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[2014] ZAFSHC 235
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Sethuntsa v S (A166/2014) [2014] ZAFSHC 235 (11 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Number: A166/2014
In
the appeal of:-
PETRUS
SAUL SETHUNTSA
….............................................................................
Appellant
and
THE
STATE
….......................................................................................................
Respondent
CORAM:
MOLEMELA, J
et
MURRAY, AJ
JUDGMENT
BY:
MURRAY, AJ
HEARD
ON:
3 NOVEMBER 2014
DELIVERED
ON:
11 DECEMBER 2014
[1]
This is an appeal against the Appellant’s conviction and
sentence by the Regional Court, Brandfort, on a charge of
Housebreaking
with Intent to Steal and Theft on 24 October
2011.
[2]
On 29 February 2012 the Appellant’s application for leave to
appeal against his conviction and his sentence was dismissed.
However, on 23 May 2014 this Court granted leave to appeal against
the judgment and sentence by way of petition in terms of section
309C
of the Criminal Procedure Act, Act 51 of 1977 (“the Act”).
[3]
The Appellant was charged with housebreaking with intent to steal and
theft in that he unlawfully and intentionally and with
the intent to
steal, broke open and entered a house in Brandfort where he
wrongfully and intentionally stole clothing to the value
of
R3 140-00, the property of or in the lawful possession of one Mr
Kasterlyn (“the complainant”).
[4]
The Appellant was represented by an attorney from Legal Aid South
Africa. He pleaded not guilty to the said charge and
offered a
plea explanation. He averred that he never broke into the
complainant’s home, but only entered the complainant’s
yard to ask about a certain Jurie Linde, who he alleged was the owner
of a house where he was supposed to get a burglar-proofing
quotation
for an RDP house. He averred that the complainant and another white
male then severely assaulted him, allegedly for wanting
to steal from
the complainant’s home.
[5]
The trial Court recorded a formal section 220 admission that the
accused was in the complainant’s yard on 20 June 2010,
which
admission the Appellant confirmed. Two witnesses testified for the
State, namely the complainant and Mr Van Nieuwenhuizen.
The Defence
called only the Appellant.
[6]
The complainant’s evidence, which the trial court found to be
corroborated in all material respects by that of Van Nieuwenhuizen,
was that he had lived in Brandfort for at least sixteen years and
knew nobody by the name of Jurie Linde. On the relevant day he
unlocked his devil’s fork gate with a key to enable Van
Nieuwenhuizen to collect paint from him. On his way back from the
gate, he went into his laundry room to fetch a handkerchief. The door
was closed but not locked. The light was off. When
he switched
it on, he discovered the Appellant in the room, holding two bags, one
of which was the complainant’s motorcycle
backpack and the
other a shopping bag.
[7]
When asked what he was doing there, the Appellant averred that he was
looking for his father, ‘
the man
who worked for [the complainant]’
.
Upon being told that the man who did work there was at least 20 years
his junior, the Appellant fled from the laundry room,
throwing down
the bags as he rounded the corner of the outbuildings.
[8]
As the Appellant ran towards the gate, Van Nieuwenhuizen entered the
driveway in his bakkie. In the narrow space between
the bakkie
and the wall, the Appellant ran into a lamp post where the
complainant and Van Nieuwenhuisen caught him and told him
to sit
while they called the police.
[9]
The Appellant removed three R20 notes from his wallet, and offered it
to them not to call the police. When the complainant refused
to take
the money, the Appellant jumped up and ran around the outbuildings
towards the swimming pool where he tripped over a wall
and fell
again.
[10]
In the meantime Van Nieuwenhuizen had called the police. When they
arrived, they stopped at the front gate and the complainant
and Van
Nieuwenhuizen took the Appellant by the arms and marched him to the
police vehicle. One of the policemen accompanied the
complainant to
where the Appellant had dropped the bags. The complainant opened the
bags in the policeman’s presence. In
the shopping bag he found
clothing belonging to his children and his own clothes in his
motorcycle backpack. The complainant estimated
the value of the
clothing as per list “C” to the record to be around R3
140-00.
[11]
Van Nieuwenhuizen’s evidence differed from the complainant’s
in a few respects, such as that the Appellant seemed
to have four and
not three R20 notes in his wallet, that he tried to run away four
times instead of two, that he fell over a wooden
bench, not a wall,
that the complainant’s shirt was torn when he first saw him,
and that the second bag was a green cloth
shopping bag, not a plastic
one.
[12]
The Appellant, on the other hand, testified that he had lost his way
when he arrived back from Bloemfontein by taxi after five
that
afternoon. He averred that, while he was looking for a board
denoting Jurie Linde’s house, he entered the complainant’s
yard, but “
not through the devil’s
fork gate”,
to ask for Jurie
Linde. He averred that the complainant and another man
without reason or provocation attacked him
after asking what he was
doing in the yard and accusing him of wanting to steal from the
complainant. He denied ever having
entered the laundry room and
ever having had bags in his hands.
[13]
He averred that after his arrest he was taken to see a doctor who
completed a J88 form regarding his alleged injuries from
the assault.
He claimed to have handed the J88 to a policeman when he opened a
case of assault against the complainant and Van
Nieuwenhuizen, but
claimed to have no idea what happened to that case or the J88 form.
He accused Van Nieuwenhuizen and the complainant
of having fabricated
evidence to implicate him since they knew of the assault charge.
[14]
Despite putting all the elements of the crime in dispute, the Defence
failed to put many of these allegations to the State
witnesses in
cross-examination. As the trial court pointed out, the only fact that
the Defence and the State were
ad idem
about, was that the accused was in the complainant’s yard on 20
June 2010.
[15]
The trial Court took into consideration that, regarding the charge of
housebreaking, the complainant was a single witness.
The Court
appropriately applied the cautionary rule to his evidence and found
him to have been a credible witness for the following
reasons:
15.1
That he was open and honest with the Court by averring that the door
to the laundry room was closed but not locked; that when
he entered
the laundry room the light was off; and that he did not know
the accused before the incident;
15.2
That he was honest in admitting that if the gate was locked someone
could still gain entry to the premises by jumping over
the wall and
that there was no damage to the door of the laundry room.
[16]
The trial Court then evaluated the complainant’s evidence in
its totality in order to determine whether he was credible
and
reliable. The trial Court believed that he had personally
experienced the events since he was able to give the Court
a clear,
concise version thereof and was able to give a clear description of
exactly where he found the Appellant in the laundry
room, as well as
of their conversation. The trial Court found that his version
weakened the probabilities of the Defence case and
found him to be a
credible and reliable witness.
[17]
The trial Court also found Van Nieuwenhuizen to be a credible and
reliable witness. She regarded him as having been open and
honest by
admitting that the Appellant fell and was injured after tripping over
a bench; that he did not know what was said between
the Appellant and
the complainant because he was not there; that the complainant’s
shirt was torn, and that he succeeded
in giving a clear account of
what had happened on that day.
[18]
The trial Court found that Van Nieuwenhuizen’s evidence
materially corroborated that of the complainant and that the
contradictions were not material; did not point to attempts to
mislead the Court; and were not such as to force the Court to reject
their evidence.
[19]
The trial Court stated that it had to evaluate the Appellant’s
evidence together with the probabilities of the case.
She found the
Appellant to have been evasive; not to have been open and honest with
the Court at all times and his evasiveness
and dishonesty to have
strengthened the probabilities in the State’s case.
[20]
She rejected the Appellant’s version as improbable with
specific reference to his allegations of having gone to the
complainant’s house in the late afternoon because Mr Linde
worked away during the week, and to his averment that the complainant
was implicating him because of the unprovoked assault and the alleged
charge against him.
[21]
The trial Court accepted the State’s version and in determining
whether the State had proved all the elements of the
charge of
housebreaking with intent to steal and theft, determined that the
following facts were proven:
21.1
That the door to the complainant’s laundry room was closed on
the said day;
21.2
That the Appellant opened the door in order to enter the room;
21.3
That the room was on the complainant’s premises and that the
accused had entered the premises with the intention to steal
from the
complainant;
21.4
That there were no grounds for justification of his actions, which
were unlawful;
21.5
That the Appellant must have entered the premises in some other way
than through the gate, for instance by jumping over the
wall;
21.6
That by running away with the laundry bag, the Appellant intended to
permanently deprive the complainant of his ownership of
the bag and
its contents.
[22]
The trial Court determined that the only reasonable inference that it
could draw was consistent with the proven facts, namely
that the
Appellant on that day intended to go to the complainant’s house
with the intention to steal, and did steal, by taking
the motorcycle
bag with the complainant’s clothes in it, out of the laundry
room. The Appellant was then convicted as charged.
[23]
I agree with the trial Court that all the elements of the offence
were proven, in accordance with
S
v Hlongwane
[1]
in which the essential elements of the offence of housebreaking were
defined as:
(a)
the “breaking” of premises in the legal sense by the
displacement of any obstruction to entry of a structure which
forms
part of the premises – such as a store room or outbuilding
[2]
;
that for ‘breaking’ to take place no actual damage to the
structure need to be inflicted; so that even pushing open
a closed or
partially open door to enter, qualifies for ‘breaking’ in
the legal sense if done unlawfully and with the
intention of
unlawfully breaking in and committing some other crime;
[3]
(b)
the entry of the premises by means of any part of the person;
(c)
the unlawfulness of the conduct complained of; and
(d)
the intention to commit an offence.
[24]
When an appeal pertains to a trial court’s findings of fact,
the appeal court takes into account that the trial Court
was in a
more favourable position than itself to form a judgment, because it
was able to observe the witnesses during their questioning
and was
absorbed in the atmosphere of the trial court from start to finish.
An appeal court therefore initially assumes that
the trial court’s
findings were correct and will normally accept those findings unless
there is some indication that a material
mistake was made.
[4]
[25]
This principle also applies in cases involving the application of a
cautionary rule.
[5]
A cautionary rule, such as the rule regarding the evaluation of the
evidence of a single witness as
in
casu,
does
not affect the appropriate standard of proof which remains proof
beyond a reasonable doubt.
[6]
In
R
v J
[7]
the Court held that:
“
While
there is always the need for special caution in scrutinising and
weighing the evidence of … a single witness, the exercise
of
caution should not be allowed to displace the exercise of common
sense. If a judicial officer, having anxiously scrutinized
such
evidence with a view to discovering whether there is any reasonable
possibility of conscious or unconscious fabrication, is
satisfied
that there is no such possibility and that the evidence… may …
be safely accepted as proving the guilt
of the accused beyond
reasonable doubt, he should not allow his judgment to be swayed by
fanciful and unrealistic fears.”
[26]
In
R
v Abdoorham
[8]
Broome JP held that if the evidence satisfied the standard of proof,
the Court must convict, even if a single witness was unsatisfactory
in some respects
[9]
since
an “
unsatisfactory
”
witness might still be a “
credible
”
witness in respect of material aspects of his evidence. Therefore,
even though there were some discrepancies between the
complainant’s
evidence and that of Van Nieuwenhuizen, I am satisfied that the two
of them were still ‘credible’
witnesses regarding the
material aspects of their testimony.
[27]
For the reasons as set out in
R
v Dhlumayo & Anothe
r
[10]
and in view of the facts before the trial Court, I would therefore be
loath to reject the trial court’s findings on credibility.
The
discrepancies between the complainant’s version and Van
Nieuwenhuizen’s in my view merely strengthened the impression
that the two witnesses were independently trying to tell the truth.
[28]
I also support the Court’s rejection of the Appellant’s
version as improbable. It is highly improbable, first of
all, that
the Appellant, whilst on his own version knowing that the alleged
‘Jurie Linde’s’ property was
duly designated by a
sign, would simply enter a strange property without such a sign and
there be attacked by two men for no reason
whatsoever. It is even
more improbable, secondly, that he would have opened a case of
assault with the police, complete with a
J88 report, and that no
trace of such a case could be found during his trial. I am therefore
satisfied that the concession by the
Appellant’s counsel on the
merits was correctly made.
[29]
In my view, however, the sentence of 13 years’ direct
imprisonment is excessive in the light of the Appellant’s
personal circumstances. Although the Appellant is not a first
offender, and in fact has 17 previous convictions for the same type
of crime, the bulk of those crimes were committed before 2002 and are
therefore older than 10 years, with only 3 committed after
2002.
Although previous convictions are usually highly relevant during
sentencing, the weight to be attached thereto is to be decided
by the
court.
[11]
In
S
v Mqathi
[12]
Van Dijkhorst warned against holding offences against an accused in
perpetuity, by deciding that:
“
daar
moet teen gewaak word dat die boek van die sondes van die verlede
altyd geopen bly lê…”
[30]
The previous Criminal Procedure Act, Act 56 of 1995, determined that
the book was closed after 10 years without any conviction.
Section
271A of the present Act determines that certain convictions fall away
as previous convictions after the expiration of 10
years unless
during that time the person has been convicted of an offence in
respect of which a sentence of imprisonment for a
period exceeding
six months without the option of a fine may be imposed. All other
previous convictions remain in place, but the
longer the time lapse,
the less value the court will usually attach to the conviction except
in so far as a trend appears from
the previous convictions.
[13]
The provision has been said to have limited value since judicial
officers imposing sentence would in any event not attach any weight
to such old sentences.
[14]
[31]
Although previous convictions therefore play an important role in the
imposition of sentence, they should not be overemphasised
at the
expense of the gravity of the offence for which the accused is to be
sentenced and the circumstances in which the offence
was committed.
(See:
S
v Kalane
[15]
).
On appeal in
S
v Makhaye
[16]
Seegobin J held that the
trial court had unduly emphasised the previous convictions at the
expense of factors such as the personal
circumstances of the accused
and held that
“
[t]he
regional court had misdirected itself in that its decision to impose
five years’ direct imprisonment ‘was based
largely on the
previous conviction’”.
[32]
In
S
v Barnabas
[17]
undue emphasis on previous convictions led to the reduction of a
sentence of 20 years’ imprisonment to 12 years. In
S
v Kruger
[18]
the Supreme Court of Appeal held that, even where previous
convictions are an aggravating factor, it remains the duty of a
sentencing
court
‘
to
tirelessly balance the mitigating and aggravating factors in order to
reach an appropriate sentence’
.
[33]
In the present case, I am of the view that the trial Court did not
adequately ‘balance the mitigating and aggravating
circumstances’ and overreacted to the 17 prior convictions.
Although the number and nature of the convictions do signify
a trend
which the trial Court was of course justified in taking into account,
and although the last offence was committed while
the Appellant was
on parole, it was still incumbent on the Court to objectively balance
all the relevant factors in order to arrive
at a sentence that would
not only satisfy the community expectations, but also be just to the
Appellant in view of his personal
circumstances.
[34]
Not only did the Court warn the Appellant that he ran the risk of
being declared ‘a habitual criminal’ in terms
of section
186 of Act 51 of 1977, however, but also called him a repeat
offender, a ‘recidivist’ whose past sentences
had had no
effect on his criminal behaviour, wherefore he was “
a
person that does not belong in the community because [he] cannot
adhere to the rules and the regulations of the law.”
[35]
The cumulative effect of the mitigating factors in my view
overshadows the aggravating factors by far. The trial Court listed
the following factors 1) that the Appellant was 62 years old; 2) that
he had three children and lived with the 21-year old son;
3) that he
was receiving a pension grant. It should have taken
into account also 4) that the complainant suffered
no loss as all the
stolen items were recovered (although that was not attributable to
the Appellant); 5) that the value of the
stolen items was relatively
small and 6) that the Appellant had been in custody since 20 June
2010. (See
S
v Brophy
[19]
for the view that time served by an unsentenced prisoner was equal to
double the time served by a sentenced one).
[36]
The trial Court considered a number of aggravating factors, including
the prevalence of the crime in the court’s area
of
jurisdiction; that the Appellant took the complainant’s
possessions and ran away when the complainant caught him red-handed
and confronted him; that the Appellant had shown no remorse, but
mainly that the Appellant had so many previous convictions.
[37]
The weight accorded to the previous convictions is clear from the
trial Court’s statement:
“
Now,
I do not find that there is any mitigating factors in your favour in
light of your previous convictions and also in light of
the current
offence that you have been currently convicted for.”
[38]
In stating that the Appellant’s previous convictions
“
will
contribute towards [his] getting a sentence that will weigh heavily
in favour of retribution”
and
imposing a sentence that is more than double his previous longest
sentence of five years’ imprisonment of which a part
was
suspended, in my view the trial Court imposed a sentence that was not
just to the 62 year old Appellant. In view of the
Appellant’s
age, at least, the sentence should also have been tempered by ‘a
measure of mercy’, which it was
not.
[39]
I accordingly find that the trial Court has misdirected itself in
over-emphasising the Appellant’s previous convictions
and
non-compliance with the various orders imposed on him for the
numerous previous convictions to the detriment of his personal
circumstances. I agree that a lengthy sentence is
required in the circumstances, but am of the view that it must be
tempered with mercy and that part of it should be suspended to serve
to deter the Applicant from repeating his unacceptable conduct
once
he is released.
I
therefore make the following order:
1.
The appeal against the conviction is
dismissed and the conviction is confirmed.
2.
The appeal against the sentence is upheld.
3.
The sentence of thirteen years’
imprisonment is set aside and replaced with the following:
“
The
Appellant is sentenced to nine (9) years’ imprisonment of which
three (3) years are suspended for five (5) years on condition
that
the Appellant does not commit a similar offence during the period of
suspension.”
________________________
H
MURRAY, AJ
I
concur:
_________________________
M
B MOLEMELA, J
On
behalf of the Appellant: L M Tshabalala
Bloemfontein
Justice Centre
Charlotte
Maxeke Street
BLOEMFONTEIN
Ref:
L M Tsabalala
On
behalf of the State: Adv S Chalale
Office
of the Director of
Public
Prosecutions
Waterfall
Centre
Aliwal
Street
BLOEMFONTEIN
[1]
1992
SACR 484 (N)
[2]
Snyman:
Criminal Law 5
th
Edition, at p. 550
[3]
Snyman,
supra,
at
p. 552.
[4]
See:
The Law of Evidence, Issue 9, at 3 – 40.
See
also: Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979 (1)
SA 621
(A) at 623 – 624; and
S
v Tshoko 1988 (1) SA 139 (A).
[5]
See:
S v Leve 2001 (1) SACR 87 (ECG).
[6]
See:
S v Artman
1968 (3) SA 339
(A) at 340 – 341 B.
[7]
1966(1)
SA 88 (RSRA) 90
[8]
1954
(3) SA 163
(N) at 165 .
[9]
See:
R v Abdoorham,
supra
at
165 C – D.
[10]
1948
(2) SA 677
(A) at 689.
[11]
Du
Toit: Commentary on the Criminal Procedure Act, Servicee 50, 2013 at
27-2.
[12]
1985
(4) SA 22
(T) at 25A-H.
[13]
Hiemstra’s
Criminal Procedure, Issue 7 at 27-3.
[14]
Hiemstra,
supra,
op
cit.
[15]
1988
(2) SA 206
(O)
[16]
2011(2)
SACR 173 (KZD) at 177f.
[17]
1991
(1) SACR 467 (A)
[18]
2012
(1) SACR 369 (SCA)
[19]
2007
(2) SACR 56
(W)