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[2015] ZAGPPHC 552
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Ngwenya v S (A739/2014) [2015] ZAGPPHC 552 (7 August 2015)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NUMBER: A739/2014
CASE
NO: 07 AUGUST 2015
In the
matter between:
GODFREY
NGWENYA
....................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
MALULEKE
AJ
[1]
The appellant was convicted on charges of theft and robbery with
aggravating circumstances. The appellant received a sentence
of 12
(twelve) months in respect of the theft and the prescribed minimum
sentence of 15 (fifteen) years imprisonment was imposed
in respect of
the robbery. The 2 sentences were ordered to run concurrently.
[2]
In these proceedings the appellant appeals against both conviction
and sentence, leave having been granted by the Court
a
quo
.
[3]
The appellant denies having committed the offences for which he was
convicted and sentenced; and places identity in dispute.
[4]
In arriving at the conviction, the Court
a
quo
analysed and
evaluated the evidence presented by the state on the question of
identity as follows:
“
What is in
dispute is whether the accused has been correctly identified as being
present at the scene of both offences. As far as
the state witnesses
are concerned the court finds that they testified satisfactorily in
all aspects when they were subjected to
cross examination they
answered all questions spontaneously, they were able to motivate
their answers. They remained firm and resolute
throughout. Court
cannot find any material contradictions in evidence of the state
witnesses. Although there is no corroboration
for the incident which
occurred earlier on in the day when the R600-00 was removed there is
indeed substantial corroboration for
Mr Lizal’s version of the
armed robbery which took place later on.
It is clear to the
court that the accused has correctly being identified by all of the
witnesses. Not only that but that the registration
number that was
provided by Mr Lizal matches the vehicle which is owned by the
accused and which has very distinctive rims on it
if one looks at the
photographs that were handed in.
In so far as the theft
count is concerned the complainant indicated that the only reason he
made the decision to hand the money
over to the accused is because he
wanted his slip back. Clearly he felt the pressure was being exerted
on him by the accused.
The court is satisfied
in the light of that that the elements of theft had indeed been
proven. On the evidence of Mr Lizal and Mr
Nkuna a firearm was used,
in fact caused injury to the complainant. The Court is thus satisfied
that the state has proven that
aggravating circumstances were present
as envisaged by section 1 of Act 51 of 1977 and that the state
indeed proven robbery
with aggravating circumstances. The accused is
accordingly found guilty on both counts.”
[5]
On behalf of the appellant, his counsel Mr Van der Merwe made a
number of submissions to this court, among others, that the
identifying witness was neither credible nor reliable and that the
appellant’s identification as the perpetrator was flawed.
He
argued that the presiding Magistrate had misdirected herself in
finding that the appellant was correctly identified as the
perpetrator who committed the offences in question. The learned
Magistrates did not properly consider that the identification of
the
Appellant by Lizar was in the nature of a dock identification. He
went on to say that the Presiding Magistrate erred by not
properly
considering that Lizar only identified the appellant on the basis of
general appearance and did not base his identification
on any
specifically distinguishing mark or feature that would enable Lizar
to reliably identify the appellant. He submitted that
the trial court
erred by rejecting the appellant’s wife’s evidence on the
basis that she had a motive to tender evidence
supporting the
appellant and by also failing to consider that the appellant and his
wife did not contradict one another on any
material aspects regarding
the appellant’s whereabouts on the day of the incident. It was
submitted that the presiding Magistrate
committed misdirection in
convicting the appellant which misdirection entitles this court to
interfere with the findings of that
court by setting the convictions
aside. Counsel for the appellant also referred this court to a number
of authorities in support
of his arguments and submissions which this
court has considered and taken into account in arriving at its
decision.
[6]
I shall now turn to the Respondent. Mrs Van Vuuren appeared on behalf
of the State the respondent in this matter. It was her
submission
that there is sufficient evidence linking the appellant to the
commission of the crimes and that the identification
by the witnesses
was correctly admitted by the trial court. She submitted that the
complainant saw the appellant on more than one
occasion. She argued
that the complainant had ample opportunity to observe the appellant,
firstly when the search of the truck
was conducted and secondly when
he sat in the back seat of the police vehicle speaking to the
appellant when the R600-00 was handed
over. During the robbery in the
afternoon, the appellant was in very close proximity to the
complainant when he was at the window
on the driver’s side
removing the keys of the vehicle and had a further opportunity to
observe the appellant when the
money was removed from his pocket
during the robbery. The incidents occurred in broad day light. The
various distances the appellant
was from the complainant were
relatively close in proximity (30 metres being the furthest). The two
police officers who testified
corroborated the complainant’s
version as he described it to the trial court. Counsel then submitted
that the trial court’s
findings relating to the identification
of the appellant is correct and supported by the respondent.
[7]
At the hearing of this appeal Counsel for the appellant had
difficulty persuading this court on the appellant’s denial
of
the fact that he had been properly identified as the person who
committed the offences in question. In fact he conceded both
in his
heads of argument and during the proceedings that there is enough
evidence supporting the complainant’s version and
that the
appellant was indeed properly identified. Having considered the
submissions made by the two Counsels I am satisfied that
the state
did prove its case beyond reasonable doubt both in regard to the
identity of the appellant and the subsequent conviction
on the charge
of robbery with aggravating circumstances.
[8]
I am saddled with some difficulty with regard to the charge of theft
of R600-00 and the conviction thereon. Given what transpired
on the
day of the incident. I am not convinced that the state correctly
charged the appellant with theft and indeed proved its
case in
respect of this charge beyond reasonable doubt. What transpired on
that day is that the appellant asked Lizar to enter
into the police
vehicle a Golf 5. Then the appellant asked Lizar for R600-00, Lizar
gave the R600-00 in order to regain possession
of the R11474-00 slip.
The appellant had asked Lizar at what time he was going to fetch the
money and Lizar told him at 16h00 that
same afternoon. A person
commits theft if:
[1]
He
unlawfully and intentionally appropriates movable, corporeal property
which:
(a)
Belongs to, and
is in the possession of, another;
(b)
Belongs to
another but in the perpetrator’s own possession; or
(c)
belongs to the
perpetrator but is in another’s possession and such other
person has the right to possess it which legally
prevails against the
perpetrator’s own right of possession, provided that the
intention to appropriate the property includes
an intention
permanently to deprive the person entitled to the possession of the
property, of such property.
[9]
I am not satisfied that there was “appropriation” in this
case because the appellant asked for and was given the
R600-00 by the
complainant. I am of the view that some undue influence or pressure,
be it express or implied, was exerted by the
appellant on the
complainant to get him to give the appellant the R600-00 in question.
I say this for the reason that to the complainant
the appellant is a
police officer with a certain measure of authority and the fact that
the complainant testified that it was clear
to him that if he did not
give the appellant the R600-00 he had asked, he will not regain the
Slip which entitled him to the R11474-00
which he must collect from
the scrap dealer later that afternoon. So the complainant obliged.
This was never disputed in the hearing
at the trial court. I
therefore hold the view that the state did not correctly charge the
appellant with the crime of theft in
respect of the R600-00 and
because of this doubt I am inclined to differ with the trial court on
its conviction of the appellant
in this regard.
[10]
Having perused the record of proceedings of the Court
a quo
and submissions made by both Counsel, I agree with its findings that
the appellant was properly and correctly identified; that
the state
proved its case against appellant beyond reasonable doubt and support
the conviction in respect of robbery with aggravating
circumstances.
This robbery took place during the day I therefore reject the
appellant’s version before court. Accordingly,
the appeal
against conviction on Count 2 Robbery with aggravating circumstances
falls to be dismissed.
[11]
On the conviction in respect of Count 1 I am of the view that the
trial court erred in charging and convicting the appellant
of theft
of R600-00 and find that some other charge in the realm of bribery,
corruption or even extortion would have been more
appropriate.
Accordingly I find that the state failed to prove its case beyond
reasonable doubt and that the appellant should have
been acquitted on
this charge. Therefore in my view the appeal in respect of this
charge ought to succeed.
THE
15 YEARS IMPRISONMENT
[12]
Mr Van der Merwe submitted that the court erred in finding that no
substantial and compelling circumstances existed justifying
a
deviation from the prescribed minimum sentence of 15 years
imprisonment. These he argues are:
·
The appellant
was gainfully employed and is the main breadwinner of his extended
family;
·
The effect of
incarceration upon his minor children;
·
No evidence that
he was likely to reoffend in future was adduced; and
·
The fact that he
could be rehabilitated through the imposition of a shorter period of
imprisonment;
He
also argued that this constituted a misdirection by the trial court
which entitles this court to interfere with the sentence
imposed
especially because the legislature did not define what constitute
substantial and compelling circumstances and left it
to the courts
having regard to the circumstances of each case.
[13]
On the other hand Mrs Van Vuuren for the state correctly argued that
this court cannot interfere with the sentence imposed
by the court
below unless it is satisfied that the court below made a material
misdirection and the sentence is disturbingly inappropriate.
She told
this court that the complainant was robbed whilst a firearm was
pointed at him, being threated of being killed. The appellant
at the
time of the commission of the crime was a member of the South African
Police Service and in a position of trust which he
abused. The public
do not trust the police, as is evident from the evidence of the
complainant and Constable Matsi. That the court
a quo took the
personal circumstances of the appellant into account when imposing
the sentence and found that there were no substantial
and compelling
circumstances present justifying a deviation from the prescribed
minimum sentence. She asked this court to confirm
the sentence.
[14]
As correctly submitted by both Counsel sentencing is pre-eminently a
matter for the discretion of the trial court the appeal
court should
be careful not to erode such discretion unless satisfied that the
discretion has not been ‘judicially and properly’
exercised. The enquiry here is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate
(see
S
v Rabie
1975 (4) SA 855
(A)
).
[15]
It is trite law that the courts are not here to take revenge and that
there can be no justice without a measure of mercy. In
the same
breath sentences can never be too lenient because the public and
members of society or families of the many complainants
who are
affected by crime will take the law into their own hands and this
will undermine the proper administration of justice.
[16]
I recognise the seriousness and extent of the offence committed by
the appellant. I equally took note of the appellant’s
personal
circumstances. The society expects the courts to make sure that
Police officers who take advantage of ordinary members
of the public
including foreign nationals by robbing them are removed from society.
They must be taught a lesson in order to deter
others from committing
similar crimes. Parliament also deems the crime of robbery, among
others, as a very serious offence and
in this regard promulgated Act
105 of 1997 prescribing minimum sentences in this regard of 15 years
imprisonment. Having said this
and in light of
S
v Mako
2005 (2) SACR 223
(E)
at
page 233 where it was held:
“
Furthermore
the individualised nature of sentencing must not be lost sight of and
it was irregular to sacrifice the accused on
the altar of
deterrence, even where the crime was very grievous in its effects or
possible effects it was not proper to disregard
the history and
circumstances of the accused, a subjective aspect of the crime”
[17]
The state proved one previous conviction which was admitted by the
appellant that of negligent loss of a firearm, for which
he paid an
admission of guilt fine of R200-00.
[18]
The accused is out on bail pending the hearing of this appeal. I have
taken all the factors that a court is enjoined to consider
during
sentencing. However, I find no substantial and compelling
circumstances in this case justifying a deviation from the prescribed
minimum sentence.
[19]
It is my view that a sentence of 15 years imprisonment is an
appropriate sentence.
ORDER
1.
The appeal against
conviction in respect of Count 1, theft, succeeds.
2.
The appeal against
conviction in respect of Count 2, robbery with aggravating
circumstances, is dismissed.
3.
The appeal against the
sentence of 15 years imprisonment is dismissed.
4.
The sentence of 15
years imprisonment imposed by the trial court is hereby confirmed.
MALULEKE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree
MAKUME
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
It is so ordered.
Date
of hearing:
28
July 2015
Representation
for Appellant:
Counsel
: Adv. F J Van der Merwe
Instructed
by : Johan Botha Attorneys
Representation
for the Respondent:
Counsel
: Adv. M J Van Vuuren
Instructed
by : The State
[1]
C R Snyman, Criminal Law 4
th
Edition, Butterworths page 469.