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[2013] ZAGPPHC 475
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Matewane v S (A590/13) [2013] ZAGPPHC 475 (11 November 2013)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
DATE:
11 November 2013
CASE
NO: A590/13
In the matter
between:
XOLANI
MATEWANE
............................................................................................................
Applicant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
TWALA, AJ
1. The Appellant
appeared with 4 others before the Regional Court Magistrate,
Oberholzer on the 18 July 2012 and was convicted of
one count of
robbery with aggravating circumstances and sentenced to three years
imprisonment.
2. The Appellant is
now appealing against both the conviction and sentence.
3. The respondent
did not file or I have not seen or received the heads of argument of
the respondent - hence I will deal with the
matter as though the
respondent never filed any heads of argument.
4. It is commom
cause that the Complainant, Mr Sehole, was attacked and robbed of his
cellphone, running shoes, takkies and wallet
by a group of five (5)
yourng men.
5. The evidence on
record is that the complainant accompanied his girlfriend to her home
and spent sometime with her on the street
before returning to his
home at about 20H50 in the evening. There were street lights
eluminating the street at the time.
6. At the time when
he was accompanying his girlfriend, some youngsters were playing
football at an open veld but he did not take
much note of them except
that he recognised two of them as people who grew up in his area. On
his way back from accompanying his
girlfriend, he was stopped by the
appellant who asked him for cigarette. He told him that he did not
have any cigarette and as
he was talking to appellant he was knocked
down by a bicycle and fell to the ground. Whilst on the ground five
people started searching
him whilst assaulting him at the same time.
When he managed to stand up they threatened to stab him. At the time
he realised that
he had lost his cellphone and wallet, his running
shoes and takkies were also gone. He told these people that they have
taken everything
he had and why would they want to stab him now.
7. His assailants
started fighting amongst themselves and they stabbed one of them. At
that point he managed to run away from the
scene but fell unconscious
a distance from the scene and only regained consciouness later on.
When he regained consciousness he
saw a policeman known as Cheeks and
the policeman had apprehended one person on whom the wallet and bank
cards of the complainant
were found. The complainant was then taken
to the clinic by this policeman. Whilst at the clininc, a call came
in that someone
has been stabbed at the scene where the complainant
was robbed. He attended at the scene with the police and found the
appellant
with stabbed wounds.
8. The appellant was
taken to the police station where when he was searched by the police,
they found two cellphones on him and
one was found in his underwear
in his buttocks. The complainant identified one of the cellphone as
his at that time. Under cross
examination the complainant also
mentioned that the sister of the appellant gave the appellant a
cellphone, when he was taken by
ambulance from the scene to the
clinic, so that he can call them when he is finished or to tell where
he was.
9. Another witness
for the state, a constable Nkomo testified that he saw suspicious
people on the street and when he stopped next
to them, they ran away
but he managed to catch one of them and that was accused number 4 on
whom he found a wallet and bank cards
and a knife. This accused
decided to come clean when confronted that he was not alone but with
accused number 1 and Search. When
the appellant came at the police
station with the
ambulance, he
searched the appellant and found two cellphones on him, one in his
underwear in his buttocks.
10. The appellant
testified in his defence that he was himself stabbed at the scene on
the day in question by unknown assailants.
He had two cellphones on
him one of which belonged to his sister.
11. lt is a
principle in our law that the evidence of identification should be
approached by our courts with caution. The court
must look at the
totality of the evidence and the probabilities in the particular case
before making a decision, (see S vs Mthetwa
1972 (3) SA (A)).
12.On the evidence
on record, the complainant saw the appellant when he stopped him and
asked for cigarette, when he was assaulted
by his accomplices
immediately after robbing him, when they fetched him at the scene and
travelled with him in an ambulance to
the police station and when his
cellphone was found on him in his underwear in his buttocks.
13. The appellant
was further pointed out by accused number 4 who said he was with
Senjel and he gave the cellphone of the complainant
to Senjel. The
other name of the appellant is Search and the cellphone of the
complainant was found on him at the police station.
His possession of
the complainant's cellphone was immediate after the robbery on the
complainant took place. Moreover, why would
somebody put a cellphone
in his underwear and in his buttocks, for that matter?
14. Having regard to
the above, It is my view that the Court a quo did not err or
misdirected itself in finding that the state has
proved it’s
case beyond reasonable doubt against the appellant and correctly
returned a verdict of guilt on robbery with
aggravating
circumstances.
15.1 now turn to
deal with the sentence of three (3) years imprisonment imposed by the
Court a quo.
16.lt is trite that
sentencing is pre eminently the domain of the trial court. The
appellant was convicted of very seriuos crime
for which Secton 51 of
Act 105 of 1997 prescribes a minimum sentence of fifteen (15) years
direct imprisonment.
17. The appeal court
can interfere with the sentence of the court a quo if it is
inappropriately severe to the extent that it induces
a sense of
shock.
18.lt appears from
the record that a pre-sentencing report of the appellant was
requested and it could not be finalised as the family
of the
appellant refused to sign the address for him. It was mentioned that,
according to the family the appellant is not co-operative
when given
community based sentence and the family feels that he is better of in
prison. It was placed before the court a quo that
the appellant was
unemployed and did not have money to pay a fine.
19. The courts have
been warned not to accept flimsy excuses to justify deviating from
the prescribed minimum sentence. There should
be substantial and
compelling factors in existence to justify deviation from the
prescribed minimum sentence by the court. However,
the legislature
has limited but not
eliminated the
discretion of the court in terms of Section 51 of Act 105 of 1997.
20.lt is therefore
my view that the court a quo did not misdirect itself in sentencing
the appellant to three (3) year imprisonment.
21. In the light of
the above, I therefore propose the following:
“The appeal is
dismissed”.
TWALA. AJ
ACTING JUDGE OF
THE NORTH GAUTENG HIGH COURT
I agree and it is
so ordered
FABRICIUS
JUDGE OF THE
NORTH GAUTENG
HIGH COURT