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[2014] ZAGPPHC 106
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Sithole v S (A148/2013) [2014] ZAGPPHC 106 (10 February 2014)
IN THE HIGH COURT
OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
Case
No: A148/2013
DATE:
10 FEBRUARY 2014
In the matter
between:
SAM
SITHOLE
................................................
Appellant
And
THE
STATE
.................................................
Respondent
JUDGMENT
PHATUDI J:
[1] The appellant
was accused 2 when convicted at Benoni Regional Court (trial court)
on robbery with aggravating circumstances
read with the provisions of
section 51(2) of
Criminal Law Amendment Act 105 of 1997
.
[2] The trial court
found no substantial and compelling circumstances and sentenced the
appellant to 15 years imprisonment. With
leave of the trial court,
the appellant appeals against both the conviction and sentence.
[3] Mr May Skosana
(Skosana) testified that he was with the complainant, Gert Frederik
du Plessis (Du Plessis) who was robbed off
a laptop and R15,000 in
cash. Du Plessis’s evidence is not placed in dispute. He could
not identify the perpetrators. His
testimony unfolds the occurrence
of the offence.
[4] Skosana
testified that at 06h20 in the morning of 04 April 2011 he saw the
appellant pointing a firearm at Du Plessis. He saw
the appellant take
the laptop bag from Du Plessis. He later pointed the appellant out at
the identification parade.
[5] The appellant
contests the evidence of Skosana with regard to the appellant’s
Identity at (i) the scene and at (ii) the
identification parade. It
Is further contended that the identification parade was not conducted
properly rendering the evidence
thereof being inadmissible.
[6] On perusal of
the record, it is clear that in leading Skosana in examination in
chief, the following emerged:
‘Pp: Did you
identify the perpetrators? See them facially?
Skosana: Yah one of
them, yes I did see him Pp: Is that one of them before court today?
Skosana: Yes
Pp: Can you please
show this court where that one is seated?
Skosana: Number 2
Pp: Refer to him as
Accused 2 from time to time What was his role?
Skosana: He is the
one who pointed the white person with a firearm
Pp: Anything else he
did
Skosana: I saw him
taking the bag.’
[7] Ms Ndalane, the
appellant’s counsel, submits that Skosana’s evidence on
appellant’s identification is inadmissible
on the basis that he
did not have an ample opportunity to observe the perpetrators.
[8] It is noted on
record that Mr Katrada, who represented the appellant at the trial
court, confronted Skosana with the following
question during cross
examination.
‘Mr Katrada:
And that is why you will agree with me you did not give the police a
description in
anyway of the perpetrators be that they were short ... tall ... dark
... their clothing.
Skosana: But I did
see Accused 2
Mr Katrada: Answer
my question sir. Did you (intervenes)
Skosana: Because
when I turned I saw him
Mr Katrada: I am not
saying that you did not see him. Answer what I am asking you. I am
telling you, you did not give them a description
of anybody be it
complexion, height, build, nothing whatsoever
Skosana: I did not
know sir because you said I did not see them. What do you mean? How?
Because when I turned I saw him.’
[9] Later Mr Katrada
enquired:
‘Mr Katrada:
Accused 2 is the very same person that you saw with the firearm,
correct?
Skosana: Yes
Mr Katrada: When you
identified him what was he doing at the time? Skosana: He was
pointing the white person with a firearm...’
[10] In evaluating
the evidence of Skosana, the magistrate took into account that he
(Skosana) is the only identifying witness and
indicated that
Skosana’s evidence needs to be approached with caution.
[11] In accepting
Skosana’s evidence, the magistrate found that ‘nothing
obscured the visibility or the sight of Mr
Skosana.’ He further
found that Skosana was in fact ‘face-to-face with the
[appellant].’
[12] The principle
set out in R v Dlhumayo and Another
1948 (2) SA 677
(A) states that
‘a court of appeal will be hesitant to interfere with the
factual findings and evaluation of the evidence
by a trial court, and
will only interfere where the trial court materially misdirected
itself in so far as its factually and, credibility
findings are
concerned.’
[13] Considering the
evidence in totality, I find the magistrate’s credibility
finding in respect of Skosana’s evidence
to be in accordance
with justice. The witnesses need not only be found to have been
honest. The court in S v Matshivha
2014 (1) SACR 29
(SCA) stated that
‘what is important is the opportunity [the witness] had for
recognising the appellant.’
[14] It has been
demonstrated that Skosana was firm in his testimony that he saw the
appellant. He had all the opportunity at the
time ‘he was in
fact face-to-face’ with the appellant when the appellant was
pointing the firearm at Du Plessis, the
complainant.
[15] The period of
time Skosana had when facing the appellant “face-to-face”
is in my view, an opportunity ample to
observe the appellant. I find
no factual or material misdirection on the part of the magistrate.
The conviction stands, on that
basis, to be confirmed.
[16] In Director of
Public Prosecutions v Mngoma
2009 JOL 24656
(SCA), Bosielo JA stated
that ‘the powers of an appellate court to interfere
with a sentence
imposed by a lower court are circumscribed. This is consonant with
the principle that the determination of a sentence
in a criminal
trial resides pre-eminently within the discretion of the trial
court.'
[17] In imposing the
15 years of direct imprisonment, the magistrate considered the
crucial factors the appellant is relying on
as substantial and
compelling circumstances that warrant deviation.
[18] The magistrate
indicated that ‘this was a carefully planned and that the
appellant must have had some information of
the victim’s
possession of the money.’ He further stated that ‘this
was not an impulsive decision to rob. This
is evident from the
evidence that an A4 Audi was organised as a getaway car’
[19] The magistrate
finally found no substantial and compelling circumstances
notwithstanding that the appellant is a first offender
and the fact
of been incarcerated for just over a year.
[20] The principle
of considering the period spent in jail awaiting trial was set in S v
Brophy and Another
2007 (2) SACR 56
(W) at [15]
where the court
stated that 'More importantly, and what the Court a quo overlooked
entirely, was the period of time spent by both
accused awaiting trial
and sentence. It was also penned that 'what does not require evidence
is that time spent in prison awaiting
trial is, at the very least,
equivalent to time served without remission
[21] Recently, the
court in S v Radebe and Another
2013 (2) SACR 165
(SCA) stated at
paragraph [13] in over rulling Brophy’s case that ‘there
should be no rule of thumb in respect of the
calculation of the
weight to be given to the period spent by an accused awaiting trial.
(S v Seboko
2009 (2) SACR 573
(NCK) para 22 was referred to). A
mechanical formula to determine the extent to which the proposed
sentence should be reduced,
by reason of the period of detention
prior to conviction, is unhelpful. The circumstances of an individual
accused must be assessed
in each case in determining the extent to
which the sentence proposed should be reduced. It is further held
that ‘the test
is not whether on its own that period of
detention
constitutes a
substantial or compelling circumstance, but whether the effective
sentence proposed is proportionate to the crime
or crimes committed:
whether the sentence in all the circumstances, including the period
spent in detention prior to conviction
and sentencing, is a just
one.’
[22] In S v Kolea
2013(1) SACR 409 SCA the court clarified the misconception of the
wording “minimum sentence” as used
in the
Criminal Law
Amendment Act 105 of 1997
. The court stated that ‘the term of
[15 years] imprisonment referred to therein is the minimum sentence
that can be imposed.
This means that any sentence in excess of [15]
years’ imprisonment, and possibly even life imprisonment, could
be imposed
by a court having jurisdiction to do so’.
[23]
Section 51(3)
(a) provides that “if any court referred to in
subsection (1) or
(2) is satisfied that substantial and compelling circumstances exist
which justified the imposition of a lesser
sentence than the sentence
prescribed in those circumstances on the record of the proceedings
and must thereupon impose such lesser
sentence...’’
[24] Considering the
manner the offence was committed and the submissions made by both
counsel, I am of the view that there are
no substantial circumstances
compelling deviation from the prescribed minimum sentence other than
the period spent awaiting trial.
- As principled in S v Radebe and
Another - there is no thumb rule or fixed rule that the said period
should be deducted. Even
if deducted, the court is still at large to
impose a higher sentence than the minimum. (S v Kolea). I neither
find misdirection
on the part of the magistrate nor any
disproportionate of the sentence to the offence committed by the
appellant. I have no reason
to interfere with the sentence imposed by
the magistrate.! in the result make the following order.
Order
The appellant’s
appeal against both conviction and sentence is dismissed.
AML PHATHUDI
Judge of the High
Court
I agree.
E.M. Kubushi
Judge of the
High Court
On Behalf of the
Appellant: Pretoria Legal Aid Centre
FNB Building 2nd
Floor Church Square Pretoria
Adv M.C Ndalane
On Behalf of the
Respondent: Director of Public Prosecutions
28 Church Square
Pretoria
Adv S.R Sibara