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[2015] ZAGPPHC 43
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Mvimbi v S (A609/14) [2015] ZAGPPHC 43 (2 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appeal
case no. A609/14
Date:
2 February 2015
Not
reportable
Not
of interest to other judges
In
the matter between:
VALITHUBA
MVIMBI
..............................................................................................................
Appellant
v
THE
STATE
.............................................................................................................................
Respondent
JUDGMENT
1.
The appellant was convicted in the Regional Court at Benoni on two
counts of robbery with aggravating circumstances read with
the
provisions of
sections 51
of the
Criminal Law Amendment Act, 105 of
1997
.
2.
For purposes of sentence, both counts were taken as one. Appellant
was sentenced to 10 years of imprisonment.
3.
Appellant was legally represented at the trial. His initial defence
was that of denial, and at a belated stage, that of
alibi.
4.
Leave to appeal against conviction and sentence was granted by the
court
a quo.
5.
The state relied on the evidence of two witnesses, the complainant
and the police officer who testified in respect of the identity
parade.
Conviction
6.
The main thrust of the appeal against conviction relates to the issue
of identity. The complaint being that:
(a)
Counsel for the appellant submitted that there is a discrepancy in
her evidence regarding the amount that was robbed. Nothing
turns on
this issue, as it does not assist in the criticism of the
identification of the appellant.
(b)
The complainant was- criticised that she testified that she had been
stabbed, yet she did not obtain medical assistance, but
treated
herself. There is no merit in this criticism either. The treatment of
the wound would depend on the severity thereof. The
fact of the
matter is that she suffered a stab wound during the robbery that was
committed with a knife and caused severe trauma
to the complainant.
(c)
It was also submitted that the complainant had identified the
appellant as one of the perpetrators, yet according to her evidence
she would not have been able to do so as she was
“deurmekaar7confused. There is no merit in this criticism. The
witness
had ample time to take notice of the appellant, he was the
main participant, he called her by her name, he knew her address, he
stood face to face when talking to her initially, he assaulted her
and was in close proximity of her before and during the attack
as
well as thereafter. There is no merit in the submission that in her
statement to the police soon after the incident, no mention
was made
of the fact that she would be able to identify the attacker. When she
had calmed down and could recall what had happened,
she was able to
assist in the preparation of an identity kit, and also identified the
appellant at an identity parade.
(d)
The complainant was further criticised that she only managed to
identify the appellant at the identity parade a few months later.
Nothing turns on this aspect. I refer to what I have said in the
immediate preceding paragraph in respect of the identity kit and
the
identity parade, and she was also able to identify the appellant in
court.
(e)
The criticism in respect of the complainant taking 6 minutes to
identify the appellant at the identity parade, whilst the co-worker
identified a different person at the same parade, is of no
consequence. The witness who was in charge of the identity parade
testified
as to the complainant being traumatised. The horror of the
incident was reflected in the trauma shown on the face of the
complainant
at the identity parade where she made the positive
identification and such trauma can be seen in the photograph
submitted in evidence
where the complainant identified the appellant.
(f)
The failure by the co-worker to identify the appellant is of no
consequence. He walked in on the robbery and was not subjected
to the
same type of assault as the complainant. The co-perpetrator took him
to the backroom whilst the appellant continued to assault
the
complainant. The police officer who was in charge of the identity
parade testified as to her being traumatised and explained
that the
length of the identification period is not uncommon.
(g)
It was submitted on behalf of the appellant that there were alleged
flaws in the holding of the identity parade. There is no
merit in the
submission. The procedure of the identity parade
7.
The court a
quo
dealt
in detail with the appellant’s version. The defence of
alibi
was scrutinised and it
was pointed out that there was a major conflict in the evidence of
the appellant and his
alibi
witness. The appellant
testified that at the time he was in Springs in Third Street at the
shop where his friend worked, whilst
his girlfriend testified that
the appellant was with her in Springs in Second Street at the
relevant time on that particular date.
She was adamant that the
appellant was with her and not elsewhere. That being so, there is no
credible evidence before the court
as to the defence of the
appellant. The court a
quo
correctly rejected the
defence of
alibi.
The
appellant’s version cannot reasonably possibly be true.
8.
The court a
quo
dealt
thoroughly with the evidence presented by the state and correctly
applied the principles applicable to that of a single witness.
The
manner in which the court a
quo
considered the evidence
cannot be faulted.
9.
Each of the criticisms directed at the findings of the court a
quo
was also raised at the
trial and was dealt with by the court a
quo
in its judgment.
10.
In my view, there is no basis on which this court could upset the
conviction.
Sentence
11.
It was submitted on behalf of the appellant that the sentence of 10
years induces a sense of shock. What induces a sense of
shock is the
audacity to raise genera) issues of personal circumstances and to
rely on the issue that the appellant is a first
offender in the face
of the provisions of
section 51
of Act 105 of 1997, which prescribes
a minimum sentence in respect of the crime under consideration of 15
years in particular where
the accused is a first offender.
minimum
sentence in respect of the crime under consideration of 15 years in
particular where the accused is a first offender.
12.
In this regard it was held in S
v
Vilakazi
2009(1)
SACR 552 (SCA) at 58 that:
“
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessary recede into the background.”
13.
Counsel for the appellant conceded that an order was made by the this
court calling on the appellant and the State to present
to this court
in writing why this court should not increase the sentence of 10
years to a lengthier term of imprisonment. None
of the parties
adhered to this order and it was submitted on behalf of the appellant
that the period of 10 years of imprisonment
still induced a sense of
shock and was content with the submissions made in that regard in the
heads of argument.
14.
No explanation other than what is said above was presented on behalf
of the appellant in respect of why no written reasons in
respect of
the possible increase in sentence were presented. When it became
clear to counsel appearing on behalf of the appellant
that an
increase in sentence was a reality, the attitude in respect of
sentence changed, and it was submitted that the appellant
withdraws
the appeal against sentence and the court was told that the sentence
of 10 years imprisonment is accepted as proper in
the circumstances.
15.
There is no indication that the appellant was aware of the fact that
his appeal against sentence would be abandoned, neither
whether the
appellant accepted the period of 10 years imprisonment as proper.
16.
Counsel for the State told the court that no written reasons in
respect of an increase of sentence were submitted in view thereof
that the appellant had not submitted his reasons. However, counsel
for the State sought to address the court on the issue of an
increase
in the sentence of imprisonment despite conceding in his heads of
argument that the sentence of 10 years imprisonment
was
“
commensurate
with the gravity of the offence and does not evoke a feeling of
shock.”
In
this regard, counsel for the State referred to the case of S
v
Vilakazi supra.
No
submission was made by counsel for the State in respect of what the
length of the increased period of imprisonment should be,
should this
court intend to increase the period of incarceration of the
appellant.
17.
This court is now faced with a perplexing situation. Once it appeared
that there might be an increase in the term of imprisonment,
counsel
for the appellant attempted to withdraw the appeal against sentence.
Neither the State nor the appellant gave this court
assistance
concerning whether there should indeed be an increase in respect of
the length of term of imprisonment, and if so what
that increased
period should be.
18.
In S
v Bogaards
2013(1)
SACR 1 (CC) it was held that the effect of the formal notification
requirement in respect of a possible increase in the
sentence is that
future appellants will not be taken by surprise at the hearing. On
the contrary, they will be in a position to
properly prepare a case
against a possible increase in the sentence. See paragraph [65] of
that judgment.
In casu
the
appellant had not availed himself of this opportunity, but was
content to argue that the sentence should in fact be reduced.
19.
The power of the court of appeal to increase a sentence would be
completely ineffective if an appellant had an unfettered right
to
withdraw his appeal against sentence once notice of possible increase
in sentence is given. It was held in
R
v Jurgens
1953(2)
SA 383 (T) at 388 that once notice of possible increase in sentence
is
20.
In terms of the provisions of
section 51
of the
Criminal Law
Amendment Act, 105 of 1997
, the court is obliged to impose the
minimum prescribed sentence unless the court finds substantial and
compelling circumstances
to exist.
21.
The court a
quo
considered
all the points raised including that the appellant had been
incarcerated for two years pending the trial. The court a
quo
in fact disregarded the
appellant’s prior convictions and treated the appellant as a
first offender.
22.
The court a
quo
took
into account the fact that the appellant was incarcerated for a long
period prior to the conviction and sentencing and held
that such fact
was a substantial and compelling circumstance. The appellant was in
custody for a period one month short of two
years prior to being
convicted of a serious crime.
23.
In my view, the seriousness of the crime of which the appellant has
been convicted cannot be ignored. The complainant was attacked
by the
appellant in a rough manner, an open wound was inflicted with the
knife used in the attack, she was threatened as to her
safety within
her own house in no uncertain terms. It may be that the crime of
robbery was pre-meditated when regard is had to
the complainant’s
evidence, but the honourable magistrate did not deal with this aspect
in his judgment. A large amount was
robbed from the business where
the complainant was employed.
24.
As dealt with above, the crime of which the appellant has been
convicted is serious and as mentioned by the honourable magistrate,
prevalent in the area.
25.
It follows that this court of appeal is entitled to consider an
increase in the sentence of the appellant. It further follows
that
this court of appeal is entitled to refuse the appellant leave to
withdraw the appeal against sentence.
25.
It follows that this court of appeal is entitled to consider an
increase in the sentence of the appellant. It further follows
that
this court of appeal is entitled to refuse the appellant leave to
withdraw the appeal against sentence.
26.
In view of all the foregoing, I am of the view that an appropriate
sentence would be one of 15 years imprisonment.
27.
Accordingly, I would dismiss the appeal against the conviction and
set the sentence imposed by the court a
quo
aside, and replace it
with a sentence of 15 years imprisonment.
28.
The following order is therefore proposed:
a)
The appeal against conviction is dismissed.
b)
The appellant is refused leave to withdraw his appeal against
sentence.
c)
The sentence of 10 years of imprisonment imposed by the court
a
quo
is set
aside.
d)
The appellant is sentenced to 15 years imprisonment.
C
J van der Westhuizen
Acting
Judge of the High Court of South Africa:
Gauteng
Division: Pretoria
I
agree and it is so ordered
N
V Khumalo
Judge
of the High Court of South Africa:
Gauteng
Division: Pretoria