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2015
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[2015] ZAFSHC 109
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Tukula v S (A222/2014) [2015] ZAFSHC 109 (18 June 2015)
IN THE HIGH COURT,
SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A222/2014
In
the appeal between:
MPHO
TUKULA
Appellant
and
DIE
STAAT
Respondent
CORAM:
JORDAAN,
J
et
MBHELE, AJ
JUDGEMENT:
MBHELE,
AJ
HEARD
ON:
4 MAY
2015
DELIVERED
ON:
18
JUNE 2015
[1]
On 03 October 2011 the Appellant, who was legally represented,
appeared before the Regional Court sitting at Bloemfontein, and
was
convicted of theft, robbery with aggravating circumstances and
attempted murder. For the purpose of sentence, all charges were
taken
as one and the appellant was sentenced to 15 years imprisonment.
[2]
He feels aggrieved by both the convictions and sentence and now
approaches this court on appeal against the same after leave
to
appeal was granted by the trial court.
[3]
On convicting the Appellant, the trial court rejected the Appellant’s
version as not reasonably and possibly true. The
court below, further
accepted that the appellant was correctly identified as one of the
robbers on the date in question. The trial
court, furthermore,
accepted the medical evidence that confirmed that Gafur was stabbed
several times and sustained injuries. Furthermore,
the trial Court
accepted that the first complainant`s cell phone was taken and the
2
nd
complainant was robbed and injured.
[4]
In the notice of appeal and heads of argument as well as submissions
before us, the Appellant assails convictions on the grounds
that the
trial court erred in finding that the witness`s identification of the
Appellant, was reliable.
[5]
Ms. Kruger, appearing for the Appellant, further, submits that the
evidence tendered by the state was marred with a lot of
contradictions which called for total rejection thereof, by the trial
court.
[6]
The State supports both the convictions and the sentence according to
Mr Mohlala, who contends that the Appellant was correctly
identified
by the state witnesses as one of the assailants on the date in
question. He further argued that the evidence of identification
tendered by the state was reliable, and that the witness corroborated
each other on the identity of the attacker.
[7]
The factual dispute between the parties, which fell to be determined
by the trial court, was whether or not the Appellant was
one of the
robbers. The State’s version, as presented by the state
witnesses was that Kgaritse Nkolonyane (First Complainant),
Abul
Gafur (Second Complainant) and Anoon Ali were together in a bakkie
driven by the 1
st
complainant. Just when they were about to drive out of the second
complainant`s shop they were approached by the Appellant and
two
other unknown males. They came towards them and one of them had a
firearm in his hand. The Appellant was armed with a knife.
They
opened the passenger door of the bakkie and grabbed the second
complainant by his neck.
[8]
Ali and the first Complainant ran out. The appellant, after taking
out the second complainant out of the vehicle ran to the
other side
of the vehicle and sat on the driver`s seat. It is at that time that
the first Complainant ran back to the car and removed
the car keys.
The Appellant further removed the first complainant’s cell
phone from the vehicle. The appellant and the other
two male persons,
in his company further took money from the second complainant.
[9]
The second complainant knows appellant as a regular customer at his
shop. The robbers took about R12 000.00 from the second
complainant
as well as his cell phone. The accused stays in the vicinity of his
shop and when he approached them on that morning
he was face to face
with him. Gafur was not certain of how many people attacked them on
the said date.
[10]
The accused simply denies that he was involved in the robbery. Ms
Kruger contended that the state failed to prove the Appellant`s
identity beyond reasonable doubt. She further contended that there
were material contradictions in the evidence tendered by the
state
which called for total rejection thereof. The Appellant
admitted that he was a regular customer at the second complainant’s
shop and that at all times he went to the shop, he was assisted
by the second complainant. He further corroborated
the second
complainant when he said that the Appellant was at the shop earlier
in the day, before the robbery took place. It is
not in dispute that
the Appellant is well known to the second complainant.
[11]
It is trite that factual findings of the trial court are presumed to
be correct unless they are shown to be wrong, with reference
to
recorded evidence. The acceptance by trial Court of oral evidence and
conclusion thereon are presumed to be correct, absent
misdirections.
I have no doubt that the trial court correctly found that the
Appellant was indeed one of the robbers.
[12]
The second complainant’s prior knowledge of the Appellant made
it easy for him to identify him. Our courts have repeatedly
stated
that the evidence of identification must be approached with caution.
Such witness must not only be honest but must be reliable.
The
reliability of the witness`s observation depends on various factors
such as lighting visibility and eyesight; (see
S
v Mthetwa
1972
(3) SA 766
(A) 768 A-C; and
S
v Sithole and others
1999
(1) SASV 585 (W) at 591.
[12]
In the current case, the witnesses had ample opportunity to observe
the Appellant. The Appellant was well known to the second
complainant.
[13]
The appellant feels that there has been unlawful splitting of charges
or duplication of convictions. It was argued on behalf
of the
Appellant that the several stab wounds inflicted on the second
complainant were enough to force him into submission. It
was further
argued that state did not prove that the appellant had the intention
to murder the second complainant.
[14]
It was argued on behalf of the Respondent that the number of stab
wounds inflicted on the delicate body parts of the complainant
are an
indication that the Appellant had the intention to kill the
complainant. It was further argued that the appellant saw a
possibility of the second complainant being fatally injured and
reconciled himself thereto.
[15]
It is my view that the force used by the Appellant was excessive for
the purposes of bringing appellant under submission. The
appellant
and his companions were armed with a knife and a gun which by mere
producing of such objects would have been sufficient
to bring the
complainant under submission. The force used was excessive. In
the circumstances I am of the view that the trial
court was correct
in convicting the Appellant of both robbery and attempted murder.
[16]
Sentencing is pre- eminently in the discretion of the trial court.
The sentences can only be interfered with if the sentencing
court
exercised its discretion unreasonably or in circumstances where
sentences are adversely disproportionate. (See
S
v Pieters
1987
(3) SA 717
at 727).
[17]
The crime of robbery with aggravating circumstances justifies a
sentence of 15 years imprisonment. The Appellant, in addition
to
robbery with aggravating circumstances, was found guilty of attempted
murder and theft. In the instant matter the victim suffered
several
injuries and had to be detained in hospital for 3 days.
[18]
When weighing up the mitigating factors against the aggravating
Circumstances, this matter as well as the interests of the
community,
I am not persuaded that the sentence imposed is unjust. I am of the
view that the trial court showed mercy on the Appellant
as it could
have justifiably imposed a more heavier sentence than the one
imposed. The fact that the appellant spent more than
a year in
custody awaiting trial, does not automatically entitle him to a
lesser sentence. There is no justifiable cause for us
to interfere
with the sentence.
ORDER
[19]
I make the following order:
The
appeal fails on all three counts and the convictions and sentence are
confirmed.
_______________
A.
MBHELE,
AJ
I
concur.
_________________
A.
F.
JORDAAN, J
On
behalf of the appellant:
Me Kruger
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv.
Mohlala
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN