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[2016] ZAGPPHC 500
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Ubisi and Others v S (A539/2012) [2016] ZAGPPHC 500 (29 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION.PRETORIA
Case number: A539/2012
Not
reportable
Not
of interest to other judges
Revised.
29/6/2016
In
the matter between:
POWER
UBISI First
Appellant
GIVEN
MABELANE Second
Appellant
TLAPELO
MASUKU Third
Appellant
and
THE
STATE Respondent
Heard:
8 NOVEMBER 2015
Delivered:
29 JUNE 2018
JUDGMENT
A.
A. LOUW J
Introduction
[1]
The appellants were convicted on charges of robbery, three counts of
kidnapping and possession of a firearm with intent to commit
an
offence or to resist arrest in the regional court sitting at Mhala.
They were sentenced to an effective term of forty five (45)
years
imprisonment on 17 April 2010. The trial magistrate granted the
appellants leave to appeal both on conviction and sentence.
The
appellants eventually conducted their own defence during the trial,
it seems after their funds had dried up.
[2]
The incident occurred in October 2005. The appellants
appeared in the regional court for the first time in February
2007.
The matter was postponed 28 times at the request of the appellants or
their legal representative. Initially the accused
were legally
represented. On the date of trial, their legal representative
withdrew from the proceedings. The state opposed an
application for
further postponement. The magistrate refused a further postponement
and ordered that the trial proceed in the absence
of their legal
representative. The accused refused to participate in the proceedings
and closed their case without testifying.
[3]
In fact the case was postponed for 30 times. Of this only two
postponements can in any manner be attributed to the state. The
demeanour of the accused in court was totally obstructive. Except for
the fact that none of them testified, they also actually
refused to
cross-examine the four state witnesses. Some of them even refused to
plead and the magistrate had to note a plea of
not guilty in the case
of the second and third appellants.
Ad
conviction
[4]
The evidence of the state witnesses was not challenged by the
appellants. The third appellant and Lelo Sibambo are childhood
friends. Lelo Sibambo also knew the first appellant prior to the day
of the incident. He testified that they brought the complainant's
vehicle to his premises. The appellants were in possession of a
stolen vehicle less than 48 hours after the robbery.
[5]
Two firearms were recovered at the same place where the vehicle was
recovered by the police with the assistance of the first
appellant.
Patricia Godi identified the second and third appellant in the dock
as the robbers. The appellants did not dispute the
evidence of any
state witness. The appellants did not testify in their defence.
[6]
The court stated the following regarding assessment of circumstantial
evidence in
S v Reddy and others
1996 (2) SACR 1
(A) at p 8
C-D:
“
In assessing
circumstantial evidence one needs to be careful not to approach such
evidence upon
a
piece-meal basis and to subject each
individual piece of evidence to
a
consideration of
whether
it excludes the reasonable possibility that the explanation given by
an accused is
true.
The evidence needs to
be considered
in its totality. It is only then that one can apply the oft-quoted
dictum
in
R v Blom
1939 AD 188
at 202-3, where
reference is made to two cardinal rules of logic which cannot be
ignored. There are, firstly, that the inference sought to be drawn
must be consistent with all the proved facts and, secondly, the
proved facts should be such 'that they exclude every reasonable
inference from them save the one sought to be drawn.”
[7]
The state witnesses made a good impression on the trial magistrate
and, in the absence of any further evidence, they were correctly
convicted.
Absence of legal
representation
[8]
I nevertheless deem it necessary to say something about the fact that
the court eventually had to proceed with a trial on serious
charges
where the accused were not represented.
[9]
It has been decided in S
v Halgryn
2002 (2) 211 (SCA), that
right to legal representation is not absolute right and subject to
reasonable limitation.
[10]
In S
v Moyce
2013 (1) SACR 131
(WCC), the court held that the
appellant was ducking and diving, keeping the court guessing as to
his next move in his next appearance,
and whether he would opt to
have a legal representation. The court held further that such conduct
is an abuse of the constitutional
right to legal representation. In S
v Moyce
supra, the trial court postponed the case for trial 6
times in a period of 8 months. This matter has been in the regional
court
for trial from February 2007 until April 2010 when the
magistrate decided to refuse a further postponement.
[11]
In
Magistrate Pangarker v
Botha and Another
2015
(1) SA 503
(SCA), the court held that repeated postponements for
legal representation and application for recusal constituted
transparent
and dishonest strategies to obtain further postponement.
The Supreme Court of Appeal held that the presiding officer did not
commit
an irregularity by proceeding with a trial in the absence of
the applicant party.
[12]
Guided by the above authorities and the appellants' conduct during
the trial, I am convinced that the magistrate was correct
in refusing
a postponement.
The
sentence
[13]
All three appellants got the same sentence namely on charge 1 - 15
years' imprisonment for robbery, in respect of charges 2,
3 and 4
each appellant got five years' for kidnapping and lastly counts 5 and
6 were taken together for the purpose of sentencing
namely five years
was imposed therefore for possession of the firearms.
[14]
In my view the magistrate erred in not ordering that any of the
sentences be served concurrently. Especially this is so as
it all
happened, so to say, on the same date and place.
[15]
Counsel for the state submitted that a sentence in the region of 20
years will strike the necessary balance between the interests
of the
community and the personal circumstances of the appellants whilst
still keeping in mind the fact that these are all serious
offences. I
say this because all the accused are relatively youthful, in their
twenties and that an effective period of imprisonment
of 45 years I
find to be shockingly inappropriate.
[16]
The appeal therefore succeeds in part and the following paragraph is
to be added at the end of the sentences:
"In the case of all
three appellants it is ordered that the sentences on counts 2, 3, 4,
5 and 6 run concurrently with the
sentence on count 1."
________________________
A.A.
LOUW
Judge
of the High Court
I
agree
________________________
P. MNGQIBISA-THUSI
Judge
of the High Court
I
agree
________________________
P.M.
MABUSE
Judge
of the High Court
For
the Appellant
: ADV.
KRIEL
Instructed
by
: LEGAL
AID
For
the First Respondent
:
ADV.
L.A. MORE
Instructed
by
: THE
NDPP