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[2016] ZAGPPHC 759
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Madlebe v S (A34/2016) [2016] ZAGPPHC 759 (26 August 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A34/2016
DATE:
26 AUGHUST 2016
In
the matter between:
VUYOLWETHU
MADLEBE
..................................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
Not
Reportable
Not
of interest to other Judges
SETHOLE.
AJ
1.
The appellant appeared in the Regional Court, Oberholzer with his
co accused on two counts of robbery with aggravating circumstances
as
envisaged in
s1
of the
Criminal Procedure Act 51 of 1977
. His co
accused was acquitted in respect of both counts.
2.
Appellant was sentenced to 12 (twelve) years imprisonment in
respect of each count. The first count having occurred on the 13
th
July 2013 at Backstage, Carltonville wherein R 1200,00 cash and a
cell phone were robbed and the second count occurred on the 06
th
July 2013 at Elandsrand taxi rank where a black Samsung cell phone
and R 100,00 cash were robbed.
3.
Leave to appeal was granted by the trial court on the 11
th
December 2015 in respect of both conviction and sentence.
4.
The facts are briefly as follows:
On count 1: The
complainant is Sechaba Michael Dube and that on the 12
th
July 2013, he had gone to Randburg and on his way back it was late
and when he arrived at Carltonville, he could not find taxis
home as
it was late. It was then that he decided to sleep over at Backstage
so he can leave in the morning for home.
5.
At backstage he went to the toilet and at the toilet, two people
attacked him, throttled and searched him but failed to take anything
from him. One of his assailants hit him with a fist on his left eye.
He managed to break loose and went back inside the tavern.
6.
Around 5 O’clock in the morning as he walked out of the
Backstage in order to go home, he was attacked by four people who
took from him an amount of R1 200,
0,
a cell phone, passport and a bank card. One of his assailants
threw back his passport and the bank card at that time. Regarding
identity of his assailants, he could identify accused number 2 (two),
which identity is irrelevant for the purposes of this appeal
as
accused number 2 (two) was acquitted on both counts.
7.
While Sechaba Michael Dube was being robbed, Constable Mpanza and
Constable Molefe patrolled the area and witnessed tne robbery.
The
four robbers fled and Constable Mpanza gave chase to one of the
robbers and never lost sight of him until he apprehended him.
It
transpired that it is the appellant in this matter who was
apprehended. Upon being caught nothing was found in his possession.
The appellant was then arrested in respect of count one.
8.
The appellants version is that he was arrested while standing as
a bystander busy smoking his cigarette. The appellant denied that
he
was part of the people who were committing the robbery.
9.
On count 2: The complainant is Robert Maku and that on the 06
th
July 2013 around twelve O’clock midnight, he was from a Chesa
Tarven on his way to take a taxi to Ellisrand. He was attacked
and
robbed by three male persons who threw him on the ground searched and
took an amount of R 100,00 and a Samsung cell phone worth
R 430,00.
At that time the police arrived at the scene which led to the robbers
fleeing. The police gave chase and managed to arrest
one of the
robbers. It transpired that it is the appellant on count two.
10.
The state led similar evidence of Sergeant Kanalemang Mokatsane
and Constable Dluthu who testified that on the 06
th
July
2013 around twelve O’clock midnight, they were patrolling
towards Backstage. While driving past the taxi rank, next
to the
Total Garage, they witnessed a robbery by three males on a person who
was pinned down. Upon seeing the police vehicle, the
three males fled
the scene.
11.
Constable Dluthu gave chase and apprehended one of the robbers in
less than 100 metres. He never lost sight of the robber he was
chasing until he apprehended him. It transpired that it is the
appellant in the second count who was apprehended. He was searched
and nothing was found on his person.
12.
The appellant’s version in respect of the second count is
that he was never chased by police but he was just walking when he
was arrested.
13.
Upon the appellants' arrest, nothing was found in his possession
that was robbed from complainants in respect of both counts. He
was
convicted by the trial court on the basis that he was a
co-perpetrator in the commission of the offences. In respect of the
first count he was seen by Constable Mpanza and Constable Molefe busy
committing the act of robbery on the complainant with three
of his
companions who the fled the scene and were not arrested. The only one
arrested was the appellant.
14.
Even on the second count, he was convicted by the trial court on
the basis that he was a co-perpetrator in the commission of the
offence. Sergeant Kanalemang Mokatsane and Constable Dluthu saw the
actual scene of robbery by three male persons and pursued one
of them
and apprehended the appellant.
15.
Identity of the appellant in both counts is not in dispute as he
was seen by both pairs of police witnesses in respect of both counts.
From both scenes, the arresting officers chased and never lost sight
of the appellant until he was apprehended.
16.
I now turn to whether, the state has proved its case beyond
reasonable doubt, of robbery with aggravating circumstances as
envisaged
in
section 1
of the
Criminal Procedure Act 51 of 1977
, in
respect of both counts.
17.
In terms of
Section 1
of the
Criminal Procedure Act 51 of 1977
defines 'aggravating circumstances', as follows:-
(a
)
....
(b)
robbery
or attempted robbery, means-
(i)
the
wielding of a fire-arm or any other dangerous weapon;
(ii)
the
infliction of grievous bodily harm; or (Hi) a threat to inflict
grievous bodily harm
,
by
the offender or an accomplice on the occasion when the offence is
committed, whether before or during or aker the commission
of the
offence;
18.
There is no evidence on record that there was any act by the
robbers which was carried out as envisaged by
section 1
of the
Criminal Procedure Act 51 of 1977
. At the hearing of this appeal, it
was further conceded by both counsels of the appellant and
respondent, that there were no aggravating
circumstances in both
counts.
19.
Regarding conviction I find that the state did not prove its case
of robbery with aggravating circumstances beyond reasonable doubt
but
proved a case of common robbery.
SENTENCE
20.
The trial court erroneously found the appellant guilty of robbery
with aggravating circumstances wherein the minimum sentence of
15
years was to be applicable in respect of both counts.
21.
The sentence of 12 years imprisonment was imposed as the
appropriate sentence by the trial court. It is not clear from the
record
on what basis did the trial court arrive at the 12 year
sentence as the appropriate sentence.
22.
Whilst it is trite that the sentencing powers are pre-eminently
within the judicial discretion of the court that tries and convicts
the accused, the appeal court will interfere where a sentence is
based on incorrect facts or it is shockingly inappropriate or
where
there is an irregularity or misdirection. S
v
Rabie 1975(4) SA 855 (A) AT 857 D-E.
23.
I now turn to consider the personal circumstances of the
appellant placed on the trial record and arguments advanced on his
behalf.
At the sentencing stage the appellant was 29 years old at the
time of the trial, he had three children, he was residing at Khutsong
for the past 16 years at the time with his mother, wife and children.
He was unemployed at the time of his arrest. He had a pending
case
which is not clearly defined from the record, at the time. He had
been in custody for a period of ten months prior to the
date of his
sentencing, and since his sentencing he has been in custody to date.
He has previous convictions of escaping from custody,
theft, assault,
housebreaking and robbery,
24.
From the sentencing record, it appears the appellant is a
repeat-offender and his previous convictions involves element of
violence
and dishonesty as correctly described by the trial court.
25.
When the trial court considered both the mitigating circumstances
and aggravating circumstances, the aggravating circumstances do
indeed need a court to attach weight to them with respect to the
nature of the appellants previous convictions and further that
for
both offences which the appellant has been convicted of, happened
within one week.
26.
In the result the following order is made:
1.
The
appeal on convictions in respect of both counts is upheld and set
aside and replaced with the following:
1.1.
The
accused is guilty of common robbery in respect of both count 1 and
2
;
2.
The
appeal in respect of sentence in both counts is upheld and set aside
and replaced with the following:
2.1.
The
appellant is sentenced to 7 years' imprisonment in respect of each of
the two counts;
2.2.
The
sentences in counts 1 and 2, are to run concurrently.
2.3.
The
sentences are ante-dated in terms of
section 282
of the
Criminal
Procedure Act 51 of 1977
to 16 May 2014.
E.E
Sethole
Acting Judge of
the High Court
I
agree and it is so ordered.
N. Janse
Van Nieuwenhuizen
Judge
of the High Court
Date
of judgment: 26 AUGUST 2016
For
the appellant: Mr H Steynberg
Instructed
by: Pretoria Justice Centre
For
respondent: Adv. J.J Kotze
Instructed
by: Director of Public Prosecutions, Pretoria