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2014
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[2014] ZAFSHC 72
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Mokoena v S (A242/2013) [2014] ZAFSHC 72 (22 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A242/2013
In
the matter between:
TUMELO
FRANS MOKOENA
….......................................................................................
Appellant
and
THE
STATE
…....................................................................................................................
Respondent
CORAM:
MUSI, J
et
MOTLOUNG,
AJ
HEARD
ON:
24 FEBRUARY 2014
JUDGMENT
BY:
MOTLOUNG, AJ
DELIVERED
ON:
22 MAY 2014
[1]
The appellant appeared in the Bethlehem Regional Court on charges of
murder and robbery with aggravating circumstances.
He was
convicted on both counts and sentenced to fifteen years on each
count, 10 years on count 2 to run concurrently with count
1. He
appeals against both convictions and sentences.
[2]
The convictions flowed from the murder of the deceased on 18 June
2011 and robbery with aggravating circumstances, as set out
on the
date in count 1 above, in Bethlehem
[3]
Mapoelo Evelina Khumalo, who is the deceased, Buti Petros Khumalo’s
wife, testified that on 18 June 2011 she was on her
way home with her
husband. As they were to pass the rail crossing to their home,
they met three men, one of whom was the
appellant. As they were
about to pass them, the deceased suggested they run as it was cold.
[4]
The appellant then asked the deceased why he suggested they run after
they passed them and referred to him as a “spook”.
An altercation between the deceased and the appellant ensued.
They wrestled and after her intervention they stopped.
The
family proceeded on their journey.
[5]
A few minutes later the appellant came rushing to the deceased,
hurling insults at him and saying he is going to stab him.
She
pleaded with the appellant to leave the deceased alone and the
deceased picked up stones to defend himself. The appellant
managed to trip the deceased, who fell to the ground. The
appellant got on top of him and stabbed the deceased repeatedly
on
his upper body.
[6]
Ms Khumalo screamed for help to no avail and ran home to get further
assistance. On her return to the scene with more
manpower, she
found the deceased in a pool of blood and called the police from her
phone. She went to the police station
to seek further
assistance. When she returned to the scene she found that the
police were already there. An ambulance
arrived a while later.
She was informed by the paramedics that her husband had passed away.
[7]
She had observed that the deceased’s pockets were drawn out and
his wallet, which contained his bank cards, was missing.
His
phone and keys were not taken. That same day there was an
attempt to withdraw money from the deceased’s bank card,
as a
result she received a message via her husband’s mobile phone.
She informed the police about the message.
[8]
Her evidence was that a few days afterwards she saw the appellant in
town and informed the police. The appellant was arrested.
Even though the events took place at night she testified that she
could identify him. The appellant is a person she knew
for many
years.
[9]
Elvis Radebe testified and corroborated Mrs Khumalo. He
testified that he knew the appellant as a friend from 2008.
He
testified that the deceased was a neighbour. He went to a local
taxi rank and met the appellant and one Padiso.
After a while
they decided to leave on the understanding that the appellant would
buy them beer in Morelig where they stayed.
On their way the
deceased and his wife passed them, but the couple had a quarrel.
It is at this point that the appellant
intervened and the deceased
took exception to that. An altercation broke out. They
separated the two antagonists.
[10]
The appellant was not happy after this and claimed the deceased had
caused him to be cut by his own knife. He told them
he was
going to take revenge. He had a cut on his hand. He was
cursing all the time. While they were still baffled
by the
events, the appellant rushed to the deceased with an open knife.
Appellant tripped the deceased and when the latter
fell, he stabbed
him several times.
[11]
Radebe testified that while he could not see Mrs Khumalo, because it
was dark, he heard her screams. The incident occurred
some 80
metres from them. He did not see when the appellant removed the
deceased’s property from his pockets. He said
there was no
motive for him to implicate the appellant. The three of them
went back to town. The appellant washed blood
off his hands.
They bought food and headed for the township where they entertained
themselves at a tavern.
[12]
They bought liquor with money taken from the deceased’s
wallet. They also used the deceased’s bank cards
to try
and access his account, but failed to get the right pin number.
[13]
Padiso Tsitso Tsosana testified that he was with the appellant and
Radebe that 18 June 2011. He knew the appellant for
about three
years. He said he was only acquainted to Paseka Elvis Radebe.
He said they were drinking at the taxi rank
when Radebe joined them.
They left together for Morelig. The evidence of this witness is
similar to that of Radebe
and corroborates it in all material
respects.
[14]
Teboho Khumalo testified that the deceased was his father. He
gave evidence that he had known the appellant for one year.
On
18 June 2011 he attended a traditional ceremony. He said he was
never at the taxi rank.
[15]
The evidence of Kobedi Kobedi who was the investigating officer was
that on 27 June 2011 he arrested the appellant after receiving
information that he had been seen in town in Bethlehem. He
testified that Mrs Khumalo was unsure of the identity of the
appellant on the first day, because she was overcome by emotions.
He then obtained a supplementary statement from her which
contained
the names of suspects. She gave the name of the appellant as
Tumelo Mokoena. He said he could not arrest
the appellant as he
was already at large. He further testified that Radebe and
Tsosana were arrested initially, but could
not be linked with the
crimes.
[16]
The evidence of the appellant was that he knew the deceased’s
wife and son. He also knew the two witnesses that
gave evidence
on behalf of the State. On 18 June 2011 he found the two
witnesses, Radebe and Tsosana, at the taxi rank.
They did not
have money for liquor.
[17]
The appellant testified that he bought a beer quart and that he drank
with the two. He informed Radebe and Tsosana that
he intends to
go to Qwa-Qwa. While standing outside the taxi rank tavern,
Teboho, the deceased’s son, came and ask
for beer. He
gave Teboho R10.00 to buy beer. Teboho did not buy beer, but
left for Morelig, his home. He left
the taxi rank to hitch a
hike to Qwa-Qwa. He arrived in Qwa-Qwa at approximately 18h00.
[18]
He testified that he was never at Ninth Avenue Tavern on 18 June
2011. He said he knows nothing about the fatal stabbing
of the
deceased.
[19]
The appellant’s version of events was that he went to the
tavern, found the two witnesses, Radebe and Tsosana.
They drank
a few beers and were joined by the son of the deceased. He said
he gave the latter some money before he hitched
a hike to Qwa-Qwa
where he arrived at 18h00 on 18 June 2011. He therefore pleaded
an alibi.
[20]
The State’s version was that he was with Tsosana and was later
joined by Radebe. From there they moved to Morelig,
where they
stayed in order to continue drinking. Along the way, the
appellant got into an altercation with the deceased.
The
deceased was with his family. After the deceased’s wife
separated them, the appellant charged the deceased with
an open knife
and a fight ensued. This resulted in the death of the
deceased. It was found that he had also been pick-pocketed
or
robbed.
[21]
The magistrate accepted the evidence of the State and rejected that
of the appellant as false beyond reasonable doubt.
On appeal we
can only interfere with the findings in case of a material
misdirection by the magistrate or if the court of appeal
is convinced
that the decision is clearly wrong.
[22]
Insofar as the count of murder is concerned, the proven facts exclude
every reasonable inference other than that the appellant
committed
the crime, resulting in the death of the deceased.
[23]
23.1 The appellant argued that the evidence of the two state
witnesses, who were with the appellant, should be approached with
caution as they were implicated in the use of the bank cards of the
deceased.
23.2
It was further argued that the identity of the appellant was never
established.
23.3
It was submitted that he had an alibi.
23.4
Appellant lastly submitted that a key statement that was missing
should have been considered fatal to the state case.
[24]
The above submissions were rejected by the magistrate when he found
that:
24.1
The evidence of Mapoelo Evelina Khumalo established the identity of
the appellant beyond reasonable doubt.
24.2
In as far as the evidence of the two witnesses, he accepted they
should be approached with caution, but when taken with the
evidence
of the deceased’s wife, Mapoelo Evelina Khumalo, it established
that the appellant was on the scene and was properly
identified.
24.3
The affidavit made by deceased’s wife was corroborated by the
evidence of Warrant Officer Kobedi who testified that on
the first
day Evelina Khumalo was confused, but later after recovering, she
gave him the name of the appellant. This was
also entered in
the investigation diary of Kobedi.
24.4
In respect of the alibi, evidence of the deceased’s son was
that he was never at the taxi rank on the day. The
appellant’s
mother could also not confirm that he was in Qwa-Qwa, as alleged.
[25]
I find that looking at the totality of the evidence, the learned
magistrate was correct. See
S v
Van Aswegen
2001 (2) SACR 97
(SCA)
at 101 a – f. The “totality” approach makes
the appellant the culprit.
[26]
In as far as the second count of robbery is concerned, it was
established that the cards and wallet, including R100.00 that
belonged to the deceased, were found in the possession of the
appellant and the two witnesses, after they used the cards at a
tavern.
[27]
Relying on the evidence above, the trial court convicted the
appellant of robbery with aggravating circumstances. In
my view
the trial court erred. The magistrate said the only reasonable
inference is that the appellant robbed the deceased
of his wallet
with aggravating circumstances. There is more than one
inference that can be drawn. Robbery with aggravating
circumstances is defined as follows:
“
Robbery
consists of the theft of property by intentionally using violence or
threats of violence to induce submission to its taking.”
See
SA Criminal Law and Procedure
, Vol II by JRL Milton, page
642. See also
S v Moloto
1982 (1) SA 844
(A) at
850A.
In
this particular instance there is no evidence that at the time of
taking the deceased’s wallet, he was still alive or dead.
In the result robbery as defined above, cannot succeed as there is no
evidence of violence being used to induce the deceased to
submit to
his belongings being taken. The property must be obtained by
appellant as a result of violence or threat of violence.
The
premise is that the violence must precede the taking and that robbery
is not committed if the violence is used to retain a
thing already
stolen or to facilitate escape. If this happens, appellant
commits theft and assault. The converse is
also true. If
appellant assaulted the deceased, after the assault discovers that
the deceased had by chance dropped some
of his property and then only
then for the first time forms an intention of taking the property, he
does not commit robbery if
he picks up the property and appropriates
it, he may however be charged with and convicted of assault and
theft.
See
S v Moerane
1962 (4) SA 105
(T) at 106 D;
S
v Jabulani
1980 (1) SA 331
(N);
S
v Matjeke
1980
(4) SA 267
(B);
C
R Snyman:
Criminal
Law
, 5
th
Edition page 518.
[28]
Robbery is a form of theft and no conduct can be robbery unless it is
also theft. The offence of theft is defined as:
“
The
unlawful taking of another’s property with intent to steal, of
a thing capable of being stolen.”
There
is evidence that the property of the deceased was found on the
appellant. He went to a tavern where he used the items
stolen
from the deceased with his friends. They testified that he had
urged them to use the cards as everyone should earn
his keep.
He was not going to buy them liquor if they did not participate.
A
more detailed definition of theft is the appropriation of another’s
property, which consists of the:
(i)
Deprivation of
the lawful owner of his property;
(ii)
The exercise
of right as an owner of property belonging to someone.
And
lastly the element of intention would be satisfied by the use by the
appellant and his friends of the items taken from the deceased
at the
tavern as the money would be appropriated by the appellant for his
own benefit.
Theft
is a competent verdict on a charge of robbery.
[29]
In the circumstances I find that the appellant ought to have been
found guilty of the crime of theft, as the deceased’s
wallet
and bank cards were found on him. They were used at the tavern
for his own benefit.
[30]
Adv Kruger, for the appellant, left it to the court to decide on an
appropriate sentence in regard to the issue of robbery,
which this
court has found can only amount to theft. In the circumstances
I find that a sentence of three years is appropriate
for the crime on
the following basis:
(i)
The appellant was not a first offender in respect of the 2
nd
charge. He has previous conviction for crime involving dishonesty.
(ii)
He was a young
adult of 34 years when the crime was committed. His age cannot count
in his favour. He was also unemployed at the
time of the offence.
(iii)
While robbery
has been ruled out, theft by itself is serious and cannot be
condoned. This is more so because of the circumstances
under which
the crime was committed. It was callous of the appellant to kill the
deceased and still take from him as he did.
[31]
In the premises the following order is issued:
31.1
The appeal against conviction and sentence on count 1 is dismissed.
31.2
The appeal against conviction on count 2 is upheld; the conviction is
set aside and replaced with a conviction of theft, which
is a
competent verdict.
31.3
A sentence of 3 (three) years imprisonment is imposed in respect of
count 2.
31.4
The sentences on both counts are to run concurrently.
__________________
S.E.
MOTLOUNG, AJ
I concur.
__________
C
J MUSI, J
On
behalf of appellant: Adv J.D. Reyneke
Instructed
by: Legal Aid SA
BLOEMFONTEIN
On
behalf of respondent: Adv M.M.M. Moroka
Instructed by:
Director of Public Prosecutions
BLOEMFONTEIN