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[2015] ZAGPPHC 554
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Mangisi v S (936/2009) [2015] ZAGPPHC 554 (29 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 936/2009
In the matter between:
BRYAN
MANGISI
Appellant
and
THE
STATE
Respondent
JUDGMENT
Tuchten
J
:
1
The appellant was accused no 4 in the court below. The appellant was
one of five accused persons,
all men, who were charged with two
counts of armed robbery, involving firearms. All the accused were
acquitted on count 2 but were
convicted on count 1 and sentenced to
15 years imprisonment. Leave was granted by the court below to all
the accused to appeal
against the sentence. The court below refused
leave to appeal against the conviction.
2
The appellant's appeal against his sentence was heard and dismissed
on 9 June 2011. However,
the appellant and one Ernest Ndlovu (accused
no 1 in the court below) had on 23 February 2010 been granted leave
by this court
on petition to appeal against both conviction and
sentence.
3
The heads of argument for counsel for the appellant are directed only
at the conviction. Counsel
for the appellant did not contend that the
decision of the this court dismissing the appeal against sentence
could be revisited
but placed before us a judgment of this court
given under the present case number in which the sentence of 15 years
imprisonment
imposed on the erstwhile accused no 2 was reduced to 10
years. I shall refer further to the question of sentence below.
4
The count upon which the appellant was convicted charged that on 31
May 2004 at about 17h30,
in Pretoria the appellant and the other
accused robbed Mr DF Paton of certain personal belongings. It was
alleged that aggravating
circumstances were present because the
robbers were armed and threatened the complainant with firearms.
5
The evidence disclosed that the complainant was waiting at a place
called North South Backpackers
for his brother-in-law, Mr Pienaar,
who was to bring there a group of American students whom Mr Pienaar
had met at the airport
in Johannesburg. The group arrived in two
kombis and the complainant proceeded to help with the unloading of
the luggage.
6
While so occupied, the robbers attacked. The complainant was
dispossessed of his personal
belongings, including his car keys,
wallet and wristwatch. The robbers also seized the luggage belonging
to the American students
who had just arrived in the country. The
complainant observed that the robbers, a gang of five men, were
carrying the luggage to
a dark coloured Opel Astra.
7
At that point shots were fired but the robbers escaped in the Opel
Astra. The complainant
and Mr Pienaar pursued the Opel Astra in a
motor vehicle but lost touch with it and returned to the scene. There
the complainant
found his wallet. The contents of the wallet,
including cash and certain cards containing the complainant's
personal particulars
had however been removed by the robbers. The
complainant was unable to identify the robbers.
8
Mr Pienaar gave evidence. Mr Pienaar was armed with a pistol when the
robbers attacked. When
he judged the moment right, Mr Pienaar opened
fire and directed some two to four shots at the robbers while they
were in or in
the process of getting into their dark coloured motor
vehicle to make their get away. Mr Pienaar saw one of the robbers
stumble
or fall after he shot but then manage to enter the dark
coloured motor vehicle and make his get away with the rest of the
gang.
9
Inspector Steyn of the SA Police Service testified that during the
night of 31 May 2004, he
followed a dark coloured Opel Astra which he
had observed entering the N1 motorway from Tembisa and then leaving
the N1 at the
Allendale off ramp which is in Midrand. Steyn waited
for reinforcements which arrived in the form of other units of the
SAPS in
a vehicle and then stopped the Opel Astra and apprehended its
five male occupants near Broadway Street in Bez Valley, Johannesburg.
While searching one of these men, who was accused no 1 in the court
below, Steyn found on him a pistol and the complainant's identity
card. It was also common cause that accused no 5 was found in
possession of a hand gun.
10
Steyn was supported on the scene by other members of the SAPS
including lnsp Redelinghuys
and Sgt Enslin. From the evidence of
Steyn and Redelinghuys, it emerged that a considerable number of
suitcases was found in the
Opel Astra. In the suitcases were items
such as cameras, cellphones, binoculars and electronic music players.
These items were
seized and later identified by the American students
as their property. Although the students did not give evidence,
the
irresistible inference was that the items found in the Opel Astra
were their property.
11 It
was common cause that two of the occupants of the Opel Astra had
recent gunshot wounds.
The appellant placed in issue the
circumstances in which he was shot. His evidence was that he
innocently obtained a lift in the
Opel Astra in question after having
blamelessly spent the early evening watching a movie and eating
supper. There were, he said,
apart from himself, only two occupants
of the Opel Astra at that stage, accused nos 2 and 5. After he was
apprehended with the
others, the appellant said, and while he was
standing with his hands on the roof of the Opel Astra waiting to be
searched, his
cellphone rang and he moved one of his arms to deal
with the call. At that moment, he said, he was shot by one of the
police. Asked
to explain how accused no 5 received his bullet wound,
he said that accused no 5 must have been shot on the same occasion.
12
The overwhelming probability is that the Opel Astra apprehended by
the police was the same
dark coloured vehicle which had been used by
the robbers both to get to the scene of the robbery and as the get
away car after
the robbery took place. The vehicle contained the
items
stolen
in
the robbery. The
appellant's version would require
that three
of the robbers left the
vehicle at some undisclosed point and that the
remaining two robbers,
while driving around with the proceeds of the robbery,
decided
to
give
a
lift to
someone
they
did
not
know.
The version would also
require
that
all the police officers present conspire
falsely to deny the
wounding of both the appellant and accused no 5 in
Bez
Valley rather
than explain it.
These police
officers would, on
the appellant's version
have had to take a risk
that those at the scene of the
robbery
would advance
versions
which
tallied
with
their hypothetically
false evidence.
No charge was ever
laid by
the appellant or by
accused no
5
arising out of
their alleged shooting.
The appellant's
version
further
requires
the
court
to
accept
as
a reasonable possibility
that
the
police
at
the Bez
Valley scene arbitrarily
added two bystanders to
the three
men
who
indeed
had been in the Opel Astra and arrested them.
13
All
this is
so absurd that it
cannot be reasonably
possibly
true
and
was
rightly rejected as such by
the court below. The
evidence against the appellant
was
in my view
overwhelming.
The
only
reasonable inference from
the totality of the evidence was that the appellant was one
of
the
five robbers,
that he
suffered a
gunshot wound at
the scene of the robbery
in Pretoria, that the same five robbers fled in
the Opel Astra and were
ultimately arrested when
that vehicle was stopped by the police in Bez Valley.
14
It
follows that
the
appellant
was correctly
convicted and
that
the appeal against
conviction
cannot
succeed.
15
As to sentence: The
appeal by
the
appellant against his
sentence was dismissed
by order of a competent
court.
No proceedings have been
taken by
the
appellant to set aside the order dismissing the appellant's appeal
against sentence.
I
do not think that there
are any grounds
in law
upon which
we
would
be entitled
in the
present
proceedings
to
revisit the sentence
imposed
upon the appellant.
16
I make the
following
order:
The
appeal
by the
appellant
against
his conviction is
dismissed and
the conviction and
the
sentence are confirmed.
_____________________
NB
Tuchten
Judge
of the High Court
29
July 2015
I
agree.
____________
EM
Kubushi
Judge
of the High Court
29
July 2015
MangisiA936.09