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[2013] ZAGPPHC 77
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Moyo v S (A337/2012) [2013] ZAGPPHC 77 (7 March 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
no : A337/2012
Date:07/03/2013
IN
THE MATTER BETWEEN:
PROMINENT
MOYO
…...............................................................................
Appellant
And
THE
STATE
….............................................................................................
Respondent
JUDGEMENT
[1]
In this matter the appellant and his co-accused were charged with
robbery with aggravating circumstances and kidnapping in the
Gauteng
Regional Court. The trial commenced on 10 September 2009 and was
finalised on 4 November 2009.
[2]
Both accused were represented in court and plead not guilty to all
charges. No plea explanation was tendered by either of them.
[3]
They were found guilty and sentenced to:
3.1
15 years on the count of robbery with aggravating circumstances; and
3.2
5 years imprisonment on count 2 which was to run concurrently with
the sentence on count 1);
3.3
both accused were declared unfit to possess a fire-arm.
[4]
It is against both convictions and sentence that the appellant
(accused no 1 in
the
court a quo) now appeals.
[5]
3 witnesses testified on behalf of the State and the 2 accused
testified in their
own
defence.
[6] THE COMPLAINANT
He
testified that:
6.1
on 26 September 2008 at approximately 15h30 he was returning from
work and walking along the Old Pretoria Road when he was accosted
by
2 men, one of whom pointed a fire-arm at him;
6.2
his assailants told him not to look at them, took everything out of
his school bag and took his money, work-suit, phone, gloves,
charger,
bank card and R860 in cash;
6.3
they then tied him up with “something like a plastic"
under a bridge and left him there;
6.4
he managed to free himself and headed in the direction that he saw
them take, which led to Blue Valley, where he saw them walk
into the
nearby veld;
6.5
he then asked for help from the security officer at Blue Valley and
with the latter’s vehicle they drove to where the
complainant
had last seen the 2 accused. When they saw him they ran and the
complainant and
the
security officer gave chase and apprehended the appellant. Accused no
2 escaped;
6.6
he testified that he was able to identify the appellant through the
green t-shirt and blue track-suit pants that he was wearing
when he
accosted the complainant;
6.7
the appellant then mentioned accused no 2 and the police were
contacted;
6.8
appellant agreed to take them to where accused no 2 lived where the
latter was apprehended still wearing the white cap that
he had worn
when he had robbed the complainant earlier that afternoon. Besides
the R260 found on accused no 2, nothing further
was recovered from
him;
6.9
both accused then agreed to take the complainant and the police to
where they had left the items;
6.10
appellant pointed out where he had left his own tracksuit and a
wallet and R400 were found. He then took them to where he had
left
the complainant’s possessions when they ran away and there they
found the complainant’s school bag, phone cover,
phone charger,
and gloves.
[8]
The complainant, in cross-examination, conceded:
8.1
that he could not identify the fire-arm;
8.2
that he had actually lost sight of the 2 accused briefly.
[9]
Although the complainant never identified the appellant on any
physical attribute, he did identify him on the clothes he wore
and in
the dock during the trial and the appellant never placed the clothes
he was wearing at the time in dispute at all.
[10] MR MOLOKOMME
He
was the second State witness. He is the security officer at Blue
Valley who came to the complainant’s assistance. He testified
that:
10.1
the complainant pointed out the 2 accused who fled when they were
spotted;
10.2
they pursued and caught the appellant who was then identified by the
complainant;
10.3
after the arrest:
"...they
spoke to the complainant asking for forgiveness asking for
forgiveness each blaming the other..."
10.4
the 2 accused threw down a plastic bag with a 2 litre Coke which the
complainant had told him he had had when he was robbed;
10.5
he could not identify accused no 2 as his shift had ended at 18h00
and the police had arrived;
10.6
It is also important to note that, when he identified the person he
apprehended, he said:
“
...I
think it was accused 1..”i
[11]
Under cross examination he admitted that:
11.1
it was not the 2 accused who blamed each other, but rather the
appellant
became
scared and started saying it was no myself it was actually this other
person that ran away...
11.2
he also admitted to the robbery;
11.3
the complainant told him that his assailants had a fire-arm.
CONST MAKGOBA
[12]
State witness no 3 was Const. Makgoba who testified that:
12.1
he received a report whilst he was on patrol and when he got to Blue
Valley at approximately 20h30 they found the security
guards, the
complainant and the appellant there;
12.2
appellant admitted that he was with a friend who had gone to
Olievenhoutbosch and he agreed to take them there;
12.3
they found accused no 2 at the address pointed out by the appellant
and he was still wearing the white cap that he wore when
he robbed
the complainant and the complainant identified him;
12.4
the 2 accused then took them to where they said they had hidden the
complainant’s items and they found a charger, a bag,
brush,
ABSA bankcard, cash and some other items;
12.5
the 2 accused then took them to the place where they had disposed of
the fire-arm but it was not found.
[13]
Cross-examination did not make great inroads into this evidence but
it did
reveal
that there was no mention of the actual pointing of the fire-arm, nor
was
there
mention that the complainant had been tied up.
[14]
The State then closed its case.
THE APPELLANT
[15]
As stated, the appellant was accused no 1 and he testified as
follows:
15.1
he was walking to Olievenhoutbosch when 3 people (2 security officers
and the complainant) came towards him. One of the security
officers
(Molokomme) pointed a fire-arm at him;
15.2
he was searched and asked where the complainant’s items and
money were but he disavowed any knowledge thereof and they
also found
nothing on him after a search;
15.3
he was taken to the security office at Blue Valley where he was
assaulted and the police contacted and he was asked where he
stayed;
15.4
he told the police that he was on his way to his sister and they
wanted him to take them there, which he agreed to do;
15.5
upon arrival, he was left handcuffed in the motor vehicle, they
searched accused no 2 , found R400 on him and then they asked
him
where he had been arrested by Molokomme so he took them there;
15.6
he denied that he took them to where the items were hidden - his
version is that he took them to where he was originally arrested;
15.7
although they searched the area they found nothing;
15.8
he also testified that he knows the complainant - he was in a
relationship
with the complainant’s ex-girlfriend and this is why he was
being accused of this crime. He also admitted that
this was never put
to the complainant by his legal representative;
15.9
furthermore, it was also never put to any of the other state
witnesses besides the police officer, that no items were found.
ACCUSED NO 2
[16]
He stated that:
16.1
he was arrested at home and that the property is owned by appellant’s
sister;
16.2
that one Sathenga could confirm that Accused no 2 was at home all
day;
16.3
after his arrest, R400 was taken from him which he said was his rent
money, and he was taken straight to the police station
and made no
stops anywhere on the way there;
16.4
he denied that anyone pointed him out to the police and stated that
when the police found him they “...simply took me
away...”
[17]
This then concluded the case for both accused and Sathenga was never
called
to testify. No negative inference is inferred from this by this
court.
AD CONVICTION : ROBBERY WITH
AGGRAVATING CIRCUMSTANCES
[18]
It is trite law that an appeal court’s powers to interfere
with the factual findings
of
the court a quo are limited to circumstances where this court is of
the view
that
the findings are patently wrong.
1
[19]
In the matter at hand, it is important to carefully scrutinize the
evidence and judgement of the court a quo. It is also important
to
heed the cautionary rule regarding single witnesses
2
which the complainant in this matter is as Molokomme could not
positively identify the appellant in court when he testified.
[20]
However, in applying that rule, it is also incumbent upon the court
to pay heed to all the facts placed before it, to evaluate
those
facts, to compare the facts tendered in evidence of the various
witnesses and then to weigh that against the evidence of
the accused.
Once this has been done the question is where the State has proven
its case beyond reasonable doubt.
[21]
In this matter the court a quo weighed up all the evidence placed
before it and found the complainant to be a satisfactory
witness and
also found that his evidence was “unequivocal and
unchallenged”. Insofar as the evidence of the two State
witnesses was concerned, they were found to be honest and truthful
and their version of events believable and probable.
[22]
Both accused’s evidence was rejected as being “so
improbable and beyond belief that it cannot reasonably be true”.
[23]
Counsel for appellant submitted that the identification of the
appellant by the complainant must be viewed with suspicion.
He makes
this submission based on the following:
23.1
the single witness cautionary rule;
23.2
the fact that, during the chase, the complainant did indeed lose
sight of the appellant, which he eventually admitted under
cross-examination;
23.3
the lack of forensic evidence linking appellant to the crime;
23.4
the items recovered were not found in appellant’s possession;
23.5
the fire-arm was not recovered.
[24]
The complainant identified the appellant initially based on the
clothing he wore when he robbed him and which the appellant
was still
wearing when he was apprehended by Molokomme. This was never disputed
by the appellant. He was also identified by the
complainant in court
and the appellant’s track suit pants were also found at the
scene which was never disputed and this
point therefore cannot
succeed.
[25]
The facts in paragraph [24] supra equally apply to the issue of
whether the complainant lost sight of the appellant and his
identification is more than sufficient to properly identify the
appellant.
[26]
Where there are sufficient facts that place the appellant at the
scene of the crime and to identify him as having committed
the crime
for which he is charged, forensic evidence is not a sine qua non for
a conviction.
[27]
Furthermore, whilst the items were not found in the possession of the
appellant, he took the police and complainant to where
he was
arrested and this is where these items were found. This was conceded
by counsel for appellant during argument. This point
must also then
fail.
[28]
Although it is so that the fire-arm was not found, this on its own is
not sufficient, when viewed with the remainder of the
evidence
tendered on behalf of the State, to taint the State’s case with
sufficient doubt to acquit the appellant.
[29]
Whilst it is certainly so that the State witnesses do not corroborate
each other in all respects, it is our view that there
are sufficient
proven facts which show that the appellant did indeed commit the
crime for which he was charged and found guilty
and, accordingly, the
court a quo correctly convicted the appellant of robbery with
aggravating circumstances.
AD CONVICTION : KIDNAPPING
[30]
The kidnapping charge is, however, quite a different story. Counsel
for the State correctly conceded that were the complainant
to have
been tied up as he alleged, that this would have been done in the
commission of the robbery and that, accordingly, the
kidnapping
charge was not competent in the circumstances. Accordingly, it is
found that the court a quo materially misdirected
itself insofar as
its findings of fact and law on this charge and the conviction on the
charge of kidnapping must be set aside
and the appeal succeed on this
charge.
SENTENCE
[31]
On count 1 the appellant was sentenced to 15 years imprisonment. The
facts stated in mitigation of sentence were:
31.1
he is a single man with a 3 year old child. Both the child and her
mother are supported by the appellant financially;
31.2
he also supports his 2 sisters who were 16 and 11 years old;
31.3
he hails from Zimbabwe and has been living in South Africa since
1999 and his asylum papers expired in approximately October
2009;
31A
he worked for a rubble removal company and earned R500 per week;
31.5
he has a Standard 7 qualification;
31.6
he is a first offender;
31.7
he spent 14 months in prison awaiting trial.
[32]
When sentencing the court a quo took into account the facts of the
robbery, the interests of society and the fact that the
appellant had
no remorse and found that there were no substantial and compelling
circumstances to deviate from the prescribed minimum
sentence. The
court a quo stated:
..
The court must by its decisions and the imposition of sentence
promote respect for the law, protect society as well as maintain
peace and safe living conditions. The court in imposing heavier
sentences must also send out a message to other potential offenders
so as to deter them from committing serious offences of this nature,
thus ensuring safety and protection of society. No civilised
community should have to tolerate barbaric conduct...”
[33]
Whilst this is all very true, the court must also be mindful of the
circumstances of the accused himself and his prospects
for
rehabilitation.
[34]
Although robbery is a serious crime, the complainant was not
physically injured or harmed and the 14 months that the appellant
spent awaiting trial must be taken into account.
[35]
I am of the view that the sentence imposed by the court a quo is
disproportionate to the crime and that it is extra-ordinarily
harsh
and inappropriate. It is our view that the appellant’s
circumstances warrant a deviation from the minimum prescribed
sentence and accordingly, the appeal must succeed on this ground.
ORDER:
Accordingly,
the following order is made:
1.
The appeal against the conviction on Count 1 (robbery with
aggravating circumstances) is dismissed.
2.
The appeal against the sentence on Count 1 succeeds and the sentence
handed down by the court a quo is set aside and replaced
with the
following:
“
Imprisonment
for a period of 10 years of which the period of 14 months spent
awaiting trial is to be taken into account as having
been served as
part of the sentence. ”
3.
The appeal against the conviction and sentence on Charge 2
(kidnapping) succeeds and the conviction and sentence on Charge 2
is
set aside.
4.
The appellant is declared unfit to possess a fire-arm.
NEUKIRCHER
(AJ)
I
agree
KHUMALO
AJ
05
November 2012
1
S
v Francis
1991 (1) SACR 198
(A); S v Hadebe
1997 (2) SACR 641
(SCA)
2
S v Mokoena
1956 (3) SA 81
(A)