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[2015] ZAFSHC 231
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Phahlo and Others v S (A82/15) [2015] ZAFSHC 231 (19 November 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
APPLICATION
NUMBER: A82/15
In the matter
between:
MOTLATSI
PHAHLO
......................................................................................................
1st
Appellant
GOITSEONE
MOGOPODI
.............................................................................................
2nd
Appellant
THATO
NJIVA
...................................................................................................................
3rd
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORUM:EBRAHIM, J
et BOKWA, AJ
HEARD ON: 9
NOVEMBER 2015
JUDGMENT
BY: BOKWA, AJ
DELIVERED ON: 19
NOVEMBER 2015
A INTRODUCTION
[1]
The appellants were convicted in the regional court for Thaba Nchu,
Free State Province,
on charges of robbery with aggravating
circumstances and attempted murder on 4 September 2013. They
were each sentenced to
an effective 18 years jail term on the 5
September 2013. The court
a quo
granted them application
for leave to appeal against the conviction and sentence on 26 May
2014.
B
FACTS
States
Case
[2]
The State tendered the evidence of 3 witnesses. The first
witness Thapelo Bernard
Bopalamo, the complainant testified that on
the 14 September 2012 at approximately 22h00 at night he was in his
motor vehicle in
Thaba Nchu. On the night in question he was
driving a Polo hatchback with registration numbers [DNF…….]
on
his way to a tavern also known as Mototo Tavern in Thaba Nchu.
Upon arrival, he parked his vehicle outside. He saw a
person
approaching him whilst he was still inside the vehicle. The
person enquired if he knew what was going on inside the
tavern.
Before he could give any answer, a gunshot was fired outside his
vehicle. The bullet hit the complainant on
the left side of his
face just under the cheek bone. After he was shot, he tried in
vain to get out of his vehicle which
was stationary using the front
left passenger door.
[3]
One of his assailants entered the vehicle through the driver’s
door whilst the other
entered the vehicle through the front left
passenger door. They pushed him to the back seat. The
other 2 assailants
entered the vehicle and sat at the back seat thus
keeping him in the middle seat between them. In total, 4
assailants drove
away from Mototo Tavern unto the N8 road towards
Bloemfontein. Just outside Bloemfontein the vehicle stopped and
he was dropped
off. The vehicle immediately sped away towards
Bloemfontein.
[4]
When he was dropped off outside Bloemfontein, his cell phone valued
at R2 300.00, a
purse with cash of approximately R1 200.00
and credit card in the ashtray of the vehicle were left inside the
vehicle.
He ran for approximately 45 minutes to a nearby farm
where he encountered a man who assisted him by calling security and
was taken
to Kagisanong Police Station where he reported the matter.
After reporting the matter he was taken to Pelonomi Hospital in
Bloemfontein where he was admitted for an operation and further
medical attention. He was operated on and discharged after 2 weeks.
[5]
Approximately 3 weeks after the incident he was able to identify his
vehicle through the
disc and registration numbers [DNF 4…….].
He also found his credit card in the ashtray of his vehicle.
Furthermore he testified that at Mototo Tavern he was able to
identify appellant number 3 as the person who pointed a gun and shot
at him although it was dark. Under cross examination he
testified that he positively identified the third appellant when
he
was shot because the third appellant entered at the back of the
vehicle and handed the gun to one of the other assailants.
Whilst the vehicle was travelling on the N8 road towards Bloemfontein
he could also see his robbers’ faces using the lights
of the
oncoming traffic.
[6]
The second state witness was Mr. Mzondeke Boy, a police officer on
duty that night who was
in the company of warrant officer Ngobese.
At approximately 04h00 in the early hours of the morning they both
were patrolling
in a marked police vehicle when he saw a Polo vehicle
without registration numbers being driven by unknown people. He
flickered
lights signaling the vehicle to stop. It soon
accelerated. Approximately 30 minutes earlier they had received
a message
that a vehicle matching the same description had been
hijacked. They proceeded to follow the vehicle until it came to
a standstill
at a night spot in Bochabela Bloemfontein, a tavern
known as Ekhayeni. They were approximately 3 to 4 meters from
the suspected
vehicle when 4 occupants got out of the Polo. The
street lights as well as the lights from the tavern shown clearly
making
visibility good. He and his companion jumped out of the
police vehicle and immediately ordered all the occupants of the Polo
to lie down on the ground. One of the suspects stood up and
fled over the devils fork. The other 3 remained and were
handcuffed.
[7]
The witness proceeded to check the disc of the vehicle and noticed
the registration number
DNF 466 FS. It matched those of the
vehicle reported to have been hijacked earlier. The 3 robbers
were detained at
Mangaung and they were the same people before
court. Appellant number 1 was the driver of the vehicle.
When he looked
inside the vehicle he noticed blood stains as well as
a jacket with blood stains on it. There were also blood stains
on the
trouser of the Second appellant. The vehicle was booked
at the police offices at George Loerie Street in Bloemfontein.
The blood stained jacket and the trousers of the Second appellant
were also booked in at the SAP13.
[8]
The third state witness Tebogo Moses Ngobese, testified that on 15
September 2012 they received
a message to be on the outlook for a
white Polo vehicle with 4 males inside. As they patrolled the
area he saw a white Polo
with 4 males inside and followed it.
He noticed that the vehicle did not have registration numbers on.
They tried to
stop the motor vehicle but it accelerated. They
kept chase until the vehicle came to a standstill at a night spot
known as
Ekhayeni Tavern in Bochabela, Bloemfontein. When the
suspects got out, they ordered them to lie on the ground. Two
of the men stood up and asked if they could urinate. One of the
suspects jumped over the fence and fled.
[9]
The three males were arrested and were the same people before the
trial court. The
first appellant was the driver of the vehicle
as he came out of the drivers’ seat after the car came to a
standstill.
He confirmed that inside the vehicle he found a
jacket with bloodstains on it. The number plates with
registration DNF 466
FS were found on the floor under the backseat.
During cross examination he testified that he searched the first
appellant
and found a car key in his pocket. The first
appellant informed that the keys belonged to the person who fled.
The
first appellant was asked to start the vehicle which he proceeded
to do on the scene with the key that was found on him and was
arrested thereafter. The state called Paul Kenneth Motaung who
testified about the extent of the investigation and further
about the
items which were sent out for analysis and the reason it took so long
to finalize the investigations. At the time
the results were
not back from the laboratories. The State closed its case.
Defence
Case
[10]
The first appellant testified in his own defence. On the night
of the 14 and 15 September
2012 he was with the Second appellant at a
night spot popularly known as Ekhayeni Tavern, in Bochabela,
Bloemfontein. They
were having a good time. At a certain
time they decided to have a smoke break outside the tavern and they
proceeded to walk
outside where they stood and smoked. They
were surrounded by many people who also stood outside. Suddenly
a car guard
came to them with the police and pointed them out to the
police. A car guard informed the police that he was the one
with
a white t-shirt who drove the white vehicle. There was
confusion. They were arrested. Under cross examination
he
confirmed that he was pointed out as the person who drove the
vehicle, he could not confirm why the third appellant was arrested
other than the fact that he also stood there. The police
officers implicating him as the driver were lying. He knew
nothing of the incident and subsequently closed his case. The
second and the third appellants did not call any witnesses
and closed
their cases without testifying. The state requested the trial
court to find all 3 appellants guilty on both counts.
Conversely the 3 appellants requested the trial court not to find
them guilty on both counts and to discharge them.
C
ANALYSIS
[11]
The trial court established the following objective facts, firstly,
that the complainant, Mr. Thapelo
Bernard Bopalamo was robbed in
Thaba Nchu on the 14 September 2012 at approximately 22h00, of his
vehicle with registration number
[DNF 4……] by 4 unknown
men one of whom, shot the complainant in the face and where-after he
was hijacked from Thaba
Nchu with the vehicle travelling on the N8
and the suspects dropping him off outside Bloemfontein.
Secondly, that the 2 police
officers, Mr. Boy and Ngobese noticed a
vehicle without registration plates with 4 men in occupation matching
the description of
a vehicle reported stolen earlier. The
particular vehicle was travelling in Bloemfontein in early hours of
the morning on
15 September 2012 at around 4h00, approximately 6
hours after the robbery took place in Thaba Nchu. Thirdly,
despite attempting
to stop the vehicle, it accelerated and came to a
standstill at popular night spot called Ekhayeni in Bloemfontein.
Fourthly,
that the 2 police officers got out of the police vehicle
and simultaneously noticed the 4 occupants of the Polo vehicle also
getting
out of the said vehicle. Fifthly, that 1 of the men
managed to flee by jumping over the devils fork whilst the 3 men
stayed
behind. Sixthly, that the first appellant was the driver
of the said vehicle because he got out of the drivers’ side
of
the vehicle whilst the second and third appellants got out on other
sides of the vehicle. Seventhly, that both police
officers
searched the vehicle and found a jacket with blood stains on it as
well as the fact that the Second appellant also had
blood stains on
his trousers. Eighthly, that the disc on the said vehicle was
the same as the registration number [DNF 4…..],
which were
found underneath the back seat of the vehicle. Ninthly, that
the keys of the vehicle was found in possession of
the first
appellant when he was searched. Tenthly, that the complainant
Mr. Thapelo Bernard Bopalamo identified his vehicle
in Bloemfontein
by way of the disc and a bank card that was still in the ashtray that
was closed.
[12]
In its analysis the trial court considered all the facts as well as
the doctrine of recent possession.
It made a finding that the
appellants and the fourth man were found in possession of the vehicle
belonging to the complainant 6
hours after the robbery took place.
When they were stopped they accelerated. The registration
numbers of the vehicle
matched those that was found underneath the
back seat of the same vehicle. After careful analysis, the
trial court made a
finding that the 3 state witnesses’ evidence
was credible. It was not riddled with improbabilities.
When evaluating
the evidence of the complainant the trial court
treated it with caution as he was a single witness testifying on
identity.
The trial court furthermore made a finding that the
evidence of the 2 police officers corroborated each other in all
relevant material
respects regarding the events at Ekhayeni Tavern,
the bloodstained jacket in the vehicle as well as the bloodstains on
the trousers
of the Second appellant. They corroborated each
other regarding the key of the stolen vehicle which was found in the
possession
of the first appellant.
[13]
In evaluating the evidence it is the view of this court that the
trial court took a correct approach
in analyzing the evidence before
it. The first appellant only offered a bare denial faced with
the evidence of the two police
officers who corroborated each other
about his involvement in the robbery of the complainant. The
trial court correctly found
that his version was highly improbable.
The trial court correctly rejected his evidence and made a
finding that his guilt
was proved beyond reasonable doubt in respect
of the first count.
[14]
In evaluating the evidence on count 2 regarding the person
responsible for the shooting of the complainant
the court took the
view that all 4 (suspects were present during the robbery of the
complainant. Whilst the court could not
identify the actual
person who shot the complainant, the court was of the view that all
people present when the complainant was
shot actively identified
themselves with the execution of the common purpose of the group.
See
S v Neurodien and others
1998 [2] SACR 510
[NCA]. The trial court furthermore took the view that firstly,
the people would have been all present on
the scene of the robbery.
Secondly, they would have been aware of the assault on the
complainant. Thirdly, they must
have had the common intent with
the shooter. Fourthly, they must have shown their participation
with the shooter by way of
association with the acts of the others
and the shooter. In the circumstances they all must have had
the necessary intention
to kill the complainant either in the form of
direct intention or indirect intention (
dolus eventualis
).
[15]
The trial court was satisfied that by shooting the complainant in his
face the shooter had the necessary
intention to kill the complainant
in the form of
dolus
eventualis.
The court was
satisfied that there was a common purpose between the 4 robbers and
that beyond any reasonable doubt the robbers made
themselves guilty
of attempted murder. Consequently all appellants were found
guilty on count 1 for armed robbery with aggravating
circumstances
and on count 2 of attempted murder.
[16]
This court, in its assessment of the evidence, must look at the
evidence in its totality to determine
if the guilt of the appellants
has been proven beyond reasonable doubt. Examining individual
or component parts of the evidence
can also be a useful exercise but
such evidence must ultimately be considered as part of the whole body
of evidence. The
analogy used in
S v Shilakwe
2012(1) SACR 16(SCA) is that of a mosaic. The components of
evidence are the pieces of the mosaic, but the mosaic must be
considered as a whole in order to arrive at a proper conclusion
regarding the guilt of the accused. A dictum expressing a
similar view is to be found in
S v Chabalala
2003(1)
SACR 134 SCA, where Heher AJA (as he then was) said at paragraph [15]
of that judgment:
“
The
correct approach is to weigh up all the elements which point toward
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…was
decisive but that can only be an
ex post facto
determination
and a trial court (and counsel should avoid the temptation to latch
onto one (apparently) obvious aspect without
assessing it in the
context of the full picture presented in evidence”
[17]
The second and third appellant did not testify in their defence and
proceeded to close their cases.
For the first and second
appellant not to challenge the evidence of the complainant as well as
the 2 police officials which incriminated
the appellants, was in my
view, a fatal mistake. Such incriminating evidence called for a
decisive response from them to
set the record straight. The
first and second appellant did not rise up to meet the challenge.
Failure to testify has
adverse implications as it was held in the
matter of
S v Chabalala
2003 [1] SACR 134 [SCA]
where the learned Judge dealt with the failure of an accused to
testify or lead evidence. The accused in
that case was faced with
direct and apparently credible evidence and decided not to testify.
The Judge said that:
“
In
such circumstances the
prima facie
case spoke for itself and
that court was found to conclude that the totality of the evidence
taken into conjunction with the silence
of the accused, excluded any
reasonable doubt about his guilt.”
[18]
I am of the view that the appellants were correctly convicted by the
court
a quo.
It evaluated the evidence properly and did
not commit any material misdirection on the substantive merits which
warrants an interference
by this court. For these reasons the
appeal regarding conviction is dismissed.
[19]
I now turn to the sentence component of the appeal. The
appellants were all sentenced to a prison terms of
18 years.
The trial court found that there was no substantial and compelling
circumstances to warrant deviation from the
prescribed minimum
sentence.
[20]
The court hearing an appeal against a sentence is always guided by
certain appellate principles.
The first principle is that
punishment of an offender it’s primarily a matter for the
discretion of the trial court.
The second principle is that the
appeal court should be careful not to erode the sentence in
discretion of the trial court.
Finally, the principle that the
sentence should only be altered, on appeal, if the discretion has not
been judiciously and properly
exercised –
S v Rabie
1975 (4) SA 855
(A) as per Holmes JA.
[21]
In
S v Malgas
2001 (1) SACR 469
(SCA) para 12
Marais JA stated as follows:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it.
To do
so would be to usurp the sentencing discretion of the trial court.
Where material misdirection by the trial court vitiates
its exercise
of that discretion, and appellate Court is of course entitled to
consider the question of the sentence afresh.”
[22]
When sentencing the appellants the trial court took into account the
following factors:
First
appellant
22.1
He was 24 years old when he committed the offence.
22.2
At the time that he was sentenced both his parents were deceased.
22.3
He was single and lived with his 11year old brother.
22.4
Since the incarceration of the first appellant his 11 year old
brother was living with the neighbours.
22.5
Before the incarceration of the first appellant he did odd jobs to
earn income in order to support himself
and his younger brother.
22.6
The first appellant had previous convictions for theft and had
already served direct imprisonment on the
last previous convictions.
The first appellant had been released on parole on the 14
th
of May 2012.
22.7
4 Months after his release on parole he had committed the offence
which the trial court convicted him on.
22.8
It was clear to the trial court that the short term of imprisonment
the first appellant had already received
in his previous conviction,
had no rehabilitative effect on him.
[23]
Second appellant
23.1
He was 28 years of age.
23.2
He was single.
23.3
The only dependent he had was his 5 year old child which stayed with
its mother.
23.4
Before the incarceration he did odd jobs to earn income to look after
the child.
23.5
Before his arrest in respect of the current charges he had 2 previous
convictions, 1 for housebreaking and robbery and
the other for
robbery. He had already been previously sentenced to 9 years
imprisonment.
23.6
He was released on parole on the 10
th
of September 2010
until the 9
th
of March 2015.
23.7
2 Years after his release on parole and while still on parole he
committed the offence of which he was convicted of in
the trial
court.
[24]
Third appellant
24.1
He was 31 years of age at the time he was sentenced.
24.2
He was single.
24.3
He had a 6 year old child who stayed with his grandmother.
24.4
He had permanent employment for 4 years before he was incarcerated.
24.5
He had 2 previous convictions, one for theft and one for
housebreaking with the intent to steal and theft.
24.6
He was sentenced to a suspended sentence on the count of theft and 3
years imprisonment in terms of Section 276 (1)(i)
of the Criminal
Procedure Act.
24.7
He was placed under correctional supervision on the 21
st
of September 2011 which period lapsed on the 11
th
of
August 2013.
24.8
He was thus still out on correctional supervision when he committed
the offence which he faced at the trial court on
the 14
th
of September 2012.
[25]
The mitigating factors vis-à-vis the aggravating factors, the
court a quo came to the conclusion
that no substantial and compelling
circumstances existed to justify departure from the prescribed
minimum sentence in respect of
the 2 counts.
[26]
After a careful evaluation the trial court sentenced the appellants
as follows:
“
Count
1, in terms of Section 51[2] [A], Act 105 of 1997, 15 years
imprisonment. Count 2, in terms of Section 276[1] [B], Act
51
of 1977, 6 years imprisonment. After taking into account the
cumulative effect of the two terms of imprisonment, court
orders that
three year of the six years imprisonment on count 2 run concurrently
with the 15 years imprisonment on count 1, accused
each thus to serve
18 years direct imprisonment. No order is made in terms of
Section 103[1] Act 60 of 2000.”
[27]
The legislature has ordained the prescribed minimum sentences as the
sentence that should ordinarily
be imposed in the absence of any
substantial and compelling circumstances. The court cannot
depart from imposing such sentence
for flimsy reasons.
See
Malgas
supra
.
[28]
In the circumstances there is no reason justifying interference with
the decision of the trial court
in respect of both the conviction and
the sentence.
[29]
Accordingly the appeal is dismissed both in respect of conviction and
sentence.
I.R.O
BOKWA, AJ
I
concur
S.
EBRAHIM, J
On
behalf of the appellants: Mr. Nel
Instructed
by: Bloemfontein Justice Centre
Bloemfontein
On
behalf of the respondent: Adv: De neyssen
Instructed
by: National Director of Public Prosecution
Bloemfontein