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[2013] ZAGPPHC 170
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Genu and Others v S (A761/12) [2013] ZAGPPHC 170 (14 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO:A761/12
DATE:14/06/2014
In
the matter between:
JOSEPH
GENU
...........................................................................................
FIRST APPELLANT
GOLDEN
MATYALA
.....................................................................................
SECOND
APPELLANT
LUCKY
MFUNDISI
......................................................................................
.
THIRD APPELLANT
and
THE
STATE
.....................................................................................................
Respondent
JUDGMENT
BALOYI AJ:
1.
The appellants Joseph Genu, Golden Matyala and Lucky Mfundisi were
each charged with two counts of robbery with aggravating
circumstances in the Regional Court, Oberholzer on the 24 October
2011. They were each convicted and sentenced on both counts of
robbery with aggravating circumstances on 26 April 2012.
2.
They now appeal to this court, against conviction and sentence
having been granted leave to do so by the magistrate.
3.
A summary of the evidence in the court a quo is that the two
complainants Mr Albert Nyengiwe(“Nyengiwe”) for count
one
Mr Raphael Manyaka(“Manyaka”) for count two were at the
Total Garage Oberholzer on the night of the incident, at
approximately 21h00 when they were attacked by a group of more than
10 men. According to Nyengiwe these men split into two groups,
the
one group focused on him and the other group concentrated on his
friend, the second complainant Monyaka.
4.
The three appellants were part of the group that was standing in
front of Nyengiwe. They started fighting them. Nyengiwe fought
back.
Appellant number two produced a knife. The rest of the group shouted
to the second appellant “stab him, hit him”.
Nyengiwe
surrendered. They searched him and the third appellant took his
wallet containing an Absa card, R300 cash and a V360 cellular
phone.
5.
At the time of the robbery, the third appellant was wearing a top
which was cream in colour and it had a hood resembling Little
Red
Riding Hood. During the robbery Monyaka was assaulted and lay on the
ground. The robbers fled with their possessions. Monyaka’s
evidence is that he was with Nyengiwe at Total Garage talking on his
cellphone and felt a blow on his head which rendered him unconscious.
When he regained consciousness his cap and cellular phone were
missing. Immediately thereafter whilst still at the scene with
Nyengiwe they saw the third appellant who came running in their
direction and they apprehended him. Police arrived at the Total
Garage and the third appellant was arrested.
6.
Monyaka related the robbery to the police he also gave them his
cellphone number. The police dialled the number and his cell
phone
rang in the pocket of the third appellant who told the police that he
will not be arrested alone and will point out the other
co-perpetrators. When the third appellant was arrested he had taken
off the top he was wearing and held it in his hand.
7.
Police took the two complainants to the police station. Other police
officers went away with the third appellant to point out
other
co-perpetrators. The first and second appellant together with a third
person were arrested. This third person was also charged.
Initially
four people were charged for robbing the two complainants. However,
there was no evidence linking the third person pointed
out by the
third appellant. The third person was acquitted on both counts.
8.
Whilst at the police station police took items from the possession of
the people that were arrested after the pointing out by
the third
appellant. Nyengiwe was able to identify and recover his ABSA bank
card, driver’s license and his cell phone. The
Third appellant
is the person that took the wallet containing bank card, driver's
license, R300 - 00 cash and a Motorola cell phone.
His cell phone was
recovered from the first appellant. However he did not recover the
R300 - 00 cash.
9.
Both complainants identified their cell phones. It is not in dispute
that the cellular phone found in possession of the third
appellant
belongs to Manyaka. It is also not in dispute that the cellular phone
found in possession of the first appellant belongs
to Nyengiwe. All
three appellants where convicted of two counts of robbery with
aggravating circumstances.
10.
Counsel for the three appellants argued that there is no evidence
linking the three appellants to the second count of robbery
with
aggravating circumstances in that the complainant Monyaka was hit on
the head and became unconscious. He did not see the people
who robbed
him. Counsel argued further stating that the appellants were not
warned at the commencement of the trial that the state
will rely on
the doctrine of common purpose regarding count two.
11.
In the absence of proof of a prior agreement to commit the offences,
as in this case, the appellants can be convicted on the
basis of the
doctrine of common purpose, if
(a)
They were present where the robberies were being committed.
(b)
They were aware of the assault on the second complainant.
(c)
They intended to make common cause with the perpetrators of the
assault.
(a)
They manifested their sharing of a common purpose with the
perpetrators of the assault by themselves performing some act of
association with the conduct of the perpetrators; and
(b)
They had the requisite mensrea concerning the unlawful outcome at the
time the offence was committed, that is, intended the
criminal result
or foresaw the possibility of the criminal result and nevertheless
actively associated themselves regardless as
to whether the result
was to ensue.(See S v Sefatsa 1988(1) SA 868 A; S v Mgedezi 1989(1)
sa 687 (A) at 703 B-l; S v Thebus 2003
(Z) SACR 319 cc para 49)
12.
According to the evidence of Nyengiwe it is clear that the group
approached the two complainants with the sole aim of robbing
them.
They split into two groups, one group focused on first complainant
and the other on the second complainant. They had one
intention
namely to rob the two complainants.
13.
Nyengiwe’s evidence is that the third appellant was part of
the group that focused on him and the third appellant is
the one who
searched him and took his items. What is interesting regarding the
third appellant is that when he was arrested he
was found in
possession of the cellphone belonging to Manyaka.
14.
The first appellant was found in possession of cell phone belonging
to Nyengiwe. It was removed from Nyengiwe’s possession
by the
third appellant. This fact indicates that after the robbery there was
an exchange of items robbed from the two complainants
amongst the
appellants. Furthermore when the third appellant was arrested by the
police, he later pointed out the first and second
appellants who were
also identified by Nyengiwe as part of the group that robbed them.
Nyengiwe was adamant that first, second
and third appellant were
standing in front of him. Second appellant wanted to stab him with a
knife and the rest of their attackers
were shouting at second
appellant that he must stab or hit him because he was resisting.
15.
Furthermore there is no requirement that the appellants should have
been warned that the state will rely on the doctrine of
common
purpose for a conviction to stand on count two. I therefore come to
the conclusion that the conviction of all three appellants
on both
counts was indeed justified and there was no misdirection on the part
of the magistrate.
16.
With regard to sentence counsel for the appellants submitted that the
magistrate misdirected himself by imposing sentences which
induce a
sense of shock and failed to take their personal circumstances into
account.
17.
In S v Mai gas
2001 (1) SACR 469
(SCA) the circumstances entitling an
appeal court to interfere with the sentence was stated to be as
follows:
UA
court exercising jurisdiction cannot in the absence of material
misdirection by the trial court approach the question of sentence
as
if it were the trial court and then substitute the sentence arrived
at by it, simply because it prefers it. To do so would to
be to usurp
the sentencing discretion of the trial court. Where a material
discretion by the trial court vitiates its exercise
of discretion an
appellate court is of course entitled to consider the question of
sentence afresh. In doing so it assesses sentence
as if it were a
court of the first instance and the sentence imposed by the trial
court has no relevance. As it is said an appellate
court is at large.
However, even in the absence of material misdirection an appellate
court may yet be justified in interfering
with the sentence imposed
by the trial court. It may do so where the disparity between the
sentence of the trial court and the
sentence which the appellate
court would have imposed, had It been the trial court, is so marked
that it can properly be described
as shocking, startling or
disturbingly inappropriate”.
18.
With regard to sentences imposed on second and third appellant, in my
view they are not shocking or disturbingly inappropriate.
If one
takes into account that second complainant sustained serious injuries
during the robbery. He was hit on his head and the
blow rendered him
unconscious, his right eye was completely swollen and he could not
see. His jaws were affected and he could not
move them.
19.
Nyengiwe did not recover the R300 cash stolen from his wallet. The
Court a quo also took into account that the two robberies
occurred
simultaneously and both counts were taken as one for the purposes of
sentence.
20.
Under the circumstances the sentence imposed on second and third
appellant is upheld.
21.
However, regarding the sentence imposed on the first appellant, it
does not appear to me that the magistrate took proper account
of the
fact that the previous conviction of robbery was more than 10 years
old at the time of the commission of the current offences.
Furthermore the previous conviction is robbery and not robbery with
aggravating circumstances.The previous conviction for Robbery
would
therefore not have required
section 51
(2)(a)(ii) of the
Criminal Law
Amendment Act 105 of 1997
to be applied.In this regard the respondent
submitted that the sentence of 12 years imprisonment ought to be
confirmed by this
court.
22.
In the result, the following order is made:
1.
The second and third appellants appeal against conviction and
sentence on both counts is dismissed.
2.
The first appellant’s appeal against the convictions on both
counts is dismissed.
3.
The first appellant’s appeal against sentence is upheld
3.1
The sentence imposed by the court below is set aside and replaced
with 12 years imprisonment. Count one and two taken as one
for the
purposes of sentence.
3.2
The Sentence of 12 years imprisonment is antedated to 26 April 2012.
J
S BALOYI
Acting
judge of the High Court Pretoria
I
agree and it is so ordered.
S
P MOTHLE
Judge
of the High Court
Pretoria