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[2014] ZAFSHC 105
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Yola and Another v S (A113/2013) [2014] ZAFSHC 105 (19 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION. BLOEMFONTEIN
Appeal No.:
A113/2013
In the matter
between:
AUBREY
YOLA
.............................................................................................................................
1
st
Appellant
(Accused
2
a quo
)
REGINALD
RAMABANDA
…...................................................................................................
2
nd
Appellant
(Accused
3 a
quo
)
and
THE
STATE
......................................................................................................................................
Respondent
CORAM:
C.J.
MUSI, J
et
MBHELE,
AJ
HEARD
ON:
5
MAY 2014
JUDGMENT
BY:
MBHELE,
AJ
DELIVERED
ON:
19
JUNE 2014
[1] The two
appellants were charged with robbery with aggravating circumstances,
they were both convicted of robbery and each sentenced
to 15
(fifteen) years imprisonment.
[2] The first
appellant was granted leave to appeal against the sentence only,
while the second appellant was granted leave to appeal
against both
conviction and sentence, by the trial court.
[3]
The facts that led to the conviction of appellants were as follows:
The first appellant and accused 1 in the court
a
quo
were
at Nedbank at Mimosa Mall on the morning of the incident. The
complainant withdrew R5 000,00 from Nedbank at Mimosa Mall. The
first
appellant and accused 1 were at the bank at the same time as the
complainant. Appellants followed the complainant from Mimosa
to East
End. The travelling time between Mimosa and East End is about 15
minutes.
[4] Second appellant
was the driver of the vehicle that transported first appellant and
accused 1 from Mimosa Mall to East End.
First appellant and accused 1
got off the vehicle.
[5] The complainant
was riding a motor bike from Mimosa Mall to East End where he went to
pay the person who was fixing his car.
On his arrival at East End, he
parked his motor cycle and took out R1 400,00 from the seat of the
motor cycle and put it in his
pocket. Suddenly he was ambushed by
four people and one of his assailants took R1 400,00 out of his
pocket and demanded more money
as the person knew that he still had
more money in his possession. He unlocked the seat of the motorbike
and took out the remaining
R3 600,00 and gave it to his assailants
who were armed with an object resembling a sharpened Allen key.
[6] The second
appellant was identified by the complainant as one of his assailants.
The complainant screamed for help and his assailants
ran down the
street and got away in a white Mazda sedan. The second appellant was
the driver of the vehicle.
[7] They chased
after the vehicle with assistance from community members who were in
the vicinity. The motor vehicle stopped somewhere
alongside the N10,
near the township and the occupants ran into nearby houses. Three of
the occupants were arrested and the second
appellant was one of them.
[8] One of the
witnesses, Mr Wouter Smartryk de Kock, who is a traffic engineer,
noticed a car driving on the wrong side of the
street with its doors
open. The manner in which the car was approaching caught his
attention owing to his knowledge of traffic
rules. While the car was
still driving slowly people jumped into the said vehicle and it drove
away at a very high speed. There
were people chasing after the car
and he joined them. They chased after the car up until it stopped on
the N10 and people jumped
out of it and ran into nearby houses. Three
occupants of this car were arrested.
[9] The second
appellant’s version is that he is a taxi driver. On the date of
the incident he -received a call from the first
appellant requesting
him to give him a ride to Mimosa from Tempe. At Mimosa Mall the first
appellant brought other two people and
requested the appellant to
take them to East End. On his arrival at East End the first appellant
got off the car and told the second
appellant to wait for them in the
car as he was going to fetch money from his debtors. Suddenly he saw
the first appellant and
accused 1 being chased by a group of white
people who were hurling insults and throwing stones at them. They
jumped into the car
and told him to drive off immediately. He drove
off immediately. The people pursued them with about four cars. He
drove off because
he wanted to protect his employer’s car from
being damaged by the angry mob. When he could not keep up he stopped
the car
and jumped out. He was then arrested by two white males.
[10]
The court a
quo
was
in a more favourable position than this court to form a judgment on
facts. The court of appeal can only interfere with the judgment
of
the court a
quo
if
it has been established that there were misdirections of fact or if
it has overlooked other facts or probabilities. In
S
v Francis
1991
(1) SACR 198
(A ) it was said that:
“
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.”
[11]
Having perused the record and considered reasons advanced by the
court a
quo
,
I am satisfied that there were no misdirections.
[12]
It is clear from the evidence that second appellant took part in the
robbery by providing a getaway car. There was no way the
first
appellant and accused 1 would have known the complainant’s
destination without them having to follow him from Mimosa
Mall to
East End. The second appellant should have been told to follow a
specific individual riding a motor bike. The complainant
identified
the second appellant during robbery and gave a graphic description of
him and his observation was not successfully challenged.
His defence
that he was a mere taxi driver, cannot hold centre in the face of the
overwhelming evidence brought by the state witnesses.
I could not
find fault in the reasoning of the court a
quo
and
find the conviction to be in order.
THE SENTENCE
[13] It is trite
that the court of appeal will not interfere with the sentence of the
trial court unless it is satisfied that the
sentence is tainted by
misdirections or is shockingly inappropriate.
[14] Both parties
are in agreement that the sentence of 15 (fifteen) years is
disturbingly inappropriate in respect of the first
appellant. The
Respondent argued that in respect of the second appellant the
sentence is appropriate taking into consideration
his previous
convictions.
[15]
The court a
quo
convicted
the appellants of robbery and sentenced them to the maximum sentence.
The following was said in relation to sentence by
the court a
quo
at
page 134 of the record:
“
The
court will however be cautious not to overemphasise the deterrent
aspect and will ensure that the sentence fits yourself as
well as the
crime. The court will in addition temper the sentence with a lot of
mercy. Mercy means that justice must be done with
compassion and
humanity, not by rule of thumb and that the sentence must be
assessed, not callously arbitrarily or vindictively,
but with due
regard to the weakness of human beings and their ability or weakness
to succumb to temptation.”
The
court a
quo
paid
lip service to the aforementioned paragraph and her words were not
reflected in the final outcome.
[16] Both Mr
Makhene, for the appellants, and Ms Liebenberg, for the respondent,
argued that the court sentenced the appellants
as if the provisions
of Act 105 of 1977 were applicable to the specific offence. I agree.
Ms Liebenberg however further argued
that the sentence imposed on the
second appellant is just and appropriate regard being had to his
previous convictions.
[17]
I have considered both appellants’ personal circumstances as
stated below. Both appellants were in custody, awaiting
trial for a
period of 22 months. The first appellant was 27 years of age,
self-employed, selling clothing, generating a monthly
income of about
R1 500,00, married with one child who was
2Vi
years
old at the time. He has a previous conviction for theft committed in
2000 when he was sixteen years old. Sentence was postponed
for four
years with conditions.
[18] The second
appellant was 39-years of age, married with two children, employed as
a taxi driver and earning R2 000,00 per month.
He was a sole bread
winner. He has the following previous convictions; theft committed in
1993, escaping from lawful custody and
robbery committed in 1996. He
was sentenced to 3 months imprisonment, suspended with conditions for
both theft and escaping from
lawful custody. In 1996 , he was
sentenced to 10 years imprisonment for robbery and served 9 years of
the 10 years. Since his release
in 2005 he came into contrast with
the law for the first time in 2009.
[19]
The appellants were convicted of robbery, not robbery with
aggravating circumstances, whuch conviction falls outside the ambit
of Act 105 of 1997. The respondent has already conceded that in
respect of the first appellant, this court may interfere with the
sentence imposed by the court a
quo.
[20]
The second appellant’s list of previous convictions, are an
indication that he has a propensity to commit offences similar
to the
one he has been convicted of. In
S
v THONGA
1993
(
1
)
SACR
365 (V):
“
In
my view the punishment must firstly be reasonable, i.e. it should
reflect the degree of moral blameworthiness attaching to the
offender, as well as the degree of reprehensibleness or seriousness
of the offence. Punishment therefore should ideally be in keeping
with the particular offence and the specific offender. It is
necessary, secondly, for the punishment to clearly reflect the
balanced
process of careful and objective consideration of all
relevant facts, mitigating and aggravating. The sentence should,
thirdly,
reflect consistency, as far as is humanly possible, with
previous sentences imposed on similar offenders committing similar
offences,
lest society should believe that justice was not seen to be
done. Lastly, the penal discretion is to be exercised afresh in each
case, taking the facts of each case and the personality of each
offender into account.”
I
align myself with the remarks made in the aforementioned case. I am
of the view that the court a
quo
failed
to exercise its sentencing discretion judiciously. The court a
quo
placed
undue emphasis on the interests of the community and seriousness of
the crime. As a result this court is entitled to temper
with and
impose an appropriate sentence.
[21] I am satisfied
that the seriousness of the offence calls for a custodial sentence
even when tested against the personal circumstances
of the
Appellants. The following factors militate against a non-custodial
sentence: The offence was pre-planned and the appellants
showed no
signs of contrition.
[22] I therefore
make the following order:
1. The appeal of
second appellant against conviction is dismissed.
2. The appeal
against sentence in respect of both appellants, succeeds.
3.
The sentences imposed by the court a
quo
are
set aside and replaced with the following sentences:
“
7
(seven) years’ imprisonment for the first appellant; 12(twelve)
years’ imprisonment for the second appellant”
4. The sentences
mentioned in paragraph 3 are antedated to 2 September 2011.
N.M. MBHELE, AJ
I concur.
C.J. MUSI, J
On behalf of
appellant: Adv J.S. Makhene
Instructed by:
Bloemfontein Justice
Centre BLOEMFONTEIN
On behalf of
respondent: Adv E. Liebenberg
Instructed by:
Director of Public
Prosecutions BLOEMFONTEIN