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[2015] ZAGPPHC 122
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Kgaria v S (A597/14) [2015] ZAGPPHC 122 (10 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case No: A597/14
Date: 10 March 2015
In the matter
between:
HANS
JOSEPH KGARIA
….......................................................................................
Appellant
and
THE
STATE
..............................................................................................................
Respondent
JUDGMENT
D S FOURIE, J:
[1] The appellant
was convicted in the Regional Court on two counts of housebreaking
with the intent to commit robbery with aggravating
circumstances and
robbery with aggravating circumstances as contemplated in section 1
of Act 51 of 1977. The appellant was sentenced
as follows: On count 1
- with regard to housebreaking with the intent to commit robbery with
aggravating circumstances 3 (three)
years imprisonment and with
regard to robbery with aggravating circumstances 10 (ten) years
imprisonment; on count 2 - with regard
to housebreaking with the
intent to commit robbery with aggravating circumstances 3 (three)
years imprisonment and with regard
to the robbery with aggravating
circumstances 10 (ten) years imprisonment.
[2] It was ordered
that the 3 (three) years imprisonment on each of the two counts are
to run concurrently with the two sentences
of 10 (ten) years
imprisonment. The effective sentence is therefore 20 years
imprisonment. The Magistrate granted leave to appeal
against
conviction only.
The two counts
relate to two different incidents. The one took place during December
2011 and the other during August 2012. The
main issue on appeal is
whether the identification of the appellant as one of the
perpetrators was proved beyond reasonable doubt.
THE EVIDENCE
[3] According to the
evidence of the complainant on the first count she and her husband
had entertained guests on the night in question.
After they had left,
her husband, who was a member of the Community Policing Forum, went
out on patrol. A bottle of beer was left
on the table. Later during
the night she realised that there were people in her house. The
burglar door was broken and also removed.
She saw one of the
perpetrators whom she identified as the Appellant. According to her
he was pointing a firearm at her. She later
realised her purse and
cell phone had been stolen. The next morning she found an empty beer
bottle in her backyard which she handed
over to the police. It is
common cause that a fingerprint of the appellant was found on this
bottle.
[4] As far as count
2 is concerned, the complainant testified that on the day in question
she was alone at home. She later went
to her bedroom and locked the
door. Shortly thereafter she heard footsteps in her house and people
whispering. The door to her
room was then kicked open and she tried
to escape. She was stopped outside her home by a man with a firearm
who took her back to
her room. Whilst she was lying down, he kicked
her on the eye and in her stomach. She then begged the robbers not to
injure her,
as she was pregnant. She could identify one of the
robbers in the light of her television screen. Several items were
robbed, including
a Nokia 1100 cell phone. She later attended an
identity parade and pointed the appellant out as the robber who
kicked her on her
eye. The appellant was later arrested and a Nokia
1100 cell phone was found in his possession. The complainant
identified this
cell phone as her property by referring to a certain
number on it.
[5] The appellant
testified and he also called his brother to testify on his behalf. He
denied that he was involved in any of the
two incidents. He conceded
that his fingerprint was found on the beer bottle. However, according
to him he was at his brother’s
home selling liquor on the day
when the first incident took place. This, according to him, should
explain how his fingerprint could
possibly have come onto this
bottle. However, when his brother testified he denied that the
appellant sold liquor on the day in
question as he did not need the
assistance of his brother on that day. The appellant also admitted
that the cell phone was found
in his possession, but according to him
it had been sold to him by another person.
[6] It was submitted
on behalf of the appellant that the appeal against the conviction
should be upheld, as the State failed to
prove that the appellant was
one of the robbers. It was also contended that a reasonable
possibility exists that his evidence may
be true. It is indeed
correct that if a reasonable possibility exists that the evidence of
an accused may be true, a Court is bound
to acquit him. However, it
is also important to bear in mind that a decision to acquit or to
convict should take into account all
the evidence.
[7]
Furthermore, bearing in mind the advantages which a trial Court has
of seeing, hearing and appraising a witness, the powers
of a Court of
Appeal to interfere with the findings of fact of a trial Court are
limited (
S
v
Francis
1991
(1) SACR 198
(A) at 204 c-e). In the absence of any misdirection the
trial Court’s conclusions, including its acceptance or
rejection
of a witness’ evidence, are presumed to be correct.
In order to succeed on appeal, the appellant must therefore convince
the Court of Appeal on adequate grounds that the trial Court was
wrong in either accepting or rejecting the witness’ evidence
(S
v Latha & Another
1994
(1) SACR 447
(A) at 453 e-f).
[8] According to the
Magistrate’s judgment it is clear that he considered all the
evidence properly. The onus and test to
be applied in criminal
matters are both correctly formulated. The Court also took into
account that the identification of the appellant
with regard to both
counts is founded on the evidence of a single witness. However, that
was corroborated by strong evidence, i.e.
the fingerprint of the
appellant found on the beer bottle and the cell phone of the other
complainant found in his possession.
The evidence for the State was
therefore accepted and that of the appellant rejected.
[9]
Having regard to all the evidence, I am unable to find that the trial
Court misdirected itself in any manner. It should be emphasised
that
although there is a possibility that the explanation given by the
appellant with regard to both incidents may be true, this
is not the
test to be applied in criminal matters. He is entitled to be
acquitted if there exists a
reasonable
possibility
that his evidence may be true. Having regard to the facts and
circumstances of both incidents, I am not convinced that
there is a
reasonable possibility that his evidence may be true.
[10] It should
therefore follow that in the absence of any misdirection the trial
Court’s findings and conclusions are presumed
to be correct.
The appellant was unabie to convince this Court on adequate grounds
that the trial Court was wrong in either accepting
or rejecting a
witness’ evidence and therefore the appeal, as far as
conviction is concerned, fails to be dismissed.
[11]
The last issue to be considered relates to a contention put forward
with regard to sentence. Counsel for the appellant submitted
that the
trial Court misdirected itself by sentencing the appellant twice on
each of the two counts, i.e. three years imprisonment
for
housebreaking with the intent to commit robbery with aggravating
circumstances and ten years imprisonment for robbery with
aggravating
circumstances as contemplated in section 1 of Act 51 of 1977. The
argument goes further to suggest that this amounts
to an irregularity
in the proceedings and therefore this Court should exercise it powers
of review to come to the assistance of
the appellant by setting aside
the sentence
in
toto.
The
matter should then be referred back to the Court a
quo
to
consider sentencing afresh.
[12]
I do not agree with these submissions. First, I should take into
account that leave to appeal on sentence was refused by the
Magistrate. That order still stands. Put differently, not every
appeal is an open invitation to raise any issue that suits the
appellant. Second, both counts clearly refer to two different
offences, i.e. the crime of housebreaking with intent to commit
robbery with aggravating circumstances and robbery with aggravating
circumstances as contemplated in Sec. 1 of Act 51 of 1997. i
am aware
of the fact that in practice, although two crimes have been
committed, they are treated as one crime for the purposes
of sentence
(cf
S
v Cetwayo
2002
(2) SACR 319
(ECD) at 321 d-e). However, a deviation from this
practice does not necessarily amount to an irregularity. Third, even
if this
would amount to an irregularity, then in terms of section
309(3) of the Criminal Procedure Act a conviction or sentence shall
not
be reversed or altered by reason of “any irregularity or
defect in the record or proceedings”, unless it appears to
the
court that a failure of justice has resulted from such irregularity
or defect. Having regard to the fact that the appellant
was correctly
found guilty as charged and on each count both sentences are to run
concurrently, I am unable to find that any failure
of justice has
occurred. I therefore conclude that there is no merit in any of the
arguments relating to sentence.
ORDER
:
In the result I make
the following order: the appeal is dismissed.
D
S FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA
I agree,
N V KHUMALO
JUDGE
OF THE HIGH COURT
PRETORIA
Date: 10 March 2015