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2015
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[2015] ZAFSHC 192
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Radebe v S (A156/2015) [2015] ZAFSHC 192 (29 October 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal Number:
A156/2015
DATE: 29 OCTOBER 2015
In the matter between:
MALEFETSANE
RADEBE
.....................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM: NAIDOO, J et BOKWA, AJ
JUDGMENT BY: BOKWA, AJ
HEARD ON: 12 OCTOBER 2015
DELIVERED ON: 29 OCTOBER 2015
[1] The Appellant was convicted on the
29th of April 2015 in the Regional Court at Welkom on a charge of
robbery and sentenced to
7 years’ imprisonment. The Appellant
lodged an appeal against both the conviction and sentence. The
matter is before us
with the leave of the trial court, with Mr. Kambi
appearing for the Appellant and Mr. Hoffman for the state.
[2] The main focus of the appeal is the
acceptance by the trial court of the complainant’s evidence as
well as that of the
second state witness namely Mxolise Kuluman both
of whom identified the Appellant as one of the assailants who robbed
the complainant
on the morning of 22nd May 2014 at or near Thabong in
the district of Welkom. It is the contention of the Appellant that
the court
aquo erred by making a finding that there was proof beyond
a reasonable doubt that the Appellant was the person who robbed the
complainant. In support of this contention the Appellant submitted
that the trial court misdirected itself by not accepting that
the
complainant was not in a good position to identify the robbers
because he was scared and would not have had sufficient time
to
observe them. The fact that the complainant failed to give a clear
description of his assailants at the police station is itself
indicative of his uncertainty about the identity of the robbers and
which the trial court ought not to have accepted as evidence
beyond
reasonable doubt. It is contended by the Appellant that the trial
court ought to have approached the evidence of the complainant
with
caution.
[3] The Appellant contends furthermore
that the trial court erred by concluding that the conduct of the
culprits constituted robbery.
The trial court came to a finding that
the cellphone of the complainant fell whilst he was retreating. It
was submitted that
there was no evidence suggesting that the culprits
demanded anything from the complainant before his cellphone fell on
the ground.
Consequently that there was no evidence suggesting that
force or intimidation was directly related to the taking of the
cellphone
of the complainant and that the trial court therefore erred
by concluding that the offence of robbery was committed by the
Appellant.
[4] It was submitted by the Appellant
that the sentence of 7 years imprisonment is shockingly inappropriate
and harsh. The trial
court ought to have taken the value of the
cellphone into account which according to the complainant amounted to
R650.00. By not
taking into account the personal circumstances of
the accused as well as his stay in custody for 11 (ELEVEN) months
before the
finalization of the trial, it was submitted that the trial
court misdirected itself. Conversely, the state agrees with the
conviction
and sentence imposed by the trial court.
[5] In analyzing the evidence in this
matter, I am guided by the dictum of Ponnan JA in S v Shilakwe
2012
(1) SACR 16
SCA at p. 20 para 11(d).
“Whilst in the ultimate analysis
the evidence must be looked at holistically in order to determine
whether the guilt of the
appellant was proved beyond reasonable
doubt, the breaking down of the evidence into its component parts is
obviously a useful
aid to a proper evaluation and understanding of
it.”
[6] The evidence adduced by the State
linking the Appellant to the offences consisted of the eye witness
testimony of the complainant,
Lucas Monokoane, and Mxolisi Kuluman
the second state witness. The complainant testified that he was on
his way to work on the
morning of the 22nd of May 2014 and was
travelling on foot at around 06h35. He travelled the road that he
usually used which passed
the location called Tellerine, the hall and
hostels. He entered a passage that normally allows him to pass to
the area of his
work place. He met 2 male persons. The one person
took out half of a pair of sheep shears while the other one took out
a “Rambo
knife”. The assailants approached him from the
front. When he saw their weapons, he retreated backwards. As he
retreated
his hands were in his jacket pockets. Inside the jacket
pocket was a cellphone. As he took his hands out of his jacket
pockets,
his phone fell on the ground. The Appellant’s
companion immediately took the phone from the ground. At the same
time the
Appellant quickly advanced towards the complainant providing
his co assailant a good advantage to take the phone that fell on the
ground. When the complainant demanded his cellphone, both the
Appellant and his companion searched his pockets asking for his
bank
card. They did not find anything in his pockets. The complainant
was scared for his life and felt “emotionally drained”.
The phone which was robbed is a Nokia X21 which he bought at Foschini
for R650.00 and at the time of the incident it was not insured.
He
never recovered it. He subsequently went to the police station to
report the incident and where he first asked permission
if he could
go to his work to inform them about his whereabouts after which he
went back to the police station to give a statement.
He knew the
Appellant by sight and not by his name. He usually passes the
Appellant’s parental home where he often sees
him.
[7] The second state witness, Mr.
Mxolisi Kuluman, corroborated the complainant’s evidence in the
material respect of the
identity of the robbers. He resides at
hostel nr. 34D in Thabong which is not far from the house of the
Appellant who resides
at 28D hostel also in Thabong. He had known
the Appellant throughout his life. On the morning of 22nd of May
2014 he was on his
way to work using the same path travelled by the
complainant which passes the back of his parental house. It was just
before seven
o’clock in the morning when he noticed two people
grabbing the complainant in front of him. He positively identified
the
Appellant as one of the assailants. The Appellant had a knife in
his possession and while he noticed that his co-assailant also
had an
item that looked like a knife. The part of the robbery he saw was
when the assailants searched the complainant in his pockets.
When
the assailants noticed him they told the complainant to run away as
they also ran away. The complainant immediately asked
him if they
could chase his assailants but instead he advised the complainant to
rather report the matter at the police station.
The complainant also
told him that he had just been robbed of his cellphone by the two
assailants. He had no ulterior motive
to falsely implicate the
Appellant.
[8] The Appellant denied robbing the
complainant and submitted that at the time of the alleged robbery he
was at his parental home
doing gardening. Whilst he did not deny the
complainant was robbed on the day in question he only placed identity
in dispute.
[9] The undisputed evidence before the
trial court was that the complainant was robbed by two assailants
whilst on his way to work.
The identity of these assailants was in
dispute. The State relied on the evidence of the only two state
witnesses, whose evidence
the trial court accepted as credible and
impressive. Even more, the trial court accepted the evidence as
corroborative in all
material respects especially on the issue of
identity of the Appellant. In evaluating the evidence the trial
court accepted that
the incident of the falling of the cellphone from
the complainant and it being picked up immediately, were so
intertwined that
it was almost impossible to separate the incident
into two separate incidents of assault and theft but rather as the
complete offence
of robbery. The court a quo accepted that the state
had proven the guilt of the Appellant on the evidence beyond a
reasonable
doubt.
[10] Similarly in the matter of S v
Chabalala
2003 (1) SACR 134
SCA, Heher AJA (as he then was) stated as
follows at paragraph 15 [1] of the judgment:
“The trial court’s approach
to the case was, however, holistic and in this it was undoubtedly
right: S v Aswegen
2001 (2) SACR 97
(SCA). The correct approach is
to weigh up all the elements which point towards the guilt of the
accused against all those which
are indicative of his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities
on both sides and, having done so,
to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable
doubt about the accused’s
guilt. The result may prove that one scrap of evidence or one defect
in the case for either party
(such as the failure to call a material
witness concerning an identity parade) was decisive but that can only
be an ex post facto
determination and a trial court (and counsel)
should avoid the temptation to latch on to one (apparently) obvious
aspect without
assessing it in the context of the full picture
presented in evidence. Once that approach is applied to the evidence
in the present
matter the solution becomes clear.”
[11] In evaluating the evidence it is
the view of this court that the trial court took a correct approach
in analysing the evidence
before it. The identity of the attacker of
the complainant was properly dealt with by the trial court. The
Appellant takes a
view that the trial court erred by concluding that
the conduct of the culprits constituted robbery. It was contended
that because
the cellphone fell whilst the complainant was retreating
from his attackers, the trial court erred and ought to have made a
finding
that there was no evidence suggesting that the culprits
demanded anything from the complainant. It was submitted therefore
that
the conviction is not supported by the evidence and furthermore
that there was no connection between the taking of the cellphone
and
the violence or intimidation. Van Heerden JA in S v Yolelo 1981 (1)
A at 1004 para [H] stated as follows:
“Robbery can also be committed if
violence follows on the completion of the theft in a juridical sense.
In each case an investigation
will have to be made into whether, in
the light of all the circumstances, and especially the time and place
of the (accused’s)
acts, there is such a close link between the
theft and the commission of violence that they can be regarded as
connecting components
of substantially one action. This is also
applicable to a threat of violence in so far as it can be an element
of robbery.”
[12] In the present matter, the
appellant and his companion advanced towards the complainant armed
with dangerous weapons. The
threat of violence was real and imminent
causing him to retreat and in so doing to cause the cellular
telephone to fall. In our
view there was sufficient threat of
violence to satisfy that element of robbery. The trial court dealt
sufficiently with the contradictions
between the complainant’s
statement and his testimony in court and came to the conclusion that
there was no basis or conspiracy
by both witnesses of the state to
falsely implicate the Appellant and thus correctly rejected the
version of the Appellant as improbable.
The trial court found that
the state had proven its case beyond reasonable doubt and rejected
the version of the Appellant. At
the hearing of the Appeal Mr Kambi
conceded before us that the conviction was properly dealt with by the
trial court.
[13] The Appellants record of previous
convictions was analysed by the trial court which also took the view
that they were a relevant
consideration in this case. The trial
court took guidance from the dictum in State v Swapo 1984 (1) PHH 56
SWA, where it was stated
that previous convictions are not per se
aggravating unless it is a bad record. It was the trial court’s
finding t``hat
weight should be attached to previous convictions of
the same or similar type of offence.
The trial court had to consider the
time lapse between the previous convictions of the Appellant and the
present offence. In its
analysis the trial court made a finding that
the Appellant had not spent more than a year outside incarceration
since 2004. The
Appellant had committed offences every 2 years, in
2004, 2006 and 2008 where he was sentenced to six years imprisonment.
The court
further made a finding that the Appellant had committed an
offence even before the expiration of six years.
Accordingly the trial court concluded
that the previous attempts to reform the Appellant where he had
received correctional supervision
had failed. In this case the
Appellant had been found guilty of robbery with the use of a knife
whilst his accomplice had half
a scissors.
[14] The trial court balanced the triad
of factors for the purposes of sentence including the Appellant’s
personal circumstances,
correctly. In our view the court came to the
correct conclusion due to the Appellant’s record of previous
convictions, which
were similar in pattern during the commission of
the current offence. The trial court arrived at a correct conclusion
that the
overriding consideration was to protect the community
against people like the Appellant by sentencing him to direct
imprisonment.
In the circumstances a conclusion that the seriousness
of the crime and the interest of the community far outweighed the
personal
circumstances of the Appellant was a correct finding by the
trial court.
[15] Regarding the sentence of 7 years
imprisonment, it is trite that this court will not interfere with the
sentence imposed by
the court below unless, it is satisfied that the
sentence has been vitiated by a material misdirection or is
disturbingly inappropriate.
No misdirection has been alluded to, nor
can we find any. It also cannot be said that the sentence induces a
sense of shock.
[16] It follows that the appeal against
the conviction and the sentence imposed by the trial court must fail.
[17] In the circumstances, I propose
that the following order be made:
The appeal against the conviction and
sentence is dismissed.
I.R.O BOKWA, AJ
I concur
S NAIDOO, J
On behalf of the appellant: Mr. S.D.
Kambi
Instructed by: Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the respondent:Adv.
Hoffman
Instructed by: Office of the
Director:
Public Prosecutions
BLOEMFONTEIN