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[2016] ZAGPPHC 112
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Mokwena v S (A111/2015) [2016] ZAGPPHC 112 (24 March 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO.:
A111/2015
DATE:
24/3/2016
not reportable
Not of interest
to other judges
Revised
In the matter
between:
KENNETH SKHUMBUZO
MOKWENA
Applicant
and
THE
STATE
Respondent
JUDGMENT
JANSEN J
[1]
The
appellant was found guilty of one count of robbery with aggravating
circumstances as envisaged by section 1 of Act 51 of 1977
(read with
the provisions of
section 51(1)
,
52
(2),
52A
and
52B
of the
Criminal Law Amendment Act 105 of 1997
) in that on 10 August 2011 and
at or near Mhluzi, he intentionally and unlawfully assaulted Queen
Mahlangu and forcefully took
from her a cell phone and R300-00 whilst
threatening her with a knife.
[2]
The
appellant was also found guilty on one count of common assault (even
though charged with sexual assault) in that on or about
10 August
2011 and at or near Mhluzi in the regional district of Mpumalanga, he
unlawfully and intentionally sexually violated
the complainant, Queen
Mahlangu, by pushing her down, and undressing her whilst threatening
her with a knife.
[3]
The
appellant was convicted on both counts on 24 October 2014 and
sentenced to 15 years imprisonment in respect of the robbery (the
minimum sentence) and three years’ imprisonment in respect of
the common assault, both sentences to be served concurrently.
The
appellant was also declared unfit to possess a firearm in terms of
section 103(1)
of Act 60 of 2000.
[4]
Initially
the appellant was granted bail but it was cancelled on 6 September
2013 when he failed to appear in court on two previous
occasions.
[5]
The
court
a
quo
granted
the appellant leave to appeal in respect of his conviction and
sentence.
[6]
The
appellant was 22 when the proceedings took place in February 2013 and
was 20 years old when he committed the offences. He
was born on
14 April 1991. He was legally represented throughout the
proceedings.
[7]
The
prescribed minimum sentence was duly explained to the appellant in
respect of count 1. The appellant pleaded not guilty
on both
counts. His plea explanations was that he was playing soccer
with his friends at Mhluzi where there is a soccer stadium
and two
other fields higher up. He alleged that they were playing on
the uppermost ground. He was wearing soccer boots
and a
T-shirt. He left his friends, as he was thirsty, with the
consent of the soccer coach, to fetch water in a two litre
plastic
container at the toilets of the stadium. He then heard a woman
shouting for help, calling the name Sam. This
happened around
08h00 to 09h00.
[8]
The
appellant wished to return to the uppermost field but people came
running towards him, throwing stones at him. He ran
to a river
close to the stadium where he was arrested by the police.
[9]
The
date and the place where the crimes were allegedly committed were
formally admitted by the State.
[10]
The
complainant’s testimony was that she was busy with her washing,
and that the door of her house was unlocked and open.
A male
entered the house and told her to remain quiet. He requested
her phone which she gave to him. He followed
her into her
bedroom where her handbag was lying on the dressing table. She
handed him her bag and he took R300-00. He
then ordered her to
climb on the bed. He grabbed her clothing and undressed her but
whilst he was undressing, she wrestled
with him and ran outside for
help where there were people who came to her assistance.
[11]
The
complainant testified that when the male entered her house, he had a
knife in his possession, about 26 centimetres in length,
which he
pointed at her. She said the knife broke during the ensuing
struggle with the appellant but that she sustained only
minor
scratches to her hands. She also showed the court her cell
phone, which the man had taken and which the community had
given back
to her after chasing the appellant. The SIM card in the phone was
hers. She testified that he was wearing a white
lumber jacket
and denim trousers.
[12]
The
complainant stated that she only saw the appellant again at the
police station, after the incident, as he had followed her when
she
ran outside and passed her and ran away.
[13]
During
cross-examination, the complainant stated that the money that was
stolen was not recovered and that she found this strange.
Mr D
M (her husband) and a Mr Sam Mthethwa told her that the money had
been lost. Mr D M was the person who returned the
cell phone to
her.
[14]
According
to the complainant, the broken knife remained in the house where it
fell and it did not occur to her to give it to the
police. In
fact, she said that she did not even know where the knife was. She
then stated that she did not know whether
the appellant had taken the
knife with him. When it was put to her that she was lying
because of the discrepancies in her
evidence, she said that she did
not know what had happened to the knife.
[15]
The
complainant also insisted that the man who assaulted her wore long
jeans and not shorts. She testified that under his
white
hoodie, it seemed to her that he was wearing a T-shirt.
[16]
The
complainant then changed her version and said that she was in the
bedroom when the man entered her house.
[17]
The
complainant admitted that the appellant had no distinct features.
She testified that when he left the house, he jumped
over the
fence behind the house. Her house, she testified, was within
the fence of the stadium. The people who assisted
her entered
through the front gate when they heard her screaming. It was
unclear from her evidence how she knew that the
appellant had jumped
over the fence at the back of the house because she remained in front
of the house. She took the people
to the back of the house and
told them that the perpetrator had jumped over the fence there but
did not give a description of the
perpetrator. She did not see
what happened thereafter.
[18]
Even
in the complainant’s statement to the police, she stated that
she was outside the bedroom when the person entered. She
insisted that she was in the bedroom and that the police had taken
her statement down incorrectly. She testified that the
perpetrator himself took the money out of her handbag and that she
did not give it to him. She testified that she gave the
perpetrator her handbag, and that he took out the R300-00.
[19]
She
said that Mr Sam Mthethwa, Mr Malapane and Mr Enos Masethla came to
her assistance at her house. She did not know how
Mr D M, her
husband, had obtained the phone.
[20]
It
also transpired during cross-examination that the complainant
initially testified that it looked as though the perpetrator had
a
knife but she insisted that he did have a knife. She said that
she made a mistake in stating that it looked as though he
had a
knife. She also admitted that she was the only person who saw
and spoke about a knife but that she had mentioned it
to the three
people who came to her assistance. (Clearly the interpreter had
not interpreted everything she had said in her
evidence in chief.)
However, none of the witnesses testified that she had told them about
a knife.
[21]
The
complainant testified that Mr D M was her husband and an electrician
working for the municipality. Whether he came to
her assistance
at the house is unclear. The other two people – Jacob and
Enos – worked for the Parks Department.
(It is emphasised that
she only referred to a Malapane and did not know that his name was
Jacob.)
[22]
The
complainant saw the appellant at the police station and he was not
injured. She identified him as the perpetrator. She
denied that
he was playing soccer as he was not wearing shorts and a long sleeved
T-shirt. The complainant reiterated that
she had seen what the
perpetrator was wearing. The version of the appellant was put
to her that he heard her scream, was
then assaulted by members of the
community, struck on the head until he bled and lost consciousness,
and was taken to the hospital.
He also contended that no money,
knife or cell phone were found on him.
[23]
The
next witness was Mr Samuel Mandlagaiqise Mthethwa. He testified
that he was fixing the irrigation on the soccer field
and saw nobody
playing soccer on the lower grounds – only on the upper
grounds. He saw a person with a white lumber
jacket exiting the
complainant’s house and who jumped over the fence at the back
of the house. Mr Mthethwa testified
that several people started
chasing the perpetrator and he drove after the perpetrator in his van
in order to prevent him from
getting away. The perpetrator ran
to the river, proceeded to run between reeds growing next to the
river, and disappeared.
The people who had been practising
soccer pointed out where the appellant was hiding, who by then, had
discarded his white
lumber jacket amongst the reeds. Mr
Mthethwa testified that the perpetrator used the main gate of the
stadium and that the
other two soccer grounds were quite far away
from the main stadium. He noticed the perpetrator in the white
lumber jacket
because members of the public were not allowed in the
soccer stadium. When the perpetrator entered the stadium, he
was moving
towards the caretaker’s house, which was about 300
metres away. The complainant lived in the caretaker’s
house.
[24]
Mr
Mthethwa testified that the caretaker’s house, from which the
screaming emanated, was about 100 metres away from where
he was
working. There were two fences, one encompassing the house of the
complainant, the second, encompassing the stadium. One
could
access the complainant’s house using the gate. About five
minutes after Mr Mthethwa saw the person with the white
jacket, he
heard the complainant screaming. When he saw her, only her
upper body was clothed. He then saw the person
with the white
lumber jacket exiting the house and running away at a fast speed.
When he caught up to the perpetrator he
noticed that he was
wearing jeans and black boots. Mr Mthethwa stated that when
they saw him at the reeds he had a bottle
with him, not when he
entered the gate nor when he exited the complainant’s house.
[25]
Mr
Mthethwa stated that the bottle which the perpetrator had in his
possession when he was found hiding in the reeds looked like
a glass
wine bottle. He stated that the perpetrator was hitting people
with it. He was adamant that the perpetrator was not
wearing soccer
clothing and he was sure that the perpetrator had not been playing
soccer on the upper fields. He also testified
that the
complainant’s husband, Mr D M, searched the perpetrator.
[26]
Mr
Mthethwa testified that the members of the community caught up with
the perpetrator, and wanted to kill him. He also stated
that
the perpetrator did not speak to him whilst climbing into the police
van.
[27]
Under
cross-examination, Mr Mthethwa testified that he was in the stadium
with his colleagues Malapane and Masethla, and that he
did not know
the names of the others. The complainant’s husband, Mr D
M, was in the municipality’s workshop “on
the yard”.
It was later established that the workshop had some association
with the stadium but was situated in the
town. He only saw the
perpetrator enter through the gate (it was earlier testified by him
that people used that part of the
stadium illegally as a short cut).
He saw the perpetrator but was in discussions with his
co-workers. He did not see the
person entering the caretaker’s
house. He denied that he or any of his colleagues went into the
yard of the caretaker’s
house as testified by the complainant.
[28]
Mr
Mthethwa said that he got into his van, but lost sight of the
perpetrator until he saw him in the reeds, where he had left his
jacket. He had a bottle with him when he exited from the reeds
but a glass one, not a two litre bottle used for carrying
water.
[29]
When
it was put to Mr Mthethwa that it would be the appellant’s
testimony that he went to fetch water to drink, he testified
that all
the toilets were locked and that, in any event, he knew the people
who practised soccer on almost a daily basis. He
testified that
it was the soccer players who told him where the perpetrator had
gone. It was also put to him that there was
a special tap from
which the soccer players could drink. Mr Mthethwa said he would
screw the tap on in the mornings and take
it out in the evenings and
he had not yet screwed it on when the incident occurred. Mr
Mthethwa’s evidence was highly
confusing regarding the tap and
where people were playing soccer that day.
[30]
It was
put to Mr Mthethwa that the appellant would testify that people
attacked him and he answered that it was a lie and even an
eight year
old would know that. It was put to him that the appellant
crossed the river and was then arrested at Mathole.
It was also
put to him that the appellant would testify that nothing was found on
him, but Mr Mthethwa denied this and stated
that Mr D M found a cell
phone and R300-00. It was put to him that Mr D M was in town
and not close to the witness. Mr Mthethwa
said that he phoned Mr D M
when the incident occurred. Mr Mthethwa stated that he and his
colleagues never searched the appellant.
[31]
Apparently,
even though Mr D M found the R300-00, the appellant’s friends
(it later transpired when the magistrate called
witnesses that they
were the appellant’s soccer friends) threatened Mr D M with a
knife and took the money from him. This
was new testimony. Mr
Mthethwa also denied that the appellant was unconscious because the
appellant was able to climb into
the police van of his own accord.
[32]
The
names of the people with whom the appellant was allegedly playing
soccer were put to Mr Mthethwa. He denied it and said
he knew
the people who practised soccer.
[33]
The
next witness was the complainant’s husband, Mr D M. He
testified that he was on his way to the industrial area when
he
received a phone call informing him of an incident involving his
wife. He returned and observed blood on her hands.
This
statement bears out the complainant’s version that she
struggled with the perpetrator who was armed with a knife.
[34]
Mr D M
testified that the complainant had told him that the man who had
robbed her cell phone and R300-00 had a knife in his possession.
He
went in the direction to which the perpetrator had fled, went to the
reeds in the river and then found that the perpetrator
had been
arrested at Mathole where he was being assaulted by members of the
community. Whilst the perpetrator was lying on
the ground, he
searched him and found the cell phone and the money in his pockets.
He was wearing long jeans and black boots.
Friends or
acquaintances of the perpetrator then wanted to stab him and came
with knives and he gave them the R300-00. He
retained the cell
phone which he gave back to his wife.
[35]
Mr D M
testified that he did not play soccer but knew the soccer players.
He said he knew the appellant from a car wash at
Khumbulu. He
said he did not know his friends and that they did not play soccer.
[36]
During
cross-examination, he corroborated the evidence of the previous
witness (Mr Mthethwa) that there was a pipe which one could
adjust to
get water and that Mr Mthethwa usually inserted the tap.
[37]
Mr D M
testified that he never saw a two litre water bottle, but only
stones, and saw no glass bottle where the appellant was arrested.
It
was put to him that the appellant was unconscious which he denied.
He admitted that his wife was not present when
the appellant
was arrested. The state closed its case.
[38]
An
application for discharge in terms of section 174 was dismissed
by the magistrate.
[39]
The
appellant was called first on behalf of the defence. He said he
played for Arsenal and named his fellow players who were
with him
that day. He said he went to fetch water because he became
thirsty during practice and that the coach, Chriswell,
gave him a two
litre bottle to fetch water and he heard a woman screaming. He
said the tap that he went to was close to the
railing of the grand
stand. He said he saw Mr Mthethwa climbing into a bakkie and
driving out of the stadium. The appellant
said he knew Mr
Mthethwa from the car wash where he, the appellant, worked. The
appellant alleged that Mr Sam Mthethwa was
not called as a witness
(it was later established that he was referring to his friend Samuel
and not Mr Samuel Mthethwa and thus
was confused as they are both
called Samuel). The appellant testified that he then climbed
through a hole in the palisade
fence close to a tennis court.
[40]
The
appellant testified that people approached him throwing stones at
him. He ran to an open space where there is a stream.
He
said he dropped the bottle filled with water. He then ran to
the Mathole bottle store. The people chasing
him caught him and
assaulted him. His brother, Mr Patrick Mokoena, arrived and
called the police. He said he was struck
on his head with a
hammer and was assaulted until he lost consciousness. He
testified that nothing was found on him. He
said he was wearing
denim jean shorts, soccer boots and a brown long sleeve T-shirt with
yellow stripes. He said his soccer
friends David and Godi came
to the scene where he was arrested. David, the appellant’s
friend, told the people of the
community that he was practising with
them and went to fetch water, but then David was also attacked. The
appellant denied
doing anything to the complainant.
[41]
Under
cross-examination, he stated that he played for Arsenal and that it
was always the same players practising – about nine
or ten
players.
[42]
The
appellant testified that he saw Mr Sam Mthethwa leaving in a bakkie
and thereafter people left through a small gate. It
was put to
the appellant that there was only a main gate, not a small gate. He
was also queried about the tap but he insisted
that it was
functioning that morning and that it existed.
[43]
The
appellant testified that he was the only person running away and that
the training fields were far away and hence he went to
Mathole’s
filling station (no longer the bottle store). It was pointed
out to him that his location in the reeds was
pointed out by his
fellow soccer players and that this was not disputed. He denied
knowledge of a wine bottle and denied ever wearing
a white jacket.
[44]
The
appellant said that the people who pursued him were even armed with
garden spades. The appellant added that at Mathole,
he was also
assaulted with iron rods, a hammer and garden spades. He said
that his friend David covered his body and once
again reiterated that
David had told them that he had been practising soccer with him and
then David was also assaulted. His
brother, Patrick also
arrived, and called the police. He once again stated that he
lost consciousness. It was put to
him that the state witnesses
said that he entered the police vehicle on his own.
[45]
When
asked whether his brother Patrick and his friends David and Godi
would come to testify, he stated that his brother had died
the
previous year, and that Godi and David were at work and could not
testify on his behalf. He also proffered another convoluted
story as to why David and Godi were not in court to testify on his
behalf.
[46]
However,
after an adjournment, Mr David Bubi Mnisi gave evidence on behalf of
the appellant. He confirmed that they were practising
soccer
together. He mentioned the coach, Chriswell, who the appellant
had testified had told him to go and fetch water.
[47]
Mr
David Mnisi stated that the coach gave the appellant a two litre
bottle to fetch water. They then heard the municipal workers
screaming. According to him, the appellant wore a short sleeved brown
and yellow T-shirt and short jeans.
[48]
Mr
David Mnisi stated that the person whom the municipal workers were
screaming at was the appellant and they were screaming that
he should
be stopped. He stated that he heard the appellant calling for
help and ran to him with some of the players following.
The
said players’ names were Sean, Sihile, Godfrey, Ngobile and
Innoccent. At the scene they found the appellant
being
assaulted. They tried to intervene and did not know why he was
being assaulted. The appellant grabbed his feet
and he fell on
top of him. He was assaulted and his friends dragged him away.
He said the appellant was his neighbour. He
said he soiled himself
and went home to wipe himself and dress in clean clothes. He
found nobody at the appellant’s
house. When he returned, the
appellant was unconscious and was loaded into a police van. He said
he never saw a hammer.
[49]
Under
cross-examination, Mr David Mnisi testified that he played for the
“Mups” and had played for the team for a long
time. He
testified that they trained three times a week.
[50]
Mr
David Mnisi testified that the appellant’s brother was not on
the scene and only heard about what had happened from him
when he was
on his way to the police station.
[51]
Mr
David Mnisi denied that the people playing soccer pointed out where
the appellant was, namely in the reeds. He denied various
things
which the appellant had said, namely that his brother Patrick was
phoning the police and that he lay on the appellant voluntarily.
[52]
Mr
David Mnisi admitted that he did not know what the appellant might
have done. The defence then closed its case.
Addresses to
the court
:
[53]
During
his address to the court, the prosecutor pointed out that the defence
witness contradicted the appellant and that the appellant’s
version was improbable. He also stated that the other witnesses
were very clear about the identity of the perpetrator. In
any
event, the defence witness did not see what had happened.
[54]
For
the defence, the disappearance and the doubts regarding the
whereabouts of the knife were emphasised. The complainant
testified that she did not know whether the knife was left behind in
her house after the incident, which is improbable because
she would
have found it, if this were the case. She also contradicted
herself as to where she was when the perpetrator entered
the house.
The strange aspect of the money being stolen from the
complainant’s husband and not the cell phone was also
addressed. The complainant also never described the perpetrator
to the municipal workers.
[55]
Another
strange aspect was the version of a glass wine bottle and the
appellant stating that he carried a plastic water bottle.
The
issue of the white jacket was also not pursued.
[56]
One of
the state witnesses admitted that there were people practising soccer
on the upper ground.
[57]
The
state witnesses, contrary to the complainant’s evidence, denied
entering her yard.
[58]
None
of the other state witnesses testified about the R300-00 (save the
complainant’s husband).
[59]
The
court, of its own volition, decided to call Mr Jacob Malupane. He
testified that he was working at Mhluzi stadium and
heard a woman
scream. A woman came out of the caretaker’s house
screaming. A male person was giving chase and
jumped over the
wall behind the caretaker’s house. The suspect ran to the
river filled with reeds. He said they
found the top/jacket
(which he believed was white) of the suspect in the reeds. He
said they did not run in the complainant’s
direction but chased
the suspect. It was then disclosed to the court that there was
indeed a small gate leading to the tennis
court in addition to the
main gate. They used the small gate to give chase. They
were found by the soccer players,
who pointed to the reeds. When
he went into the reeds, the appellant confronted him and Jabu, a
colleague, with a glass bottle.
He then found the perpetrator
being chased by a group of people, and taken to a school where he was
assaulted.
[60]
Mr
Jacob Malupane and his colleagues went back to work and the police
arrested the suspect. He testified that friends of the
suspect
threatened them.
[61]
The
magistrate then conducted an inspection in
loco
.
The appellant and Mr Jacob Malupane and the legal representatives
were present. The sketch plan accorded with the testimony
given
by the witnesses.
[62]
Cross-examination
of Mr Malapane followed.
[63]
Mr
Malapane testified that because the perpetrator was battered and
bruised when he saw him after he had been assaulted, and because
he
had seen him at the river, he could no longer say whether he was one
and the same person according to his features, but confirmed
that the
person who had been chased and who had been assaulted, was the same
person.
[64]
Mr
Malapane suddenly came with a completely new version and said that
the appellant had hidden the cell phone and the R300-00 in
the reeds
and pointed it out to the complainant’s husband. Mr
Malapane then tried to correct his evidence by explaining
that the
appellant left his jacket in the reeds and the items were found in
the jacket’s pockets. He also acknowledged
that he lost
sight of the suspect for a while, but was emphatic that they chased
the right person.
[65]
Mr
Malapane further denied ever entering the complainant’s yard
with Mr Sam Mthethwa and Mr Enos Masethla. He also denied
that
the appellant came to the tap which was close to them where they were
working on the lower grounds. He also stated that
he never saw
the money.
[66]
Mr
Enos Masethla was the next witness. He stated that the
appellant appeared from the gate which people use as a short-cut.
He
then heard a woman screaming for help, waving her hands. He saw
the appellant coming from the house running to the
back thereof and
jumping over the fence. His supervisor phoned Mr Sam Mthethwa
and he started running after the appellant.
The supervisor drove with
his van. The appellant ran into the reeds. He wore a
white coloured top. He left his
top there and went into the
direction of Eqwazini school. The appellant was apprehended
there and the community assaulted
him. The police arrived after a
while. He did not notice anything on the appellant when he exited the
reeds.
[67]
During
cross-examination he said that the complainant’s upper body was
naked and she was wearing something on her lower body.
She was
about 100 metres away from him.
[68]
Mr
Enos Masethla reiterated that the appellant came through the gate
wearing a white top, sky blue jeans, black boots and a T-shirt
known
as a round neck. He said the jeans were long and the T-shirt
green. He denied that the appellant was wearing
soccer
clothing. He stated that he did not observe whether the
appellant was unconscious.
[69]
Mr
Enos Masethla denied any knowledge of a cell phone or money. He
also confirmed that he never entered the complainant’s
yard.
He admitted that he did not see the complainant clearly nor the
man running and jumping over the wall and confirmed
that he lost
sight of him.
[70]
Mr
Enos Masethla stated that he only saw two people on the upper soccer
field but admitted that he was not paying attention.
These two
people showed them the place to which the perpetrator had run. Mr
Masethla denied the version of the appellant
that he fetched water.
He stated that the appellant was the perpetrator because he saw
him with “his naked eyes”
using the gate.
[71]
The
complainant, for all practical purposes, was a single witness insofar
as the assault and robbery were concerned. In
R
v Abdoorham
1954
(3) SA 163
(TPD)
at 165E–F the court held as follows: —
“
The
court is entitled to convict on the evidence of a single witness if
it is satisfied beyond a reasonable doubt that such evidence
is true.
The court may be satisfied that a witness is speaking the truth
notwithstanding that he/she is in some respect an unsatisfactory
witness.”
[72]
In
S
v Sauls and Others
1981 (3) SA 172
(A)
at 180E–G the court held that: —
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in S v Webber. . .). The trial judge will weigh
his evidence, will consider its merits and demerits and,
having done
so, will decide whether it is trustworthy and whether, despite the
fact that there are shortcomings or defects or contradictions
in the
testimony, he is satisfied that the truth has been told. The
cautionary rule referred to by De Villiers JP in 1932 [in R
v Mokoena
1932 OPD 79
at 80] may be a guide to a right decision but it does not
mean “that the appeal must succeed if any criticism, however
slender,
of the witnesses’ evidence were well-founded”
(per Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v
Bellingham
1955 (2) SA 566
(A) at 569.) It has been said more than
once that the exercise of caution must not be allowed to displace the
exercise of common
sense.”
[73]
It was
argued by the counsel for the State, that the complainant’s
evidence was corroborated by other state witnesses in the
following
aspects: —
·
The
complainant came out of her house, her lower body naked whilst
screaming for help;
·
A
male person dressed in a pair of long jeans and a white hooded top,
followed her out of the house and jumped over the back wall
of the
property;
·
The
municipal workers who were present at the stadium, followed in hot
pursuit;
·
The
appellant was apprehended;
·
The
complainant’s cell phone was found in the appellant’s
possession.
[74]
One
can add to this list that the complainant’s husband found her
with blood on her hands.
[75]
There
were various contradictions in the evidence of the State’s
witnesses. However, the improbabilities in the appellant
and his
witnesses’ version are numerous. As emphasised by counsel for
the State: —
·
It
is highly improbable that the appellant would start running away if
he did not do anything. The witnesses further testified that
the
appellant was not at the tap as he suggested but ran away from the
complainant’s residence and that is the reason why
they pursued
him.
·
All
the witnesses for the state as well as the two witnesses called by
the court testified that the appellant was dressed in a long
pair of
jeans with a white hooded top. It is highly improbable that the
appellant was practicing soccer dressed in this manner.
·
It
is improbable that the people practicing soccer would point out the
hiding place of the appellant if he was innocent and part
of their
team.
·
It
is highly improbable that all the witnesses for the state falsely
implicated the appellant.
Conviction
:
[76]
On
behalf of the appellant it was argued that the learned magistrate
misdirected himself in finding the evidence presented by the
state
witnesses sufficient with reference to three cases, namely,
R
v Blom
1939 AD 188
at 202 to 203;
S
v Motsweni
1985 (1) SA 590
(A)
and
S
v Mosoinyane
1998
(1) SACR 583
(T)
at 593b – e
.
[77]
It was
argued on behalf of the appellant that even should the Court find
that the appellant was indeed a dishonest witness that
this would not
automatically have the result that the State had proved its case
beyond a reasonable doubt. It was argued
that certain dishonest
statements on the part of the appellant did not, necessarily, lead to
a conviction as was held in
S
v Dladla
1980 (1) SA 526
(A)
at 530 D – E;
S
v Motsweni
supra;
S
v Reddy
1996 (2) SACR 1
(A)
and
S
v Bruinders
1998 (2) SACR 432
(SE).
[78]
It was
also argued that the appellant’s version was reasonably
possibly true. Reference was made to the cases of
S
v Mkhize and Others
1998 (2) SACR 478
(W)
;
S
v Makobe
1991 (2) SACR 456
(W)
and
R
v Mtembu
1956 (4) SA 334
(T).
[79]
However:
“
Even
when it can be said that the accused version may be reasonably
possibly true, it does not follow per se that his version ought
to be
accepted where the evidence of the state is so overwhelming that it
undoubtedly points to the guilt of the accused.”
as
was held in
S
v Van Tellingen
1992 (2) SACR 194
(C)
.
The above means that the principle that an accused’s
version ought to be accepted if his version is reasonably possibly
true, does not go as far as to imply that one should not have regard
to all semblance of reality or exclude every possibility as
was held
in
S
v Ratte
1998 (1) SACR 323
(T)
at 336 H.
[80]
The
court is satisfied that the appellant’s convictions should
stand. The evidence indubitably points to the appellant.
Ad sentence
:
[81]
It was
argued on behalf of the appellant that the regional magistrate had
not followed the correct approach regarding sentencing.
[82]
It was
submitted that although sentencing is within the trial court’s
discretion, the triad of
S
v Zinn
1969 (2) SA 537
(A)
was not followed. It was submitted that the sentence was
disproportionate and induced a sense of shock. The court was referred
to the matter of
S
v Sobandla
1992 (2) SACR 613
(A)
at
617
g
per
Howie AJA who held that a sentence will be destructive if: “
(h)aving
regard to all the facts of the present matter, however, it seems to
me that Appellant’s Counsel (who appeared at
the Court’s
request, and for whose assistance we are grateful) was right in
contending, in effect, that Appellant was sacrificed
on the altar of
deterrence, thus resulting in his receiving an unduly sever sentence.
Where this occurs in the quest of an exemplary
sentence, a trial
court exercises its discretion improperly or unreasonably.”
[83]
The
appellant’s counsel also relied on
S
v Reay
1987 (1) SA 873
(A)
at
877
C
where
it was held that “…
severe
sentence may be justified in order that it may act as a deterrent to
others. This does not mean, it is submitted, that where
the personal
circumstances of an appellant and his reasons for committing the
crime are such that in his case a prison sentence
may not be
appropriate, he should nevertheless be sent to jail.
”
[84]
The
matter of
S
v Vilakazi
2009 (1) SACR 552
(SCA)
was also relied upon: —
“
If any
circumstances were present that would render the prescribed sentence
disproportionate to the offence, this would constitute
weighty
justification for the imposition of a lesser sentence. Thus, a
prescribed sentence could not be assumed a priori to be
either
proportionate to the offence, or, indeed, constitutionally
permissible. Proportionality was to be determined on the
circumstances
of the particular case. Accordingly, the notion that
the prescribed sentence was to be imposed in ‘typical’
cases,
and departed from only in ‘atypical’ ones, was
without merit. (Paragraphs [13]-[19] at 559e-562d.)”
[85]
In the
premises, it was argued that the appeal against the sentence should
be upheld and replaced with a more appropriate sentence,
with
reference to
S
v Gerber
2006 (1) SACR 816
SCA
.
[86]
The
personal circumstances of the appellant were as follows: —
·
He
completed grade 9.
·
He was
employed doing piece jobs at a car wash.
·
He was
not married and had no children.
·
His
mother and brother passed away after he stood trial in this matter.
He is currently staying alone.
·
His
age; namely 20 years when he committed the crimes.
·
The
time spent in custody: namely approximately 13 months, before
sentencing and one month before bail was granted to him.
·
He had
previous convictions (four in all) – namely housebreaking,
robbery and escaping from custody.
[87]
The
trial court found no substantial and compelling circumstances to
deviate from the minimum sentence for robbery. The court cannot
agree. In 2007, when the appellant was only sixteen years old, he was
convicted to three months’ imprisonment. However,
when he
was 17 years old and committed housebreaking, he was sentenced to
six
months’ correctional supervision
.
Later that year, he was sentenced to six months wholly suspended and
when 18 years old he was imprisoned for six months.
[88]
This
demonstrates that his youth was taken into account when convicted on
the last three occasions.
[89]
The
appellant’s primary care giver died, namely his mother in 2013,
and so did his brother in 2012. His sister lives
in Secunda
with her own family. He only left school due to financial reasons.
[90]
No
pre-sentencing report was obtained. The reason for this was because
the magistrate stated the following: “
I
do not think there is really a need for a pre-sentence report in view
of the fact that there is a prescribed minimum sentence
in respect of
count 1.”
[91]
This
reasoning cannot be counteracted. The judicial system had failed the
appellant previously as he was not treated in the manner
prescribed
by the Child Justice Act 75 of 2008. (However, this Act only came
into operation on 1 April 2010.)
[92]
The
preamble of this Act recognises that: —
“…
before
1994, south Africa, as a country, had not given many of its children,
particularly black children, the opportunity to live
and act like
children, and also that some children, as a result of circumstances
in which they find themselves, have come into
conflict with the law.
The
Constitution, while envisaging the limitation of fundamental rights
in certain circumstances, emphasises the best interests
of children,
and singles them out for special protection, affording children in
conflict with the law specific safeguards, among
others, the right –
·
not
to be detained, except as a measure of last resort, and if detained,
only for the shortest appropriate period of time;
·
to
be treated in a manner and kept in conditions that take account of
the child’s age;
·
to
be kept separately from adults, and to separate boys from girls,
while in detention;
·
to
family, parental or appropriate alternative care;
·
to
be protected from maltreatment, neglect, abuse or degradation; and
·
not
to be subjected to practices that could endanger the child’s
well-being, education. Physical or mental health or spiritual,
moral
or social development; and
·
the
current statutory law does not effectively approach the plight of
children in conflict with the law in a comprehensive and integrated
manner that takes into account their vulnerability and special
needs;”
[93]
The
definition of a child in the
Child Justice Act is
: —
“‘
child’
means any person under the age of 18 years and, in certain
circumstances, means a person who is 18 years or older but
under the
age of 21 years whose matter is dealt with in terms of
section 4
(2);”
[94]
The
question to be posed is how one should deal with this situation.
[95]
The
appellant, since the date of the cancellation of his bail on 6
September 2013, has been in custody – a period of two years
and
five months before judgment in his appeal.
[96]
The
damage has been done as far as incarceration of a youth is concerned.
[97]
The
manner in which he has been handled by the judicial system cannot be
ignored. This is particularly so, given the fact that children
should
only be incarcerated as a last resort.
[98]
However,
one cannot deny that correctional supervision, and a suspended
sentence did not prevent the appellant from continuing with
a life of
crime. However, one should take into consideration how young he was.
Furthermore, he was employed at a car wash
doing piece jobs
when he committed the crimes relevant to his trial. He was further
severely assaulted by members of the community
when he was arrested
and had to be hospitalised for a period of approximately two weeks.
[99]
Due to
the lack of a pre-sentencing report, and the manner in which the
justice system failed the appellant, there are substantial
and
compelling circumstances which justify a departure from the minimum
sentence. The best course of action would have been
to obtain a
pre-sentencing report. This was, unfortunately, not requested
by the magistrate on the erroneous grounds mentioned.
[100]
Fortunately,
even though things may have turned out differently, the complainant
was only scratched on her fingers because she fought
back and she was
not raped. Yet the intrusion into the privacy of her home was serious
and as she was half-undressed the intention
was clearly to rape her.
[101]
In the
premises, a more appropriate sentence of eight years is proposed.
Order
1.
The
convictions are confirmed.
2.
The
following order is substituted for the regional magistrate’s
order in respect of sentencing: —
·
In
respect of count 1 – eight (8) years of imprisonment which is
antedated, in terms of
section 282
of the CPA, to 24 October 2014.
·
In
respect of count 2 – (amended to a charge in terms of
section 5(2)
of Act 32 of 2007) a period of three years’
imprisonment which is to be served concurrently with the sentence in
respect
of count 1 and which is similarly antedated to 24 October
2014.
3.
The
appellant is declared unfit to possess a firearm in terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
.
MM JANSEN J
Judge of the High
Court
I agree and it is so
ordered.
DE KLERK AJ
Judge of the High
Court
For the Appellant
Advocate M Bouwer
(012-331 4805/082 908 3025)
Instructed by
Legal-Aid South
Africa Middelburg Justice Centre (Ref: Madiba/Mokoena)
For the
Respondent
:
Advocate
S Scheepers
(084 520 0593)
Instructed by
The Director of
Public Prosecutions