damage that was done. The serial numbers
of the stolen items were
entered into the school inventory. The computer and radio that were
retrieved by the police from Accused
1 had serial numbers that
correspond with the serial numbers of the school computer and radio
that was in the school inventory.
Such evidence was not disputed nor
was the fact that the police retrieved the computer from Accused 1.
[8] Constable
Mpumelelo Maria Yende ("Yende"), the second witness
indicated that Accused 1 from the onset told them that
he got the
computer from the Appellant. At the time they were not aware that the
person referred to was indeed the Appellant. She
only heard of
Appellant's name from Accused 1. They went to look for the Appellant
and he was not found at his place on that day.
[9] According to
Siyabonga Hlatshwayo, on 12 January 2012 Accused 1 requested him to
him to accompany him to Appellant's place to
collect a computer. They
met the Appellant at a certain house and together they waited for
sunset before they proceeded to Appellant's
house. On reaching the
house, Appellant made them wait outside whilst he went in. Appellant
then came out of his house carrying
a computer tower, a keyboard and
a mouse. He gave them the items. The screen was not part of the
items. He subsequently saw the
screen at Accused Ts house. Accused 1
told him that the Appellant sold him the computer. When it was put to
him during cross examination
that he actually knew where the computer
came from, he replied that Accused 1 told him he was buying the
computer, however Accused
1 also told him on their way to Appellant
that they (the Appellant and Accused 1) took the items from
Sakhisizwe School.
[10] Then Mbongiseni
Eric Khumalo, a member of the SAP only testified on the arrest of the
complainant. That on getting the report
they went to Accused 1,
introduced themselves to him and explained why they were there. Thy
asked him to take them to his room.
They searched his room and found
a black computer flat screen and a keyboard under the bed. He told
them he got the items from
Appellant. He told them other items are at
his parents' place. They went with him at his mother's place where
they found the computer
tower and the mouse. They went to look for
Appellant at his place and could not find him. He could not remember
about the story
of the radio.
[11] On the other
hand, Appellant's evidence was that the police came and searched his
place and nothing was found. They told him
that Accused 1 whom he
only knows by sight alleged to have bought a computer from him. He
simply denied selling any of the items
to Accused 1.
[12] Appellant's co-
accused, in his testimony had confirmed that items allegedly stolen
from the school, the computer components
were found in his
possession. He said the radio belonged to him, he got it from his
sister who works in Johannesburg who had since
passed away. The
computer was bought from the Appellant and he was awaiting his salary
so that he can pay him when he was arrested.
CONTENTIONS RAISED
ON CONVICTION
[13] Now on appeal
Appellant criticizes Khumalo for failing to mention that he explained
or warned the accused of his constitutional
rights before or during
the arrest. In that regard its alleged that the learned magistrate
erred in admitting evidence or whatever
information and or pointing
out Accused 1 made at the time of his arrest, an issue that was never
raised during the trial and therefore
none of the parties dealt with
it. On the record there was no pointing out made by Accused 1, the
items in his room were found
as a result of a search conducted by the
police. The Accused thereafter spontaneously informed the police
about the other items
which were at his mother's place whereupon they
were recovered.
[14] The criticism
on Hlatshwayo's evidence was that it was contradictory on material
aspects. It was argued that although he testified
about being told by
accused 1 to accompany him to Appellant's place to go and collect his
computer, he also alleged that on their
way there Accused 1 told him
that he and the Appellant got the computer from Sakhisizwe School.
His evidence is said to be contradicted
by Accused l's version that
he bought the computer from the Appellant. Which evidence the
Appellant says he finds problematic as
the different components of
the computer were found in three different places. The items are
alleged to have been sold by him to
Accused 1 on January 2012 on
credit, awaiting his salary, but by March 2012 there was no evidence
that he had made a payment or
arrangement or that Appellant at some
stage made a demand for payment.
[15] It is alleged
Accused l's evidence is the only one that linked the Appellant to the
crime, therefore the court erred in not
treating same with caution as
he was an accomplice to the said crime. The Appellant therefore
argued that there was not enough
evidence to satisfy the court a quo
beyond reasonable doubt that the items were received or bought from
the Appellant.
[16] Besides
mentioning that it was not the court's finding that Accused 1 bought
the stolen items from Appellant, I should state
that it is trite that
our law does not require that a court act only on absolute certainty
but merely upon justifiable and reasonable
convictions - nothing more
and nothing less; see SvSeedat
2015 (2) SACR 612
per Mavundla.
[17] In respect of
Hlatshwayo's evidence there was no contradiction on the material
aspects as alleged. Hlatshwayo merely underlined
that even though
Accused 1 had told him that he bought the components from the
Appellant, he however later told him that they got
them from the
school. The reliability of such evidence is established not by its
piecemeal consideration but by taking into account
all the evidence
collectively, especially the evidence that could not be disputed or
found to be common cause between the parties.
Hlatshwayo's evidence
indeed links the Appellant to the offence. He confirmed that they
fetched the stolen items that were recovered
from Accused 1 from
Appellant's place. Therefore the Appellant had been in possession of
the stolen items, not long after the items
went missing from the
school. The question that arises is how did Appellant come into
possession of the stolen items?
[18] The court a quo
did not accept as true Accused l's evidence that he bought the stolen
computer from Appellant as he could not
give a satisfactory
explanation of his possession of the radio as well, that was likewise
stolen from the school. The court inferred
that Accused 1 stole the
goods from the school (as testified by Hlatshwayo) since he was
familiar with its surroundings having
been a student there and
staying in the vicinity. Accused 1 had also confirmed in his plea
explanation and under oath that the
computer was in fact stolen from
the school, albeit denying that stolen by him. As he could not have
managed to take that number
of items through the ceiling alone that
Appellant was indeed a part of the break in (as testified by
Hlatshwayo) who carried out
the rest of the stolen items.
[19] The trier of
fact in criminal trials determines if the proven facts supports the
conclusion that the Accused committed the
offence he has been charged
with. In dealing with circumstantial evidence and the drawing of the
necessary inference all the other
evidence come into play. The
principles applicable are as enunciated by Watermeyer J in R v Blom
1939 AD 188
at 202-203 where they are defined as follows:
"there are two
cardinal principles of logic" which could not be ignored when it
came to
reasoning by
inference:
'(1) The inference
sought to be drawn must be consistent with all the proven facts. If
it is not, then the inference cannot be drawn.
(2) The proven facts
should be such that they exclude every reasonable inference from them
save the one sought to be drawn. If they
do not exclude other
reasonable inferences, there must be doubt whether the inference
sought to be drawn is correct.'
[20] The question
that arises is whether the inference that the court a quo drew was
consistent with all the proven facts, which
is the same with the
Appellant's inference that it needed the court to draw, was it
consistent with all the proven facts. In other
words was the
Appellant's explanation a possibility, since if the explanation
cannot be ruled out as a possibility, when it is
judged against the
principles of logic, the state would not have proven its case beyond
reasonable doubt.
[21] Twaia's
evidence that the serial numbers on the schools' stolen computer and
the radio that was entered into the school asset
inventory was the
same as that of the computer and the radio retrieved from the Accused
was not disputed. Therefore whether it
is the clerk who works with
the school inventory who went to the police station to identify the
stolen items or Twala, it would
not matter, the fact could be easily
verified by anyone. Nevertheless Twala did also have sight of the
items, and he confirmed
that they bore the relevant serial numbers.
For that reason there is no merit on the argument that Twaia's
evidence was hearsay.
[22] The criticism
that was in addition levelled against the learned magistrate for
taking judicial notice of the fact that States
Department do keep
inventories where serial numbers of the assets owned by different
departments are recorded is unwarranted and
excessive. The
information had been attested to and proven by documentary evidence
produced from the school inventory and stood
undisputed; see Van
WykvS
[1997] 3 All SA 75
(EC). The court a quo therefore did not use
its knowledge to decide the case, but to highlight the generality of
the practice.
The evidence adduced was already sufficient to
establish beyond reasonable doubt that that the serial numbers were
indeed recorded
in the inventory; see S v Land 1987 (4) SA548 (N).
[23] The Appellant
has therefore failed to substantiate his argument that the evidence
of the state was not satisfactorily in alt
material respects and that
the court should have in that regard found that doubt exists.
[24] With regard to
complainant's evidence being that of a single witness Counsel made
reference to S v Teixeira
1980 (3) SA 755
(A) at 761 where the court
in evaluating the evidence of a single witness stressed that 'a final
evaluation can rarely, if ever,
be made without considering whether
such evidence is consistent with the probabilities.' The fact that it
is corroborated would
also strengthen its probity, without which it
may be rejected if it also has a litany of intrinsic probabilities,
omissions and
contradictions.
[25] In deciding all
the issues raised bv the Appellant, we consciously considered the
matter guided bv the established principles
governing the hearing of
appeals against finding of fact. In brief, that in the absence of
demonstrable and material misdirection
bvthe 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.:
see S v Hadebe and Others
1997 (2) SACR 641
(SCA). Well, in casu
there is no litany of probabilities, omissions and contradictions as
already indicated.
[26] The notion that
the failure to repeat certain allegations is prove of their
untruthfulness is based on incorrect assumption
as is the same as
that the repeat thereof is proof of prior evidence or corroboration
thereof: see S v Mkohle
1990 (1) SACR 95
(A) at 99d where it was
decided that a witness previous consistent statement has no probative
value'. It is superfluous evidence.
It therefore cannot be used as
prove of the falsehood of a statement. The attempt to try to prove
that the complainant overlooked
certain statements in his evidence is
not an indication of untruthfulness of his evidence.
AD SENTENCE
[27] With regard to
sentence the Appellant submits that the court a quo erred in finding
that the cumulative effect of a sentence
already imposed by another
court in another offence prior to the 5 year term of imprisonment the
court a quo imposed for the offence
in casu did not call for
consideration of ordering the sentence to run concurrently with the
previous sentence. Also not taking
into account that some of the
stolen items were recovered and that Appellant had spent 4 months
incarceration before he was sentenced
on the other charge on 27 July
2012.
[28] The Appellant
also alleged that the 5 year period of imprisonment was strikingly
disproportionate to the circumstances of the
offence and ought to be
set aside and replaced with a suitable sentence.
[29] It is trite
that in determining the appropriate sentence the Zinn triad that is,
the crime committed, the blameworthiness of
the offender and the
interest of society is to be considered, as propagated in S vZinn
1969 (20 SA 537
(A). The courts must at the same time have due regard
to the purpose of punishment, that is deterrence, rehabilitation,
retribution
and prevention.
[30] The appeal
courts are also implored to bear in mind, when considering an appeal
on sentence, that sentencing is within the
province of the trial
court and interfere should only be if such province was not properly
exercised.
[31] When
determining an appropriate sentence to impose for the offence
committed in casu, the court a quo took due regard to the
fact that
Appellant was already sentenced in another court for a different
crime. However it is not part of our criminal law system
that a
sentence imposed by another court for a different crime would be
considered by a subsequent court to run concurrently with
the
sentence it is to impose on a different offence.
[32] The court
however did not mention whether or not the fact that the stolen items
were recovered was considered as a mitigating
factor. Under the
circumstances we considered that fact and weighed it with all other
issues /factors considered by the court and
found that the sentence
was still appropriate.
[33] The allegation
that the sentence was strikingly disproportionate to the
circumstances of the offence and ought to be set aside
was just
temperamental. The court inter alia, analysed the impact of the
Appellant's conduct to society and the fact that he was
not
remorseful. In 5 v Moswatupa
2012 (1) SACR 259
(SCA) at par 9, the
Supreme Court of Appeal underlined the seriousness of the offence of
housebreaking and stated that:
"Housebreaking
is an extremely prevalent offence, and it is in the general public
interest that sentences imposed in these
matters should act as a
deterrent to others. The message needs to go out to the community
that people who commit these types of
offences will be dealt with
severely by the courts."
[34] After weighing
all the issues raised by the Appellant individually or cumulatively,
we could not find that Appellant had shown
that there is
justification to interfere with the court's jurisdictional discretion
of sentencing as well.
[35] Under the
circumstances, I propose the following order
Order:
[35.1] The appeal
against conviction and sentence is dismissed.
N V KHUMALO
JUDGE OF THE HIGH
COURT GAUTENG DIVISION: PRETORIA
I concur and it
is so ordered
M ISMAIL
JUDGE OF THE HIGH
COURT GAUTENG DIVISION: PRETORIA
For Appellant:
NKOSINGIPHILE MAZIBUKO
Instructed by:
LEGAL AID SA
PRETORIA
For Respondent: A
COETZEE
Instructed by The
Director of Public Prosecutions
Gauteng Division:
Pretoria