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2015
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[2015] ZANCHC 25
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Katz and Another v S (CA&R119/2014) [2015] ZANCHC 25 (6 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Provincial Division)
Saakno:
/ Case number:
CA & R 119/2014
Datum
verhoor: / Date heard:
23 / 02 / 2015
Datum
beskikbaar: / Date available:
06
/ 03 / 2015
In
the matter between:
DAVID
KATZ
First Appellant
JOSEPH
MOGAPIE
Second Appellant
and
THE
STATE
Respondent
Coram:
Kgomo, JP et Lacock, J
JUDGMENT
ON APPEAL
LACOCK,
J
[1]
appellants were convicted in the regional court, Warrenton, on
charges of robbery with aggravating circumstances and sentenced
to 12
years imprisonment each. By leave of the Court
a
quo
the first appellant
appeals against the sentence imposed only, whilst the second
appellant appeals against his conviction and the
sentence imposed.
[2]
Before dealing with the merits of the appeal, it is necessary to deal
with a disturbing feature pertaining to this matter.
The
appellants were convicted and sentenced as far back as 26 May 2011.
The reason for the delay in the prosecution of the
appeal can be
ascribed to the inability to reconstruct the record of the
proceedings in the court
a
quo
. It would
appear that neither a mechanical recording of the said proceedings
nor the judgments on conviction and sentence
of the presiding officer
could be traced. Counsel for the second appellant advised as
follows in regard hereto:
“
7.
Before
the enrolment of the Appeal, attempts to have further reconstruction
of the record done were unsuccessful. The reasons
for the
aforementioned are due to the fact that the presiding magistrate is
no longer employed as such within in the Department
of Justice; and
the prosecutor in the court a quo is deceased. It is further
submitted that it is improbable that the 2
nd
Appellant would meaningfully contribute to a reconstruction almost 4
years after the trial; and undesirable that he singularly
attempt to
reconstruct the record.
”
These
submissions were confirmed by counsel for the first appellant and the
State.
2.1
The unsatisfactory feature pertaining to the aforesaid information
submitted is that none thereof had been explained under
oath by
either the clerk of the court, or a person in the employ of the
relevant recording entity or any other person who could
have
confirmed same.
2.2
Since all counsel assured us that the record cannot be reconstructed
and since the hearing of the appeal had already been
delayed for a
long time, we have decided to dispose of the appeal and not to
prejudice the appellants any further by insisting
on the compliance
with proper procedure. The condoning of the said non-compliance
with the proper procedures should however
not be regarded as a
precedent, but rather as an exception to the rule.
[3]
The only “record” of the proceedings in the court
a
quo
available to us is
the handwritten notes of the magistrate. Alert to the following
dictum
in
S v CHABEDI
,
2005 (1) SACR 415
(SCA) at paragraphs 5 to 6,
“
On
appeal, the record of the proceedings in the trial court is of
cardinal importance. After all, that record forms the whole
basis of the rehearing by the Court of appeal. If the record is
inadequate for a proper consideration of the appeal, it will,
as a
rule, lead to the conviction and sentence being set aside.
However, the requirement is that the record must be adequate
for
proper consideration of the appeal; not that it must be a perfect
recording of everything that was said at the trial.
As has been
pointed out in previous cases, records of proceedings are often still
kept by hand, in which event a verbatim record
is impossible (see,
eg, S v Collier
1976 (2) SA 378
(C) at 379A – D and S v S
1995
(2) SACR 420
(T) at 423b – f). The question whether
defects in a record are so serious that a proper consideration of the
appeal
is not possible, cannot be answered in the abstract. It
depends, inter alia, on the nature of the defects in the particular
record and on the nature of the issues to be decided on appeal.
”
I
am satisfied that the aforesaid notes of the magistrate are
sufficient for the consideration of the appeal. The sequence
of
the events narrated by the State witnesses as well as the accused as
recorded by the magistrate is indicative of a sequential
unfolding of
events. It is difficult to imagine what relevant evidence had
not been noted by the magistrate. The cross-examination
of the
witnesses had been noted by way of question and reply. It had
not been suggested that the magistrate failed to note
all relevant
evidence, and no such discrepancy could be detected from the
available notes. There is furthermore no suggestion
or
indication of selective noting of the evidence by the magistrate.
[4]
The noted evidence portrays the following:
4.1
Past midnight on 24 December 2009, i.e. during the early hours of 25
December 2009, the complainant, Mr. Dawood Jaffer,
was overpowered by
two men whilst urinating outside his house. A blanket was
thrown over his head preventing him from seeing
the faces of his
assailants. He was dragged into his bedroom, assaulted and
shocked by way of electric cabling. Thereafter
his legs and
arms were tied and he was left lying on a bed. The two
assailants ransacked his house and he was robbed of
inter
alia
R600.00 in cash.
4.2
Shortly after the robbery Mr. Gregory Mitchell arrived at the house
of the complainant. He found the complainant
tied as described
above on top of a bed. He apprehended the first appellant who
was still in the house upon his arrival and
tied him up. The
police were called and the first appellant was arrested. The
second appellant ran away and was only
arrested a few days after the
incident.
[5]
The second appellant denied that he participated in the robbery and
pleaded an alibi. What the magistrate therefore had
to
determine was whether the State had proved beyond reasonable doubt
that the second robber was indeed the second appellant.
To my
mind this had been properly proved.
5.1
The first appellant testified that he and the second appellant were
the two perpetrators who attacked, assaulted and robbed
the
complainant.
5.2
This evidence was corroborated by both the complainant and the
witness Mitchell. The complainant testified that
upon the
arrival of Mitchell at his house the one perpetrator ran away and the
other (who turned out to be the first appellant),
called out the name
“Kadie”. It is common cause that the second
appellant is known by the name Kadie. Mitchell
testified that
shortly after his arrival at the house of the complainant, the second
appellant returned to the house to switch
off the kitchen light.
He clearly saw the face of the second appellant and identified him in
court. He further testified
that the first appellant had told
him that his co-perpetrator was Kadie.
5.3
Adv. Van Tonder on behalf of the second appellant, submitted that it
was improbable that the second appellant would return
to the house of
the complainant to switch off the lights, and that this evidence of
Mitchell should be dismissed. To
my mind it cannot be
said that this evidence is improbable. If one has regard to the
evidence of the complainant i.e. that
the first appellant called the
second appellant when he ran away, and that the first appellant was
trapped in the house, I do not
find it improbable that the second
appellant would return to the house. He could either have
returned to assist the first
appellant to escape, or to prevent his
presence in the house being discovered.
5.4
In cross-examination the second appellant admitted that he was in the
company of the first appellant on 24 December 2009.
[6]
For these reasons the appeal against the conviction cannot succeed.
[7]
It is trite that a court of appeal will not interfere with the
discretion exercised by a sentencing Court on sentence unless
that
sentence was vitiated by irregularities or misdirections or is
shockingly inappropriate.
7.1
Once again we are faced with the absence of a recorded or written
version of the magistrate’s judgment on sentence.
However, the record, or rather the notes of the magistrate, reveals
that the personal circumstances of the appellants had been
properly
presented to the Court. The wife of the second appellant even
testified on his behalf for purposes of sentence.
7.2
Since the prescribed minimum sentence for this kind of offence is 15
years (section 51(2) of Act 105 of 1997 read with
Part II of Schedule
2 thereof), the sentencing Court clearly found that substantial and
compelling circumstances were present,
justifying a deviation from
the prescribed minimum sentence.
7.3
I am unable to find that the magistrate misdirected itself or
committed an irregularity in considering an appropriate
sentence.
The sentences imposed are certainly not shockingly inappropriate.
The offences committed are serious ones
and deserve severe
punishment.
7.4
None of the appeals against the sentences imposed can therefore
succeed.
[8]
WHEREFORE THE FOLLOWING ORDER IS MADE:
BOTH
APPEALS ARE DISMISSED.
________________
________________
F.D.
KGOMO
H.J. LACOCK
JUDGE-PRESIDENT
JUDGE
For
the First Appellant
:
Adv. I.J. Nel (oio Van Schalkwyk & Van Tonder Att.
For
the Second Appellant:
Adv. V.Z. Nel (oio The Legal Aid
Board)
For
the Respondent
:
Adv. J. Mabaso oio the Director of Public Prosecutions