About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 1054
|
|
Ndlovu and Another v S (A851/11) [2014] ZAGPPHC 1054 (20 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
A851/11
DATE: 20 MARCH
2015
In the matter
between:
PAUL TLOU
NDLOVU
................................................................................................
FIRST
APPELLANT
ASIVHANGA
TSHIVHASE
....................................................................................
SECOND
APPELLANT
AND
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGMENT
LEPHOKO AJ
[1] The appellants
were arraigned before the Regional Court Pretoria on five counts. The
first appellant was convicted of robbery
with aggravating
circumstances (count 1); possession of a semi-automatic firearm
(count 4); and possession of ammunition (count
5). The first
appellant was sentenced to 15 years imprisonment in respect of count
1,15 years and 1 year imprisonment in respect
of counts 4 and 5
respectively. The first appellant was sentenced to an effective 15
years imprisonment as the trial court ordered
that the sentences in
respect of counts 4 and 5 run concurrently with the sentence on count
1. The second appellant was convicted
of count 1 and sentenced to 18
years imprisonment.
[2] The first
appellant appeals against both conviction and sentence with the leave
of this court. The trial court granted the second
appellant leave to
appeal against sentence and his appeal against conviction is with the
leave of this court.
THE CASE AGAINST
THE FIRST APPELLANT
[3] The first
appellant’s ground of appeal against conviction is that he was
wrongly convicted as his identity as one of the
robbers was not
proved beyond a reasonable doubt. I will deal with the evidence only
to the extent that it is relevant to the appeal.
[4] Leslie Bue (Bue)
testified that his shop known as Makoola Hopaan is located in
Marabastad, Pretoria. The shop was robbed on
15 December 2006. On
that day the shop had closed at about 17h00. He and his wife had just
finished counting the money received
over the past three days when
three men came around the counter and instructed them to lie down.
They covered their heads and tied
them up with nylon. The robbers who
had two firearms asked for money and assaulted them during the
robbery. The robbers took cash
of about R20 000-00 which was in his
wife’s bag.
[5] He managed to
untie himself and his wife approximately five to ten minutes after
the robbers had left. He went to look for help
outside. He saw
everybody running and some boys shooting. He saw someone running and
being followed by everyone. He followed the
group and saw the person
lying on the floor. He then decided to go back and check how his wife
was. Bue was not able to identify
the first appellant as one of the
robbers.
[6] Captain Hendrik
Bergh (Bergh) testified that on 15 December 2006 at about 17h00 he
received a complaint regarding a shooting
and robbery incident at the
corner of Second and Boom Streets. He went to attend to the complaint
with constable Mothlabeni. At
the corner of Third and Boom Streets
they found the first appellant lying on the side of the road. The
first appellant had sustained
serious head injuries from an apparent
assault by members of the public. They called the emergency services
who took him to hospital.
They later discovered that the first
appellant was one of the suspects in the robbery case. Bergh asked
Captain Maropa to accompany
the first appellant to Steve Biko
Academic Hospital (the Hospital). Bergh was not able to identify the
first appellant at the trial.
[7] Captain Mhloti
Maropa’s evidence is that on 15 December 2006 he found the
first appellant lying on the ground and being
assaulted by members of
the public at the corner of Second and Boom Streets in Marabastad.
They intervened by chasing the public
away. He called for an
ambulance and assistance. He accompanied the first appellant to
hospital. He was with the first appellant
at all times and followed
him wherever he went. When the nurses undressed the first appellant
to ascertain his injuries an amount
of R6000-00 was found in his
underpants between his legs. The money was removed by one of the
nurses, Christina Kekana. The money
was clasped with paper clips and
was in denominations R100-00 and in bundles of R1000-00. The money
was handed to him and he booked
it in an SAP 13.
[8] At the hospital
Giyani informed him that his brother (i.e. Giyani’s brother)
was shot and after the shooting the first
appellant dropped the
firearm which Giyani handed to him (Maropa) at the hospital. This
evidence contradicts the evidence of Giyani
which is that his brother
was shot by the person that was on the roof of the building and that
it is that person who dropped the
firearm that was handed to Maropa.
Giyani’s evidence was that the firearm was handed to Maropa by
Johannes who has since
passed on. The evidence of Maropa and Bergh is
corroborated by Giyani in one material respect, namely, that the
first appellant
is the person that was stoned by the mob in the
vicinity of Makoola Hoopan where the robbery took place. Bue also saw
someone running
and being followed by everyone to a point where that
person was lying on the floor. At the trial Maropa identified the
first appellant
as the person he found being assaulted by the members
of the public at the corner of Second and Boom Streets.
[9] Fransina Kekana
is a nurse as the Steve Biko Academic Hospital. She testified that
she was on duty on 15 December 2006 when
they received the first
appellant from casualty for admission in the ward. As they undressed
him to bathe him they found R6000-00
inside his underwear between his
legs. Some of the money had faeces and had to be washed as the first
appellant had defecated.
The money was made in denominations of
R100-00 notes only. She counted the money with another nurse and a
police officer. The money
was handed to the police officer.
[10] Stephan Giyani
testified that at about 17h50 on the date of the robbery he was
walking with his brother, Aaron, at the back
of Makoola Hopaan. There
was a shooting incident and his brother was shot. He testified that
he saw three persons. The first person
is the one that shot his
brother. The second person is the one that was standing up holding a
bag and a gun. The third person is
the person that was stoned, i.e.
the first appellant.
[11] Of the people
that were shooting he only saw the one that shot his brother, i.e.
the first person. This person was from inside
the shop. He was
standing on top of the roof of the building and shooting down in all
directions. This person fired several shots
and was still on top of
the roof when he shot his brother. This person was approximately
sixteen metres away when he first saw
him. He was very frightened and
could not remember what the person was wearing. This person tried to
shoot at him as well but the
gun could not be discharged. This person
threw the gun in his direction. He managed to catch it and threw it
in the car and went
back to his brother. This person was about three
metres away when he tried to shoot at him. He would not be able to
identify this
person as he did not see his face.
[12] He testified
that he saw a third person running away and attempting to get inside
a car, a red like Corolla. He did not know
from where this third
person was running although he saw him running from the gate side of
the shop. At the trial he identified
the first appellant as the third
person. He also identified the first appellant at an identification
parade held at Pretoria Central
Police Station on 27 May 2007. The
result of the identification parade, the correctness of the procedure
thereof and the sworn
statement made by inspector MJ Shokane who
conducted the identification parade was formally admitted as correct
in terms of
section 220
of the
Criminal Procedure Act 51 of 1977
. The
entire identification parade process was not placed in dispute.
[13] Giyani
testified that he observed the first appellant for about five minutes
when the first appellant was being stoned next
to the car. He managed
to observe his face as the first appellant was about four and a half
metres away from him. At that time
the first appellant was about
seven metres from Makoola Hopaan and ran away from the car when it
was stoned. He saw the first appellant
again on the same day at the
hospital as the first appellant was admitted in the same ward as his
brother. The first appellant
was seriously injured. At the hospital
he was able to observe the scars on the first appellant.
[14] During the
trial he identified the first appellant as the person who was stoned
and stated that he recognized him by the scar
next to his eye. He
stated that the first appellant had nothing in his possession when he
was stoned next to the car and he did
not see anything being taken
from him during the stoning.
[15] Giyani’s
evidence is that he together with Johannes took his brother to
hospital. Johannes gave the firearm to the police.
The first
appellant did not dispute that Giyani would have been able to
identify him. He merely put it to Giyani that he was able
to identify
him because he was able to see him dearly at the hospital and that he
was able to identify him because of the injuries
that he sustained on
the day of the robbery.
THE FIRST
APPELLANT’S VERSION
[16] The first
appellant testified that on 15 December 2006 he drove from
Johannesburg to East Lynne in a City Golf which he was
selling to his
cousin Adam Maphale. He sold the car for R12000-00 rand and received
a cash amount of R8000-00 from his cousin on
that day. The money was
made in denominations of R50-00 and R100-00 and was in batches of
R1000-00 and clasped with paper clips.
He was wearing a capris with a
zipping pocket next to his right knee and he had put the money in the
zipping pocket.
[17] He went to
Marabastad to catch a taxi back to Johannesburg. At Marabastad he was
robbed and assaulted by four guys. He was
hit hard on the head and
fell on the ground. He did not remember where in Marabastad he was
robbed. He was unconscious after the
assault and did not know what
happened thereafter or how he got to hospital. He regained
consciousness at hospital and discovered
that his phone and wallet
were taken during the robbery. He was told after five or six days of
hospitalization that money was found
in his possession. He was not
informed where on his person the money was found. His evidence
contradicted his version as put to
Bergh during cross examination,
namely, that he was robbed at Jerusalem Street. Jerusalem Street is
about 2 blocks away from Third
and Boom Streets.
[18]
In S
v
Mthetwa
,
1
the court stated the following about the evaluation of identification
evidence: ‘Because of the fallibility of human observation,
evidence of identification is approached by the Courts with some
caution. It is not enough for the identifying witness to be honest:
the reliability of his observation must also be tested. This depends
on various factors, such as lighting, visibility, and eyesight,
the
proximity of the witness; his opportunity for observation, both as to
time and situation; the extent of his prior knowledge
of the accused;
the mobility of the scene; corroboration; suggestibility; the
accused’s face, voice, build, gait, and dress;
the result of
identification parades, if any, and, of course, the evidence by or on
behalf of the accused. The list is not exhaustive.
These factors, or
such of them as are applicable in a particular case, are not
individually decisive, but must be weighed one against
the other, in
the light of the totality of the evidence, and the probabilities;..’
[19] Stephan Giyani
had enough time, approximately five minutes, to observe the first
appellant from a close distance of about four
metres during the time
he was stoned in the vicinity of the car. He had another opportunity
to see him clearly at the hospital
shortly after the robbery. The
observation at the hospital is confirmed by the assertions of the
first appellant. In both these
instances visibility was good. Giyani
also accurately identified the first appellant at a subsequent
identification parade.
[20]
In S v Oosthuizen
2
the court stated that... ‘it is not every error made by a
witness which affects his credibility. In each case the trier of
fact
has to make an evaluation; taking into account such matters as the
nature of the contradictions, their number and importance,
and their
bearing on other parts of the witness’s evidence.’ The
court may convict if satisfied that despite shortcomings
or defects
or contradictions in the testimony it is satisfied beyond a
reasonable doubt that such evidence is true.
3
[21] The
contradictions that exist in the evidence of the state witnesses
regarding the arrest of the first appellant and the receipt
of the
firearm by Maropa do not render their evidence untruthful. These type
of contradictions are to be expected when witnesses
are called upon
to recollect evidence concerning an incident that took place a long
time before the trial.
[22] It was also
contended that the trial court erred in allowing hearsay evidence.
This contention is without merit as it is clear
from the judgment
that the limited hearsay evidence that was led during the trial was
not taken into account in determining the
guilt of the first
appellant.
[23]
Whether the first appellant was involved in the robbery is an issue
to be determined through circumstantial evidence. In assessing
circumstantial evidence not all intermediate facts in a criminal
trial have to be proved beyond a reasonable doubt and the test
is not
whether each proved fact excludes other inferences, but whether the
facts as a whole do so.
4
[24] The first
appellant persisted with his version that he was injured when he was
robbed despite the overwhelming evidence that
he was assaulted by
members of the public. The only reasonable inference to be drawn from
his version is that he wanted to completely
dissociate himself from
the robbery that took place at Makoola Hopaan. If he was indeed not
involved in the robbery he could have
simply stated that he was
assaulted by members of the public as a result of mistaken identity.
If one takes into account the totality
of the evidence, the version
of the first appellant is so improbable and untenable to such an
extent that it cannot be believed.
[25]
The first appellant’s version must also be tested against the
inherent probabilities.
5
It is improbable that the alleged robbers would have taken only his
cellphone and wallet when they searched him whilst according
to him
he had another R8 000-00 in his possession. The fact that some of the
money was covered with fasces is indicative of the
fact that it was
found in his underwear between his legs. The serious injuries
sustained by the first appellant, defecation and
loss of
consciousness seem consisted with the alleged brutal assault by
members of the public. It is highly improbable that the
four persons
who allegedly robbed him would have so brutally assaulted him in
broad daylight in full view of members of the public.
THE CASE AGAINST
THE SECOND APPELLANT
[26] At the trial
the respondent wished to tender evidence regarding certain admissions
and pointing out made by the second appellant.
The second appellant
objected to the admission of this evidence on the basis that these
admissions were not properly made as there
was a communication
breakdown or a language barrier by virtue of the fact that an
interpreter was not used during the course of
the interview during
which these admissions were made and during the subsequent pointing
out. It was also alleged that the second
appellant was not informed
about his Constitution right to remain silent and the right to legal
representation. A trial within
a trial was held concerning the
admissibility of the admissions and the pointing out and the
following evidence emerged:
[27] Captain
Manoatsela Mphasha’s (Mphasha) testified that the second
appellant indicated that he was fluent in Sotho. Venda
and English
were noted as the other languages to be used during the interview.
Mphasha stated that he understands Venda. The second
appellant was
informed of his constitutional right to remain silent and his right
to legal representation. The second appellant
informed him that he
will only require legal representation at the trial. The interview
was conducted in Sotho and occasionally
the second appellant used
English and a little bit of Venda. There was no need for an
interpreter as there was no language barrier
and they understood each
other well throughout the interview. The interview went smoothly and
the second appellant partook freely
and voluntarily.
[28] He explained to
the second appellant what a pointing out involved and the
consequences thereof and the second appellant indicated
that he was a
policeman and understood what a pointing out entailed. The second
appellant indicated his desire to proceed with
the pointing out and
informed him that it concerned his involvement in a house robbery
that took place in Marabastad on Friday
15 December 2006. The second
appellant indicated that he was brought to him to point out the scene
of a house robbery and where
he parked his car during the robbery. He
told Mphasha that he had been informed of the reason for his arrest
as prescribed by section
35 of the Constitution and that the reason
was a house robbery although he was not arrested or detained at the
time.
[29] A standard
interview form or document was used. The format the interview took
was that Mphasha would read what is written in
the pointing out
documents, then he would explain it to the second appellant in Sotho.
The second appellant would answer him. After
completing the relevant
page he would hand it over to the second appellant to read as he is
fluent in English, after he had read
it, the second appellant would
initial to show that he understood. The second appellant initialed
every page and signed at the
end of the form.
[30] Inspector
Barend Van Staden testified that he took the photographs during the
pointing out and was present during part of the
interview conducted
by Mphasha with the second appellant although he could not precisely
say at what stage of the interview. His
general observation was that
the second appellant participated freely and voluntarily during the
interview and the pointing out
and that there was no communication
problem or language barrier.
[31]
The second appellant chose not to testify and did not call any
witnesses during the trial within the trial. The state’s
evidence in the trial within the trial was not disputed save under
cross examination. Where an accused person chooses not to testify
to
rebut the state’s evidence against him and only challenges such
evidence under cross examination the case has to be decided
on the
version of the state alone as questions put to a witness during cross
examination do not constitute evidence.
6
Consequently the trial court correctly found that there was no
language barrier and that the second appellant’s constitutional
rights were properly explained to him.
[32] Captain Maphasa
was called to testify in the main trial. His evidence regarding the
pointing out was that the second appellant
led them to the corner of
First and Grand Streets where he pointed out to them where he had
parked the getaway car facing east.
He pointed out the escape route
he used to get away along a one way street i.e. Second Street. The
second appellant explained that
the getaway car was the car that he
and the other suspects were going to use to get away from the crime
scene after the robbery.
He pointed out the scene of the crime,
namely, Makoola Hopaan. Photographs of the pointing out were taken.
He stated that they
spoke in Sotho and the second appellant
understood Sotho and chose to speak in Sotho.
[33] Mphasha made an
additional affidavit on the same day as the pointing out where he
noted the results of the pointing out and
the information given by
the second appellant at the scene of the pointing out. In this
affidavit he states that the second appellant
explained that the
getaway car was the car that he and the other suspects were going to
use to get away from the scene of the crime
after the robbery; that
he was alone in the car during the robbery; he did not participate in
the robbery and did not know what
was taken. He also informed him
that whilst seated in the vehicle something went wrong and he escaped
alone from the scene by using
Second Street, a one way street, and
drove against oncoming traffic.
[34] When they
returned to the office after the pointing out the second appellant
confirmed in part 4 of the form that he was satisfied
with the
pointing out and that what he had pointed out had been noted
correctly. The second appellant personally read the statement.
The
second appellant added to the statement that he did not go inside the
shop and that he was alone where he had parked the car
and when he
escaped from the scene. The second appellant confirmed that he had
read the whole pointing out document and understood
it and signed the
document.
[35] Warrant Officer
Billy Shokane is the investigating officer in the matter. He
testified that he spoke to the second appellant
in Northern Sotho. He
did not experience any communication problem when dealing with the
second appellant or when the second appellant
was interviewed by his
senior, Director Mangane. The second appellant was interviewed by the
director before he was handed to Captain
Maphasa for the pointing
out. He could not say at what stage the second appellant was arrested
although he thought he was arrested
during the interview before the
pointing out. He did not remember if the accused’s rights were
explained to him as the interview
was conducted by his senior.
[36] The evidence
linking the second appellant’s firearm to the commission of the
crime, the manner in which the firearm was
handled by the police as
well as the make of the firearm was not placed in dispute.
THE SECOND
APPELLANT’S VERSION
[37] The second
appellant testified that he was a police officer at the time of his
arrest. On 15 December 2006 he was on his way
to Pretoria in order to
visit his sister. He stopped at a filling station in Hillbrow to fill
up petrol. Whilst at the filling
station someone came and asked for a
lift to Pretoria. He agreed and charged the person R100-00. The
person requested that they
pick up two other persons in Yeoville. He
increased the fee to R200-00 as a result. They stopped at Yeoville to
pick up the two
extra persons. As these persons were getting into his
car he alighted to go and buy airtime. The persons he gave a lift to
directed
him to Marabstad. When they alighted from the vehicle at
Marabastad they asked him to wait for payment for the trip as they
would
be back soon and would pay him on their return. He waited in
the car.
[38] Suddenly there
were people screaming and running as if running away from something.
He noticed that one of the guys he had
given a lift to was one of the
persons running away. People were running for their lives and he
could not stop them to find out
why they were running away. He
thought something bad had happened and he drove away as he was not
feeling safe. He drove to Sunnyside
where he met some friends and
they had something to eat at MacDonald. He went to the toilet and
left two guys in the car. He later
dropped them where he had found
them and went to see his sister. His sister was not at her place and
would only be back at about
10 that evening. He then decided to go
back to Johannesburg.
[39] On his way to
Johannesburg he opened the cubbyhole to check his firearm as he had
put it there when he knocked off duty. He
did not find the firearm.
He went back to Sunnyside to enquire about the firearm from the
persons he was with at Sunnyside but
could not find them. He then
went to report the firearm as lost at the Sunnyside police station
and thereafter drove to Johannesburg.
At the time he was waiting in
the car at Marabastad he did not hear any gunshots or see anyone
being apprehended by members of
the public.
[40] He disputed
Mphasha’s evidence concerning the pointing out. He stated that
he thought he was pointing out the area where
he had parked his car.
When he pointed towards Makoola Hopaan he was merely pointing in the
direction taken by the three people
he had given a lift.
[41] One of second
appellant’s grounds of appeal is that the evidence of the
pointing out was unconstitutionally obtained
as he was not warned of
his arrest and the implications of giving self-incriminating
information when he was interviewed by Mangane
prior to being
referred to Mphasha for a possible pointing out.
[42]
Section 35 (5) of the Constitution
7
provides that evidence obtained in a manner that violates any right
in the Bill of Rights must be excluded if the admission of
that
evidence would render the trial unfair or otherwise be detrimental to
the administration of justice. The Constitutional Court
has held that
fairness is an issue which has to be decided upon the facts of each
case, and the trial judge is the person best
placed to take that
decision. At times fairness might require that evidence
unconstitutionally obtained be excluded. But there
will also times
when fairness will require that evidence, albeit obtained
unconstitutionally, nevertheless be admitted
8
.
[43]
The fact that it is not clear as at what stage the second appellant
was arrested or whether he was informed about the consequences
of the
proposed pointing out during the interview with Mangane did not
render the trial unfair as his conviction was not based
on any
information he divulged during that interview. His conviction was
based on the pointing out independently conducted by Mphasha
which
the trial court correctly found to have complied with Constitution.
There must be a causal connection between the rights
violation and
the self-incriminating acts of the accused to render the trial
unfair.
9
[44] The second
appellant’s version is improbable and not reasonably possibly
true. He gave a lift to persons that he was
meeting for the first
time but failed to ensure that he got paid for his services when he
dropped them at Marabastad. He was content
to wait for them to pay
him on their return simply because they said they would be back soon
even though he did not know where
or how far they were going. He did
not hear any of the several gunshots that were fired in the vicinity
of where he was waiting
in the car which gunshots had caused people
to flee helter-skelter.
[45] He was a police
officer but ran away from the scene whilst he was fully aware that
there was something amiss that required
the intervention of law
enforcement officers. He did not make any attempt to call for
assistance or report the incident to the
police but instead chose to
go and enjoy lunch with friends at Sunnyside. At the time of the
robbery he was in the safety of his
car and did not know as yet that
his firearm had been stolen. If he genuinely believed that his life
was in danger that was the
right time for him to reach for his
firearm in the cubbyhole in order to use it to protect himself if it
became necessary. The
fact that he drove against the flow of traffic
is suggestive of the fact that he was fleeing from a crime scene.
[46] In their
respective notices of appeal the appellants raised the point that the
bullet cartridges found in the vicinity of the
crime scene did not
match the second appellant’s firearm. However this does not
avail the appellants’ case as the evidence
led at the trial is
that the robbers had two firearms.
[47] It was
contended at the appeal hearing that the second appellant’s
firearm was not found at the scene of the crime and
as Johannes’
evidence was missing it could not be ascertained whether the firearm
that was handed to Maropa was the same
one that Giyani had thrown
inside the car. This argument overlooks the fact that Johannes could
not testify as he had passed on
by the time of the trial; the
identity of the firearm was never placed in dispute and the evidence
of the pointing out is to the
general effect that the second
appellant who is the owner of the firearm participated in the
commission of the crime.
APPEAL COURT’S
CONCLUSION ON CONVICTION OF APPELLANTS
[48]
The powers of a Court of appeal to interfere with the findings of
fact of a trial Court are limited. In the absence of any
misdirection
the trial Court’s conclusion, including its acceptance of a
witness’ evidence, is presumed to be correct,
In order to
succeed on appeal, the appellant must therefore convince the Court of
appeal on adequate grounds that the trial Court
was wrong in
accepting the witness’ evidence - a reasonable doubt will not
suffice to justify interference with its findings.
Bearing in mind
the advantage which a trial Court has of seeing, hearing and
appraising a witness, it is only in exceptional cases
that the Court
of appeal will be entitled to interfere with a trial Court’s
evaluation of oral testimony.’
10
[49] In my view
there is no indication from the record that the trial court
substantially misdirected itself regarding its factual
and
credibility findings. Consequently the appeal against conviction must
fail.
APPEAL AGAINST
SENTENCE.
[50] Both appellants
were convicted of robbery with aggravating circumstances. The first
appellant was also convicted of unlawful
possession of a firearm and
unlawful possession of ammunition. The provisions of section
51(2)(a)(i) of the Criminal Law Amendment
Act 105 of 1997 (the
Minimum Sentences Act) apply to the offences in respect of which the
appellants were convicted. Unless there
are substantial and
compelling circumstances the Minimum Sentences Act prescribes the
following sentences in respect of the crime
of robbery with
aggravating circumstances: a sentence of not less than 15 years
imprisonment for a first offender and an a sentence
of not more than
20 years imprisonment for a second offender and in a case of a third
or subsequent offender a sentence of not
less than 25 years
imprisonment. The Minimum sentences Act prescribes a minimum sentence
of 15 years in respect of a conviction
for possession of a
semi-automatic firearm.
[51] In imposing
sentence the court took into account the serious nature of the crimes
of which the appellants were convicted, the
impact of crime and the
interests of society. The first appellant was sentenced to a period
of 15 years imprisonment in respect
of the count of robbery with
aggravating circumstances. He was sentenced to a period of 15 years
imprisonment in respect of the
charge of possession of a firearm and
1 year imprisonment in respect of the charge of possession of
ammunition. The sentences on
counts 4 and 5 were ordered to run
concurrently with the sentence on count 1 leaving him to serve an
effective period of 15 years
imprisonment.
[52] The court found
that the fact that the second appellant was a police officer was an
aggravating factor and sentenced him to
a period of 18 years
imprisonment in respect of the convion of armed robbery with
aggravating circumstances.
[53] A proviso to
Section 51(2) of the Minimum Sentences Act stipulates that “Provided
that the maximum term of imprisonment
that a regional court may
impose in terms of this subsection shall not exceed the minimum term
of imprisonment that it must impose
in terms of this subsection by
more than five years”. This provision was applied by the trial
court when sentencing the second
appellant to 18 years, i.e. to an
additional period of three years over the prescribed minimum sentence
of fifteen years.
[54] The first
appellant’s appeal against sentence is based on the ground that
the sentence imposed by the trial court is
too harsh and
inappropriate. No reasons were submitted in support of this
contention. Before imposing sentence the trial court
took into
account that the first appellant was 31 years old and a first
offender; that he was unemployed and earned about R3000-00
per month;
he had four children who lived with their respective mothers; his
family was affected by his incarceration; the period
of 3 years and
10 months he had spent awaiting trial and that he was partly
responsible for the delay in the finalization of the
trial. The court
also took into account his upbringing and that he suffered from
ulcers and was on medication.
[55]
A period spent in custody whilst awaiting trial is one of the factors
that should be taken into account in determining whether
the
effective period of imprisonment to be imposed is justified but does
not on its own constitute a substantial and compelling
circumstance.
11
The first appellant failed to establish the existence of any
substantial and compelling circumstances which is a prerequisite for
justifying a departure from the prescribed minimum sentence.
[56]
The second appellant’s grounds of appeal are
inter
alia
that
his sentence is out of proportion to the gravity of the offence and
does not serve the interests of justice. He also questions
the extra
three years imprisonment imposed on him over the prescribed minimum
of 15 years in respect of count 1 and the effect
of the order that
sentences of his co-accused were to run concurrently, which resulted
in the accused who had received longer sentences
than him serving
less jail time. In imposing sentence the trial court took into
account that the second appellant was a first offender;
that he was
36 years old and supported his two children who were 19 years and 11
years old; that he was employed as a driver and
earned R4000-00 per
month and that the mothers of his children were unemployed.
[57]
The court took into account as aggravating factors that two firearms
were used in a premeditated and well planned business
robbery; the
appellants were motivated by greed as they were employed or earning
some income and that they showed no remorse. In
sentencing the second
appellant to 18 years the court particularly took into account as an
aggravating factor the fact that the
second applicant was a police
officer at the time of the commission of the robbery and had abused
the trust placed upon him by
his employer and the broader society.
Our courts have on numerous occasions found abuse of trust to be an
aggravating factor.
12
[58]
In S
v
Malgas
13
,
dealing
with section 51 of the Minimum Offences Act, the court stated among
others, that courts are required to approach the imposition
of
sentence conscious that the legislature has ordained a particular
prescribed period of imprisonment as the sentence that should
ordinarily and in the absence of weighty justification be imposed for
the listed crimes in the specified circumstances unless there
are,
and can be seen to be, truly convincing reasons for a different
response. The court further stated that the ultimate impact
of all
the circumstances relevant to sentencing must be measured against the
composite yard stick (“substantial and compelling”)
and
must be such as cumulatively justify a departure from the
standardized response that the legislature has ordained.
[59]
In S
v
Pieters
14
the
court stated that the decision to impose sentence belongs to the
trial court and for this reason the appeal court may not and
shall
not interfere with the imposed sentence unless it is convinced that
the sentence discretion has been exercised improperly
or
unreasonably.
[60]
In S
v
Pillay
15
the
court stated that ‘As the essential inquiry in an appeal
against sentence, however, is not whether the sentence was right
or
wrong, but whether the Court in imposing it exercised its discretion
properly and judicially, a mere misdirection is not by
itself
sufficient to entitle the Appeal Court to interfere with the
sentence; it must be of such a nature, degree, or seriousness
that it
shows, directly or inferentially, that the Court did not exercise its
discretion at all or exercised it improperly or unreasonably.
Such a
misdirection is usually and conveniently termed one that vitiates the
Court’s decision on sentence.’
[61] Having
considered the facts of this case this court cannot find that the
trial court misdirected itself or exercised it discretion
improperly
or unreasonably to justify interference with the sentence.
In the premises
the following is ordered:
The first and second
appellants’ appeals against conviction and sentence are
dismissed.
A L C M LEPHOKO
ACTING JUDGE OF
THE HIGH COURT
I AGREE:
G Webster
JUDGE OF THE HIGH
COUR
T
Heard on: 27 October
2014.
Judgment delivered
on: February 2015
For the First
Appellant: Adv. P D Phahlane
Instructed by: Legal
Aid South Africa.
For the Second
Appellant: Adv. G C Muller
Instructed by:
Leofi, Leshabana Inc.
For the Respondent:
Adv. P W Coetzee
Instructed by:
Director of Public Prosecutions.
1
1972
(3) SA 766
(AD) at 768A-C
2
S
v Oosthuizen
1982 (3) SA 571
(T) at 576G-H
3
See:
S v Sauls and Others
1981 (3) SA 172
(A) at I80E-G; S v Artman and
Another
1968 (3) SA 339
(A) at 341B-C.
4
DT
Zeffert and A Paizes
Essential
Evidence
(2010)
at 28-30; S v Reddy
1996 (2) SACR 1
(A) at 8C-9 and 10A-C; R v Mtembu
1950 (1) SA 670
(A) at 679-680.
5
See
S v Chabalala
2003 (1) SACR 134
(SCA) at para 15; Shackell v S
2001
(4) SA 1
(SCA) at para 30; R v Mlambo
1957 (4) SA 727
(A) at 738A-B.
6
S
v Katoo
2005 (1) SACR 522
(SCA) at 529E; S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) at 923E-F.
7
Constitution
of the Republic of South Africa, 1996.
8
See:
Key v Attorney-General, Cape Provincial Division
[1996] ZACC 25
;
1996 (4) SA 187
(CC)
at para 13.
9
S
v Tandwa and Others
2008 (1) SACR 613
(SCA) at para 117; S v Monyane
and Others
2001 (1) SACR 115
(T) at 122C-D; S v Tsotetsi and Others
2003 (2) SACR 648
(W); S v Pillay
2004 (2) SACR 419
(SCA) at 432F-H.
10
S
v Francis
1991 (1) SACR 198
(A) at 198J-199A; see also R v Dhlumayo
and Another
1948 (2) SA 677
(A); S v Hadebe and Others
1997 (2) SACR
641
(SCA) 645E-F; S v Leve
2011 (1) SACR 87
(ECG) at para 8.
11
Radebe
and Another v S (726/12)
[2013] ZASCA 31
(27 March 2013) at para 14;
Shubane v The State (073/14)
[2014] ZASCA 148
(26 September 2014) at
para 10.
12
S
v Kruger
1995 (1) SACR 27
(A) at 29C-E; S v Maritz
1996 (1) SACR 405
(A) at 417G-I; S v Kellerman
1997 (1) SACR 1
(A) at 8J-9A; S v V
1994
(1) SACR 598
(A) at 601G-H: S v Jackson
1998 (1) SACR 470
(SCA) at
478B.
13
2001
(1) SACR 469
(SCA) at para 25.
14
1987
(3) SA 717
(A) at 727F-H
15
1977
(4) SA 531
(A) at 535E-G; see also S v De Jager
1965 (2) SA 612
(A)
at 629