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[2016] ZAGPPHC 978
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Maphakela v S (A257/2016) [2016] ZAGPPHC 978 (29 November 2016)
IN THE
HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE NO:
A257/2016
COURT
A QUO
CASE NO: 14/3423/2006
29/11/2016
Not reportable
Not of interest
to other judges
Revised.
In the matter
between:
PETER MAPHAKELA
Appellant
and
THE
STATE
Respondent
JUDGMENT
DAVIS, AJ:
[1]
INTRODUCTION AND APPELLATE
JURISDICTION:
1.1
On an ill-fated night in September 2005 and at a
house in a suburb in Pretoria a family of 5 were held up at gunpoint
at the family
residence and robbed of a large number of items. Of the
group, one was arrested on the scene and two others were later
identified.
These three were the accused in a criminal trial before
the Regional Court for the Regional Division of Gauteng held at
Pretoria.
1.2
The accused were found guilty of various charges,
corresponding with their complicity in the crimes. The Appellant was
found guilty
on four counts of robbery and sentenced to 15 years in
respect of each count. In addition he was also found guilty of
illegally
being in possession of a firearm and ammunition and
sentenced to 7 years and 1 year respectively for these crimes. All
these sentences
were ordered to run concurrently.
1.3
In addition, the Appellant was found guilty of
four counts of kidnapping and sentenced to 5 years in respect of each
count, the
sentences to run concurrently with each other (but not
concurrently with the sentences imposed in respect of the other
counts referred
to above).
1.4
Leave to appeal was refused by the learned
magistrate and by two judges of this division but special leave was
granted to a full
court of this division by the Supreme Court of
Appeal against the convictions and sentences in respect of the
charges of kidnapping
(counts 2, 4, 6 and 8).
[2]
A summary of the evidence as given by the
various
witnesses
constitute the following:
2.1
On the night in question the first complainant and
his wife arrived at home at approximately 00:30.
2.2
The first complainant stopped the vehicle outside
the security gate and both he and his wife alighted. He assisted his
wife into
the house as she was walking by aid of crutches. After 10
minutes inside the house the first complainant exited to unlock the
gate
to bring the vehicle inside which he had done. He was thereafter
approached by four men when he was about to lock the gate. He was
taken back into the house at gunpoint. The family members that were
present in the house were the first complainant's wife, his
sister,
his mother and his 83 year old grandmother.
2.3
When he was ordered into the house, the first
complainant and his wife and sister were told to stay in the lounge
and they were
guarded by accused no. 3. The first complainant's
grandmother was then collected from the separate portion of the house
where she
stayed and also brought to the lounge.
2.4
All four perpetrators, including the Appellant,
were armed. They switched on all the lights of the house in
particular that of the
lounge and the entrance lights and turned the
television to maximum volume. The family members were kept in the
lounge for approximately
1.5 hours and from time to time the various
perpetrators came into the lounge and threatened the family members,
inter alia
by
holding the guns with wet pillows against the heads of the family
members (ostensibly to muffle any shot which may be fired).
2.5
During the course of the above various items were
collected in the house. The perpetrators appeared to know the house,
know the
existence of a tracking device in one of the vehicles and to
know of the existence and location of a safe. Various items including
new linen, goblets, ornaments, a firearm and jewellery were taken.
2.6
The robbery was interrupted by the arrival of the
police which led to the perpetrators scattering. The family rushed
outside to
meet the police who then entered the house and found the
Appellant hiding under a dining-room table. The other accused were
subsequently
arrested and identified.
[3]
THE ISSUE ON APPEAL
:
3.1
The issue on appeal and in respect of which leave
to appeal had indeed been granted, was whether the convictions on the
kidnapping
charges amounted to a duplication of convictions or the
so-called splitting of charges.
3.2
The Appellant relied heavily on the judgment in
S
v Grabler en 'n Ander
1966 (1) SA
507
for the argument that the prosecution is not barred from putting
charges that might constitute a duplication of convictions but
that
the trial court has to guard against convicting an accused on charges
that constitute a duplication of convictions. The rule
is to prevent
a duplication of convictions in instances in which the accused's
criminal conduct reveals only one offence which
could be contained in
a single comprehensive charge.
3.3
Such a duplication of convictions as referred to
above may seriously prejudice an accused in that he might receive a
heavier sentence
than one which he would or should have received if a
duplication of convictions had not occurred. Further prejudice may
occur if
the accused is sentenced in a subsequent case and that
sentence is influenced by the number of previous convictions which
would
then include the duplications of convictions. In the seminal
work Hiemstra's
Criminal Procedure
in
the commentary on Section 83 of the Criminal Procedure Ac( No. 51 of
1977, the “
test
for
splitting”
is stated as follows:
"There
is no universally valid criterion
for
determining whether there is splitting.
In
S
v
Davids
1998 (2) SACR 313
(C) the topic is discussed afresh and the most important
decisions
are
usefully
summarised. The courts
over
the
course
of
time developed two practical aids
(S
v Benjamin
en 'n
Ander
1980 (1) SA 950
(A) at 956E-H:
(i)
If the evidence which
is
necessary to
establish
one
charge also establishes the other
charge,
there
is
only one
offence.
If
one
charge
does
not
contain the
same
elements
as
the
other,
there
are
two
offences
(R v Gordon
1909 EDC 254
at 268 and 269). This can be
called 'the
same
evidence
test'.
If there are
two acts, each of which would constitute an independent offence, but
only
one
intent
and both acts are necessary to realise this intent, there is only
one offence
(R v Sabuyi
1905
TS
170).
There is
a
continuous
criminal transaction. This test is referred to
as
'the single intent test".
3.3
In
R v Johannes
1925 TPD 782
Curlewis JP stated
that the one or the other of these tests may be applied, depending on
the circumstances of each particular case.
The single intent test was
also referred to with approval in
S v
Dlamini
2012 (2) SACR 1
(SCA) where
the following has also been stated:
"There
is, however, no all-embracing formula. The various tests are more
guidelines and they are not rules of law, nor are
they exhaustive.
Their application may yield
a
clear
result but if not,
a
court
must apply its commonsense, wisdom, experience and sense of fairness
to make
a
determination."
3.4
In the charge sheets relating to the charges of
kidnapping the charges were formulated as follows:"
"In
that on or about 17 September 2006 and at or near
...
the accused did unlawfully and
intentionally deprive
[a family member]
of her freedom of movement by means of
holding the complainant hostage at gunpoint and/or by preventing the
complainant from leaving
the room.
3.5
During the debate on this issue the obvious and
common sense approach was put to counsel for the Respondent along the
lines that
an armed robber would not allow his victim to roam freely,
go and make tea, discuss mundane issues with the neighbour or
consider
leaving the premises to go shopping. The obvious intent of
an armed robber would be to detain the property owner so as to enable
the robber to deprive such property owner of his possessions.
3.6
Although the elements of kidnapping (being the
unlawful and intentional deprivation of a person's freedom of
movement) are different
from the elements of robbery (being the
unlawful and intentional use of violence to take property from
someone else or the threats
of violence to induce the possessor of
the property to submit to the taking of the property) it is clear
that for robbery to be
committed there must be a causal link between
the violence and the taking of the property. See
R
v Moerane
1962 (4) SA 105
(T) at
106D,
R v Pachai
1962
(4) SA 246
(T),
S v Marais
1969
(4) SA 532
(NC) at 533A.
3.7
In the present case, the threats of violence
constituting the robbery were occasioned by threatening the family
members and detaining
them in the lounge of the residence. The
clear intent was not to kidnap them or to simply point firearms as
provided for
in
Section 120(6)
of the
Firearms Control Act, No. 60 of
2000
, but to enable the perpetrators to dispossess the family. The
sole intent of detention was to commit a robbery and therefore the
second of the two tests referred to in
S
v Benjamin
supra,
has
been satisfied.
3.8
I find that in the circumstances, the above test
is the correct one to be applied to the facts of this case and that
the conviction
of the Appellant on the charges of kidnapping amounts
to a duplication of convictions (and a
"splitting
of charges").
[4]
ORDER
:
In the
premises I propose that the appeal be upheld and that the convictions
of kidnapping in respect of charges 2, 4, 6 and 8 and
the sentences
imposed in respect thereof be set aside.
____________________
N DAVIS
ACTING JUDGE OF THE HIGH
COURT
I
Agree.
_______________________
S P MOTHLE
JUDGE OF THE HIGH COURT
I agree and it is so
ordered.
_______________________
E M MOLAHLEHI
ACTING JUDGE OF THE HIGH
COURT
Counsel for Appellant: Adv
F van As
Pretoria
Justice Centre
Counsel for Respondent: Adv
S Scheepers
Date heard: 28 October 2016
Date of judgment: 29
November 2016