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[2013] ZAGPPHC 270
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Mofokeng and Others v S (A644/2011, 04/2010, SH52/07) [2013] ZAGPPHC 270; 2014 (1) SACR 229 (GNP) (16 August 2013)
REPORTABLE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
High Court Reference No: A644/2011
Magistrate’s Serial No: 04/2010
Magistrate’s Case No: SH52/07
Date:16/08/2013
BEFORE
THE HON MS JUSTICE JANSE VAN NIEUWENHUIZEN, AJ
AND
THE HON MR JUSTICE LAMPRECHT, AJ
In the matter between:
TSEPO STANLEY MOFOKENG
…...............................................
1st
APPELLANT
INOCENT BONGANI
ZULU
..........................................................
2nd
APPELLANT
SAMEUL PERSI
MAKGOGO
.........................................................
3rd
APPELLANT
versus
THE STATE
…..................................................................................
RESPONDENT
JUDGMENT
LAMPRECHT, AJ:
Introduction
[1] On 14 April 2009, the three appellants were convicted in the
Regional Court, Bela Bela, of one count of robbery with aggravating
circumstances. They were each sentenced to fifteen (15) years
imprisonment imposed in terms of section 51(2)(a)(i) of the Criminal
Law Amendment Act 105 of 1997 (the Minimum Sentencing Act). The trial
court granted them leave to appeal their convictions, but
not their
sentences. The three appellants appeared in the same order in the
court
a quo
and, for ease of reference they will forthwith be
referred to as accused numbers 1, 2 and 3.
[2] Most of the facts are not in dispute, the only real disputes
being whether it was proven that the appellants were the persons
who
committed the robbery; whether they broke open the house in which
they were eventually found by the police; and, whether they
brought
any of the recovered goods and money into that house or had some of
the stolen goods on their person.
The facts according to the state
[3] The state led the evidence of
a number of state witnesses from whose evidence the following version
appears:
3.1 On 6 November 2006, Samuel
Siyema was the driver of a cash transit vehicle of Fidelity Cash
Management Services. He had one
crew member, Steven Moyo.
1
Their duties on this specific day were to collect bank deposits from
various clients and to transport them to Absa Bank, Bela Bela,
for
deposit.
3.2 After collecting the money from the various pick-up points, they
drove to Absa where they parked the vehicle. At approximately
08h45,
Siyema alighted, took some of the bags containing bank deposits and
proceeded to the bank, closely followed by his crew
member who also
had some trunks and bags containing deposits.
3.3 Just as he was about to open the door to the bank, he heard
someone approach him from behind, and felt a fire arm being pressed
against the back of his head, with the person ordering him to lie
down. He tried to look at the person, but he was hit on the
back of
his head with the fire arm. He fell down.
3.4 The unidentified robber then took the moneybags that he carried
and his fire arm from his hip and made off with it. Apparently
the
robbers, who were more than one, also took the trunks and bags that
Moyo had before they made off. Siyema did not see any of
the robbers
at that time, and when he stood up, he saw the person retreating from
him only from the back.
3.5 A shot rang out and he saw some people climbing on the back of a
Mazda Rustler bakkie. He saw four persons at the back of
the bakkie,
one had a long assault rifle and one, whom he identified in the dock
as accused no 1, had a steel trunk containing
money which had been
taken from Moyo.
3.6 The robbers succeeded in making off with more than R640, 547.06,
which was the amount recovered as will be indicated below.
In the
mean time, the owner of Calvin Security, Mr Burger, was contacted per
radio by one of his security guards posted at Pick
and Pay, close to
Absa. The latter informed him that a robbery had been committed in
front of Absa and that the robbers were making
a getaway in a brown
Mazda Rustler bakkie and that there was some shooting taking place.
3.7 Burger and a technician of his got into two different vehicles
and sped off in the direction of Pick and Pay. At the crossing
of the
road to Settlers, he spotted the vehicle passing them in the crossing
towards Settlers. They gave chase. He noted three
people at the back
of the Rustler bakkie, and two in front. The bakkie turned left into
the township of Bela Bela in Masemula Street.
At a T-junction, the
Rustler turned left, and then right again in the first street,
Moloto Street. The vehicle stopped on the
pavement and the people got
off and out of the Rustler. His technician, who gave chase in front,
alerted him per radio that they
were drawing fire, after which he
stopped and his technician drove past. He saw that some of the people
were also firing at him,
and he could hear shots ringing past him,
including fire from an automatic machine gun. He returned fire but,
neither him nor his
vehicle was hit and, so it would appear, none of
the armed gang was hit by his return.
3.8 The five occupants of the Rustler ran away. He gave chase, but
lost sight of them. Some ran through different yards and in
different
streets, but he ran in the direction that he perceived most of them
ran to. He was then alerted by a certain man wearing
a yellow cap
that the people they are looking for were hiding in a two-roomed
house where they apparently broke down the door,
and he pointed out
the house at 151 Maroka Street.
3.9 According to the owner of the said house, Ms Mohlatedi, she was
asleep that time of the morning as she was working nightshift.
Her
young son was awake though, busy having breakfast because he had a
test to write at 12h00. She woke, hearing people saying
that the door
must be broken down. The one door to her house was then forced open
and some men came in.
3.10 She ran to the kitchen and realised that three men had already
entered through the door that they forced open. Her child
was crying
and she was also hysterical from shock. She covered her son's head
and she let her head hang down. She could not see
the three men well
enough to later identify them again. Neither could she see whether
they had anything on them or whether they
brought anything with them
when they entered.
3.11 After a while the police arrived and ordered the men to come
out. She was also taken out of the house, and she was not present
inside when the police took photographs and attached some things
inside her house. She confirmed that she saw some moneybags on
the
photos that were taken in her absence, in her fridge; on the table;
and, in her bedroom on the bed. She does however not know
how those
things came to be in her house. She does not know whether they came
in with the three men, or thereafter, but, what she
did know, is that
those items were not in her house before the men broke the door and
entered her house.
3.12 When the police arrived, they surrounded and besieged the
house. They ordered whoever was inside to come out or risk their
being taken out with armed force. After a while, all three the
accused persons came out, no 1 in front, and surrendered. They were
frisked for fire arms. Capt Smit of the police grabbed accused no 1
before he could get away, told him that he is being arrested
for
armed robbery and frisked him for fire arms. When he could not find
any, he asked no 1 where his fire arm was. No 1 then made
a report to
him and immediately volunteered to make a pointing out. Accused no's
2 and 3 were left in the presence of Superintendent
Barnard and other
police, while he and accused no 1 then walked in a certain direction
indicated by no 1.
3.13 They walked through a
number of premises, in the direction of the town and crossed two
streets. On the way, at the border
fence between house no 151 and
another, accused no 1 pointed out a white bag, indicated on photo no
21. Behind house no 145, he
pointed out a black bag, indicated on
photo 20. Accused no 1 also told him that, in the other yard, just
behind the toilet, the
other side of the fence, he threw down the
fire arm he that had. Smit left accused no 1, who was cuffed, in the
presence of other
police, climbed over the fence and, in the bushes
behind the toilet, he found a cocked 9mm pistol. This was
photographed - photo
22. (According to the prosecutor during cross
examination of accused no 1,
2
this particular fire arm was in terms of ballistic examination linked
to a discharged cartridge that was found at the scene before
Absa.
The particular exhibits are not attached to the appeal record, so we
could not determine whether this assertion is true.
3
)
3.14 At that stage, Inspector
Nel arrived where he and accused no 1 were. Nel asked him whether he
had properly searched the suspect,
to which he replied, only
superficially for a fire arm. Nel, who has experience of robbers
often hiding some of the stolen money
and fire arms in funny places
such as in the underwear and in their shoes, then conducted a
thorough search of accused no 1. According
to both Nel and Smit, Nel
then found R10, 000.00 (consisting of a bundle of 100 x R100.00
notes) in the accused's shoe, hidden
under his foot, but on the sole
of the shoe. Nel said that, although accused no 1 must have had
considerable difficulty walking
with such a big wad of money
(approximately 2,5 cm thick) in his shoe, it was not so strange to
find it there in the light of his
experience, and it is definitely
not impossible for a person like accused no 1 to hide it there. He
said that accused no 1 appeared
almost sheepishly embarrassed
(verleë) at having been caught out with the money in his shoe
after he earlier managed to escape
such close scrutiny by the other
police. After accused no 1 gave such a report to Nel and Smit, the
R10, 000.00 was attached and
treated as part of the stolen property.
The R200.00 that was found in his pocket, was however given to
another policeman since
accused no 1 explained that it belonged to
him personally and it was not linked to the stolen property.
3.15 In addition to the two bags
pointed out to Smit, inside Mohlatedi's house, other police witnesses
found some other bags and
a trunk, most of which were still sealed.
Some were hidden in the fridge. All these bags and trunk were
identified as the bags
and trunk that were taken during the robbery.
The sealed as well as the opened bags and trunk were checked and
balanced by Superintendent
Schutte together with the owners and
Fidelity Cash Management Services. Most of them balanced correctly
with the deposit slips,
but one bag (a Green one from Spar), whose
seal was broken, was missing exactly R10, 000.00 in R100 notes, most
probably the R10,
000.00 that Nel claimed to have found in accused no
1's shoe. There were a few smaller amounts missing from some other
bags, but
not significant amounts, and the total recovered money
totalled to an amount of R640, 547.06.
3.16 Some fire arms, including
an R5 automatic assault rifle and two further 9mm pistols, besides
the one that was recovered as
a result of the pointing out by accused
no 1, were also found in the vicinity of the house where the three
accused persons were
found – they have been found discarded or
abandoned
en route
from where the people started running away from the Rustler bakkie.
The one 9mm fire arm was later identified by one of Fidelity
Cash
Management Services' employees as the one that was taken from Siyema,
and all the fire arms were forensically tested and found
to be fire
arms and automatic fire arms as per their description in the charge
sheet.
3.17 Thus most, or rather,
almost everything that was robbed was recovered, including the fire
arm that was taken from Siyema.
The three accused were arrested and
charged with robbery with aggravating circumstances, attempted murder
and various counts pertaining
to the possession of fire arms.
The
defence version
[4] Each of the accused persons
testified as follows:
4.1 Accused no 1 denies that he
was at the scene of the robbery or that he was seen on the back of
the Rustler bakkie. He further
denies that he had an amount of R10,
000.00 hidden in his shoe, or that he pointed out a fire arm to Smit.
According to accused
no 1, he travelled from Tembisa to Warmbad (Bela
Bela) on the day in question to consult with a traditional doctor.
When he arrived
in the Bela Bela Township, he first went to a tuck
shop to buy candles because the traditional healer uses candles for
divination.
At that specific moment in time he heard some shots being
fired and he saw people starting to run in all directions. He started
running himself and, when he came to Mohlatedi's house, he saw the
door being opened for him and he ran inside. Mohlatedi, who
was also
scared, asked him what the shots were all about, to which he replied
that he does not know. After a few seconds, accused
no's 2 and 3 also
came into the house, without saying anything. None of them spoke a
word and they all just sat down and waited
for the danger to pass.
After a while, the police came and ordered them to come out, which
they did. He was the first person to
leave. He was then rather
forcefully arrested. In a cuffed state, he was taken to a certain
place and he was also made to jump
a fence. Further police arrived
and he was questioned and assaulted because they did not want to
believe his version as to why
he was in Bela Bela. The money that was
photographed next to his foot was placed there by the police and they
did not find it on
him. He also knew nothing of the fire arm that was
photographed. Neither did he know anything about how the bags and
trunk containing
the robbed money came to be inside the said house.
Nor was he ever on the Rustler bakkie that was found by the police.
4.2 According to accused no 2,
he was on his way to Nylstroom (Modimolle) on the day in question
when, next to the township of
Bela Bela his vehicle broke down. He
entered the township to find a mechanic, when he heard shots being
fired. People were screaming
and running away. He followed suit and
he saw an open door to a house. He entered and sat on the sofa and
covered his head. He
sat like that until the police arrived and
ordered the occupants of the house to come out. Upon arrival in the
house, he found
accused no 1, whom he did not know and the owner of
the house and her small child. When he opened his eyes on arrival of
the police,
it was the first time that he also saw accused no 3, whom
he did not know, in the house. When he went out, he was arrested,
frisked,
questioned and assaulted. He does not know why the police
did not find his vehicle keys in his pocket, but only an
insignificant
amount of cash. Whilst in custody he arranged for
someone to come and pick up the keys to his vehicle, which was then
towed away
for repairs. He does not know anything of the Mazda
Rustler bakkie. Neither does he know how the bank bags and trunk came
to be
in the house where they were hiding during the shooting.
4.3 Accused no 3 likewise denies
that he was involved in the robbery or on the Mazda Drifter bakkie.
On the particular day he was
in Bela Bela Township only by chance,
because he went there to investigate the possibility to tender and
contract for the erection
of RDP houses. While walking in the street,
he heard shots being fired. He ran back and, also by chance, he came
upon the open
house of Mohlatedi. He ran inside and, due to his
asthmatic condition, he asked for a chair and sat down. He let his
head hang
between his arms until his breathing could normalise. He
found accused no 1, Mohlatedi and the small child in the house. On a
leading
question when he saw accused no's 1 and 2 for the first time
in his life, he replied that he found both of them in the house. He
does not know anything about the robbery, the Rustler bakkie, the
fire arms or the monies that were recovered from the house and
vicinity where they were arrested.
Evaluation of the evidence
[5] The presiding regional
magistrate found all state witnesses to have been credible and
trivialized the contradictions and discrepancies
in their evidence
that may be found to exist. He was also very cautious in his
evaluation of the evidence of Siyema pertaining
to his identification
of accused no 1 as one of the people on the back of the Rustler
bakkie, and, after mature consideration held
that there was good
reason for him to accept it. Having considered the merits and
demerits of the evidence tendered by the three
accused persons and
the inherent probabilities and improbabilities in each version,
4
he held that the state's case had been established beyond reasonable
doubt and that there existed no reasonable possibility of
any of the
accused persons' version being true.
[6] In this regard it can be
remarked that the inherent improbability of any of the three accused
persons' versions being true
is so glaring that it cannot be said
that there is any reasonable possibility of it being true. In
appropriate circumstances, this,
in itself, is enough reason to
reject an accused person's version.
5
It is inherently improbable that three people, all from the
Witwatersrand area would, by chance and without knowing each other,
find themselves in the same township at Bela Bela at the same time,
under threat of being caught in the cross-fire of security
officers
and robbers on the run. It is further improbable that they would, in
the end, land in the same house, where the police
were tipped off the
suspected robbers were hiding out. A further improbability is that
robbers on the run would discard almost
everything they had robbed,
while running at different places, but, mostly in the house (or in
the vicinity of the house) where
the three accused persons were
found. It is moreover improbable that the police would 'plant' some
of the robbed moneybags and
the trunk in the house where the three
accused persons were found, just to get them into trouble.
[7] The possibility of a conspiracy between Siyema, Burger and the
police witnesses can safely be ruled out. The minor contradictions
and discrepancies between the different accounts seem to point away
from such a possibility. Furthermore, the question can justly
be
asked, why would Siyema testify that he only saw accused no 1 on the
getaway vehicle. Why would he not also incriminate accused
no's 2 and
3? Why would the police witnesses, especially Smit and Nel,
incriminate only accused no 1 with the retrieval of one
of the fire
arms, two bags and a cash amount of R10, 000.00? Why would Smit and
Nel conjure up a story that, on face value, sounds
improbable, namely
that R10, 000.00 was found hidden in accused no 1's shoe? Why
wouldn't similar stories be fabricated as far
as accused no's 2 and 3
are concerned? These observations and questions underscore the sheer
improbability of the defence version
being true.
[8] One can also not find any
fault with the magistrate's acceptance of Siyema's evidence that he
identified accused no 1 as one
of the people on the back of the Mazda
Rustler bakkie. It appears that all the jurisprudential guidelines in
this regard
6
have been properly observed. His evidence that he never saw accused
no 1 in court after his arrest until the time that he gave
evidence,
stands without having been contradicted by any other evidence. When
one takes into account that he was prone to be bending
down and not
standing upright on the bakkie as it made its getaway at high speed,
it does not appear to be improbable that Siyema
could have seen the
scar on the top of his head. Furthermore, evidence of identification
should not be evaluated in isolation,
but in the light of all the
evidence tendered. Here it can be remarked that, the evidence that
accused no 1 was instrumental to
the pointing out of a fire arm and
two of the robbed moneybags and, that R10, 000.00 was found in his
possession, provides for
substantial corroboration of Siyema's
evidence on identification.
[9] One aspect which weighs heavily against the acceptance of the
defence version, is the evidence of Mohlatedi that her house's
door
was broken open by the three people who came to hide there until the
police arrived. She has no motive to falsely place this
piece of
evidence before court to incriminate any of the accused persons. In
fact, she testified that she cannot say whether any
of the accused
persons were among those that hid in her house. She did not provide
any shred of incriminating evidence against
any of the accused except
for saying that the people that entered her house did so forcefully.
[10] In my view, the trial magistrate rightly rejected the versions
of the accused persons as false. Although none of the witnesses
have
provided direct evidence to link any of the three accused persons to
the commission of the robbery itself, especially accused
no's 2 and
3, there are ample circumstantial facts that point towards their
guilt.
10.1 It is common cause that there had been a robbery at Absa bank
in which Siyema and Moyo of Fidelity Cash Management Services
were
robbed at gunpoint of a large quantity of money containers containing
cash to the value of more than R600, 000.00. Although
the persons who
put the fire arms to the heads of the victims could not be
identified, accused no 1 was seen at the back of the
getaway bakkie,
holding the trunk that had been taken from Moyo.
10.2 All three the accused persons, who, according to them, were
totally unknown to each other, were found in the same house,
belonging to a stranger. According to the accepted evidence, they
entered the house together, and not independently, after they
had
broken down the door thereof to seek shelter and sanctuary. This
suggests that their version that they did not know each other
is
false.
10.3 Most of the robbed money containers, some still sealed, were
found inside the house, some hidden in the fridge. None of these
were
there before they entered the house according to Mohlatedi and,
although she did not see them bringing the containers into
her house,
the possibility of them having been placed there by someone else,
like the police or other people, seems so improbable
that no
reasonable fact finder will seriously entertain such possibility to
exist.
10.4 In addition, accused no 1 pointed out two further money
containers and a 9mm pistol that was reportedly linked to the scene
of the robbery at Absa.
10.5 An amount of R10, 000.00, which exactly matched the amount
that was missing from one of the containers belonging to Spar,
was
found in accused no 1's shoe.
10.6 The explanation that the three of them gave for being in the
same house, at the same time, without anyone of them knowing
the
others and without any link whatsoever, appears to have been rightly
rejected by the trial magistrate on the sheer improbability
thereof.
Thus, their exculpatory explanation for being in that house together
has been correctly rejected as false beyond reasonable
doubt and,
therefore, no other reasonable inference seems possible save that all
three of them are linked with the stolen goods
retrieved from
Mohlatedi's house and in the vicinity thereof.
[11] Whilst it is true that, except for the fact that the three of
them had been found in the house together in suspicious
circumstances,
most of these circumstantial factors are stacked
against accused no 1, and not against accused no's 2 and 3, evidence
like this
cannot be considered in isolation. The fact that accused
no's 2 and 3 entered the house together with accused no 1 after the
door
was broken down, and the fact that most of the recovered
containers and money were found in the house, must be considered
together
with the facts that accused no 1 was seen leaving the scene
of robbery with one of the money containers; that he was found in
possession
of R10, 000.00 (probably the amount missing from the Spar
bag that was found in the house); and, that he pointed out two more
of
the robbed money containers and also a fire arm reportedly linked
to the robbery.
"[E]ven
two articles of circumstantial evidence - though each taken by itself
weigh but as a feather - join them together,
you will find them
pressing on the delinquent with the weight of a millstone. ... It is
of the utmost importance to bear in mind
that, where a number of
independent
circumstances point to the same conclusion the probability of the
justness of that conclusion is not the
sum
of the simple probabilities of those circumstances, but is the
compound result of them."
7
[12] As was remarked in
S
v Morgan
:
8
"In determining the
question of the third appellant's complicity, it is not necessary
that each such finding or inference or
circumstance should establish
such complicity beyond reasonable doubt. The cumulative effect of a
number of probabilities pointing
in the same general direction may be
such as to establish the guilt of an accused beyond reasonable
doubt."
[13] Although not referring to
any case law in this regard, the trial magistrate considered
9
the circumstantial evidence subject to the trite requirements laid
down in
R v Blom
,
10
and held that the inference of guilt of the three accused persons was
consistent with all the other proven facts in the matter;
and, in
addition, that they are such that they exclude every other reasonable
inference from them save that the accused persons
have been involved
in the robbery together. We can find no fault with this conclusion
reached by the regional magistrate and, accordingly
endorse it.
The role of each of the three accused persons
[14] In the light of a recent
decision in the Western Cape High Court,
S
v Masingili and Others
,
11
I consider it necessary to determine whether the exact role of each
of the accused persons in the commission of the robbery need
be
determined in order to establish whether each of them can be held
guilty of robbery with aggravating circumstances. We requested
Counsel for the appellants and for the state to specifically address
us on whether the
Masingili
decision should be regarded as sound in law and, therefore, whether
it has enough persuasive force to be followed in this Division.
[15] In
Masingili
four accused persons were convicted in the regional court of robbery
with aggravating circumstances. Two of them were held to have
committed the actual robbery, using a knife, and the Western Cape
High Court therefore had no problem upholding their convictions
of
robbery with aggravating circumstances and, therefore, the sentences
imposed upon them.
12
With regards to the other two accused persons, the High Court however
had difficulty in holding that they associated themselves,
not only
with the commission of the robbery, but also with 'the perpetration
of aggravating circumstances',
13
since one of them was merely a scout and the other one merely drove
the getaway vehicle to and from the scene of robbery. The Court
held
that there was no evidence to show that they had also knowingly
associated themselves with the other two appellants' use of
a
dangerous weapon that would render them guilty of robbery 'with
aggravating circumstances' as opposed to 'ordinary' robbery.
14
What gave rise to the Court's difficulty was the definition of
'aggravating circumstances' in section 1(1)(b) of the Criminal
Procedure Act,
15
which reads as follows:
"(1) In
this Act, unless the context otherwise indicates -
'aggravating circumstances',
in relation to -
(a) ...
(b) robbery or attempted
robbery, means -
(i) the wielding of a
fire-arm or any other dangerous weapon;
(ii) the infliction of
grievous bodily harm; or,
(iii) a threat to inflict
grievous bodily harm,
by
the offender
or
an accomplice
on the occasion when the offence is committed, whether before or
during or after the commission of the offence; ..."
16
[16] As it could not be held, so the Court argues, that the two
appellants who were not directly involved in the commission of
the
robbery, actively associated themselves with the use of a knife in
the perpetration of the robbery itself, they cannot and
should not be
blamed for robbery with aggravating circumstances (as opposed to
ordinary robbery) simply because the other two appellants,
their
'accomplices' used a dangerous weapon in its execution. The
definition of 'aggravating circumstances' was felt to be too
widely
stated in this regard.
[17] The Court then considered
the definition of 'aggravating circumstances' in section 1(1)(b) of
the Criminal Procedure Act,
its history, section 12(1)(a) of the
Constitution
17
and a number of reported cases, before holding that the words "an
accomplice" that appears in the definition of aggravating
circumstances is unconstitutional. It accordingly "declared that
the phrase 'or an accomplice' in the definition of 'aggravating
circumstances' in
s 1(1)(b)
of the
Criminal Procedure Act 51 of 1977
,
is inconsistent with the Constitution and therefore invalid".
The Court further held that the invalidation of the said phrase
shall
invalidate the application of the said phrase in all verdicts of
criminal courts that were entered after the Constitution
came into
force. The constitutional invalidation of the phrase was then
referred to the Constitutional Court and, therefore, the
hearing of
the appellants' appeals was postponed
sine
die
, pending the
Constitutional Court's decision.
[18] In my view, the
Masingili
decision is flawed in a number
of respects.
18.1 Firstly, the Court held
18
that the magistrate could not have convicted the relevant two
appellants of robbery with aggravating circumstances based on the
doctrine of common purpose. Contrary to the jurisprudence of the
Supreme Court of Appeal
19
and the Constitutional Court on the doctrine of common purpose,
20
the Court, referring to
S
v Malinga and Others
,
21
held
22
that the doctrine of common purpose, "can only be invoked for
purposes of proof of causation as one of the elements of a
crime. It
cannot serve to impute the dolus of one person to another."
Therefore, so the Court held, the doctrine of common
purpose cannot
be invoked to prove intention to commit robbery with aggravating
circumstances where the accomplice's only participation
was to keep
a lookout or drive the getaway car. This is not correct. The
doctrine does not find application only in cases where
'causation'
is required to be proven. There are various examples in the
reported case law where scouts and drivers of getaway
vehicles have
been charged with and convicted of robbery with aggravating
circumstances on grounds of common purpose. See for
example
S
v Khala
,
23
where the sole basis for appellant's conviction of robbery with
aggravating circumstances and attempted murder was that he was
the
driver of the getaway vehicle from which the robbers alighted to
commit the crimes and in which they escaped with their booty
after
the fact. The same can be said of the decision in the case where the
conviction of the 'people's poet',
Mbuli
,
24
of robbery with aggravating circumstances was upheld in the
following fashion:
25
"
The
circumstances in which the accused were found, together with one
another and with the stolen money and the items that were used
in
the robbery, in the absence of an alternative explanation, admits
of no inference but that they were all parties to a
common purpose
to rob the bank and that each played some role in furthering that
common purpose. Whether or not the appellant
was one of the men
who actually entered the bank to perpetrate the robbery (of which
there is no reliable evidence) is accordingly
not material. In my
view he was correctly convicted and his appeal against that
conviction must fail."
18.2 Secondly, the Court's
reliance on
S v Van
Wyk
26
and
S v Ngubane
27
in its argument that the convictions of the two appellants could not
have been justified on grounds thereof that they "were
also
accomplices with respect to the perpetration of the aggravating
circumstances" because no evidence was led to prove,
beyond
reasonable doubt, that the two appellants had "subjective
foresight of a reasonable possibility ... that aggravating
circumstances would be perpetrated by third or fourth appellant",
appears to be misplaced. Whilst
Van
Wyk
provides for a
useful exposition on what
dolus
eventualis
is as far
as the crime of murder is concerned, and how subjective foresight of
the eventuality of the intended result (death)
ensuing can be proven
through inference, it does not deal with subjective foresight that
'aggravating circumstances' might be
perpetrated by co-offenders in
the case of robbery.
Ngubane
on the other hand, constitutes an investigation into whether
dolus
eventualis
excludes
culpa
(negligence); and, whether a person convicted of murder with a knife
should have been convicted of murder or of culpable homicide
in a
case where the prosecutor indicated his willingness to accept a plea
of guilty on the competent verdict of culpable homicide
where the
initial charge was murder. Again, this case has nothing to do with
proof that accomplices to robbery (which was committed
with
aggravating circumstances by the real perpetrators thereof) must
have been proven to have had subjective foresight that
'aggravating
circumstances would be perpetrated' by the real perpetrators.
Unfortunately, the Court did not deal with the fact
that the
rejection of the relevant two appellants' version of their
involvement could not have led to an inference that they knew
(or,
at least, subjectively foresaw) that, in case of resistance by the
victim, the other two appellants would have used force
to commit the
robbery and, that such force might have included 'aggravating
circumstances' in any of the defined forms. In my
view, on the
evidence as summarised by the Court
28
and, on rejection of the appellants' exculpatory versions, an
inference would have been justified that all four the appellants
knew (or, at least, subjectively foresaw) that the robbery might be
committed in circumstances, where a dangerous weapon would
be used
or, where grievous bodily harm would be inflicted or, that at least
a threat of the infliction of grievous bodily harm
would be present
during the commission of the robbery. Any other inference would have
required far- fetched speculation such as
that the two actual
perpetrators were not prepared to use any serious force to succeed
in their goal. In any event, this whole
exercise could have been
avoided if the doctrine of common purpose was correctly identified
and applied to the facts before the
Court.
18.3 In the third place, the trial magistrate
a quo
in
Masingili
found that substantial and compelling circumstances
existed to impose a lesser sentence than the minimum sentence of
fifteen (15)
years imprisonment prescribed by section 51(2)(a)(i) of
the Minimum Sentencing Act. The 'scout' (first appellant) was
sentenced
to eight (8) years imprisonment of which two (2) years
were conditionally suspended, whilst the driver of the getaway
vehicle
(second appellant) was, like the other two (the real
perpetrators - third and fourth appellants) sentenced to ten (10)
years imprisonment
of which two (2) years were conditionally
suspended. There was therefore, in my view, no necessity for the
Court of Appeal to deal
with the question of whether 'aggravating
circumstances' were at all present during the commission of the
robbery, since that qualification
is only required to determine
whether a minimum sentence must be imposed. The 'scout' in any event
received a lesser sentence
than did the others, whilst the 'driver',
in my view, could just as well have been treated on the same footing
as the other two.
There was no need for the Court of Appeal to
determine whether, in the case of the first and second appellants,
the 'aggravating
circumstances' of the robbery could also be
attributed to them, in order to determine whether another sentence
should have been
imposed. If the Court felt that first and second
appellants should have been treated more leniently in the light of
their relatively
lesser roles in the robbery, it could have done so
without having to tamper with the definition of 'aggravating
circumstances'
in the
Criminal Procedure Act. In
other words, there
were less invasive means available to the Court of Appeal to deal
with the question at hand than by constitutionally
invalidating a
phrase in legislation that has, hitherto, played a substantive and
helpful role in distinguishing between ordinary
robbery and more
serious robbery as far as sentence is concerned.
18.4 In this regard, it must be noted that the definition of
'aggravating circumstances' in relation to,
inter alia
,
robbery had been inserted in the
Criminal Procedure Act, mainly
to
justify the imposition of a heavier sentence than life imprisonment,
namely the death penalty, in certain circumstances. Since
the death
penalty has been abolished, it plays no other role than to justify
the imposition of heavier sentences than short term
imprisonment in
appropriate circumstances, and there appears to be no need to tamper
with it in order to escape the possibility
of minimum sentences being
imposed. Such possibility can be evaded if the lesser roles played by
certain accomplices in the commission
of such robberies are regarded
as 'substantial and compelling circumstances' justifying the
imposition of lesser sentences than
those called for in terms of
section 51(2)(a) of the Minimum Sentencing Act; and, it is not
necessary for constitutional invalidation
of the definition of
'aggravating circumstances' to achieve such a goal. The question of
the constitutionality of the definition
was therefore neither moot
nor ripe for purposes of judicial consideration.
18.5 Lastly, in my view, the Court of Appeal also lost sight of the
fact that, in other cases before this decision saw the light
of day,
it might have been more difficult (if not impossible) than in the
case before it to determine the specific role of appellants
in the
commission of robbery. What, one may ask, would be the position when,
all that links a specific appellant to a specific
robbery with
aggravating circumstances in a particular case is circumstantial
evidence, for example the possession of recently
robbed or stolen
goods without being able to provide an exculpatory explanation
therefor. This is the situation in the matter before
us. On the
evidence it cannot be said that any of the three accused persons were
involved in the actual perpetration (or rather
execution) of the
robbery or that any of them wielded fire arms during the commission
thereof. In the light thereof that Siyema
testified that at least
one of the people he saw on the back of the Rustler bakkie wielded
an assault rifle, and because accused
no 1 pointed out a fire arm
linked to the robbery, accused no 1 may be said to have known that
at least some of the other robbers
used fire arms in the commission
of the crime. The same can however not be said as far as accused no's
2 and 3 are concerned. The
only way in which they can be attributed
the consequences of aggravating circumstances having been present
during the commission
of the robbery, is by inferential reasoning
that, because there is enough evidence to infer that they
participated in the robbery,
and, because the robbery was so
carefully planned and executed (almost as if it was a military
operation), all of them knew (or
must have known) that serious
violence or, at least, threats of serious violence would have been
employed to effect the robbery.
[19] In my view, therefore, the
Masingili
decision is wrong in law and need not be followed in, at least, this
Division, until such time that a higher court (like the
Constitutional
Court) confirms it - a prospect that I find highly
unlikely to happen. Thus, especially because "magistrates'
courts are portion
not of the hierarchical structure of the Supreme
Court but of a country-wide organization of inferior tribunals"
and, therefore,
that they are bound by decisions from other Divisions
in cases where no precedent exists in decisions of the High Court
with jurisdiction
over their respective areas of jurisdiction,
29
I declare that the
Masingili
decision is not binding in the area of jurisdiction of the North and
South Gauteng High Courts. It follows that the appellants'
appeal
against their convictions cannot succeed.
The acquittal of
accused no 1 on counts 2 and 3
[20] There is however one more
thing that I find a little disconcerting. There appears to have been
evidence cogent enough to establish
the guilt of accused no 1 on
counts 2 and 3, at least in as far as it could be said that he
unlawfully possessed a 9mm pistol and
some rounds of 9mm ammunition.
After all, he is the one who pointed the fire arm out. Yet, he was,
like his co-accused, who could
not have been convicted on those
counts in the light of the
ratio
of the
Mbuli
decision,
30
acquitted as far as those allegations are concerned. The trial
magistrate appears to have accepted that, because the witness who
forwarded the fire arms for forensic or ballistic testing, Constable
Rabat, indicated that the particular 9mm pistol bore the serial
no
0732P, while the ballistic report that was formally admitted to be
correct indicated that the particular fire arm did not bear
any
serial number, there existed reasonable doubt in whether these counts
have been properly proven against accused no 1.
31
[21] In this regard the
magistrate lost sight of the fact that Rabat had established the
serial no through an '
etsproses
',
through which, we know from experience in similar cases, a certain
kind of acid is used to determine the serial no of a fire
arm of
which the serial no had been obliterated.
32
It would appear that the magistrate was not aware of what an
'
etsproses
'
exactly entailed, and that, as soon as a serial no of a fire arm has
been revealed through etching, it disappears after some time.
Unfortunately, Rabat was not asked to explain this. I know that, had
this fact been explained to the satisfaction of the court
a
quo
, it could not have
entertained any doubt as to the evidence pertaining to accused no 1's
possession of the fire arm and ammunition
mentioned.
[22] This observation is however
largely academic since I do not think that accused no 1 should have
received a heavier sentence
than his co-accused due to the fact that
his guilt was established also in relation to his unlawful possession
of a fire arm and
ammunition; and, secondly, because the state does
not have a right to appeal a wrong finding of fact in a criminal
matter. Magistrates
faced with similar situations in future should
however be alive to what has been said above and, when in doubt, they
should question
the experts who testify before them to ascertain the
true facts before concluding that some facts must necessarily lead to
doubt
and, ultimately, an acquittal. In appropriate cases they might
even be required to see to it that justice is done by calling for
evidence to be placed before them in terms of
sections 167
or
186
of
the
Criminal Procedure Act so
that they can reach a just decision in
every case. This, it was held in
Director
of Public Prosecutions, Transvaal v Mtshweni
,
33
is a duty which, in appropriate circumstances, rests on a trial court
that, if it is neglected, may lead to its decision being
overturned
on appeal.
34
We could have used the same
ratio
here to set aside the acquittal of accused no 1 on counts 2 and 3
but, firstly, the state did not appeal the case on that basis;
and,
secondly, the double jeopardy principle enshrined in section 35(3)(m)
of the Constitution would in all probability bar a retrial
of accused
no 1 on these counts (especially since a conviction on those counts
would not necessarily have led to a heavier effective
sentence being
imposed).
Sentence
[23] No leave to appeal was granted in respect of sentence and none
of the appellants petitioned for leave to appeal their sentences.
In
the light of the facts of the matter and the reasoning of the trial
magistrate during the sentencing process, I also feel that
there is
no reasonable prospect that a Court of Appeal would have intervened
with the sentences since no substantial or compelling
circumstances
could have been found to exist justifying a lesser sentence than the
ones imposed on each of the appellants. I therefore
do not think it
necessary to invoke this Court's inherent powers of review to alter
the sentences imposed on each appellant.
The order
[24] In the light of the above I would propose that an order in the
following terms be made:
"That the appeal be
dismissed (and the convictions of the appellants on one count of
robbery with aggravating circumstances
with the resultant sentences
of fifteen (15) years imposed in terms of
section 51(2)(a)(i)
of the
Criminal Law Amendment Act 105 of 1997
be upheld)."
A A LAMPRECHT
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered
N JV NIEUWENHUIZEN
ACTING JUDGE OF THE NORTH GAUTENG HIGH COURT
Representation for the appellant
:
Counsel: Adv MB Kgagara
Instructed by: Legal Aid South
Africa
Pretoria Justice Centre
2
nd
Floor FNB Building
206 Church Street
Pretoria
Representation for respondent
Counsel: Adv K Germishuis
Instructed by: Director of Public
Prosecutions
High Court
Pretoria
1
Moyo did not testify.
2
P 185 of appeal record.
3
According to the proceedings at pp140-143 of the
appeal record, the ballistic reports were handed in as Exhibit "D"
after their contents were admitted as correct by the defence.
Exhibit "D", however, is the sketch and photo album
prepared
by the witness Rabat, and no indication could be found
anywhere in the appeal record that the ballistic reports were in
fact
handed in. Neither were they attached to the appeal record as
Exhibits.
4
S v Singh
1975 (1) SA 227
(N) at 228.
5
S v Van Tellingen
1992 (2) SACR 104
(C) at 106. See also
S
v Munyai
1986 (4) SA 712
(V) at 714-6;
S v Jaffer
1988
(2) SA 84
(C) at 88-9;
S v Sinam
1990 (2) SACR 308
(EC); and
S v Makobe
1991 (2) SACR 456
(W) at 460d-c. In all these cases
it was held that, although in normal circumstances it would not be
admissible for trial courts
to evaluate and accept or reject
versions in criminal cases on the probabilities alone as in civil
cases, for a trial court to
overlook inherent probabilities and
improbabilities in each version might amount to a misdirection
because an accused person's
story might be so improbable that there
can be no reasonable possibility of it being true.
6
S v Mthethwa
1972 (3) SA 766
(A);
S v Khumalo
[1991] ZASCA 70
;
1991 (4)
SA 310
(A).
7
Best
Evidence
5th ed 298. See also Jeremy Bentham
Rationale
of Judicial Evidence, Manuscripts
Book V, Ch XV, Sect III at
242-3;
R v De Villiers
1944 AD 493
at 508-9;
R v Hlongwane
1959 (3) SA 337
(A);
R v Sibanda
1963 (4) SA 182
(SR) at 188;
S v Kessel
1968 (4) SA 224
(A);
S v Ntstele
1998 (4)
SACR 178
(SCA) at 182d-e;
S v Mashiane en Andere
1998 (2)
SACR 664
(NC) at 668-7.
8
1993 (2) SACR 134
(A) at 172j
et sec
.
9
Pp257, 263 of the appeal record.
10
1939 AD 188
at 202-3. See also
S v Sesetse
1981 (3) SA 353
(A) at 369-70;
S v Mtsweni
1985 (1) SA 590
(A) at 593-4.
11
2013 (2) SACR 67
(WCC).
12
Para [20] of the judgment.
13
Paras [21]-[27] of the judgment.
14
It is dubious whether any incident of robbery can, with any measure
of conviction, be regarded as 'ordinary'. With or without
aggravating circumstances, robbery remains to be regarded as a very
serious crime.
15
Act 51 of 1977.
16
Own italics.
17
The Constitution of the Republic of South Africa, 1997.
18
At paras [24]-[25] of the judgment.
19
E.g.,
S v Nkwenja en 'n Ander
1985 (2) SA 560
(A);
S v
Mgedezi and Others
1989 (1) SA 687
(A).
20
E.g.,
Thebus and Another v S
[2003] ZACC 12
;
2003 (6) SA 505
(CC).
21
1963 (1) SA 692
(A) at 694F-H.
22
At para [25] of the judgment.
23
1995 (1) SACR 246
(A).
24
S v Mbuli
(422/2001)
[2002] ZASCA 78
(7 June 2002).
25
At para 69 of the judgment.
26
1992 (1) SACR 147
(NmS) at 161b.
27
1985 (3) SA 677
(A) at 685D-F.
28
At paras [4], [7]-[20] of the judgment.
29
See HR Hahlo and E Kahn
The South African Legal System and Its
Background
(1973) 257. See also
S v Mavuso
1989 (4) SA 800
(T) where this particular assertion by Hahlo and
Kahn was approved of.
30
S v Mbuli supra
footnote 24 at paras [70]-[72] of the
judgment.
31
See pp262-3 of the appeal record.
32
See Rabat's evidence at pp153-155 of the appeal record.
33
[2007] 1 All SA 531
(SCA).
34
At paras [20]-[26] of the judgment the SCA indicated that, whenever
a court is of the opinion that evidence (or clarification
of
evidence) might be required for a just decision of the case before
it, the court is mandated to call or recall witnesses under
the
relevant provisions of the
Criminal Procedure Act. In
this matter,
the SCA set aside an acquittal and authorized a retrial where the
presiding judge, in similar circumstances were
required to call for
proper ballistic evidence before making a finding that was adverse
to the prosecution. See also the famous
remark by Curlewis JA in
R
v Hepworth
1928 AD 265
at 277: "A criminal trial is not a
game where one side is entitled to claim the benefit of any omission
or mistake made
by the other side, and a judge's position in a
criminal trial is not merely that of an umpire to see that the rules
of the game
are observed by both sides. A judge is an administrator
of justice, he is not merely a figurehead, he has not only to direct
and control the proceedings according to recognised rules of
procedure but to see that the justice is done."