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[2013] ZAFSHC 94
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Tshabalala v S (A187/2012) [2013] ZAFSHC 94 (20 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A187/2012
In the appeal between:
SIPHO LAWRENCE
TSHABALALA
.............................................
Appellant
and
THE STATE
...............................................................................
Respondent
_______________________________________________________
CORAM:
LEKALE, J
et
SNELLENBURG, AJ
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
HEARD ON:
10 JUNE 2013
_______________________________________________________
DELIVERED ON:
20 JUNE 2013
_______________________________________________________
[1] On 19 January 2011
the appellant, who was legally represented, appeared, as accused
no.1, before the Regional Court at Bethlehem
together with two other
persons, who were eventually acquitted at the end of the trial, and
was convicted of housebreaking with
intention to commit robbery and
aggravated robbery, as charge number 1, and unlawful possession of
firearms as charge number 2.
He was, thereupon, sentenced to 15 years
and 3 years direct imprisonment on the respective charges which
sentences were ordered
to run concurrently.
[2] He feels aggrieved by
both the convictions and the sentences and now approaches this court
on appeal against the same with leave
granted by this court on
petition.
[3] On convicting the
appellant the trial court, effectively, rejected the appellant’s
defence of alibi as not reasonably
possibly true and attributed the
date stamps on his passport suggesting that he was in Lesotho on the
day of the crimes to possible
fraud. The court below, further,
accepted the identification evidence of the complainant as being
clear. The trial court, furthermore,
found no reason to reject the
evidence of the fingerprint expert relating to the appellant’s
right ring finger prints lifted
from an ammunition box found on the
complainant’s bed.
[4] Upon imposing the
impugned sentences the court below found no cause to depart from the
15 year minimum sentence prescribed by
Act 105 of 1997 (the Minimum
Sentences Act) for robbery with aggravating circumstances on,
effectively, the basis that the mitigating
factors were overshadowed
by the gravity of the crimes and the interests of the society.
[5] In the notice of
appeal and the heads of argument as well as submissions before us the
appellant assails the conviction on the
grounds that the complainant
was not certain about the identity of the appellant as one of his
attackers. Mr Van Rensburg, appearing
for the appellant, further,
submits that the fingerprint evidence is questionable in that the
complainant neither referred to the
ammunition box nor identified his
signature on the box in question as an exhibit. It is, furthermore,
contended for the appellant
that no evidence was tendered by the
state to prove that the appellant’s passport was falsified.
[6] The State supports
both the convictions and the sentences, according to Mr Pienaar, who
contends, both in heads of argument
and oral submissions before us,
that the complainant’s evidence was clear that he had the
opportunity and the visibility
on his side to see and identify the
appellant. It is, further, submitted for the state that it is not in
dispute that the complainant
identified the appellant at the
identification parade. The fingerprint evidence is conclusive proof
of the appellant’s involvement
in the crimes insofar as it
links him to the same, Mr Pienaar argues. The court of appeal is
entitled, in Mr Pienaar’s view,
to take judicial notice of the
porous state of the borders between the Republic of South Africa
(RSA) and Lesotho regard being
had to the high number of illegal
immigrants in our country from Lesotho.
[7] The factual dispute
between the parties, which fell to be determined by the trial court,
was effectively whether or not the
appellant was one of the robbers.
The State’s version, as presented by the complainant, was that
the latter, who was 67 years
of age at the time of the trial, was
lying in his bed on the farm around 3am when he became aware of some
movements in the house.
Before he could switch on the lights the
appellant came directly to him from the corridor with a flashing
torch and lit him in
the face. The appellant switched on the light in
his bedroom and, eventually, demanded money from him. The incident
took about
1 hour and the appellant played a major role while his
companions remained in the background. He, eventually, gave the
appellant
keys to the safe, whereupon, the latter opened the safe and
took R7 000,00 in cash. The appellant, further, fetched three
firearms from the safe as well as ammunition and placed them on the
blanket near the bed. The appellant, further, ordered his companions
to take all the ammunition out of the case and to put them in the
bag. He later identified the appellant at the identification
parade
as well as accused number 3.
[8] The appellant’s
version was simply that he was in Lesotho for a cleansing ceremony
from 21 November 2009 to and including
27 November 2009 as his
passport clearly indicates that he entered that country on 21
November 2009 and left it on 27 November
2009.
[9] The evidence of the
fingerprint expert was not disputed save for pointing out that the
appellant was in Lesotho on 25 November
2009. The question was, thus,
effectively whether or not it was possible for the appellant to be in
Lesotho and in the RSA and
within the jurisdiction of the court aquo
at the same time.
[10] Mr Van Rensburg
contends that there was no evidence tendered to show that the
ammunition box from which the appellant’s
fingerprints were
lifted was, in fact, in the complainant’s house on the morning
of the crimes. It is, however, clear from
the evidence of the
complainant that the appellant fetched the firearms and the
ammunition from the safe where they were kept and
placed them near
the bed where the complainant was lying. It was, further, the
appellant’s evidence that the appellant ordered
members of his
crew to take all the ammunition out of the case and to put it in a
bag.
[11] It is, further,
truism that a person’s finger prints cannot be found on the box
which was, at all material times, in
the complainant’s house,
where it held ammunition, unless such a person was in the
complainant’s house and handled
such a box. It is, however,
possible for a person’s passport to be in Lesotho without him
being physically there. It is,
furthermore, possible, owing to the
porous state of the borders, as Mr Pienaar correctly submits, for a
person to enter Lesotho
from RSA legally only to return to RSA
illegally to commit crime and to re-enter Lesotho, without using his
passport, only to return
to the RSA legally at a later stage. It is,
further, correct, as Mr van Rensburg correctly concedes, that there
are constant media
reports of allegations of fraud and/or
irregularities at border posts between Lesotho and the RSA with it
recently being reported
that, at the Caledonspoort Border Post near
Fouriesburg, officials of Department of Home Affairs have been
arrested for, inter
alia, placing date stamps on passports without
holders of such passports physically presenting themselves.
[12] The factual findings
of the trial court are presumed to be correct unless and until they
are shown, with reference to recorded
evidence, to be wrong. The
acceptance, by the trial court, of oral evidence of witnesses and its
conclusions thereon are presumed
to be correct absent misdirection on
its part. The appellant must convince the court of appeal that such
acceptance and conclusions
are wrong, on adequate grounds and not
merely by showing that there was a reasonable doubt that the trial
court was correct. (See
S v Hadebe and Others
1997 (2)
SACR 641
(SCA) and
S v FRANCIS
1991 (1) SACR 198
(A) at
204C – E.)
[13] There is nothing
before us to show that the trial court misdirected himself in his
factual findings and in his acceptance and
evaluation of oral
evidence as well as his conclusions thereon. In fact, we are
satisfied that the State’s case was proved
beyond reasonable
doubt and that the trial court correctly differentiated between the
appellant and accused number 3, who was also
identified by the
complainant at the identification parade, insofar as there existed
insufficient and reliable evidence against
the said accused. The
evidence against the appellant was overwhelming insofar as the
complainant had a clear and sufficient opportunity
of identifying him
and his evidence was, as such, satisfactory in all material respects.
The evidence of the fingerprint expert,
further, provided the
necessary safety valve for the acceptance of such evidence to the
extent that the complainant was a single
witness. We may only mention
that the complainant never contradicted the evidence of the
fingerprint expert in any manner whatsoever.
His evidence was, in
fact, consistent with that of the fingerprint expert insofar as he
testified that the appellant, inter alia,
handled firearms which were
in the safe together with the ammunition. The evidence of the
fingerprint expert with regard to the
ammunition box, from which the
appellant’s fingerprints were lifted, was not disputed at all.
It was, further, not necessary
for the trial court to make any
finding with regard to fraud in order to reject the appellant’s
version as not reasonably
possibly true. The question was simply
whether or not there existed innocent explanation for the presence of
the appellant’s
fingerprints in the complainant’s house.
The appellant’s passport does not provide him with an alibi in
respect of
the date on which the crimes were committed insofar as it
does not reflect that date, as the State effectively submits. No
evidence,
whatsoever, was presented to the court below to explain how
the appellant’s undisputed fingerprints got onto the relevant
box, let alone in the complainant’s house. The trial court,
thus, correctly rejected the appellant’s version as false
to
the extent that it was in conflict with the State’s version.
[14] In his handwritten
statement annexed to the affidavit filed in support of the
application for condonation of the late petition
for leave to appeal,
the appellant contends that the conviction, on unlawful possession of
firearms, is irregular in that it was
not supported by evidence
before the trial court insofar as no evidence was led to prove that
he and/or any member of his alleged
crew was in possession of any
firearm. We are, however, convinced by the recorded evidence that the
complainant’s evidence
sufficiently proves that the robbers
removed the firearms mentioned in the charge sheet from his safe and
made away therewith.
The evidence, therefore, shows that the
appellant and his co-miscreants took possession of such firearms
without being in possession
of appropriate licences. The
complainant’s evidence is also clear and sufficient with regard
to the working condition of
the firearms in question insofar as he
testified, undisputedly, to the effect that those firearms were
loaded and he was afraid
and was waiting for death.
[15] To the extent that
the appellant feels that there was unlawful splitting of charges or
duplication of convictions insofar as
the firearms involved form the
subject matter of the robbery in charge number 1 and, at the same
time, form the basis of charge
number 2, we can only point out that
unlawful possession of a firearm constitutes a distinct crime with
its own elements which
differ from the elements of the crime of
housebreaking with intent to commit robbery and aggravated robbery.
Application of the
“
same evidence test
” shows that
evidence necessary to prove the first charge does not, at the same
time, establish the elements of the second
charge. The “
similar
intent test
”, on its part, also shows that the mental
element of the offence in charge number 1 does not extend to the
charge of unlawful
possession of a firearm, where the requisite
intention is one to possess without a licence as opposed to intention
to rob. It is
clear from the complainant’s evidence that the
initial intention was to rob him of cash and the firearms were taken
only
because they were found in the safe, where the appellant and his
crew were pursuing cash. The requisite intention with regard to
the
firearms was, therefore, only formed distinctively after the fact of
robbery of cash and in the process of searching for more
money. There
was, thus, no duplication of convictions in the instant matter. The
convictions on the two charges, further, do not
offend our sense of
fairness and justice. (See
S v Whitehead and Others
2008 (1) SACR 431
(SCA) paras [34] – [44].
[15] Sentencing is
pre-eminently the discretion of the trial court as the parties
correctly submit. The sentences imposed can only
be interfered with
under very narrow circumstances where the sentences are grossly
disproportionate or the sentencing court exercised
its discretion
unreasonably. See
S v Pieters
1987 (3) SA 717
(A) at
727F – H.
[16] The parties are
correctly and effectively in agreement that the trial court was
constrained to impose 15 years imprisonment
as a sentencing floor in
respect of the aggravated robbery charge viz. charge 1 unless
substantial and compelling circumstances
justifying a lesser sentence
were found and are seen to exist. (
S v Malgas
2001 (1)
SACR 469
(SCA).
[17] The parties are,
effectively, at variance on whether or not there existed the
aforesaid legal cause for the trial court to
deviate from the
prescribed minimum sentence insofar as their submissions are confined
to that sentence.
[18] The test in
determining whether or not there exists such a legal justification
for a sentence lesser than the prescribed minimum
sentence is,
effectively, whether or not the cumulative impact of the mitigating
factors on the nature and gravity of the crime
committed and the
interests of the community renders the prescribed minimum sentence
unjust. (See
S v Malgas
supra
.)
[19] It is contended for
the appellant that the sentence imposed is unjust because it is
disproportionate to the crime, the appellant’s
needs and those
of the community insofar as he was in custody, awaiting trial, from
17 December 2009 until he was sentenced on
19 January 2011, he was 24
years of age when the crimes were committed, he is married with one
minor child, his wife is unemployed,
he is economically active in
that he owns a taxi which generates at least R2 500,00 per
month, his previous conviction for
housebreaking dates back to 2005,
the complainant did not sustain any serious injuries insofar as he
was not treated at the hospital.
[20] Mr Pienaar, feels
that the trial court has already shown mercy to the appellant insofar
as the sentences were directed to run
concurrently. He submits that
there exists no cause to interfere with the sentence because the
complainant was a soft target and
old, violence was used to force the
door open and the complainant was assaulted. The value of the goods
taken in the robbery is
high and they include firearms.
[21] The gravity of the
offences involved is apparent
ex facie
the evidence of the
elderly victim who testified that the appellant and his cohorts
forced the kitchen door open by using an iron
rod which the
appellant, eventually, used to assault him by hitting him on the
head. His hands were tied from behind with his belt.
The appellant
threatened to shoot and kill him throughout the ordeal. He knew that
his firearms, which the appellant and his crew
had taken possession
of, were loaded. It was, as such, difficult to describe the effect of
the crimes on his person because he
was only waiting for his death.
His bakkie was also taken and so was his newly acquired grinder.
[22] The crime of
housebreaking with intention to commit robbery and aggravated robbery
is, in fact, two crimes rolled up in one.
In an appropriate case such
a crime justifies at least 18 years direct imprisonment in respect of
a first offender, as the trial
court correctly indicated. The
appellant had a relevant previous conviction which was less than 10
years at the time of the crimes
in the instant matter. Only the
wielding of a dangerous weapon, as correctly pointed out by Mr
Pienaar, during the robbery qualifies
a first offender, in an
aggravated robbery charge, for at least 15 years’ imprisonment
as prescribed by the law. In the instant
matter an injury was, in
fact, inflicted on the victim. The appellant played a leading role in
the offences.
[23] Looking at the
mitigating factors collectively and weighing them up against the
aggravating circumstances
in casu
as well as the interests of
the community, which call for at least 15 years imprisonment, we are
not persuaded that the 15 years
imposed as a sentence is unjust. We
are, in fact, convinced that the trial court could have, justifiably,
imposed a sentence heavier
than the one imposed. There is, however,
no cross appeal before us requesting us to adjust the scales of
justice upwards in order
to strike a healthy and more appropriate
balance between the crime herein, the personal circumstances of the
appellant and the
interests of the community. The fact that the
appellant spent more than a year as awaiting trial inmate does not
per se
justify a lesser sentence. Its solitary effect is
countered by the gravity of the offence which, in our view, is not
strictly and
adequately reflected in the sentence imposed. The trial
court, therefore, showed mercy to the appellant as contended for the
state.
There exists, as such, no cause to interfere with the
sentences.
ORDER
[24] In the result the
appeal fails on both fronts and the convictions and sentences are
confirmed.
______________
L. J. LEKALE, J
I
concur.
____________________
N. SNELLENBURG, AJ
On behalf of appellant:
Adv. T B van Rensburg
Instructed by:
Jacques Groenewald
BLOEMFONTEIN
On behalf of respondent:
Adv. F. Pienaar
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb