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[2015] ZAFSHC 23
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Semelane and Others v S (A17/2014) [2015] ZAFSHC 23 (29 January 2015)
IN
THE HIGH COURT, BLOEMFONTEIN
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A17/2014
In
the appeal between:
THAPELO
LETHOA SEMELANE
…...................................................................
First
Appellant
JACKSON
TSHOLEDI MPHALE
…................................................................
Second
Appellant
MOJALEFA
CUTHBERTH MOFOKENG
…....................................................
Third
Appellant
MELVIN
NEELS LODEWYK
….......................................................................
Fourth
Appellant
and
THE
STATE
….............................................................................................................
Respondent
CORAM:
RAMPAI, AJP
et
TSATSI, AJ
JUDGEMENT:
RAMPAI, AJP
HEARD
ON:
18 AUGUST 2014
DELIVERED
ON:
29 JANUARY 2015
[1]
These were appeal proceedings. The four appellants were tried in the
regional court. They were convicted in respect of
a wide range
of charges. There was a great variety of sentences imposed on
them. The severity of the custodial sentences
varied from one
appellant to the other. They ranged from five years
imprisonment to eighteen years imprisonment. The
appellants
were aggrieved by the convictions as well as the sentences, they came
before us on appeal with the leave of the trial
court. The respondent
opposed all the appeals.
[2]
The appellants were originally charged with two others. Their
two co-accused Ms Dipuo Cecilia Mofokeng, accused number
three and Mr
Erastus Jonas Shiwenda, accused number six were not before us on
these appeal proceedings. At the end of the
prosecution case,
accused number three was discharged in terms of Section 174, Act No
51/1977.
[3]
All in all the prosecution preferred 44 charges against the
appellants and their co-accused. The list consisted of the
following charges:
3.1
Fraud x 5 counts;
3.2
Kidnapping x10 counts;
3.3
Impersonification x 6 counts;
3.4 Extortion x 9
counts;
3.5 Theft x 9
counts;
3.6 Armed robbery x
2 counts;
3.7 Intimidation x 2
counts;
3.8 Pattern of
organized crime x 1 count.
The
prosecution alleged that the appellants and their erstwhile
co-accused committed those crimes at
Bethlehem at various times during the period which commenced on 29
th
February 2008 and ended on 21
st
February 2009.
[4]
The appellants were tried in the Bethlehem Regional Court.
Their trial began on 28
th
July 2010. They all pleaded not guilty to all the charges.
They were all legally represented by a local attorney, Mr
Harrington. All of them exercised their right to remain
silent. They did so by not disclosing the basis of their pleas.
[5]
The trial magistrate divided the charges into six groups since there
were six reported incidents.
5.1
The first group consisted of six charges, numbered 1 – 6. The
complainant was Mr KH Mahloko;
5.2
The second group consisted of six charges, numbered 7 – 12.
The complainant was Mr AC Lombard;
5.3 The third group
consisted of six charges, numbered 13 – 18. The
complainant was Mr DP Stoltz;
5.4
The fourth group consisted of seven charges, numbered 19 – 25.
The complainants were Mr E Swiegelaar and Mr A Koen;
5.5
The fifth group consisted of thirteen charges, numbered 26 –
38. The complainants were Mr J Oosthuizen and Ms B
Oosthuizen;
5.6
The sixth group consisted of five charges numbered 39 – 43.
The complainant was Mr SA Zuma and Mr V J Zuma.
[6]
The last charge numbered 44 stood alone. It was levelled
against all the accused. It concerned all the aforesaid
complainants. The prosecution alleged that the actions of the
accused as fully set out in the first 43 charges established
a
pattern of organized criminal activity as envisaged in Section 9(2)
Prevention of Organised Crime Act 121/1998 (POCA).
THE
FIRST GROUP OF OFFENCES
[7]
The accused were all discharged in terms of Section 174 Criminal
Procedure Act 51/1977 (CPA), as regards the first group of
charges.
In the light of the discharges, I shall not say much about those
charges, numbered 1 – 6. The first
incident took place at
Bethlehem on 29
th
February 2008.
THE
SECOND GROUP OF OFFENCES
[8]
As regards Lombard group, the incident took place at Bethlehem on
Monday 14
th
April 2008. The second incident gave rise to charges 7 –
12. The third appellant Mr Mojalefa Cuthberth Mofokeng,
accused
number four was convicted on 3
rd
November 2010. On 3
rd
February 2011 he was then sentenced to a total of 9 years
imprisonment in respect of the second group of offences. He was
aggrieved by the six convictions and their related sentences.
He came to us on appeal with the leave to appeal granted by
the
court
a quo
.
[9]
The version of the state was narrated by one witness namely Mr
Antonie Christoffel Lombard, the following exhibits were handed
in,
in support of his testimony exhibit A, C & G. He testified
that he lived on a farm at Harrismith. He owned
a motor vehicle
for sale, a Mercedes Benz. He privately advertised his motor
vehicle as being for sale in a magazine called
“Auto Trader”.
[10]
On Sunday, 13
th
April 2014 he received a call from someone who was interested in his
motor vehicle. At the caller’s request, he travelled
to
Bethlehem the very next day to negotiate a deal with the unknown
prospective buyer. However, he used a van instead of
the
Mercedes Benz that was up for sale. He did so at the request of
the purchaser or the caller. The two men met at
Midas.
B
revitas causa
I shall refer to the prospective buyer as X. The character
called X showed him diamonds, told him that he first had to sell
the
diamonds and that he would buy the motor vehicle with the proceeds of
the diamond deal. Mr Lombard saw the diamonds and
actually held
them in his hands.
[11]
From Midas X took him to a certain back street behind Spur Restaurant
in the vicinity of Fruit and Veg. They used his van to
get there.
There they met another character, Y. X told him that Y was a
prospective buyer of the diamonds. X suggested
that together
they should sell the diamonds so that he could pay him cash for his
motor vehicle. So the witness became involved.
[12]
From the second scene behind Spur Restaurant, the three men drove to
Bohlokong. Again his van was used. Y took them to
a certain
house, the third scene. There he left him behind with X.
He was made to understand that Y was going to fetch
diamond buyers.
Y was gone. He never came back.
[13]
About ten minutes went by. The next moment about three men, P,
Q & R burst into the house. They said they were
police
officers, later on the house in question turned out to be a notorious
drug den. They accused the witness of being
involved in illegal
activities. They alleged that he was there to sell drugs and
diamonds. He denied the allegations.
Their leader
threatened to have him arrested and locked up. The first
policeman (P) was a coloured who spoke Afrikaans and
who introduced
himself as Captain Clark. All of them P, Q and R ordered him to
take out his cell phone. P then demanded
R50 000.00 from him in
order to let him off the hook. He had no money.
[14]
He called his friend Mr Christofel Johan du Plessis. One of the
three policemen furnished Mr Du Plessis with certain
banking details.
The account holder was a certain Mofokeng, a customer of the
First National Bank. His friend then
undertook to deposit R10
000.00 into that account. He later did. On the
instructions of P, the witness called two or
so further people for
more money, but none was able to help him out.
[15]
From the house in question they took him to the fourth scene ABSA
Bank. Once again his van was used. The people
demanded
more money from him. He then called his wife. She went to ABSA
Bank at Harrismith from where his identity document
was faxed to ABSA
Bank at Bethlehem. There he withdrew R50 000.00 and gave it to
the police outside at the parking area near
his van. He was
then relased. He was detained for approximately two and half hours.
[16]
His bank account number was 910500068. The withdrawal slip of
R50 000.00 dated 14
th
April 2008 was handed up as exhibit A. He no longer had
cellular details of the calls he received from the group, because
he
had deleted them. He was not able to identify any of the people
who forced him to give them his money. He attended
two
identification parades, but failed to identify any of the suspects.
He denied the suggestion that he paid R60 000.00
to the third
appellant to supply cannabis.
[17]
The version of the third appellant Mr Mojalefa Cuthberth Mofokeng was
narrated by him. He testified that he had known
Mr Lombard
since 2008. During that year he supplied the witness with
cannabis at Bethlehem on two occasions. He was
unaware that he
had advertised his Mercedes Benz for sale. He never expressed
to him any interest to buy his motor vehicle.
He denied the
following allegations: that he represented to Mr Lombard that
he was a police officer; that he kidnapped him
and held him in a
certain house against his will; that he forced him to pay R60
000.00 or any other amount by false pretext.
THE
THIRD GROUP OF OFFENCES
[18]
As regard the Stoltz group of charges, the third incident took place
at Bethlehem on 25 June 2008. The incident gave
rise to changes
13 – 18. The version of the prosecution was narrated by
Mr Dale Peter Stoltz. On the strength
of his evidence, accused
5 was convicted on 3 November 2010. On 3 February 2011 he was
sentenced to a total of 10 years in
respect of the third group of
offences. He was aggrieved by the convictions and sentences.
He came to us on appeal
with the leave of the
court
a quo
. Mr Melvin Neels Lodewyk,
the fourth appellant in these proceedings, was accused 5 in the
court
a quo
.
[19]
The version of the prosecution, in connection with the third group
offences appealed against, was narrated by Mr Stoltz.
He
testified that he lived at Vryheid in Kwazulu-Natal. He owned a
panel van, Ford Transnet. He wanted to sell it.
He placed
an advertisement in the Junk Mail on or about 26 May 2008. He
advertised his vehicle for sale.
About
a month or so later he received a call from a prospective buyer.
The caller “A” was a coloured man.
He said he
called from Cape Town. He told the witness he was interested in
his van. They arranged to meet at Cashbuild,
Bethlehem in the
Free State Province.
[20]
The witness and his companion, Mr Takalane (Mr T R Ravele) travelled
to Bethlehem to sell his vehicle. He met “A”
at
Cashbuild, the first scene. “A” suggested that they
go somewhere to get the money. At the request of
“A”,
Mr Ravele remained behind. They used the witness van. On
the second scene they met a Pakistan, “B”.
The
latter had diamonds but no money.
[21]
From the second scene, “A” took the witness to the third
scene. They used the witness’ van. The
Pakistani
remained behind. On the third scene, an over-night sleepover
place for truck drivers, they met “C”,
a black chap.
He also had diamonds in his possession. “C”
enquired from the witness whether he had money
to buy diamonds.
The witness answered that he only had R100.00 for fuel. Using
the witness’ cellular phone “A”
called “B”
and enquired about the money.
[22]
From the fourth scene “A” took the witness to a house at
Bohlokong. On the way “A” put some diamonds
in his
pocket. They were still using the witness’ van. “A”
made him believe that “B”
would bring the money there.
Instead, two strangers arrived. Let’s call them “D”
and “E”.
They said they were police officers.
They showed him a wallet with a star badge. The impression of
the witness was
that the badge was not a real official badge of SAPS
but a fake. The police officer ordered him to raise up his
hands.
They searched him. They found diamonds in his
possession. They also ordered him to take off his shoes and
socks.
Again he obliged. They enquired from him whether
he had drugs. He told them he did not do that stuff at all.
[23]
At that moment another police officer, “F”, entered the
house. He said he was looking for “A”.
The
two walked out of the house together and vanished from the scene.
Then “D” and “E” demanded money
from him.
They threatened to shoot him or to jail him unless he complied with
their demands. There was a firearm.
They advised him to
phone around. They demanded lots of money for his release.
[24]
Among others, he called his cousin. The cousin agreed to pay
R12000.00 to secure his release. He later received
a sms from
the bank notifying him about the deposits. The cousin made two
deposits. The first was R5000.00 and the second
R7000.00. Both
deposits were made available on 24 June 2008.
[25]
From the fourth scene “D” and “E” took the
witness to the FNB. Yet again his van was used.
One of
the two policemen was his passenger. The other followed them in
a separate car. At or about 12:15 he withdrew
about
R11 700.00. One of the police was with him inside the
bank. They then walked back to the parking where they
took all
the money from him. They gave him R300.00 back for fuel.
The witness was then set free.
[26]
A document was shown to the witness. The witness identified it
as his bank statement. The statement showed that
two deposits
were made on 26 June 2008. The document was received as exhibit
B. The witness could not identify any
of the men who claimed to
be police officers. However, he identified as, Mr M N Lodewyk,
appellant number four, as the coloured
man.
THE
FOURTH GROUP OF OFFENCES
[27]
The version of the prosecution was narrated by Mr E Swieggelaar.
He testified that he lived in Bloemfontein. He
owned a sedan,
Ford Sierra. He decided to sell his car privately. He
advertised his car for sale in the Auto Trader.
Someone reacted
to his advertisement. The caller expressed interest in his car.
They made an appointment.
[28]
He travelled to Bethlehem on 11
th
August 2008. The purpose of the trip was to sell his car.
His son, André Koen, aged 16 years of age, accompanied
him.
They travelled by his Ford Sierra. They met the caller, Mr “G”,
at Midas. “G” got into
the witness’s car to
have a test drive. He no longer remembered “G”’s
name. All he could still recall was
that “G” had said he
was a Nigerian.
[29]
After the testing of the car, they stopped and parked in the vicinity
of a certain bank. “G” alighted and left.
The witness and
his son waited for his return. A little while later “G”
returned. He was with “H”.
Both got into the
witness’s car. “H” opened his briefcase. The
witness saw money in the briefcase.
“G” told the
witness there was a deal that he wanted to finalize first.
[30]
They all alighted from the car. They walked to a nearby park.
“G” was very busy on the phone. At one
stage “G”
left. He later returned to the park and told the witness that
he got the money. From the second
scene near a bank, they drove
to a guest house in the township pursuant to “G”’s
suggestion.
[31]
They entered the house. Once again “G” became very
busy on his phone. About 10 minutes or so later
3 men, “J”,
“K” and “L” burst into the house. “G”
vanished from the scene.
The three pretended that they were
police officers. They flashed what looked like the official
police badge. They immediately
accused the witness and his son
of being diamond smugglers. They were commanded to raise up
their hands. They were
searched. One of them falsely
claimed he found diamonds in the witnesses’s pockets. The
accuser demanded that
the witnesses washed their hands. He
thereby meant that they should pay them something. He
threatened to lock them
up unless they complied.
[32]
The “police” demanded R20 000. Because the
victims did not have that sort of money they were instructed
to call
friends or relatives. The witness’s friend, Mr Tienie Bam of
Bloemfontein agreed to help but only to the tune of
R10 000.
The “police” provided him with banking details of their
own. Mr Bam caused the money to be
electronically transferred
into the account in question.
[33]
Although Mr Swiegelaar could not identify “G” and “H”,
he identified the 3 police officers, “J”,
“K”,
and “L” as accused number two, four and five. From
the guest house accused number two and accused
number four escorted
them to a garage. There they gave R500 back to the complainant
for petrol. However, they took
their cellular phones.
They set them free and ordered them to drive back to Bloemfontein.
THE FIFTH
GROUP OF OFFENCES
[34]
The version of the prosecution was narrated by Mr JDC Oosthuizen.
He lived at Reitz. He had a chicken enterprise.
As a
chicken vendor, he extensively marketed his stock in the township.
His youngest son was born on 5
th
November 2007. He decided to buy him a present for his first
birthday. For that purpose he and his wife travelled to
Bethlehem on 4
th
November 2008. With them was their little daughter.
[35]
The couple was having breakfast at Wimpy, when a customer by the name
of James approached him. James had a business proposition.
James told him about a woman who was interested in the chicken
business. James and the woman got into his car. The
woman
had a guest house in the township. They took him there for
business negotiations. On their arrival they invited
him and
his wife into the guest house. He objected and insisted that
his wife should remain in the car with the child.
Once he was
inside the house, the woman fetched a white bag from the
deep-fridge. She opened it. The witness saw glass
in the
white bag.
[36]
The next moment accused number two, four and five entered the house.
They told him that they were members of the police
drug unit; that he
was a cannabis smoker, that he was also a diamond smuggler.
They took his cellphone and wallet.
They also took off his
shoes. He pushed one of them off in a bid to leave the house.
They warned him. One of
them produced a gun and ordered him to
raise his hands up.
[37]
They fetched his wife from the car. They detained her in a
certain room. They alleged he was a diamond smuggler.
They demanded “a bribe” in order to release him.
They reminded him that there was a child involved. They
took
R1000 from his wallet. They demanded all in all R40 000.
He told them he did not have any more money.
They threatened to
detain his wife and daughter.
[38]
He agreed to give them an additional R35 000. One of them
escorted him to the bank. He withdrew that amount of
cash and
gave it to them. They were released. The couple and their
daughter travelled back to Reitz. However,
accused number 5,
who pretended to be Captain Jacob Booysen, kept on calling him
afterwards. He demanded R17 000 more.
He threatened
that they would harm him unless he complied.
[39]
The next day, on 5
th
November 2008 he gave them R17 000. He deposited the money
into a bank account whose details he obtained from accused
number 5
by way of an sms. They demanded more money. A few days
later he deposited a further R10 000 into the
same bank
account. They kept on calling him and demanding more money.
[40]
Eventually he turned to the police where he reported the incident.
He gave the police the account numbers and the frequent
caller’s
cell number. One day he went to a certain shop to buy motor
spares. There he spotted accused number
5. He called the
police. On the strength of the information he provided accused
number 5 was subsequently arrested.
THE SIXTH
GROUP OF OFFENCES
[41]
The version of the prosecution was narrated by Mr S A Zuma. He
testified that he lived in Umgungundlovu, in other words
Pietermaritzburg. He was a business man. He had a
trucking enterprise and apparently a supermarket. One day he
met a character called Malatsi at Cash & Carry in Qwa-Qwa.
Malatsi hired him. They arranged that they would collect
his
goods on 21
st
February 2009.
[42]
On 21
st
February 2009, he travelled to Bethlehem. He was with his
brother. They met Malatsi. He led them to a certain
house
in the township. Inside the house Malatsi enquired whether he
knew gold. He answered the question in the negative.
As
Malatsi was trying to open a plastic bag, four men stormed into the
house. They introduced themselves as police officers.
One
of them produced his police identification card. He pointed a
gun at them while his companions searched them. They
took his
Nokia 1100 cellphone, wallet, money (R900 cash) and car keys.
They took similar things from his brother. They
then demanded
R30 000.
[43]
Malatsi undertook to give them some money. Mr Zuma called his
uncle who lived in Qwa-Qwa. The uncle agreed to lend
the money
to him but advised him to collect the money from his wife because he
was out of town. He informed the “police
officers”
that he had to drive to Qwa-Qwa to collect the money. They
agreed to let him go. An escort was assigned
to him.
However, they detained his brother. They undertook to release
him provided he met their demands for money.
[44]
On the way to Qwa-Qwa he called his sister and asked her to report
the incident to the police. He met his sister at a
certain
shopping centre in Qwa-Qwa. Then the police appeared on the
scene and surprised his escort. He explained the
whole story to
them. They immediately arrested his escort and took him to the
police station for questioning.
[45]
From there he drove back to Bethlehem with the police. He took
them to the house in question. However, they found
nobody in
the house. He drove to town where he and his brother were
re-united. He identified the first appellant
and the
second appellant as the escort and the gunman respectively. The
character called Malatsi was not among the accused
in the dock.
THE SECOND
GROUP OF OFFENCES: ANALYSIS
[46]
As regards the Lombard group of charges, only accused number 3 was
found guilty. The court a quo rejected his version.
He
admitted that the total sum of R60 000 was deposited into his
bank account on 14
th
April 2008 but averred that the complainant was his customer; that he
had previously supplied the complainant with goods on credit;
that
the credit transaction concerned cannabis and that the complainant
made the two deposits, R10 000 and R50 000, in
settlement
of his indebtedness to him.
[47]
The evidence of Mr C du Plessis of Meyersgeluk Farm in the district
of Harrismith gave substantial evidence to the version
of Mr Lombard
concerning the loan of R10 000. His evidence was that Mr
Lombard had never borrowed money from him before.
This was the
first and unusual request. The second aspect of his evidence
was that his friend was very nervous on the phone.
Those two
features of the witness’s evidence strengthened the
complainant’s version that he was unduly pressured to
borrow
money.
[48]
The Lombards also lived on a farm in the district of Harrismith.
Their landed property was called Wesselhoek Farm.
On 14
th
August 2008 Ms Anna Lombard, just like Mr C du Pleassis, reveiced an
unexpected and urgent call from her husband. As result
of the
urgent call, she hurriedly drove to Harrismith where she caused a
copy of the complainant’s identity document to be
faxed from
Absa Bank Harrismith to Absa Bank Bethlehem in accordance with his
urgent instructions. A certain Willie instead
of Issie helped
her to fax the identity document. The evidence of the witness
corroborated the complainant’s version.
Of particular
significance was her evidence that her husband had gone to Bethlehem
to negotiate a deal for the sale of his motor
vehicle.
[49]
According to Ms Lombard, the complainant’s trip was not
prompted by a decision to settle any creditor’s account.
If that was indeed the underlying reason, the complainant would
probably have arranged his affairs differently before he ventured
out
to Bethlehem from where the haphazardly made urgent calls to urgently
pay a huge sum of money to a creditor. All these
probabilities
favoured the version of the complainant more than that of the third
appellant.
[50]
It was undisputed that Mr Lombard had advertised his Mercedes Benz
sedan in the Auto Trader for sale. His evidence was
that he
received a call from a potential buyer. They arranged to meet
at Bethlehem. The evidence of Mr Bouwer, the
investigating
officer, showed that on 14
th
April 2008 there was cellular contact between Mr Lombard’s cell
082 855 2609 and unidentified caller’s cell 073 053
6434. There were 7 calls exchanged. The latter also had
contacts with accused number five, in other words the fourth
appellant, as accused number 6. There were 4 other unidentified
callers who had contacts with Mr Lombard, accused number
5 and
accused number 6 before, after or on 14
th
April 2008. One of those was probably accused number 3, in
other words the third appellant, Mr M C Mofokeng.
[51]
Although the complainant could not identify the third appellant at
the police identification parade as one of the suspects
involved in
the criminal scam against him, documentary evidence against the third
appellant was formidable – exhibits “c”
and “g”.
[52]
Mr Lombaard did not use the sedan he wanted to sell during his trip
from Harrismith to Bethlehem to meet the potential buyer.
Instead he used his van.
“
Dit
val ‘n mens inderdaad vreemd op”
So
commented the regional magistrate.
[53]
Indeed it appeared somewhat strange that a seller would go out to
meet a stranger interested to buy his product but leave behind
the
very product a potential buyer would ordinarily wish to see. Mr
Lombard’s explanation that he left the sedan at
the special
instance and request of the caller was, at a first glance, also not
very convincing. However, after examining
the evidence relative
to the second group in conjunction with the evidence in the case as a
whole, the apparently strange version
of Mr Lombard began to make
sense.
[54]
The evidence as a whole clearly indicated that the third appellant
and all those involved in the six groups of offences were
not really
interested in buying motor vehicles from any of the victims.
They deceptively designed a criminal scheme whereby
to make money
from the victims by instilling fear on their minds. They then
convinced the fearful victims to pay them in
order to avoid certain
harmful repercussions of refusal. At the heart of the criminal
modus operandi was criminal intent
to extort and not to defraud.
Upon careful examination of the facts it became clear to me that the
conduct of the third appellant
was predominantly inspired by
intention to commit the crime of extortion. The rest of what he
did was designed to attain
that primary criminal objective.
[55]
In my view the version of the third appellant was not only
improbable, but it was also not reasonably true. Therefore,
the
court a quo was correct in rejecting it. I would also have
rejected it had I sat as a court of first instance.
[56]
It does not follow from the above conclusion that the third appellant
was, therefore, guilty as charged in respect of all the
six charges.
I
have earlier found that although Mr Lombaard was deceptively lured to
travel from Harrismith to Bethlehem, the third appellant
did not have
the requisite fraudulent intent to defraud him of his motor vehicle.
It has been held that false representation
concerns the past or the
present but not the future.
R v
Myers
1948 (1) SA 375
(A) on 382;
R
v Deetleffs
1953 (1) SA 418
on
421. The third accused did not, represent to the complainant
currently existing state of affairs (present tense) or an
accomplished state of affairs (past tense).
[57]
The evidence showed that the third appellant falsely represented to
the complainant that he or one of his cohorts might buy
his motor
vehicle in the future. Such representation about what the third
appellant possibly contemplated to do sometime
in the future was
nothing less than a false promise about the future. The
representation was false because, in truth and
in fact, buying the
complainant’s motor vehicle was neither in the forefront or
even at the back of the third appellant’s
mind. The third
appellant’s deceitful offer to purchase the sedan from the
complainant was calculated to entice the
complainant in order to
ensnare him in the web of extortion.
[58]
I am persuaded by the submission of Mr P W Nel, counsel for the third
appellant, that all the elements of the crime of fraud
were not
proven. The element of fraudulent intent was amiss. It
follows, therefore, that the conviction of the third
appellant in
respect of charge number 7 could not be sustained. His
conviction in respect of that charge was, with respect,
a material
misdirection on the question of law.
[59]
The evidence of the complainant was that he met one of his deceivers
at Midas. It was highly probable that the third
appellant was
the extortionist whom the complainant first met on his arrival at
Bethlehem. It is less probable that the third
appellant was 1
of the 3 further extortionists who posed as police officers. We
ascertained that the first extortionist ultimately
lured the
complainant to a drug den in the Bohlokong township. There, the
first extortionist stealthily vanished from the
scene.
[60]
When the complainant was surprised by his 3 fellow extortionists in
the house, the first extortionist was nowhere to be seen,
by the
complainant at least. If that was factually the true position,
then it could not be correctly found that the first
extortionist held
himself out as a police officer to the complainant. Accordingly
the allegation that the third appellant
had contravened
sec 68(1)
of
the
South African Police Service Act 68 of 1995
was not established
beyond a doubt. The complainant was a single eye-witness.
[61]
It must be borne in mind that he could not identify any of the
extortionists who stormed into the house and projected themselves
as
police officers whereas in truth and in reality some were probably
not. Since there was some clear doubt as to the actual
role the
third appellant played in the entire drama which unfolded in the
house, he was entitled to the benefit of such doubt.
The
verdict deprived him of the benefit of such doubt. The finding
of the court a quo that the third appellant impersonated
a police
officer is one which, on appeal, I cannot uphold. In my view
the conviction of the third appellant in respect of
charge number 8
was a material misdirection. The complainant’s evidence,
though creditable, was very unreliable to
secure the third
appellant’s conviction.
[62]
The complainant was lured from Midas to the scene of the crime.
He was taken to the particular house under the false
pretext that he
was going to receive money for the sale of his sedan. The
evidence showed that his van was used; that he
drove the van at all
times material to his complaint; that he was shown the way to the
house; that he willingly drove to the house
and that he freely walked
into the house where he was later falsely accused, temporarily
detained and extortively coerced
to avoid arrest and
incarceration.
[63]
Obviously Mr Lombaard was not taken to the house against his will.
Although he was deceived to go there, he was not deprived
of his
freedom and forcibly shipped to the scene of extortion. He was
not really detained for an exceedingly long and torturous
period of
time to break his human spirit of resistance. He was merely
threatened that unless he complied with the extortionate
cash demand,
he would not be released. In the circumstances, the findings
that he was kidnapped and robbed of this freedom
were not supported
by evidence. It follows, therefore, that the court a quo erred
in convicting the third appellant of kidnapping,
charge number 9.
[64]
I have earlier found that the third appellant did not squeeze any
money out of Mr Lombaard but rather employed extortive compulsion
to
induce him to part with his money and to make those two extortionate
deposits into the third appellant’s bank account.
Extortion, in my view, was what the case was all about. The
respondent proved beyond a doubt that the third appellant directly
or
indirectly committed the crime of extortion. The verdict
pronounced against the third appellant in respect of charge number
10
is a finding which, on appeal, I cannot hold to be wrong.
[65]
The third appellant was also found guilty of two counts of theft, to
wit: R10 000 and R50 000 being charges 11 and
12
respectively. These two charges of theft were inextricably
intertwined with the main charge of extortion. I think
there
should have been two separate counts of extortion in the second group
of offences, viz one count in respect of R10 000
and another
count in respect of R50 000. The former should have been
part of charge number 10. It had to be so
because there was a
single criminal intent involved. It has to be kept in mind that
the sinister motive and the entire criminal
enterprise underlying
charge number 10 was to get the complainant’s money. The
same facts relied upon to prove theft,
say charge 11, were relied
upon to prove extortion, charge 10. The two crimes were solidly
connected by a single intent.
The commission of that crime was
accomplished when Mr C du Plessis deposited R10 000 into the
bank account of the third appellant.
[1]
[66]
Immediately after the completion of the first crime of extortion, the
third appellant, in collaboration with his co-perpetrators,
revamped
the wheel. They started a fresh series of criminally extortive
actions. On the second occasion they extortively
neted an
extortionate price of R50 000 from the same victim. On the
facts, a distinct and separate misdeed of extortion
was committed.
The third appellant can count himself lucky that he was not charged
with a second count of extortion but theft.
Since extortion is
more serious than theft, the conviction of theft in respect of charge
12 has to stand. Theft was a competent
verdict.
[67]
In view of the materially appealable misdirections already outlined,
appellate interference was called for. I would therefore,
uphold the third appellant’s appeal as regards the verdicts in
respect of charges numbered 7, 8, 9 and 11. As regard
the
remaining two charges numbered 10 and 12, I am inclined to dismiss
the third appellant’s appeal and to confirm his conviction(s)
by the regional magistrate.
THE THIRD
GROUP OF OFFENCES: ANALYSIS
[68]
As regards the Stoltz group of offences, only accused number five was
found guilty in respect of all the six charges numbered
13 –
18. He was the fourth appellant in these appeal proceedings.
The court a quo rejected his version that he was
not involved and
that he was mistakenly identified. He denied the evidence of Mr
Stoltz that he was the recipient of R11 800
which he, through
extortive compulsion withdrew from his First National Bank at
Bethlehem on 25
th
June 2008.
[69]
The unchallenged averments contained in the witness statement,
(exhibit “n”), by Mr T R Ravele corroborated the
version
of Mr Stoltz. He confirmed that he and the complainant lived at
Vryheid; that they travelled to Bethlehem on 25
th
June 2008; that at Cashbuild they met a coloured man; and that he
later saw the same coloured man with the complainant at the First
Bank.
[70]
The evidence of Mr Bouwer showed that there were cellular contacts
between the complainant and Mr E S Shiwenda, accused number
six, on
25
th
June 2008. On the same day accused number six had 29 cellular
contacts with “Z” an unidentified user of cell
078 966
6773. In turn “Z” had 2 cellular contacts with
accused number five, the fourth appellant.
Moreover, the fourth
appellant had a minimum of 2 cellular contacts with 3 more
unidentified suspects on the same day. Those
suspects
collectively had no less than 10 cellular contacts with accused
number six who, as already indicated, had direct contacts
with the
complainant. Those objective facts, call them circumstantial
evidence if you will, somehow corroboratively implicated
the fourth
appellant.
[71]
On the strength of the extortive compulsion exerted on the
complainant, the sum of R12 000 was deposited into his bank
account by way of two instalments of R5000 and R7000 (exhibit “j”).
His evidence was that he was later coerced
to go to the First Bank to
get the money for the “police”. He was accompanied
by a coloured chap who claimed
to be Captain Jacob Booysen.
There he withdrew R11 800 which he involuntarily handed over to
the coloured gentleman.
He did so to avoid the threatened
arrest, detention and prosecution. At the police identification
parade held on 21
st
January 2010 Mr Stoltz pointed out participant 5, Neels, as the
coloured gentleman involved. The correctness of the pointing
out was admitted at the trial. The fourth appellant did not
contend that he was not pointed out by the witness, Mr Stoltz.
[72]
Although Mr Stoltz was a single witness and although the issue
revolved around the identity of the suspect, the fourth appellant
was, in my view, correctly convicted of extortion, charge 16.
The positive outcome of the police identification parade, the
observation by Mr Ravele, the cellular data evidence by Mr Bouwer and
documentary evidence of bank statement - all corroborated
the version
of Mr Stoltz. The evidence of that single witness was
reliable. He met the culprit during daytime.
He spent
some time with him. The prevailing circumstances were
conducive. The fourth appellant was a passenger in his
car.
[73]
I deem it unnecessary to comment about the charges of fraud (13),
impersonating a police officer (14), kidnapping (15), theft
(17) and
theft (18). The reasoning, analysis, views, findings and
conclusions are the same as those that apply to the Lombaard
group of
charges.
[74]
In view of the material and appealable misdirections, appellate
interference appeared to be justified. I would, therefore,
uphold the fourth appellant’s appeal as regards conviction in
respect of charges 13, 14, 15, 17 and 18. As regards
the one
remaining charge 16, I am inclined to dismiss the appeal of the
fourth appellant and to confirm his conviction by the regional
magistrate.
THE FOURTH
GROUP OF OFFENCES: ANALYSIS
[75]
As regards the Swiegelaar group of charges, the second, third and
fourth appellants were found guilty of all the 7 charges.
The
group consisted of charges numbered 19 – 25. The court a
quo rejected the evidence of each of the appellants but
accepted the
evidence tendered against each of them.
[76]
The schoolboy Hendrik Koen also known as André corroborated
the testimony of his stepfather, Mr Swiegelaar. His
evidence
was that they lived in Bloemfontein. On 11
th
August 2008 they travelled to Bethlehem. The purpose of the
trip was to sell the Ford Sierra belonging to his stepfather.
At Midas they met the caller who was interested to buy the car.
They eventually ended up in a guest house at Bohlokong.
[77]
Soon after they had taken their seats in the house, three men stormed
into the house. They said they were police officers.
They
were falsely accused, searched, and robbed of their cellphones, among
others. Then they were threatened with arrest,
detention and
prosecution because, as the “police officers” claimed,
they were diamond smugglers. To let them
off the hook, their
accusers demanded money. He identified accused number five, in
other words the fourth appellant, at the
police identification parade
through his general facial appearance and the spectacles.
However, he could not recognise him
in court. He attributed his
failure to the long passage of time between the incident and his
testimony.
[78]
The evidence of the complainant’s friend, Mr Marthinus Johannes
Bam, materially corroborated the version of the complainant.
He
beefed up his evidence by means of documentary evidence, exhibit
“i”. The exhibit showed that the witness
deposited
R10 000 into a certain bank account on 11
th
August 2008. The deposit was made in favour of a certain S C
Nhlapo account number 9141189146. The account was held
at Absa
Bank Bethlehem. The witness was an electrician in
Bloemfontein. He knew Mr Eugene Swiegelaar who worked for
Total
Gas. He deposited the money in favour of Mr Nhlapo following a
telephonic conversation he and Mr Swiegelaar had on
11
th
August 2008. The evidence of Mr Bam was never challenged by way
of cross-examination.
[79]
The evidence of Mr Swiegelaar derived a great deal of corroboration
from the testimony of a stranger, Mr Simphiwe Calvin Nhlapo.
He
testified that he lived at 6720 Naledi Bohlokong Bethlehem. He
earned his livelihood as a casual vendor. The wares
of his
trade included, among others, cigarettes and soft drinks. He
was a customer of Absa Bank. His account had been
dormant for
some time before 11
th
August 2008.
[80]
On 11
th
August 2008 accused number six, Mr Erastus Jonas Shiwenda, approached
him. He knew accused number six very well. The
witness
explained that accused number six was his regular customer.
Quite often he sold cigarettes to him on credit.
However, it
was not about cigarettes that accused number six approached him on
that day. The witness heard from accused number
six that
someone was supposed to send him money; that he did not have a bank
account; and that he needed the witness’s banking
details for
that purpose.
[81]
The witness acceded to the request of accused number six.
Together they went to the witness’s parental home, then
to Pick
‘n Pay and finally to Absa Bank. There they made the
necessary arrangements. The witness gave his bank
card and his
secret pin code to accused number six to enable him to keep on
checking whether his account has been credited with
the expected
deposit. He then left accused number six at the bank.
[82]
A while later accused number six came to him. He confirmed to
him that funds to the tune of R10 000 had been deposited.
He picked him up and together they once again drove back to Absa
Bank. He withdrew R9000 plus and handed the cash to accused
number six. As a token of gratitude accused number six gave him
R300 back. On that day accused number six was driving
a sedan,
an Audi. On previous occasion he had seen accused number five
driving the same sedan. Therefore, he reckoned,
that accused
number five owned that car. Moreover he had previously seen
accused number five and accused number six together
in the very same
car. He confirmed that exhibit “d” which was used
to validate the huge cash withdrawal on 11
th
August 2008 from his account, was his identity document. A few
weeks later accused number six approached him once again with
a
similar request but he could not help because he had lost his
identity document in the meantime.
[83]
The evidence of Mr Bouwer showed that there were 2 cellular contacts
between accused number six and Mr Swiegelaar, the complainant,
on
11
th
August 2008. On the same day there were 6 cellular contacts
between accused number five, in other words the fourth appellant,
and
“Z” the unidentified user of cell 073 583 4118.
The very same day “X” had 3 cellular contacts
with
accused number six. Still on 11
th
August 2008 there were 2 cellular contacts between “X”,
an unidentified user of cell 083 771 0895, and the fourth
appellant. On the same day “X” had 3 cellular
contacts with accused number six. Yet another unidentified
character “W” appeared on the scene. He used cell
079 848 6341. On 11
th
August 2008 he had one cellular contact with accused number six.
The very next day he had one cellular contact with the fourth
appellant. A mysterious suspect known only as Limo had four
cellular contacts with accused number six and 3 with the fourth
appellant on 11
th
August 2008 and further 2 on 12
th
August 2008.
[84]
The cellular data strongly suggested that the fourth appellant and
accused number 6 together had dealings with a few dubious
characters
such as “W”, “X”, “Y”, “Z”,
Limo and others. The fourth appellant,
through a common pool of
questionable characters, indirectly associated himself with accused
number 6. Moreover, a credible
and reliable witness, Mr Nhlapo,
gave evidence which strongly indicated that the fourth appellant had
very close and friendly ties
with accused number six, a gentleman who
was highly implicated not only in this particular group of offences
but virtually in all
the groups.
[85]
Through accused number six, the fourth appellant communicated with
the complainant and the rest of the members of the syndicate.
I
am convinced that through those unidentified suspects the fourth
appellant was in contact with accused number six, the initial
intermediary between the complainant and the syndicate.
[86]
The complainant pointed out the second, third and fourth appellants
at the police identification parade. His reliable
evidence of
identification of the fourth appellant was directly corroborated by
that of his son, Mr Koen. He was, to a certain
extent,
indirectly corroborated by the reliable evidence of Mr Nhlapo.
On the day of the crime the car of the fourth appellant
was actively
driven around by accused number six in the furtherance of a criminal
enterprise. His car was used as an instrumentality
of crime.
It has to be mentioned that the third appellant, previously accused
number four, admitted that he knew the fourth
appellant, previously
accused number five, as well as accused number six. Moreover,
he was correctly convicted for his involvement
in respect of the
Lombard group of offences where a pretty much the same modus operandi
was used to commit acts of extortion.
[2]
[87]
In my view the court a quo was correct in finding that all of them,
the second, third and fourth appellants were involved.
Indeed
the evidence conclusively proved that they were in it together.
Mr J Nel, counsel for the second appellant, conceded
that the
evidence against the second appellant was reliable to prove his
involvement. I am indebted to counsel for his responsible
concession.
[88]
In view of the aforesaid findings, I would dismiss the appeals of the
second, third, and fourth appellants as regards charge
23, extortion
and confirm their convictions.
[89]
It was common cause that the second appellant was indeed a police
officer. He was, as such, officially issued with a
police
identification card and a firearm. It follows, as a matter of
logic, therefore, that he could not impersonate a police
officer
because he was, in fact and in law, a police officer. That
being the case, he could not contravene
sec 68(1)
of the
South
African Police Service Act 68 of 1995
. I would uphold his
appeal in respect of charge 20 and set aside his conviction.
[90]
Both Mr Swiegelaar and Mr Koen identified the third and fourth
appellants as two of the three men who introduced themselves
as
police officers. It was common cause that they, unlike the
second appellant, were not officially genuine police officers.
By projecting themselves as such, they undoubtedly contravened
sec
68(1)
of the
South African Police Service Act 68 of 1995
.
Therefore, their appeals fail and their convictions in respect of
charge 20 are confirmed.
[91]
As regards charge 19 - fraud, 2 counts of kidnapping and theft,
charges 21, 22 and 25 respectively, I am of the view that those
four
convictions cannot be allowed to stand. The appeals of the
second, third and fourth appellants in respect of those specified
charges are upheld. The convictions relative to charges 19, 21,
22 and 25 have to be set aside. Elsewhere in this judgment
I
gave reasons as to why similar convictions were, in my respectful
view, incorrect. Those reasons are as valid here and
now as
they were there and then.
[92]
I deem it necessary to comment about charge 25. It concerned
the amount of R20 000. The misdeed of extortion,
charge
23, was for all intents and purposes calculated to squeezing money
out of the complainant by instilling fear in him. By
the
employment of extortive means, the second, third and fourth
appellants, with the collaboration of accused number six, compelled
or coerced him to have money deposited into the account of their own
choice. It follows, therefore, that there was a single
criminal
intent as regards those two charges. Since charge 23 can
swallow charge 25, the latter cannot, on the facts, be
allowed to
stand alone.
[93]
Finally, I turn to charge 24, robbery with aggravating
circumstances. The two victims, father and son, were robbed of
their cellular handsets which were never recovered. It was not
their evidence though, that the second appellant was pointing
a
firearm at them while the third and fourth appellants were busy
unlawfully dispossessing them. As far as that charge was
concerned, the court a quo erred in convicting the second, third and
fourth appellants of robbery with aggravating circumstances.
There was no evidence that any dangerous weapon was used during,
before or after the robbery. It may well be that the second
appellant was armed with a firearm as the witnesses testified, but
there was no evidence that he used such a firearm to unlawfully
threaten the victims. To that extent, the court
a
quo
committed a material misdirection.
The convictions of the appellants cannot be allowed to stand.
Their appeals must
be upheld.
[94]
Consequently, appellate interference was justified. The
conviction of each of the three appellants, the second appellant,
the
third appellant and the fourth appellant, for armed robbery needs to
be set aside and substituted with the verdict that each
of them is
found guilty of robbery. It might well have been that the
second appellant was armed with his official firearm
as the witness
testified. However, since robbery with aggravating
circumstances is a statutory shade of robbery, legislatively
identified and specially scheduled as one of the most serious and
prevalent crimes, possession of a dangerous weapon and the
possessor’s
threat or actual use thereof has to be factually
proven. It was not done in this instance. Instead, it was
merely inferred
or presumed. In the absence of credible
evidence that any of the appellants, the second appellant in
particular, used his
firearm to threaten the victims, the conviction
could not be sustained.
THE FIFTH
GROUP OF OFFENCES: ANALYSIS
[95]
As regards the Oosthuizen group of charges, there were 13 charges: 26
– 38. Mr Jan Daniel Cronje Oosthuizen identified
the
second, third and fourth appellants as the three men who posed as
police officers.
[96]
Ms Brenda Oosthuizen supported the evidence of the complainant.
She added that while she was sitting outside and in the
car, seven
armed men walked pass the bakkie in which she was waiting for her
husband. One of the men came to her shortly
afterwards.
He showed her a police identification card. He took her into
the house. She was frightened.
A woman put her in a
separate room. “Inspector Booysen” accused her
husband of being a diamond smuggler.
He also accused her of
being an accomplice. He threatened to detain her for 7 days
before she could be released on bail.
[97]
She identified accused number five, in other words the fourth
appellant, as the man who introduced himself as Inspector Jacob
Booysen. She answered that she recognised him by means of his
general appearance. She denied the suggestion that she
was
mistaken. She stressed that he was on the scene. She
pointed out the fourth appellant at the second police identification
parade. The only critique that could be levelled at her
evidence was that she could not earlier recognise him at the first
police identification parade where she pointed out a person who was
not a suspect.
[98]
Notwithstanding its unreliable features, the evidence of the lady was
significantly bolstered by that of her husband.
He spotted the
fourth appellant at TAB Bethlehem on 26
th
of March 2009. On the strength of his positive identification,
the fourth appellant was arrested. On 10
th
June 2009 he positively identified the third and fourth appellants at
the police identification parade. During the trial
he
identified the second, third and fourth appellants from the dock.
Bearing all those facts in mind, one cannot seriously
doubt the
reliability of the identificative evidence given by the complainant.
His evidence derived some compensatory value
from the evidence of his
wife.
[99]
It must be pointed out that the third appellant was heavily
implicated and correctly convicted in respect of two similar schemes
of extortion. (see the evidence relative to the Lombaard as
well as the Swiegelaar incidents) I hasten to mention that
the
third appellant stayed with accused number six, a man whose name
featured prominently in virtually all the six groups of offences.
I say no more about the involvement of the third appellant.
[100]
As far as the second appellant was concerned, Mr J Nel candidly
conceded, and in my view quite correctly, that the evidence
as a
whole strongly indicated that he was deeply involved.
[101]
The evidence of Inspector Bouwer made very interesting reading.
The cellular data evidence revealed:
101.1
that an unidentified caller “X” using cell 072 888 0084
had 50 cellular contacts with Mr Oosthuizen
between 3
rd
November 2008 and 20
th
November 2008;
101.2
that an unidentified caller “S” using the same cell
072 888 0084 had 13 cellular contacts with the third
appellant
between 3
rd
November 2008 and 28
th
November 2008;
101.3
that an unidentified caller “T” using the same cell
072 888 0084 had 89 cellular contacts with the fourth
appellant
between 5
th
November 2008 and 30
th
November 2008;
101.4
that the same cellular simcard, cell 072 888 0084 was at one
stage inserted and used in the cellular handset of the fourth
appellant;
101.5
that an unidentified caller “U” using the same cell
072 888 0084 also had 4 cellular contacts with accused
number 6
between 27
th
November 2008 and 30
th
November 2008;
101.6
that there was no direct cellular contact whatsoever detected among
or between any of the 4 appellants before us during the
period 3
rd
November 2008 to the 31
st
November 2008.
[102]
The evidence of the investigating officer further indicated that the
complainant took him to the house where the incident
occurred.
The house was situated at 808 Extension 2 Bethlehem. An
outstanding landmark on the premises was a red Cell
C Network
container. He also detected, through his investigation, that
payments were made in favour of accused number three,
Ms Dipuo
Cecilia Mofokeng. The lady lived in the same house with accused
number six as did the third appellant. Needless
to say that the
cellular simcard 072 888 0084 highly implicated the fourth
appellant.
To
sum up, I shall briefly comment about the charges, the verdicts, my
findings, reasons and conclusions where necessary.
[103]
I am persuaded that the following charges were not proven:
(a)
Charge 26, fraud;
(b)
Charge 27, impersonification in respect of
accused number two only;
(c)
Charge 28, kidnapping Mr J D C Oosthuizen;
(d)
Charge 29, kidnapping Ms Brenda Oosthuizen;
(e)
Charge 30, kidnapping Nicolas Oosthuizen;
(f)
Charge 32, intimidation;
(g)
Charge 23, theft.
[104]
I am inclined to set aside the convictions in respect of those
charges. The Oosthuizens were extorted but not defrauded.
The second appellant was a police officer. Since he was, he
could not contravene
sec 68(1)
of the
South African Police Service
Act 68 of 1995
, as Mr Nel correctly contended. The Oosthuizens
were lured to the scene of the crime. Although they were led to
the
house under the false pretext, they freely drove to the house.
They were not taken there against their free will. The
rest of
what was done to them on the scene had nothing to do with kidnapping
but everything to do with extortion. The conviction
concerning
the aforesaid charges could not be sustained by evidence. The
court a quo erred, with respect.
[105]
The evidence was overwhelming that the single criminal intent which
informed the second, third and fourth appellants and dominated
their
minds was to threaten the complainant with all sorts of evils in
order to extortively induce him to give them money.
In my view
the acts of intimidation as outlined in charge 32 did not constitute
a separate charge. The charge of intimidation
can comfortably
be consumed by charge 10, extortion without doing any violence to the
proven facts.
[106]
As regards charge 33, the three gentlemen, the second, third and
fourth appellants were convicted as charged. The evidence
clearly showed that the complainant was threatened and searched.
During that process his wallet was removed from his pocket.
An
amount of R1000 cash was then taken by the appellants. Now that
was plain robbery. It was neither theft or extortion.
All
the same it will do the appellants no harm to let the conviction of
theft stand. However, the fact remains that the evidence
showed
that they robbed the complainant of his money.
[107]
As regards charge 34, evidence established beyond reasonable doubt
that the second, third and fourth appellants and other
other
individuals committed the crime of extortion. They demanded
R40 000 from the complainant. He gave them R3500
immediately because that was the amount which was readily available
in his bank account. The conviction of each of them in
respect
of the charge of extortion was perfectly in order. I would,
therefore, dismiss each one’s appeal and confirm
the
convictions.
[108]
As regards charge 35 intimidation, the threat which underscored the
charge was “Ons sal jou kom haal as jy nie R17 000
betaal
nie want ons weet presies waar jy woon”,
or
words to that effect.
[109]
The threat on which the prosecution relied upon in support of charge
32, also intimidation, was that the appellants and their
cohorts had
threatened to physically assault the complainant’s little son,
Nicolas Oosthuizen; that they had threatened to
physically assault
his wife, Mrs Brenda Oosthuizen and that they had also threatened to
rape her unless he paid them R40 000.
Those threats were made on
4
th
November 2008.
[110]
The threat on which the prosecution relied in support of charge 34,
extortion was crafted as follows:
‘
.
. . die beskuldigdes wederegtelik en met die opset om af te pers en
uit hoofde van onbehoorlike dryfvere, vrees ingeboesem het
by Jan
Oosthuizen deur sy kind en vrou gevange te hou in ‘n voertuig .
. .’
It
was alleged that the threat was made on 4
th
November 2008.
[111]
The threat on which the prosecution relied in support of charge 37,
extortion, was crafted in the following manner:
‘
.
. . die beskuldigdes wederegtelik en met die opset om af te pers en
uit hoofde van onbehoorlike dryfvere, vrees ingeboesem het
by Jan
Oosthuizen deur aan hom voor te hou dat sy veiligheid en die
veiligheid van sy gesin verseker sal word indien hy . . .’
It
was alleged that this treat was made on 7
th
November 2008 via telephone.
[112]
As I see it, all those various threats which the prosecution in its
wisdom, relied upon as different foundations of separate
criminal
charges, were not powered by distinct criminal intents. They
were shades of one and the same ultimate purpose –
extortion to
exact undue advantage of R40 000 by instilling fear in Mr
Oosthuizen. Such fear was packaged and presented
to him in a
great variety of evils. Those evils, whatever their number or
form emanated from one and only one shade of
mens
rea
.
[113]
The various undue payments extortively exacted from the complainants
clearly demonstrated that all roads led to Rome.
The
first payment was R3500 4
th
November 2008
The
second
R17 000
5
th
November 2008
The
third
R10 000 7
th
November 2008
The
total advantage the appellants and their cohorts exacted was
R30 500. Therefore, the complainant paid approximately
75
per cent of the amount originally demanded from him by way of three
instalments. Of course he was bombarded with countless
calls
after the 4
th
November 2008. Although each subsequent instalment was
accompanied by one or other sort of threat, I have some reservations
as to whether every subsequent payment constituted a separately new
offence. In my view any further demands over and above
the
original R40 000, after the 7
th
November 2008 would have constituted a new and a separate crime of
extortion.
[114]
In the circumstances I have come to the conclusion that charges 32,
33, 35, 36, 37and 38 could not be substantively sustained
by the
evidence as independent separate charges. They were all
integral parts of but one criminal mosaic. The central
foundation of all that assortment of charges was extortion, charge
34.
[115]
It is my considered view that the conviction of each of the
appellants in respect of the aforesaid six charges cannot be allowed
to stand. Accordingly, I am inclined to uphold the appeals and
to set aside each conviction as regards each appellant.
[116]
The evidence indicated that after the 7
th
November 2008 the appellants and their cohorts continued to demand
more money from the complainant. Such fresh demands and
its
corresponding threat were not totally divorced from the original
demand of R40 000. The threats continued after
7 November
2008 but no further payments were made by the complainant. The
original extortion target of R40 000,00 was
never reached.
In my view, since there were no fresh and further demand, exceeding
the original target. It could not
be correctly argued that
demands and threats made after 7 November 2008 constituted a new and
separate charge of extortion.
At any rate, no such charge was
put to the appellants and their erstwhile co-accused. Moreover,
even a separate charge of
theft was not proven. In fact no such
charge was formulated, as the charge sheet would show.
[117]
The second appellant denied that he was involved. He also
distanced himself from his co-accused. He claimed that
he knew
none of them. As already pointed out his counsel honourably conceded
that he could not submit that the second appellant
was wrongly
identified. He was seriously implicated.
[118]
The third appellant denied that he was involved. He could not give a
reasonably true explanation of his frequent and numerous
cellular
contacts with the fourth appellant. He suggested that some
other persons could possibly have used his cellular phone.
His
suggestion that nameless persons could have used his cellular phone
to communicate with the fourth appellant was very improbable,
unsatisfactory and ridiculous. The fact that his cellular
simcard was inserted in the cellular handset of the fourth appellant
highly implicated him. His false denial implicated him even
more.
[119]
The fourth appellant denied that he was involved. He denied
that he ever held himself out as Captain Jacob Booysen to
the
complainant. There were three strange things about his denial.
Firstly, he knew somebody by that name who lived
in Welkom.
Secondly, notwithstanding his co-operation, the investigating
officer’s efforts to trace such a person were
fruitless.
Thirdly, the complainant was victimised by a man who claimed to be
Captain Booysen at Behtlehem, a person who
apparently had close ties
with the fourth appellant, a person who was also a resident of
Bethlehem, just like the fourth appellant.
The fourth appellant
could not reasonably explain how the third appellant’s cellular
simcard landed in his cellular handset.
The inference was that
the two were birds of the same feather that flocked together.
[120]
In my view the court a quo correctly rejected the version of each
appellant. Their versions or denials were not reasonably
true.
They were not only improbable but beyond reasonable doubt false, as
regards the three proven charges.
THE
SIXTH GROUP OF OFFENCES: ANALYSIS
[121]
As regards the Zuma group of charges, all of the four appellants were
found guilty in respect of all the five charges, numbered
39 - 43.
Mr Siyaphi, Calvin Zuma identified the first, second and fourth
appellants as 3 of the police officers who stormed
in the house at
Bethlehem on 21
st
February 2009 and demanded R30 000 from him. The second
appellant was armed with a firearm and he showed his police
identification card to the Zumas.
[122]
The evidence of Mr Vuyane Jeffrey Zuma materially corroborated that
of his brother and the complainant, Mr S C Zuma.
He remained
behind with the second and fourth appellants, among others, when his
brother drove to
Phuthaditjhaba
with the first appellant. At one stage a
person knocked at the door. The stranger enquired as to who the
owner of the
green sedan was. The green sedan driver had parked
it behind the stranger’s car. The stranger wanted to
drive
out hence he wanted to have the green sedan shifted.
[123]
Later on he called his brother, Mr S C Zuma, seemingly commanded to
do so. He was then instructed, by those who had
held him
captive, to switch on the loudspeaker of his cellular phone.
The second appellant and his cohorts heard that the
complainant was
on his way back with the police. Upon hearing that message, the
second appellant and his cohorts rushed out
of the house and took to
flight. He also left the room. He walked to the spot
where, on their forward trip to the scene,
they had dropped their
cousins.
[124]
The evidence of Mr Diphapang Samuel Modise was that he was a resident
guest at a place commonly known as Hamama Thepenyane,
Bochabela
Street, Bohlokong Bethlehem on 20
th
February 2009. At about midday he wanted to drive out but he
could not because a car had blocked his way. He decided
to
knock at the door of the room next to his. There he found the
second appellant whom he knew to be a police officer.
The
second appellant helped him out. He removed the car that was
blocking his way. He then drove away.
[125]
A little while later he returned to the place. He parked his
car at the same parking bay. Shortly after his return,
someone
came to his room with the police. The stranger pointed him out
as being one of the police officer’s companions.
He
denied the allegation. Notwithstanding that, he was arrested there
and then.
[126]
The witness described the car behind his, which the second appellant
moved out of his way, as a Golf GTi with a GP registration
plate.
He found three men in the room occupied by the second appellant.
He corrected his earlier evidence by indicating
that he met the
second appellant at Hamama Thepenyane on 21
st
February 2009 and not on the 20
th
February 2009.
[127]
Inspector Bouwer gave some evidence concerning cellular data relevant
to the sixth group of charges. His evidence showed:
(a)
that there was 1 cellular contact between
the complainant Mr S A Zuma and an unidentified caller “M”
using cell 073 441
4750 on 21
st
February 2009;
(b)
that there were 16 cellular contacts
between “M” and the first appellant between 20th February
and 22
nd
February 2009;
(c)
that there were 3 cellular contacts between
an unidentified caller “N” using cell 076 102 6426
and Mr S C Zuma:
1 on 20
th
February 2008 and 2 on 21
st
February 2008;
(d)
that there were 10 cellular contacts
between an unidentified caller, “O” using the same cell
076 102 6426 previously
used by “N”, and the first
appellant from 21
st
February to 22
nd
February 2008;
(e)
that there were 26 cellular contacts
between an unidentified caller, “V” using the same cell
076 102 6426 previously
used by “N” to contact Mr S
C Zuma, and the fourth appellant from 20
th
February to 22
nd
February;
(f)
that there were 40 cellular contacts
between an unidentified caller, “I” using cell 073 441
4750 utilized by “M”
to communicate with Mr S A Zuma, and
accused number six from 20
th
February to 22
nd
February;
(g)
that there were no cellular contacts
detected between the second appellant and any of his co-appellants or
even any of his co-accused
during the relevant period.
[128]
The first appellant denied that he was involved. He admitted
however, that he was with Mr S C Zuma in his vehicle at
the time of
his arrest. However, he alleged that he was there to facilitate
a diamond deal between Mr Zuma and Mr Malatsi.
He added that Mr
Zuma had asked him to accompany him on his trip to fetch money from
his uncle. He averred that Mr Zuma used
his cellphone during
the trip because his cellphone’s battery was flat.
[129]
The second appellant denied the allegations that he was involved.
He testified that he was totally mistaken and wrongly
identified as
the coloured police officer who was the actual culprit involved.
Notwithstanding his denials he could proffer
no reasonable
explanation which could be said to be possibly true as to why the
Zuma brothers particularly identified him.
It must be borne in
mind that the evidence of Mr Modise, an independent witness who knew
the second appellant as a police officer,
put the second appellant
under the spotlight. His evidence objectively fortified the
evidence of the two brothers in material
respects.
[3]
[130]
The crux of Mr Modise’s creditable and reliable evidence was
that he found three men in the room. When his evidence
is
considered together with the evidence of the two brothers, it can be
readily deduced that the men in the room were the second
and fourth
appellants and Mr V J Zuma. Besides the evidence of the
brothers who identified the fourth appellant as one of
the suspects
who claimed to be the police officers on the scene, the cellular data
evidence depicted him as one of the individuals
who, through dubious
and unidentified characters, indirectly communicated with Mr Zuma.
Moreover, his co-accused and now
the first appellant, directly
communicated with the complainant. It is significant to keep in
mind that the first appellant
somehow corroborated the version of
complainants that Malatsi was the intermediary and that he met the
two brothers at Hamama Thepenyene
when they arrived there with
Malatsi.
[131]
The fact that the first appellant, who had many dealings with the
fourth appellant, was found on the scene seriously implicated
the
fourth appellant. It is probable that the fourth appellant was
also on the scene at the time the two brothers arrived.
That
fortifies their identification of the fourth appellant as one of the
suspects.
[132]
In my view the court a quo correctly dismissed the versions of the
first, second and fourth appellants. Their individual
versions
were not reasonably true. They were all very improbable.
Above all these, their versions were proved to be
beyond reasonable
doubt false. I would, therefore, dismiss each of their versions
in respect of some of the proven charges.
[133]
As regards charge 39, in other words contravention of
sec 68(1)
of
the
South African Police Service Act 68 of 1995
the first and fourth
appellants were correctly convicted. They impersonated police
officers well knowing that they were not.
The evidence showed
that they too claimed to be police officers. The appeal of the
second appellant however succeeds as regards
charge 39.
[134]
As regards charge 40, the evidence established that the complainant,
Mr S C Zuma was robbed of his belongings, among others,
his wallet
and R900 cash. The evidence further showed that the second
appellant was armed with a dangerous weapon, to wit,
a firearm
during, before and after the commission of the robbery.
[135]
As regards charge 41, the evidence proved that Mr S C Zuma was lured
to the scene of the crime. A cunning scheme was
hatched to get
him there. He drove there on his free accord. He was not
deprived or robbed of his freedom in any way
whatsoever. He was
never held as a captive either in the house on in the motor vehicle.
[136]
Since there was no evidence to sustain the kidnapping conviction of
any of the appellants, the convictions cannot be allowed
to stand.
I would, therefore, set them aside, in respect of charge 41.
[137]
As regards charge 42, the evidence proved that Mr V J Zuma was
detained at Hamama Thepenyane for two and a half hours or so.
He was held as a captive. However, as in the case of his
brother, he also freely went there. He was not unwillingly
forced to go there. The threat to detain him was calculated to
pressure his brother to meet their demand for R30 000.
There is no evidence that he tried to break loose and that his
attempt was foiled by some actual restrictive means. He was
not
physically handcuffed or leg-chained. It would seem that the
door of the room was not locked. Besides, there was
no evidence
that he was detained or held at gun-point. Besides, it appeared
that the door of the room was not locked.
When Mr Modise
arrived there, he made no effort to seek help or to simply yell.
The threat was to have him arrested and locked
up unless his brother
paid the money. It was doubtful as to whether kidnapping has
been proven in this instance given those
facts. It is always
better to err in favour of an individual than the State in such
situation.
[138]
As regards charge 43, there was sufficient evidence that the
respondent proved beyond reasonable doubt that the appellants
and
their cohorts committed the crime of extortion at Bethlehem on 21
st
February 2009. It stands to reason, therefore, that the appeal
of each of the three appellants cannot succeed. The
conviction
of the first, second and fourth appellants cannot, in the absence of
any material misdirection be interfered with.
The court a quo
was correct in delivering the verdict that each one of them was
guilty of extortion.
[139]
Now the outcome of the appeal as regards the merits may be
summarised. In my view the outcome of the appeal in respect
of
each of the appellants should be as stated below:
139.1 The first
appellant’s appeal:
a)
should succeed in respect of charges 41 and 42 but should fail in
respect of charges 39 and 43.
b)
as regards charge 40. It should partially succeed
and
partially fail.
139.2
The second appellant’s appeal:
a)
should succeed in respect of the following charges:
19,
20, 21, 22, 24, 26, 27, 28, 29,30, 32, 35, 36, 37, 38, 39, 41 and 42;
but
b)
should fail in respect of charges 23, 31, 33, 34 and 43
c)
however, it should partially succeed and partially fail
as
regards charge 40
139.3
The third appellant’s appeal:
a)
should succeed in respect of charges
7,
8, 9, 11, 26, 28, 29, 30, 32, 36, 37and 38; but
b)
should fail in respect of
10,
12, 27, 31, 33, 34 and 35
139.4
The fourth appellant’s appeal:
a)
should succeed in respect of charges
13,
14, 15, 17, 18, 19, 20, 21, 24, 25, 26, 28, 29, 30, 32, 35, 36, 37
and 38; but
b)
should fail in respect of charges
16,
20, 23, 27, 31, 33, 34, 39 and 43
c)
it should partially succeed and partially fail as
regards
charge 40.
This
concludes the first leg of the appeal.
[140]
Now I turn to the second leg of the appeal. The first appellant
was sentenced to an effective correctional term of 5
years’
imprisonment. The punishment meted out included, amongst other,
the following still relevant sentences:
140.1
charge 39, pretention
1 year imprisonment
140.2 charge 40,
robbery with
aggravating
circumstances
5 years’ imprisonment
140.3
charge 43, extortion
2 years’
imprisonment
I
hasten to point out that I was persuaded that the competent verdict
in respect of charge 40 should, on the facts, have been robbery
and
not robbery with aggravating circumstances.
[141]
The second appellant’s remaining sentences out of the original
25 are as follows:
141.1 Charge 23,
extortion – 2 years imprisonment;
141.2 Charge 24,
armed robbery – 5 years imprisonment;
141.3 Charge 31,
extortion – 1 year imprisonment;
141.4 Charge 33,
theft – 1 year imprisonment;
141.5 Charge 34,
extortion – 1 year imprisonment;
141.6 Charge 43,
extortion – 2 years imprisonment;
141.7
Charge 40, armed robbery – 5 years imprisonment.
The
effective sentences imposed on him was 15 years imprisonment.
[142]
The second appellant was originally convicted and sentenced to 5
years imprisonment in respect of armed robbery, charge 24.
Again he was convicted and similarly sentenced in respect of charge
40. Both convictions now relate to less severe offences
of
robbery since no circumstances were shown to have exacerbated common
law or non-statutory form of robbery. Such appellate
interference notwithstanding, I am not persuaded that sentence of 5
year imprisonment for robbery was disturbingly shocking regard
being
had to the circumstances of the criminal enterprises we are here
dealing with.
[143]
The second appellant was arrested on 17 March 2009. He was
never released on bail. He was sentenced on 3 February
2011.
He was, therefore, incarcerated for almost 2 years before his trial
was finalised. He was occupied as a police officer
at all times
material to the case.
[144]
There were 27 sentences originally imposed on the third appellant.
The effective sentence was 15 year imprisonment.
He was
aggrieved by the punishment. Of those original sentences 8
remain relevant to this appeal. The remaining 8 are:
144.1 Charge
10, extortion, 1 year imprisonment;
144.2 Charge
12, theft, 1 year imprisonment;
144.3 Charge
24, armed robbery, 5 years imprisonment;
144.4 Charge
25, theft, 2 years imprisonment;
144.5 Charge
27, statutory contravention, 1 year imprisonment;
144.6 Charge
31, extortion, 2 years imprisonment;
144.7 Charge
33, theft , 2 years imprisonment;
144.8
Charge 34, extortion, 2 years imprisonment.
[145]
The comments I made at par 142 in connection with armed robbery
vis-á-vis
robbery are also applicable to the third appellant in respect of
charge 24.
[146]
There were 31 sentences originally imposed on the fourth appellant.
In this instance the effective sentence was 18 years
imprisonment.
He was aggrieved. Of those 31 original sentences, 20 are on the
verge of falling away and 11 will remain
relevant to the appeal.
The 11 are:
146.01 Charge 16,
extortion, 2 years imprisonment;
146.02 Charge 20,
statutory contravention, 1 year imprisonment;
146.03 Charge 23,
extortion, 2 years’ imprisonment;
146.04 Charge 24,
armed robbery, 5 years imprisonment;
146.05 Charge 27,
contravention of
section 68(1)
, Act No 68/95, 1 year imprisonment;
146.06 Charge 31,
extortion, 2 years imprisonment;
146.07 Charge 33,
theft, 2 years imprisonment;
146.08 Charge 34,
extortion, 2 years imprisonment;
146.09 Charge 39,
statutory contravention, 1 year imprisonment;
146.10 Charge 40,
robbery with aggravating circumstances, 5 years imprisonment;
146.11
Charge 43, extortion, 2 years imprisonment.
[147]
As regards robbery with aggravating circumstances, charges 24 and 40,
the views I previously expressed at par 142 apply equally
well to the
fourth applicant.
[148]
As regards the profiles of the appellants as individual offenders the
trial magistrate commented:
“
Wat
u persoonlike omstandighede aanbetref het mnr Harrington dit volledig
op rekord geplaas ten opsigte van elkeen van u, met betrekking
tot u
familie verpligtinge, u huwelikstaat, en so meer. Die hof neem
ook kennis van die vorige veroordelings wat daar wel
bewys is teen
sommige van u. Ek sal dit ook in gedagte hou en vêrder
die feit dat u vir ‘n geruime tyd verhoorafwagtend
in hegtenis
verkeer het.”
[149]
As regards the crimes the trial magistrate commented:
“
Wat
die aard en die erns van hierdie misdrywe aanbetref, kan die hof
onomwonde sê dat dit in ‘n uiters ernstige lig
beskou
word. Die gemeenskapsbelang kom by hierdie tipe van optrede
soos wat u gepleeg het, sterk na vore. Al die klaers
wat hier
ter sprake was, is deur u geterroriseer, van hulle vryheid ontneem,
hulle is bedrieg, geïntimideer en afgepers.”
[150]
As regards the societal interest the trial magistrate commented:
“
Die
gewone wetsgehoorsame lede van die gemeenskap, is duidelik keelvol
vir misdaad. Die hof beklemtoon weer dat wanneer die
vonnisse
in hierdie saak opgelê word, die gemeenskapsbelang sterk op die
voorgrond geplaas word.”
[151]
In sentencing the appellants the court
a
quo
took into account the following
aggravating factors:
151.1 that the
crimes were thoroughly planned;
151.2 that
lawlessness in our country was spreading like a wave of an acid;
151.3 that the
society was deeply concerned about the alarming increase of serious
crimes;
151.4 that the
unwary victims were cunningly targeted and deceptively lured by means
of false representations;
151.5 that the
second appellant, third appellant and fourth appellant were deeply
involved in the entire criminal enterprise;
151.6
that the second appellant, a police officer, betrayed the trust
society had in him.
[152]
The following were strongly aggravating factors:
152.1 The appellants
clearly acted together as a criminal syndicate or gang;
152.2
The victims travelled long distances at
great expense to Bethlehem from various places such as Harrismith,
Reitz, Bloemfontein,
Vryheid and Pietermaritzburg or
Phuthaditjhaba to be exploited;
152.3
The majority of the victims suffered huge
financial losses. The Oosthuizens were so financially ruined
that their chicken
enterprise went under. The fourth appellant
so bombarded them with endless calls that they decided to relocate
because they
feared that their lives were in danger at Reitz.
[153]
It is clear and obvious that the aggravating factors eclipsed the
mitigating factors by far. In my view the individual
sentences
imposed on any of the appellants were very lenient regard being had
to the gravity of the main crimes of extortion and
the seriousness of
the related crimes. It is my firm view that the court
a
quo
committed no material misdirection
as regards the sentences relative to the charges in respect of which
the appeals failed.
[154]
Obviously the effective sentences imposed in respect of each of the 4
appellants require reconsideration in view of the fact
that their
appeals were substantially successful. I am inclined to reduce
the effective sentences as follows:
154.1
In respect of first appellant – from 5 to 4 years imprisonment;
154.2 In respect of
second appellant – from 15 to 11 years imprisonment;
In
respect of third appellant – from 15 to 11 years imprisonment;
154.3 In respect of
third appellant – from 15 to 11 years imprisonment.
154.4
In respect of the fourth appellant – from 18 to 14 years
imprisonment.
[155]
Accordingly, I make the following order in connection with the
first applicant as regards conviction:
155.1 The appeal
succeeds in respect of charges 41 and 42;
155.2 The conviction
is set aside in respect of each of those charges;
155.3 The appeal
partially succeeds as regards charge 40. The conviction for
robbery with aggravating circumstances is set
aside and substituted
with the following verdict: Guilty of robbery;
155.4
The appeal fails as regards charges 39, 40 and 43. The
conviction in respect of each charge is confirmed.
[156]
As regards sentence, I make the following order in connection with
first appellant:
156.1 The appeal
fails as against the sentences in respect of charges 39 and 43;
156.2 The related
sentences of 1 year imprisonment and 2 year imprisonment are
confirmed;
156.3 The appeal
succeeds as against the sentence imposed in respect of charge 40.
The sentence of 5 years’ imprisonment
is set aside and
substituted with one of 4 years imprisonment;
156.4 I direct that
the sentences must run concurrently;
156.5 The effective
sentence is, therefore, 4 years imprisonment;
156.6
The order made in terms of
section 103
, Act No 60 of 2000 stands.
[157]
Accordingly, I make the following order in connection with the
second appellant as regards the merits.
157.1 The appeal
succeeds in respect of charges 19, 20, 21, 22, 25, 26, 27, 28, 29,
30, 32, 35, 36, 37, 38, 39, 41 and 42;
157.2 The conviction
in respect of each of those charges is set aside;
157.3 The appeal
fails as against the sentences imposed in respect of charges 23, 24,
31, 33, 34, 40 and 43;
157.4 The related
sentences of 2 years, 5 years, 1 year, 1 year, 1 year, 2 years and 4
years imprisonment are confirmed;
157.5 The sentences
must consecutively run in such a way that the second appellant serves
an effective sentence of 11 years imprisonment;
157.6
The order made in terms of section 103, Act No 60 of 2000 stands.
[158]
I make the following order in connection with the second appellant
as regards the sentences:
158.1 The appeal
against the sentences imposed in respect of charges 23, 24, 31, 33,
34,40 and 43 fails;
158.2 The related
sentences of 2 years and 5 years, 1 year, 1 year, 1 year, 2 years and
5 years imprisonment are confirmed;
158.3 The sentences
must consecutively run in such a way that the second appellant serves
and effective sentence of 11 years imprisonment.
158.4
The order in terms of section 103 Act No 60 of 2000 stands.
[159]
Accordingly, I make the following order in connection with the
third appellant as regards the merits:
159.1 The appeal
succeeds in respect of charges, 7, 8, 9, 11, 19, 21, 22, 25, 26, 28,
29, 30, 32, 35, 36, 37 and 38;
159.2 The conviction
in respect of those charges is set aside;
159.3 The appeal
partially succeeds in respect of charge 24. The conviction for
robbery with aggravating circumstances is
set aside and substituted
with the verdict: Guilty of robbery.
159.4
The appeal fails in respect of charges 10, 12, 20, 23 24, 27, 31, 33,
and 34. The conviction in respect of each charge
is confirmed
subject to the qualification concerning charge 24.
[160]
I make the following further order in connection with the third
appellant as regards the sentence
:
160.1 The appeal
fails as against the sentences imposed in respect of charges 10, 12,
20, 23, 24, 27, 31, 33 and 34;
160.2 The
corresponding sentences of 1 year, 1 year, 2 years, 2 years 5 years,
2 years, 2 years, 2 years and 2 years imprisonment
are confirmed;
160.3 The sentences
must consecutively run in such a way that the third appellant serves
an effective sentence of 11 years imprisonment;
160.4
The order made in terms of section 103, Act No 60 of 2000 stands.
[161]
Accordingly, I make the following order in connection with the
fourth appellant as regards the merits:
161.1 The appeal
succeeds in respect of charges 13, 14, 15, 17, 18, 19, 21, 22, 25,
26, 28, 29, 30, 32, 35, 36, 37, 38, 41 and 42;
161.2 The conviction
in respect of each of those charges is set aside;
161.3 The appeal
partially succeeds and partially fails in respect of charges 24 and
40. The conviction for robbery with aggravating
circumstances
is set aside and substituted with the verdict: Guilty of robbery;
161.3
The appeal fails in respect of charges 16, 20, 23, 24, 27, 31, 33,
34, 39, 40 and 43. The conviction in respect of charges
24 and
40 each charge is confirmed subject to the said qualification.
[162]
I make the following further order in connection with the fourth
appellant as regards the sentences:
162.1 The appeal
fails as against the sentences imposed in respect of charges 16, 20,
23, 24, 27, 31, 33, 34, 39, 40 and 43;
162.2 The
corresponding sentences of 2 years, 1 year, 2 years, 5 years, 1 year,
2 years, 1 year, 2 years, 2 years, 2 years, 1 year,
5 years and 2
years are confirmed;
162.3 The sentences
must consecutively run in such a way that the fourth appellant serves
an effective sentence of 14 years’
imprisonment;
162.4
The order made by the court
a quo
in
terms of section 103, Act No 60 of 2000 stands.
[163]
The sentences imposed on the appellants must be deemed to have been
imposed on 3 November 2011.
_________________
M.
H. RAMPAI, AJP
I
concur.
_______________
E.
K. TSATSI, AJ
On
behalf of the first, third
and
fourth appellants: Adv P. W. Nel
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the second
respondent:
Adv J. Nel
Instructed
by:
Kramer
Weihman & Joubert
BLOEMFONTEIN
[1]
In
the light of this finding, the separate conviction in respect of
theft, charge 11, cannot be
allowed
to stand. I am inclined to set it aside.
[2]
Similarly
the fourth appellant also knew the third appellant as well as
accused number six. All those facts and more where
telling
against the third and fourth appellants. They fortified the
cellular data evidence given by Mr Bouwer. They
suggested that
there was something suspicious about the apparent lack of cellular
communication between them. As Inspector
Bouwer testified,
nowadays criminals are aware that cellular contacts among members of
the same criminal syndicate can be regarded
as incriminating
evidence, hence, they do all they can not to communicate with each
other by means of cellular phones.
[3]
The
fourth appellant, like his co-appellants, also denied the
allegations that he was involved.