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[2015] ZAFSHC 97
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Mokoena v S (A210/2014) [2015] ZAFSHC 97 (7 May 2015)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No. : A210/2014
In
the appeal between:-
KRISJAN
MOKOENA
….....................................................................................................
Appellant
and
THE
STATE
…...................................................................................................................
Respondent
CORAM:
RAMPAI, J et NAIDOO, J
JUDGMENT
BY:
RAMPAI, J
HEARD
ON:
9 FEBRUARY 2015
DELIVERED
ON:
7 MAY 2015
[1]
These were appeal proceedings. The appellant was tried with
four others in the regional court. He was accused number
2.
All of them were convicted in connection with four charges. The
effective sentence imposed on each of them was a
custodial term of 25
years imprisonment. The appellant was aggrieved by all of his
convictions and the sentences. The
respondent supported the
conviction and the sentence. His co-accused were not before us
in these appeal proceedings.
[2]
An incident occurred on Reitzburg farm in the district of Vredefort
on Wednesday 21 February 2007. At or about 19:30.
The
farm was under attack. The attack was carried out by four men
at least.
[3]
Two days later, on 23 February 2007 to be precise, the appellant was
arrested in connection with the aforesaid incident.
More
arrests followed. The four suspects were accused of the
following crimes:
3.1
Robbery with aggravating circumstances;
3.2
Attempted murder;
3.3
Possession of firearms;
3.4
Possession of ammunition.
[4]
The appellant subsequently appeared in the Kroonstad regional court
where he was required to plead to the charges as fully particularised
in the charge sheet. He was legally represented by Mr Phale, an
attorney. He pleaded not guilty to all the charges
on 26 March
2008. He denied any involvement. He explained that he was
not on the scene but at his place of residence
at Sebokeng in Gauteng
at all times material to the commission of the offences.
[5]
Notwithstanding his plea, the appellant was convicted in respect of
each of the 4 charges on 13 March 2009. On the same
day he was
sentenced as follows:
5.1
In respect of robbery with aggravating circumstances – 20 years
imprisonment;
5.2
In respect of attempted murder – 5 years imprisonment;
5.3
In respect of unlawful possession of a semi-automatic firearm –
15 years imprisonment;
5.4
In respect of unlawful possession of ammunition – 6 months
imprisonment.
The
court directed that the sentences must run concurrently in such a way
that the appellant serves an effective sentence of 25
years
imprisonment.
[6]
On 4 June 2009 the appellant applied for leave to appeal against the
conviction and sentence. However, his application
was
unsuccessful. He subsequently filed a petition in this court.
He ultimately came on appeal with the leave of this
court granted on
18 August 2014 by Naidoo, J
et
Wright AJ.
[7]
As regards conviction the grounds of appeal on which the appellant
relied may be summarised as follows:
7.1
The trial court erred by rejecting the appellant’s good version
as not being possibly true;
7.2
The trial court erred by accepting the poor version of the
prosecution witnesses as credible and reliable to secure his
conviction;
7.3
The trial court erred in finding that the version of the appellant
was improbable and false;
7.4
The trial court erred in finding that the version of the prosecution
was probable and true;
7.5
The trial court erred in attaching insufficient weight to the
contradictions of the testimonies of the prosecution witnesses;
7.6
The trial court erred by relying on questionable assumptions instead
of real facts to justify its findings.
[8]
The question on appeal was whether there was sufficient evidence
which established beyond reasonable doubt that the appellant
was
correctly identified as a member of the group involved in the armed
attack on the farm Reitzburg, district Vredefort on Wednesday
21
February 2007.
[9]
The version of the prosecution was narrated by five witnesses namely:
Mr Johannes Jurgens Roestoff, the first complainant; Ms
Susanna
Roestoff, the second complainant; Superintendent Morake Abel
Kodisane, a police officer; Constable Gert Johan Nel, the
investigating officer and Mr Gerhard Moolman, the fingerprint expert.
[10]
Mr Roestoff testified that he owned and lived on the farm Reitzburg
district Vredefort. On the same farm he also traded
as a
general dealer. The shop was attached to the front of his
house. On Wednesday 21 February 2007 he and his wife,
Ms
Susanna Roestoff, travelled to Potchefstroom where they purchased
stock for the shop. By approximately 15:30 they were
back on
the farm. He opened the shop and attended to a few of his
customers. Later in the evening he closed the shop.
[11]
He and his wife were having supper when he heard a knock at the
door. He stood up from the table, went to the shop and
opened
the door. At the door there was one customer who wanted to buy,
amongst others, ginger beer and cigarettes.
He walked to the
shelve to pick up the goods and turn back to the customer. At
that moment four men rushed into the shop,
they charged at him,
punched him, kicked him and demanded money. He screamed and
alerted his wife that there was trouble
in the house. His wife
tried to escape. One of the robbers pursued her and shot her in
the chest. He unlocked the safe.
The robbers took R5 000,00.
[12]
They then demanded firearms. He took them to his bedroom,
unlocked the firearm safe. They took three of his firearms
from
the safe. In addition they also took his wife’s firearm.
By then his wife was lying on the floor, her hands
were tied up
behind her back. He was similarly tied up. Thereafter the
robbers vanished from the scene.
The victims later
managed to free themselves. On the premises they recovered two
of the four stolen firearms. His wife’s
jewellery box was
stolen together with his shotgun and a 6.35mm pistol. Among
others, he implicated the appellant as one
of the robbers. He
pointed him out in court. The evidence of Ms Roestoff was
substantially the same as that of her
husband.
[13]
The evidence of Supt M A Kodisane was that he met accused number 1,
Mr Klaas Mnisi in custody. He admitted that he was
the driver
of the suspect motor vehicle. On the strength of the
information he obtained from accused number 1, Constable
Kodisane
proceeded to the residence of the appellant. Members of the
police investigation team were taken by accused number
1 to a house
in Sebokeng where they found the appellant. When the appellant
noticed the police he tried to flee from the
house through the
window. The police prevented him from escaping and pulled him
back into the house. The police searched
the house and found a
9mm pistol and a 6.35mm pistol. The latter pistol was found in
a box on top of a wardrobe. However,
he did not see where the
9mm pistol was found in the house.
[14]
From the appellant’s home the police investigation team
proceeded to the house of accused number 5 on the strength of
the
information obtained from the appellant. In the house of
accused number 5 accused number 3 was also found. Later on the
constable questioned the appellant about a shotgun. Thereupon
the appellant took him back to his house where he showed him
a
shotgun in the dog kennel.
[15]
Constable GJJ Nel also testified. He testifies that he was a
member of the police investigation team and that the police
proceeded
to the house of the appellant on the strength of the information they
obtained from accused number 1. He corroborated
the evidence of
Superintendent Kodisane that the police investigation team found two
pistols in the appellant’s house.
He described the
pistols as 9mm pistols and a 6.35mm pistol. In addition to the
pistols, the police also found a shotgun
in the appellant’s
possession. From there the appellant took the police
investigation team to accused number 5.
Accused number 3 and 5
were thus arrested together in the same house on the strength of the
information obtained from the appellant.
[17]
From there the police proceeded to accused number 4. Again they
did so on the strength of the information obtained from
the
appellant. The house of accused number 4 was searched and
accused number 4 was found hiding underneath his bed.
He too
was arrested.
[18]
After the arrests, he showed the 6.35mm pistol and the shotgun to the
Roestoff couple who identified them as their stolen firearms.
[19]
Mr Gerhard Moolman testified that he was a fingerprint expert and
that he lifted a fingerprint from the car of accused number
1’s
left rear window and that he later positively identified such a
fingerprint as that of the appellant. The prosecution’s
case was then closed.
[20]
Accused number 1, Mr Klaas Mnisi, also testified in his defence.
He testified that he was at Vredefort on the day of
the incident.
He was hired to provide transport for four unknown men. He did
so at the request of the appellant.
The appellant was not one
of the four passengers. He dropped the men off on a dirt road
near a certain farmhouse where they
were supposed to sheer sheep the
next day. He travelled back alone. On his way back he
came across two white men who
shot at his car. He was later
arrested by the police for trespassing. The police assaulted
him and forced him to tell
them about the earlier occupants of his
car. As a result of the assault he pointed out the appellant
because he assumed the
appellant knew who the four were.
[21]
Although he found it strange that those four men wanted to be
transported at that time of the night, he did not ask them any
questions. He denied the allegation that he ever told the
police that he was involved in the incident. He admitted
that
he took the police to Sebokeng where he pointed out the house of the
appellant but alleged that he pointed the appellant out
as the person
who had approached him and requested him to provide transport.
He maintained that he never told Superintendent
Kodisane that the
appellant was involved in the incident. He alleged that at the
time of the incident (19:30) he was not
yet at Vredefort. He
claimed that he only arrived at Vredefort late in the night.
[22]
He also alleged that accused number 3, 4 and 5 were not among the
four people whom he had transported. Among the people
he
actually transported was a certain man by the name of David. He
had no idea as to how the other accused were arrested
because he only
pointed out the appellant who was the only person that he knew.
He guessed that accused number 3, 4 and 5
were arrested on the
strength of the information the police investigation team obtained
from the appellant but certainly not from
him. After the arrest
of the appellant the police investigation team was taken to a hostel
in Sebokeng but he did not know
what happened there.
[23]
Accused number 2, the appellant, also testified. He admitted
that he met four people from Lesotho; that the four were
at his place
in the evening; that night accused number 1 arrived at his place and
picked up the four gentlemen and that he remained
behind.
[24]
In the early hours of the morning of the 23 February 2007 the police
arrived at his residence. They wanted to know who
and where the
four people were. That was all the police wanted to know.
They never entered his house let alone search
it. There were no
firearms whatsoever found in his house or on his premises in his
presence.
[25]
From his home he took the police to a hostel where those four people
lived but they were nowhere to be found. The police
then
assaulted him and demanded that he gave them names of those four
people. As a result of the assault he took them to
accused
number 3, 4 and 5. He never made mention of any shotgun to
Superintendent Kodisane and never took the police officer
back to his
place to fetch such a firearm. He offered to take the police to
Lesotho to point out two of the people involved
but the police were
not interested. He denied the allegation that he was involved
in the incident and maintained that he
could not understand why the
police falsely implicated him.
[26]
The appellant called his wife, Ms Karabo Josephene Tshabalala, to
testify on his behalf. She testified that the appellant
was her
husband and that she was with him on the night in question and that
they were still together when he was arrested.
The appellant
told the police that he would take the police to the hostel for the
men they were looking for. The police then
left the house
together with the appellant. The police did not search the
house. There were never any weapons found
in her house.
The appellant never returned together with the police to the house
after they left and no shotgun was found
in a dog kennel. She
added that she and her husband did not even have a dog. When
she met her husband at the Vredefort
Police Station after his arrest
she could see that he had been assaulted. His face was swollen.
[27]
Accused number 3 testified that he knew the appellant. They
often shared the same transport to the market. He knew
accused
number 5. Accused number 5 was his uncle. He admitted
that he was arrested at accused number 5’s place
where he was
sleeping over. The police arrived there accompanied by the
appellant. He and his uncle were arrested together
in the same
house. He denied that he was ever involved in the incident.
He claimed that he was arrested because he
happened to stay with his
uncle on that fateful night.
[28]
Accused number 4 also testified. He testified that he was
arrested in the early hours of the morning by the police.
They
found him home. The police were accompanied by the appellant.
He denied the allegation that he was involved in
the incident.
[29]
Accused number 5 also testified. He admitted that he was
arrested in the early hours of the morning together with accused
number 3. The two of them were sleeping at his home. When
the police arrived, they found him lying on his bed.
He denied
the allegation that the police found him hiding underneath his bed.
Although he met the appellant, he denied that
he was involved in the
incident.
[30]
The court
a quo
made certain credibility findings in favour of the two police
witnesses Superintendent Kodisane and Constable Nel. The court
accepted their evidence as credible that the weapons were found in
the house of the appellant and that the shotgun was found in
a dog
kennel on the premises of the appellant. Although the appellant
denied that any weapons were found on his premises
the court
a
quo
dismissed his denials as false.
[31]
The probabilities suggested that the finding of the court
a
quo
were correct. There were five
suspects in the matter. However the police singled out only the
appellant as a person
in whose possession they found all three
weapons. If they wanted to falsely implicate people, they could
easily have said
they found the firearms in the possession of three
different suspects. The finding of the trial court that the
appellant
was involved is one which I, on appeal, cannot hold to be
wrong. In coming to this conclusion I am fortified by the
stance
of counsel for the appellant. Notwithstanding his
instructions to the contrary, counsel could not make any contrary
submission
as regards the validity of the findings made by the trial
court. The recovery of the shotgun and the 6.35mm pistol in the
appellant’s possession hardly two days after the farm attack
was highly incriminating real evidence against the appellant.
[32]
The appellant failed to give an explanation which was reasonably
innocent for his possession of the goods stolen from the complainants
shortly before his arrest. In the instant matter there were
objective facts from which the guilt of the appellant could be
inferred –
S v Cooper
1996 (2) SA 875
(T). In my view there was sufficient physical
evidence in the form of a shotgun and a pistol which positively
connected the
appellant to the crime on the farm and thus provided a
measure of assurance against the danger of subjective identification:
“
The
greatest test of guilt must lie in such evidence, rather than in an
identification of its own, …”
S
v Charzen and Another
2006 (2) SACR
143
(SCA) on 374 – 375.
[33]
As I have indicated there was no submission on behalf of the
appellant that there was any material misdirection or irregularity
to
justify any appellate interference. In the absence of such
material and thus appealable misdirection we are not at liberty
to
interfere. I would, therefor, dismiss the appeal and uphold the
conviction of the appellant in respect of all the charges.
[34]
In sentencing the appellant the court
a
quo
took into account the following as
mitigating factors; that the appellant was 46 years of age; that he
had gone as far as grade
10 at school; that he was a married man;
that he had two dependent minor children; that he earned his
livelihood as a fruit vendor;
that his wife was doing casual jobs;
and that he spent a period of two years in custody before he was
sentenced.
[35]
In sentencing the appellant the court
a
quo
also took into account the
following as aggravating factors: that the appellant was not a first
offender but had relevant previous
convictions; that the crime was
well planned; that the appellant showed no remorse; that criminal
attacks on farming communities
were serious crimes; that the interest
of the community required that farming communities be protected from
criminal acts such
as those committed by the appellant.
[36]
The appellant contended that the court
a quo
found that the
applicable prescribed minimum sentence in respect of the first charge
of robbery with aggravating circumstances
was 20 years imprisonment.
Counsel for the appellant submitted, therefore, that the court
a
quo
erred in making such a finding. In my view the
submission was incorrect. Indeed the appellant’s previous
convictions
did not include any conviction for robbery with
aggravating circumstances. Since there was no such previous
conviction, the
appellant was not, and the trial magistrate did not
treat him as a second offender as regards the conviction for robbery
with aggravating
circumstances. The appellant being a first
offender, the prescribed minimum sentence applicable to him was 15
and not 20
years imprisonment. The trial court was fully aware
and mindful of that.
[37]
The court
a quo
found that there were no substantial and compelling circumstances
present to justify deviation from the prescribed minimum sentence
and
ordered that portions of the sentences should run concurrently.
Those findings and the order were sound considering that
those crimes
were part and parcel of one attack on the complainants and were
closely related to each other in terms of place and
time.
[38]
In the circumstances I am not inclined to accept the submission that
the court
a quo
erred in sentencing the appellant to a sentence of 20 years
imprisonment in respect of the first charge. The court
a
quo
merely remarked that the prescribed
minimum sentence, without specifying it, was applicable to the charge
of robbery with aggravating
circumstances. The trial magistrate
sentenced the appellant’s co-accused number 1, Mr Mnisi to 15
years imprisonment.
However, in the case of the appellant, he
added 5 more years of imprisonment to prescribed minimum sentence of
15 years imprisonment.
The trial magistrate reasoned that such
differentiation between the two offenders was justified because the
appellant had, on the
facts, played a more prominent role than his
co-accused and because he had two previous convictions of robbery.
[39]
In my view the trial magistrate could not be faulted. The
contention that the appellant was erroneously treated and sentenced
as a second offender as regards the first charge was incorrect and
fallacious. I am, therefore, satisfied that all the sentences
imposed on the appellant were appropriate in the circumstances.
I pause to remark that things could have been worse for the
appellant. Although two semi-automatic firearms were found in
his possession, he was only sentenced for one custodial term
of 15
years imprisonment instead of two such terms. There being no
material misdirection by the court
a
quo
, we are not at liberty to interfere
with the sentence of 20 years imprisonment or any other individual
sentence imposed on the
appellant. I would, therefore, also
dismiss the appeal as regards sentence as well.
[40]
Ms Giorgi conceded that the effective sentence of 25 years
imprisonment was a stiff sentence. However, she submitted
that
it could not be said to be disturbingly severe and thus
inappropriate. I am of the view that there was substance in
counsel’s submission.
[41]
Accordingly I make the following order:
41.1
The appeal fails in
toto
.
42.2
The conviction(s) and sentence(s) are confirmed.
_______________
M.
H. RAMPAI, J
I
concur.
_____________
S.
NAIDOO, J
On
behalf of appellant: Adv. P. L. van der Merwe
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. S. Giorgi
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN