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[2014] ZAGPPHC 455
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Ngomane v S (A776/2012) [2014] ZAGPPHC 455 (19 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE NO: A776/2012
DATE: 19 JUNE 2014
NOT REPORTABLE
In the matter
between:
JOSEPH
SIMPHIWE
NGOMANE
...................................................................................................
Appellant
and
THE
STATE
......................................................................................................................................
Respondent
JUDGMENT
THOBANE, AJ
[1] The Appellant,
appeared with his co-accused in the Louis Trichardt Regional Court on
the following charges:
•
Count
1: Robbery with aggravating circumstances,
•
Count
2: Robbery with aggravating circumstances,
•
Count
3: Attempted murder,
•
Count
4: Attempted murder,
•
Count
5: Possession of an unlicensed firearm.
[2]The Appellant and
his co-accused elected to conduct their own defense and were as a
result unrepresented throughout the trial.
[3] The Appellant
pleaded not guilty to the charges and elected to exercise his right
to remain silent and not disclose the basis
of his defense. He was
nonetheless convicted on counts 1 and 2, and acquitted on the rest.
[4] On the 10th July
2001, he was sentenced to an effective period of 30 years
imprisonment, when the the following sentences were
handed down:
•
Count
1:15 years imprisonment,
•
Count
2:15 years imprisonment.
[5] The Appellant is
appealing against both conviction and sentence with leave of the
trial court.
[6]The transcribed
record of proceedings has been difficult to put together. The
magistrate that heard the matter was put on suspension
by the
Department of Justice. This meant the order of reconstruction could
not be seen through. The clerk of the court was not
helpful in
ensuring that there is a proper reconstruction of the record. It was
agreed however that the appeal not be delayed any
further and that it
be determined on the existing record, which was sufficient for
purposes of considering the appealas that would
be in the interest of
justice. It would also be in the interests of justice to do so.
[7] The evidence
presented by the State was briefly that Joseph Motsibane who was a
bakery truck driver while delivering bread at
a Cafe, saw the
Appellant behind the bakery busy with his shoe. He passed him and
climbed into the drivers seat. He then heard
a firearm being cocked
on his window. He was insulted and told to bring money. He had some
money with him and the person that had
pointed him with a firearm
searched his pocket to remove it. In the process he stained his
pocket with blood as he was bleeding.
He handed over all the money
and he was ordered to lie on the ground. While still pointed with a
firearm by the Appellant, his
companion was also ordered to climb off
and he drove away in the bakery truck. Police were thereafter
contacted. They went on foot
in search of the bakery vehicle and
found it some 5km away parked along the road.They then proceeded to
the police station to lay
criminal charges.
[8] Patric Masingwa
testified that he was delivering bread in the company of Patric
Moloto on the 14th September 1999. He went inside
the tuck shop where
he was effecting delivery and he noticed the Appellant's co-accused
inside, who bought a box of matches. On
exiting the tuck shop and
while walking towards the delivery truck, the Appellant approached
him from behind while holding a firearm.
He was ordered to get inside
the truck. He and his colleague Patric Moloto were searched and
thereafter locked at the back of the
delivery truck. The truck was
driven away and abandoned. They were inside the truck for some forty
minutes when they heard a vehicle
approaching and they then banged
the truck on the inside so as to draw some attention. They were
eventually rescued whereafter
they proceeded to the police station to
report the incident. He indicated that he had seen the Appellant and
his co-accused before
driving in a Toyota Conquest and that he could
not have been mistaken about their identity as they had been at the
place of incident
for a while.
[9] The other
witnesses that testified, were police officers and they gave evidence
about the charges in respect of which the appellant
was acquitted.
Inspector Mokerong, testified about the arrest of the Appellant.
[10]
While an identification parade was held in this matter, it is my view
that it was correctly not relied upon by the trial court
in arriving
at a finding. The identification parade was fraught with
irregularities to the extent that it could not have been credible.
The criticism leveled by Mr Nel at the identification parade is
therefore valid. So is the criticism of the court a
quo,
where
it said,
"Let
me point out at this stage that it is true that the accused committed
the offences concerned, i do not doubt that he robbed
the
compiainants in count number 1 and
2
."
Especially in light
of the fact there was no attempt by the trial court to critically
evaluate and analyze the evidence before it.
[11] It is my view
that, despite the magistrate's failure to critically evaluate the
evidence as to the identity of the perpetrator
in his judgment, the
identity of the Appellant was sufficiently established, on the
evidence, by the two witnesses who testified
about count 1 and 2. Put
differently, the identity of the Appellant as the perpetrator of the
robbery in count 1 and 2, was established
beyond a reasonable doubt.
[12] It was argued
on behalf of the Appellant that the defense of alibi must stand in
that on the day alleged in the charge in sheet,
as the day of the
robbery in respect of the first count, the Appellant was already in
custody. The details of the said alibi are
as follows. The annexure
to the charge sheet stipulates the date of the robbery in count 1 as
the 21st September 1999. The appellant
during the cross examination
of Joseph Motsibane, put it to him that it could not have been him
who committed the robbery as he
was in police custody after being
shot in the stomach and on is left thumb on the 19th September 1999.
Later when he testified
however he indicated that he had been shot on
the 18th September 1999. Joseph Motsipane was adamant that it was the
appellant who
pointed him with a firearm and robbed him and that
during the robbery he had observed that the appellant was bleeding
and that
the firearm was also blood stained. He further testified
that the appellant left blood stains on his dust coat when he
searched
his pockets to remove money.
[13] Robert
Malampane, the arresting officer, testified that on the 18th
September 1999 while on standby duty, he received information
about a
suspect in armed robbery cases. Together with his colleagues, he
followed up the information and drove to the place. On
arrival they
approached the place but it was dark. They knocked on the door and
the door was quickly opened and quickly closed
from the inside.
Several gunshots rang out and they ran to their cars. His evidence
was further that the following day, the 19th
September 1999, they
went back to the scene and arrested the appellant.
[14] The Appellant
testified that on the 18th September 1999, he was visiting his
girlfriend. After his girlfriend had gone to the
toilet, he heard a
knock on the door. He asked who it was but there was no answer. After
asking for the second time the reply that
came was that it was the
police. He opened the door and went outside. While outside he noticed
a number of people. One of them
came towards him and without saying
anything, fired shots at him. He fell down and was thereafter
assaulted by this group of people
until he lost consciousness. He
woke up in the veld the following morning. He went to some house
where there was a night vigil
to ask where the hospital was, as he
had been injured. He was then arrested. During cross examination he
confirmed that he was
shot on the 18th and arrested on the 19th
September 1999.
[15] What is
discernible from the aforegoing, is that according to the evidence of
the arresting officer Robert Malampane, the shooting
occurred on the
18th September 1999 and the arrest on the 19th September 1999. This
is corroborated by the appellant himself. Joseph
Motsipane, the
complainant in count 1, who positively identified the appellant,
testified that the appellant deposited blood stains
on his clothing
during the robbery. This could only have been on the 19th September
1999. The appellant's alibi, in my view, can
not stand. There could
be valid criticism about the failure of the police to own up the
shooting incident of the 18th September
1999, that however does not
necessarily impact on the acceptance of rejection of the alibi.
[16] Further, the
face of the charge sheet indicates the date of arrest as the 21st
September 1999. In view of the evidence tendered,
this could only
have been a typographical error.
[17] With regard to
the alibi proffered in respect of count 2, to the effect that the
appellant was in Pietersburg on the 14th September
1999, the
submission made on his behalf is that the state failed to adduce
evidence in refutation thereof. When the complainant
in count 2,
Patric Masingwa was cross examined, at length, the alibi was not put
to him to comment on. Other aspects of his evidence
were tested by
both accused persons. Patric Masingwa was cross examined by the
appellant about the blue conquest motor vehicle,
the identification
of the appellant as having pink lips, that Patric Masingwa witnessed
the Albany Bakery robbery from a distance
and reported to the police,
whether Masingwa knew where the appellant stayed and finally about
the road to Giyani. He state therefore
could never have been expected
to rebut an alibi that was not tendered to its witnesses. This alibi
equally stands to be rejected.
[18]
While viewed individually, the alibi might appear to be a valid
ground to challenge the finding of guilt. This might appear
to be the
case, our courts adopt a different approach. All the evidence must be
taken into account when determining the guilt or
innocence of an
accused person. The correct approach is set out in the following
passage from
Mosephi and others v R LAC (1980 -
1984) 57 at 59 F-H:
"The
question for determination is whether, in the light of ail the
evidence adduced at the trial, the guilt of the appellants
was
established beyond reasonable doubt The breaking down of a body of
evidence into its component parts is obviously a useful
guide to a
proper understanding and evaluation of it But, in doing so, one must
guard against a tendency to focus too intently
upon the separate and
individual part of what is, after all, a mosaic of proof Doubts about
one aspect of the evidence led in a
trial may arise when that aspect
is viewed in isolation. Those doubts may be set at rest when it is
evaluated again together with
all the other available evidence. That
is not to say that a broad and indulgent approach is appropriate when
evaluating evidence.
Far from it There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole, if that is not
done, one may fail
to see the wood for the trees”.
[19]
When the court adopts the aforementioned approach, which has been
referred to in many a decided case, the submission that the
alibi has
been established can not stand. In S
v Van
derMeyden
1999 (1) SACR 447
(W) at 449j-450b,
the
following is stated:
"The proper
test is that an accused is bound to be convicted if the evidence
establishes his guilt beyond reasonable doubt,
and the logical
corollary is that he must be acquitted if it is reasonably possible
that he might be innocent The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or to
acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be unreliable;
and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored."
Importantly,
in that case Nugent J warned against separating evidence into
compartments and to examine either the defence or State
case in
isolation. See also S
v Van Aswegen
2001 (2) SACR
97
(SCA) at 101
a-e,
S
v Trainor
2003 (1) SACR 35
(SCA) at 40f-41c and
S v Crossberg
[2008] ZASCA 13
;
2008 (2) SACR 317
(SCA) at 349f-i and 354b-g.
[20]
While the reasons by the court a
quo
for
its finding of guilt are faulted, the finding itself was supported by
evidence. In view of the above, the appeal against conviction
on both
counts must fail.
[21] Having found
the Appellant guilty, the magistrate proceeded to impose an effective
term of imprisonment of 30 years. The comments
by the magistrate
during the sentencing proceedings point to various misdirections. The
following comments are worth highlighting:
"There must
be others (offences) for which you had never been caught of, because
it is difficult for police to apprehend offenders
like you"
"It will not
be wrong to assume that you were seemed to be running at full speed
before you were stopped”
"Even if I
acquitted you in respect of count number 3,4 and 5, it appears to me
that you were the one that were shooting at
the police"
"I therefore
now have to revenge on behalf of those two victims in count number 3
and 4"
"You have
been found guilty of two counts of robbery with aggravating factors.
Possibly you were committing these heinous offenses
with this
unlicensed pistol. We do not know how it came into your hands but it
was stolen"
[22] It is trite
that the trial court has discretion when imposing a sentence. A court
of appeal may interfere with the trial court’s
sentencing
discretion if it believes that the trial court failed to exercise its
discretion solicitously and correctly.
[23] The applicable
principles have been refined over a period of time and are now trite.
The statement by Holmes JA in S v Rabie
1975 (4) SA 855
(A) at
857D-F:, is a case in point:
"1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal
—
(a)
should be guided by the principle that punishment is ‘pre-eminently
a matter for the discretion of the trial Court
,
and
(b) should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the
discretion has not
been ‘judicially and properly exercised’.
2. The test under
(b) is whether the sentence is vitiated by irregularity or
misdirection oris disturbingly inappropriate”.
[24] The appellate
court will be entitled to interfere with the sentence imposed by the
trial court only if one or more of the recognized
grounds justifying
interference on appeal has been shown to exist. (See S v Mtungwa en
'n Ander
1990 (2) SACR 1
(A)). Only then will the appellate court be
justified in interfering. These grounds are that the sentence is,
(a) disturbingly
inappropriate;
(b) so totally
out of proportion to the magnitude of the offense;
(c) sufficiently
disparate;
(d) vitiated by
misdirections showing that the triai court exercised its discretion
unreasonably; and
(e) is otherwise
such that no reasonable court would have imposed it
[25] In the premises
this Court must decide whether or not an effective sentence of 30
years imprisonment imposed by the trial court
provokes one's sense of
shock or that it is blemished by misdirections and irregularities. If
it is, this Court will have the right
to interfere by setting aside
the sentence and imposing what it may consider apposite in the
circumstances.
[26] I agree with
the submission by the Appellant's legal representative, that the
afore mentioned misdirections by the trial court
call for
intervention. This is also in light of the fact that an effective
term of imprisonment of 30 years is severe. It would
appear, the
sentencing court, having found that the Appellant being a 36 years
old person at the time, could be reformed, failed
to consider the
cumulative nature of the sentence of 15 years for each of the two
counts of robbery with aggravating circumstances.
[27] It is settled
in our law that sentencing needs to take into account rehabilitation,
retribution and reform. Courts must strive
to strike some kind of an
equilibrium to guarantee that the sentences that they pass become the
most perfect embodiment of the
three. It would seem that in this
matter the sentencing court failed to strike that balance.
[28] In my view, the
sentence imposed is too disproportionate to the offenses committed. I
find that the discretion by the sentencing
court, was incorrectly or
improperly exercised, and that the sentencing proceedings were
vitiated by misdirections, thus warranting
the appeal court's
interference. The appeal against the sentence imposed by the trial
court therefore succeeds.
[29] Having
considered all that I have mentioned hereinabove I would make the
following order:
1. The appeal
against conviction on the two counts of robbery with aggravating
circumstances is dismissed,
2. The sentence of
15 years imprisonment on each of the two counts of robbery with
aggravating circumstances is set aside, in its
place the following
sentence is imposed:
2.1. On count 1 the
accused is sentenced to 15 years imprisonment
2.2. On count 2 the
accused is sentenced to 15 years imprisonment
3. It is ordered
that 12 years of the sentence imposed on count 2 run concurrently
with the sentence imposed on count 1.
4. The sentence is
ante-dated to the 10th July 2001
S.A. THOBANE
ACTING JUDGE OF
THE HIGH
COURT, PRETORIA
I agree, and it is
do ordered
N. KOLLAPEN
JUDGE OF THE HIGH
COURT, PRETORIA