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[2016] ZAGPPHC 768
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Nkosi v s (A505/2014) [2016] ZAGPPHC 768 (26 August 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
A505/2014
DATE: 26
AUGUST 2016
In
the matter between:
ALFRED
MLANGENI
NKOSI
........................................................................................
Appellant
And
THE
STATE
.....................................................................................................................
Respondent
JUDGMENT
SETHOLE,
AJ
1.
The appellant was convicted in the
Regional Court, Volksrust, of robbery with aggravating circumstances
wherein a fire arm was used
and sentenced to 15 (fifteen) years
imprisonment in terms of section 276(1)(b) of act 51 of 1977.
2.
No leave to appeal was granted by the
trial court and the appellant had to petition for leave to appeal in
respect of both conviction
and sentence.
3.
At the hearing of this appeal it was
contended by the counsel for the appellant that the record of the
three witnesses who testified
in the trial court is missing and that
the appeal court could not have adequate / sufficient facts to
adjudicate this matter. The
missing record referred to the testimony
of the Mr Falla Lehlokonyana (the complainant), Jacobus Meiring and
constable Nkuna. The
remaining record is the testimony of Mr Thabo
Motsoeneng, the testimony of the accused, the address by the state
and the defence
and finally the judgement by the presiding officer.
4.
I disagree, and I am of the view that
there is adequate / sufficient facts from the remaining record to
adjudicate this matter for
the following reasons:
4.1
From the remaining record the facts are
briefly, as follows: that on the 27
th
July 2006 at the Volksrust/Standerton road, according to Mr Thabo
Motsoeneng two men robbed Mr Fala Lekonjana of his new Toyota
Dyna
truck (“the truck”) using fire arms. It was around 18h00
when the robbery took place. It was dark and the complainant
could
not identify his assailants. He was later dumped in the veld and
subsequently he laid a charge of robbery. The state called
a witness
with regards to identity namely, Mr Thabo Motsoeneng who testified
that he identified accused number one which is irrelevant
for the
purposes of this appeal as the appellant is accused number (4)four.
4.2
The second state witness from the
remaining record, Jacobus Meiring testified that he is a training and
telephone consultant and
works with the SAPS employed by Net tracker.
He received information that the truck which was moving around
Nelspruit was stolen
and that is what led to him following the truck.
He called the SAPS followed the truck which eventually became
involved in a collision
with various objects, including a Nissan
1400. The driver of the truck jumped out of the truck and fled. It
was at that time when
the driver was chased by Jacobus Meiring and
Constable Nkuna, the third state witness, until he was caught at a
butchery.
4.3
The third state witness, Constable Nkuna
testified also that he chased the driver of the truck from the scene
of the collision until
he caught and arrested him at Jackson’s
butchery and he never lost sight of him at any stage. While chasing
the truck driver,
it was a distance of about 35metres but the gap
between him and the appellant was always within 5-6 metres until he
was caught.
Both the second and third state witnesses identified the
appellant as the person who was driving the truck at the time of the
collision.
This third state witness identified the appellant also,
with the clothes that he wore on the day, namely a red T-shirt and a
silver
grey trouser.
4.4
Appellant on being caught, was assaulted
by the public as he drove over people when the collision occurred.
4.5
The appellant’s defence was a bare
denial. His testimony is that it happened on the 23
rd
of August, (which date is not the date mentioned on the charge sheet)
he was on his way to Johannesburg. When he arrived at Nelspruit,
there were no taxis anymore, as a result he decided to sleep over. He
then took his cousin’s child and went back to the taxi
rank.
Because the taxi was still empty with only four people inside, he
decided to leave his cousin’s child inside taxi and
went to
Jacksons Butchery to buy coffee, bread and polony. While he was busy
eating, the police arrived and informed him that there
is a person
who ran out of the truck. It was four police officers and inside
Jacksons Butchery there were seven people including
the appellant.
Four people were arrested including the appellant but the other three
were released the same day at the police station.
The appellant was
together with John Mathebula when he was arrested. He denied having
any knowledge of the truck and the robbery
that happened the previous
day.
4.6
On cross examination the appellant
conceded that he was indeed found inside Jacksons Butchery. It was
put to the appellant that
he was the only person inside the butchery
and he had high breath as a result of fleeing from the scene. The
appellant disputed
that. The clothing that the appellant was wearing
was admitted during cross examination as described by Constable
Nkuna. He denied
that he had anything to do with the robbery of the
truck, that he can drive and that he drove over people at the time of
the collision.
On question by the court, the appellant replied that
at the time the police arrived at Jacksons Butchery, he had already
finished
eating and the cups were already taken from him.
5.
Indeed some parts of the record of the
proceedings are missing. The question is whether the remaining record
is adequate/sufficient
for the appeal court to adjudicate on the
appeal.
6.
It was held in S v Chabedi
2005(1) SACR 417par [5] ‘On appeal, the record of the
proceedings in the trial court is of cardinal
importance. After all,
that record forms the whole basis of the rehearing by the court of
appeal If the record is inadequate for
a proper consideration of the
appeal, it will, as a rule, lead to the conviction and sentence being
set aside. However
,
the requirement is that the
record must be adequate for proper consideration of the appeal; not
that it must be a perfect recordal
of everything that was said at the
trial As has been pointed out in previous cases, records of
proceedings are often still kept
by hand, in which event a verbatim
record is impossible \ Par [6] *The question whether defects in a
record are so serious that
a proper consideration of the appeal is
not possible, cannot be answered in the abstract It depends, inter
alia, on the nature
of the defects in the particular record and on
the nature of the issues to be decided on appeal.
7.
The
next enquiry relates to the nature of the issues to be adjudicated on
appeal.
Whether with the common
cause issues raised on trial namely
,
that a robbery took place, the
appellant was found in possession of the truck, to mention but a few
,
can the court come to a just
conclusion
.
If the answer is positive, then
the appeal court may adjudicate on such record. (My emphasis)
I
am of the view that the remaining record is adequate/sufficient for
the appeal court to adjudicate on the appeal.
8.
Counsel for the appellant argued on
appeal for a conviction on a lesser charge, that is, either theft or
contravention of section
37 of act 62 of 1955 that is, receiving
stolen property knowing it to be stolen. It was further not disputed
by appellant’s
counsel that appellant was the driver,
alternatively, was found in possession of the truck.
9.
If that be so, I will turn back to the
merits of this matter.The robbery occurred at about 18h00 on Friday,
the 27
th
July 2006 at the Volksrust/Standerton road and the truck was
recovered, through its tracking device, in Nelspruit on Saturday at
about 18h00 , the 28
th
July 2006, after about 12(twelve) hours.
10.
I am of the view that a truck is
something that cannot be easily disposed of like a cellphone. The
question is, can it be said that
the actual robbery of the truck and
its subsequent recovery, is recent enough to invoke the application
of the doctrine of recent
possession?
11.
Hunt, South African Criminal Law and
Procedure, Volume II, third edition (1996) 20 (by J.R.L. Milton).
Page 636 describes the approach
as follows:
"...
the doctrine of recent possession, is to the effect that if three
requirements are satisfied the court may infer that
X stole the goods
which were found in his possession. As such the doctrine is simply a
common-sense observation on the proof offacts
by inference"
He goes on to
say, this approach involves three questions which are not always
easily answered, namely:
(a)
whether the goods were stolen; and
(b)
how recently the property was stolen
,
if it was indeed stolen; and
(c)
whether the accused's explanation for
his possession is reasonably
possibly
true.
12.
On the application of the doctrine of
recent possession in
S v
Parrow 1973(1) SA 603(A) 604 B-C
Holmes
JA said the following:
"On
proof ofpossession by the accused ofrecently stolen property, the
court may (not must) convict him of theft in the absence
of an
innocent explanation which must reasonably be true. This is an
epigrammatic way of saying that the court should think its
way
through the totality of the facts of each particular case and must
acquit the accused unless it can infer, as the only inference,
that
he stole the property. ”
13.
In
S
v
Letoba
1993(2) SACR 615(0) par [17]
it was held
that it is a requirement that the goods must have been recently
stolen. The nature of the stolen article is an important
element in
the determination of what is recent.
14.
In
S
v
Shabalala
[1999]
4 All SA 583(N)
at
587-588
it was held that possession of
the stolen vehicle on the day of the robbery or the day thereafter,
was accepted as sufficient for
the doctrine of recent possession to
apply.
15.
In
S
v Mavinini 2009(1) SACR 523 (SCA)
it was
held that the Appellant’s possession of the stolen vehicle less
than 24 hours after the robbery, taken together with
his elusive
conduct, overwhelmingly suggested his criminal involvement in the
robbery.
16.
In
the recent case of
Mothwa
v
The State (124/15)
[2015] ZASCA
143
par
[8]
in was held that:
“
the
doctrine of recent possession permits the court to make the inference
that the possessor of the property had knowledge that
the property
was obtained in the commission of an offence and in certain instances
was also a party to the initial offence. The
court must be satisfied
that (a) the accused
was
found in possession of the property; (b) the item was recently
stolen. When considering whether to draw such an inference, the
court
must have regard to factors such as the length of time that passed
between the possession and the actual offence, the rareness
of the
property, the readiness with which the property can or is likely to
pass to another person.
”
It
was further held in par [10] that:
“
Courts
have repeatedly emphasised that the doctrine of recent possession
must not be used to undermine the onus of proof which always
remains
with the State. It is not for the accused to rebut an inference of
guilt by providing an explanation. All that the law
requires is that
having being found in possession of property that has been recently
stolen, he gives the court a reasonable explanation
for such
possession
17.
I am of the view that the doctrine of
recent possession find its application
in
this matter for the following reasons:
1. The robbery occurred
12(twelve) hours prior to the vehicle being recovered.
2.
The appellant was in possession of the
truck.
3.
The conduct of the appellant upon being
confronted by the police was to flee.
4.
That a truck is not something that can
readily change hands within a short period, unless if there was a
potential buyer before
the robbery.
5.
The appellant failed to give a
reasonable explanation regarding his possession of the truck instead
he decided to run away.
18.
Finally, I find it improbable for the
appellant to leave his cousin’s child inside a taxi and went to
Jacksons Butchery to
eat. And furthermore strange for the appellant
to fail to call his witness John Mathebula who was travelling with
him on the day
to corroborate his defence. As a result the
appellant’s version is rejected as false.
19.
As a result I concur with the trial
court that the state has proved its case beyond reasonable doubt and
it follows that the appeal
against the conviction cannot succeed.
20.
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) AT857D-E.
21.
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 42 years old at the time of the trial, he stays at 374
Kanani township - Nelspruit, he
is married and had one child aged 6
years, he was employed at Isando engineering in Kempton park and
earned a salary of R 2000,00
per month. He has a previous conviction
of possession of stolen property and sentenced to three years
imprisonment on the 27
th
July 2007 which sentence was suspended for five years on condition
that appellant was not convicted of a similar offence during
the
period of suspension.
22.
Not only has this court to take into
account the personal circumstances of the appellant, but also the
seriousness of the offence
and the interests of the society. The
seriousness of the offence relating to the fact that the truck was
robbed from the complainant
was still brand new and without number
plates.
23.
This appeal court is to exercise its
jurisdiction as the appeal court, is in essence called upon to
oversee the fairness of the
proceedings in the court a quo and to
determine whether the ultimate outcome was underpinned by the
dictates of justice or not.
We have to ensure that the personal
circumstances of appellant as stated above have been properly taken
into consideration and
that his profile has been evenly balanced
against the backdrop of the crime committed as well as the interest
of society offended.
The delicate balancing act demands careful and
objective measure of restraint. Great care has to be taken in order
to see to it
that no cornerstone of the triad is overemphasised or
underemphasised at the expense of another - S v Zinn
1969 (2) SA 537
(A).
24.
Sitting as the appeal court, this court
cannot, in the absence of a material misdirection by the trial court,
approach the question
of sentence as if this court is the trial court
and then substitute the original sentence with a different sentence
simply because
this court reckon it is more preferable than the one
imposed by the trial court - S v Malgas
2001 (1) SACR 469
(A) at 478d
– e.
25.
This courts judicial power to exercise
interference is limited and for sound reasons. Where the original
sentence imposed by a trial
court is in all circumstances shockingly
severe and thus inappropriate, the appeal court can also interfere
with the sentencing
discretion of a trial court -SvDe Jager
1965 (2)
SA 612
(A).
26.
In the premises, and having considered
all the fact regarding sentence, I do not find the sentence of the
trial court to be shockingly
inappropriate or that there is an
irregularity or misdirection.
27.
In the result I make the following
order:
1.
The appeal against conviction and sentence is dismissed.
E.E
Sethole Acting judge of the High Court
I
agree and it is so order.
N.Janse Van
Nieuwenhuizen
Judge of the High
Court
Date of
Judgment: 26 AUGUST 2016
For the
appellant: Adv. A. Thompso
Instructed
by: Pretoria Justice Centre
For
respondent: Adv. J.J Kotze
Instructed
by: Director of Public Prosecutions, Pretoria