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[2013] ZAFSHC 21
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Tladi v S (A189/2012) [2013] ZAFSHC 21 (28 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A189/2012
In
the appeal between:
DAVID TEBOHO TLADI
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
DAFFUE, J
_____________________________________________________
JUDGEMENT:
RAMPAI, J
HEARD ON:
25 FEBRUARY 2013
_____________________________________________________
DELIVERED ON:
28 FEBRUARY 2013
_____________________________________________________
[1] This is an appeal.
The appellant appeals against the conviction and the sentence. He was
charged as accused no 1 in the court
a quo
. His co-accused, in
other words accused no 2, is not before us. About him not much will
be said in this judgment. The appellant
was aggrieved by his
conviction and sentence - hence the appeal.
[2] The appellant was
arrested at Botshabelo on 22 August 2008. He was subsequently charged
and tried in the Botshabelo Regional
Court. His trial began on 18
March 2009 before Ms M. Khuduga. Mr V. Nel appeared for the State and
Mr Kambi for the two accused.
[3] The charge was
robbery with aggravating circumstances. The prosecution alleged that
the accused robbed the victims of their
property at Section N,
Botshabelo on 22 August 2008. The stolen goods were specified and
inventorised in annexure “b”
to the charge sheet. Amongst
them were a ladies handbag containing R4 000,00, shop keys,
cellphones and gun safe key. The victims
were Ms N.E. Noge and her
husband Mr S. Noge.
[4] The version of the
prosecution was narrated by two witnesses, namely Ms Noge, the first
victim and Mr Noge, the second victim.
The version of the defence was
independently narrated by accused no 1, now the appellant, and his
co-accused. None of them called
any witnesses to give evidence on
their behalf. Over and above those witness Mr L.D. Kibi testified as
a court witness.
[5] On 1 June 2009 the
appellant was convicted as charged. On the same day he was sentenced
to 10 (ten) years imprisonment. Still
on the same day he
unsuccessfully applied for leave to appeal against the sentence only.
He now comes on appeal with the leave
to appeal against the
conviction and sentence granted by Molemela, J
et
Mathebula,
AJ on petition.
[6] The grounds of
appeal, as regards convictions, were that the court
a quo
erred in finding that the appellant had participated in the
commission of the crime; that he was not an innocent bystander and
that he was correctly and reliably identified by the victims and the
court witness as one of the robbers.
[7] The thrust of the
appellant’s defence was that he was not involved in the armed
robbery and that he was mistakenly and
unreliably identified as one
of the robbers. As a result of such wrong and mistaken identification
he was wrongfully pelted with
stones which eventful attack forced him
to run away; that he was pursued by members of the community, but
ultimately apprehended
by the police who found no incriminating
article in his possession.
[8] In her judgment the
regional court magistrate determined that the issue she had to decide
was the identity of the perpetrators.
Her characterisation of the
core of the contest between the prosecution and the defence was
correct in my view. At the end of the
hearing the court
a quo
decided the issue in favour of the prosecution. Now the question in
this appeal is whether that decision could be properly sustained
by
credible and reliable evidence.
[9] The testimonies of
the victims may be collectively condensed into one version. The
couple locked their shop situated at 1055
Section N at 20h00. Ms Noge
carried a handbag. There was R4 000,00 and other articles in the bag.
The couple walked home. They
resided at 1200 Section N. At the gate
of their home, three unknown men confronted them. They came from
behind. The couple had
already turned towards their gate at the time
they were confronted. The first man, X, was standing approximately
one metre away
from Ms Noge with an empty bottle of Hansa in his
hand. The second man, Y, was standing closer to her than X with
nothing in his
hands. The third man, Z, was standing behind Ms Noge
and pointing a gun at Mr Noge.
[10] Y attacked Ms Noge’s
and snatched her handbag from her left shoulder. Thereupon Z ordered
Mr Noge to run into the house.
Before he got inside Z fired a shot on
the ground very close to Mr Noge’s feet. Z then commanded the
others: “Let us
run”. At once all three ran away from the
scene. They ran together in the same direction. The scene was
illuminated by a
high mast community lamp 200 metres away. Ms Noge
trotted behind the robbers. Her shop assistant, Mr Kibi, responded to
her scream
for help. He turned back and pursued the robbers who had
just ran passed him. He was also screaming for help. The screaming
paid
dividends. Several members of the community came out to help.
The robbers were hotly pursued by members of the community, who
managed
to track down and catch two of them at two separate places.
They handed them over to the police. However, Z managed to evade
members
of the community. He escaped with the cash and the two
cellphones with the estimated combined value of R1 100,00.
[11] The court witness
materially corroborated the version of prosecution to the extent that
it applied to him. The significant
features of his corroborative
evidence were that he heard the first victim screaming; that he saw
three men running towards him
and away from the screaming woman; that
he ascertained from her that the runners who had shortly run passed
him had robbed her
of her belongings; that he saw them as they were
jumping over the fences from one private property to the other; that
he, aided
and abetted by helpful residents, pursued them and that he
witnessed how the appellant was caught.
[12] The version of
accused no 1, in other words, the appellant was that he and accused
no 2 were at Mashombo’s Tavern at
Section N. They consumed some
alcoholic drinks there while he was waiting for his girlfriend. His
girlfriend never turned up. They
left the tavern at of about 21h00.
By then he was very intoxicated. On their way to Section L where they
lived, certain members
of the community started throwing stones at
them. As a result of the unprovoked attack they ran away. While he
was running away
from those attackers, a police vehicle appeared. He
was arrested there and then. The police gave him no explanation for
arresting
him. That, in brief, was the appellant’s version.
[13] The appellant’s
contention was that the court
a
quo
erred
in accepting,
as
credible and reliable evidence,
the
testimonies of the victims and the shop assistant, but rejecting his
exculpatory testimony on the basis that it was not reasonably
true.
He asserted that his version that he was innocently walking back home
when he was mistakenly identified, falsely accused
and wrongly
pursued by members of the community and ultimately arrested by the
police without good cause, was reasonably true.
His principal
submission was that the court
a
quo
misdirected
itself in finding otherwise.
[14]
Mr
Noge was a poor witness. He contradicted himself. He also
contradicted his wife. His identification of the appellant was
clearly
questionable and thus unreliable. I deemed it unnecessary to
do a thorough critique of the witness. He failed to impress me.
Whenever
his evidence deflected from that of Ms Noge, her’s had
to be preferred. He made his observation of the appellant in very
stressful prevailing circumstances.
1
The potential risk for
error was very high in his case. The exercise of caution became
imperative in view of the unreliable features
of his evidence.
[15] Ms Noge was a fairly
impressive witness. Notwithstanding certain minor discrepancies, her
evidence, as a single witness, was
satisfactory in many material
respects. She gave credible and reliable evidence against the
appellant. Her direct evidence was
significantly bolstered by
circumstantial evidence.
2
The probabilities and
improba-bilities inherent in the two conflicting versions, coupled
with the false aspects of the appellant’s
version.
[16] The robber X was in
the forefront of the attack. It would appear that he strategically
positioned himself between the victims
and their gate. He came
walking, not alone, but with two others. Once he reached that point,
he stopped walking. He must have turned
around to face the victims.
This is so because Ms Noge saw his face. She saw that he was wearing
a black lumber jacket with a woollen
collar. With a dangerous empty
bottle in his hand he stood within a striking distance from the
witness. Obviously the target of
the robber armed with a bottle, was
Ms Noge, whereas that of the robber armed with a firearm (Z) was Mr
Noge. The role of the unarmed
robber (Y) was to snatch the handbag
from the frightened lady. The first scene was approximately 200
metres from the neighbourhood
lamp known in the townships as Apollo
light. The witness saw the uncovered face of X. She stated he was
hatless.
[17] The armed robbers
certainly posed an obvious threat to the victims. The mere sight of
the bottleman (X) and the gunman (Z)
discouraged the frightened
victims from daring to offer any kind of resistance. So frightened Ms
Noge let go of her handbag. The
handbag snatcher (Y) easily robbed
the lady of her handbag with the full knowledge that he had the
strong backing, not only of
the gunman but the bottleman as well. I
have no doubt that he did what he did to Ms Noge knowing that the two
would not hesitate
to put their weapons to an immediate and effective
use in order to have their joint criminal venture accomplished at all
costs.
3
[18] The aforegoing
analysis demonstrates that X was not a mere innocent spectator, but
an important role-player in the armed robbery.
Moreover, when the
handbag snatcher and the gunman took to flight from the crime scene,
the bottleman did not stay put on the scene.
He too obeyed the
command. He ran away together with them. They all ran in the same
direction. Birds of the same feather flock
together – so goes
the proverb. In this instance,
the
bottleman flocked together with the gunman and the handbag snatcher.
[19] The court
a
quo
found
that X’s conduct indicated that he acted in concert with Y and
Z. With that finding I am in respectful agreement. What
Y and Z did
they did in the furtherance of their common, criminal enterprise for
and on behalf of X. The converse was also true.
What X did he did for
the mutual benefit of the criminal gang as a whole. By walking with
them to the scene and subsequently fleeing
from the scene together
with them he tacitly performed acts through which he actively
associated himself with the crime they had
overtly committed.
4
According to the doctrine
of common purpose, X was just as guilty. In my view he was more than
an innocent bystander or spectator.
He was a covert perpetrator.
[20] In case there was
any doubt about the reliability and accuracy of the observations of
Ms Noge in her identification of the
appellant as X, the bottleman,
then a careful analysis of the surrounding circumstances becomes
necessary. The appellant was in
the victim’s street. He did not
live in that neighbourhood. He lived in a different neighbourhood far
from the neighbourhood
of the victims. The victims were robbed of
their goods at their gate. The robbers seemed to have known the
victims, which was why
the gunman ordered Mr Noge to run into his
house. The robbers then ran away. An incriminating article, the gun
safe key, was found
on the second scene where the appellant was
arrested. Another incriminating article, the first victim’s
ladies handbag, was
found on the third scene in the vicinity of where
the appellant’s companion and co-accused was arrested. In my
view those
pieces of circumstantial evidence were telling against the
appellant. They strongly militated against his contention that he was
mistaken.
5
[21] The probabilities
and improbabilities tended to overwhelmly favour the prosecution’s
version. It appeared somewhat improbable
that the appellant would
have gone out at night, during August for that matter, wearing a
skimpy t-shirt only; that he and accused
no 2 were peacefully and
innocently walking down the street; that they were mistakenly
identified with the real robbers; that they
were pelted with stones
for no apparent reason; that he was also surprisingly arrested by the
police for no apparent reason and
that the police did not inform him
as to why they were arresting him. All those claims by the appellant
were highly improbable.
6
[22] The probabilities
were that he and his two companions ran away after they had robbed
the victims of their money; that the first
victim screamed for help;
that her shop assistant amplified her screaming; that the assistant
was close and in hot pursuit of the
fugitives; that members of the
community saw the fugitives were running away from the shop assistant
and the victims; that the
appellant realising that he had nowhere to
escape, made an abortive attempt to hide under a motor vehicle and
that members of the
community caught him there and handed him to the
police. It seemed to me that his co-accused was caught by a different
group of
members of the community. It was unlikely, in my view, that
the two groups would have made the same mistake of letting the three
real robbers evade them and catching two completely innocent
persons.
7
[23] Given those
circumstances, I am of the view that the court
a quo
was
correct in coming to the conclusion that there was no reasonable
possibility that the appellant’s exculpatory version
could be
true. Similarly, the corollary that the evidence consisting of the
credible and reliable identification of the appellant
and fortified
by the indirect evidence of incriminating articles established the
guilt of the appellant beyond reasonable doubt,
was also correct.
[24] In my view the court
a quo
committed no appealable misdirection as regards either
the facts or the law. In the absence of a proven material
misdirection no
appellate interference is permissible. Accordingly, I
am inclined to confirm the verdict. In reaching this conclusion I was
fortified
by the lame and unpersuasive manner in which the
appellant’s heads of arguments were drafted, as well as the
defence counsel’s
frank and responsible concession that he
could not argue, with conviction, that the verdict was flawed.
[25] As regards sentence,
the prescribed minimum sentence for a first offender convicted of
robbery with aggravating circumstances,
is 15 (fifteen) years
imprisonment. The court
a quo
found that substantial and
compelling circumstances existed. By virtue of that finding the court
a quo
sentenced the appellant to a lesser sentence of 10 (ten)
years imprisonment.
[26] Mr Tshabalala hardly
made any submission in an attempt to justify interference. He thereby
tacitly conceded that there was
no real substance in the appellant’s
grounds of appeal against sentence. The attitude of counsel was
understandable. Mr Zweni
supported the sentence.
[27] In the light of the
aforegoing, I deem it unnecessary to dwell on the matter, save to say
that the appellant was convicted
of a very serious crime of armed
robbery where a firearm was used. In my view, a sentence less than 10
(ten) years imprisonment
would not fit the crime and would not have
been fair to society. I would, therefore, confirm the sentence.
[28] Accordingly I make
the following order:
28.1 The appeal fails
in
toto
.
28.2 The conviction and
sentence are confirmed.
______________
M. H. RAMPAI, J
I concur.
_____________
J.P. DAFFUE, J
On behalf of appellant:
Mr M.K. Tshabalala
Instructed by:
Legal Aid SA
BLOEMFONTEIN
On behalf of respondent:
Adv L. Zweni
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/spieterse
1
S
v Ngcina
2007 (1) SACR 19
(SCA) par [6] per Navsa JA.
2
S
v Reddy and Others
1996 (2) SACR 1
(A) at 9b – e per Zulman
AJA.
3
S
v Lungile and Another
1999 (2) SACR 597
(SCA) para [10] –
[14].
4
S
v Safatsa and Others
1988 (1) SA 868
(AD) at 896G and 898A –
B.
5
R
v De Villiers 1944 (AD) 493 on 508 – 509.
6
S
v Van Tellingen
1992 (2) SACR 104
(CPD).
7
S
v Teixeira
1980 (3) SA 755
(AD) at 761A, 763A and 764B.