About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 133
|
|
Sibeko v S (ASH44/11) [2013] ZAFSHC 133 (1 August 2013)
/if
IN THE HIGH COURT OF SOUTH AFRICA, BLOEMFONTEIN
FREE STATE PROVINCIAL DIVISION
Appeal No. A116/13
Case No.ASH44/11
In the matter between:
PHAKISO JOSEPH SIBEKO
..................................................................
Appellant
and
THE STATE
........................................................................................
.Respondent
CORAM
: EBRAHIM, J
et
MURRAY, AJ.
HEARD ON
: 24 JUNE 2013
JUDGMENT BY
: MURRAY, AJ
DELIVERED ON
: 1 AUGUST 2013
JUDGMENT
[1] This is an appeal against the conviction and sentence imposed on
the appellant in the Bethlehem Regional Court on
12 September
2012.
[2] The appellant was convicted on one count of housebreaking with
intent to steal and theft and one count of theft and sentenced
to
five years’ imprisonment on each count. He was granted leave to
appeal both his conviction and sentence on
18 October 2012.
[3] The charges against the appellant stemmed from two separate
incidents in Bethlehem on 24-25 September 2009 and 19-21 February
2010. There were no eye-witnesses. The conviction is based on
circumstantial evidence. Both complainants testified that they had
never seen the appellant before. The fingerprint experts identified
the palm- and fingerprint lifted at the two crime scenes,
respectively, as indubitably those of the appellant.
[4] The appellant was the only defence witness. He denied any
involvement in the two crimes. While he did not dispute that the
prints were his, he offered explanations for their presence which he
claimed were reasonable enough to cast doubt on the convictions.
[5] Regarding Count 1 he alleged that his palm-print could have been
left on the television screen when he helped to carry two
television
screens into the complainant’s house while working for the
latter as a casual labourer during renovations to his
house in
November 2009.
[6] Regarding count 2 he alleged that his fingerprint could have been
left on the vehicle door while he worked as a temporary car-guard
at
Pick-and-Pay in September 2009 since he frequently touched cars while
assisting women with small children to close their car
doors.
Count 1: The relevant evidence:
[7] That there was a break-in and theft of items to the value of R 46
670.00 at the Marais home on 19-21 February 2010 is undisputed.
So is
the fact that the appellant’s palm-print was found on a
flat-screen television which someone had evidently attempted
to pull
from the wall during the break-in. Only the appellant’s
involvement is in dispute.
[8] The complainant, Mr Marais, testified as follows: They moved into
the house in November 2009. He used only employees from their
dry
cleaning business to move their furniture into the house. No
renovations or building took place at his house in 2009. He has
his
own construction team with whom he has done several building
projects. He did not pick up anyone from the street to help with
the
furniture or with renovations. They do use casual labourers from time
to time to mix cement, clean, etc, but his foreman hires
and oversees
them, so he himself does not always know them, although they call
each other by name.
[9] On Friday 19 February 2010 he went to Bloemfontein with his
family. They left the house locked up with everything in place.
Upon
their return on 21 February they found the house in disarray. The
plasma television screen hung lopsided, cracked down the
middle,
where someone had tried to pull it from its bracket on the wall.
Various items were strewn over the floor. A large bedroom
window was
broken. Clothes and jewellery had disappeared.
[10] The appellant was pointed out in court. The complainant remained
adamant that he had never seen him before. He insisted that
the
appellant was not one of the people who had moved his furniture into
the house or one of the casual labourers during the renovations.
The
renovations were only done in 2010, long after the break-in, when
they installed an alarm system, put up a wall in front of
the house
and laid paving.
[11]. The fingerprint expert, Teepa, testified that he had found the
appellant’s left palm-print facing upwards on the top
left-hand
corner of a broken flat screen television at about 2,5 meters high on
the living room wall. He submitted eleven colour
photographs of the
crime scene, three of which clearly showed the lopsided TV screen
with a crack down the middle and the top left-hand
corner extending
upwards. He testified that no other prints were found at the scene.
[12] The appellant claimed to have been a general labourer for three
weeks during “
a lot of renovations”
done at the
complainant’s home in November 2009. He averred that “
on
that day”
the complainant picked him up from the street in
his Kia “
mini-lorry”
, together with two other
general labourers. He maintained that he and Petrus, one of the
complainant’s permanent workers,
had to help carry the
furniture into the house;
inter alia
two boxed, used
flat-screen television sets which the complainant told them to handle
with care. He averred that he was not involved
in their installation,
but that his palm-print could have landed on the screen when he put
it on the floor after the complainant
had ordered them to take the
TV’s out of the boxes and to throw away the latter.
Count 2: The relevant evidence
[13] It was not in dispute that on 24-25 September 2009 Mrs Smit’s
vehicle was broken into and that items to the value of
R7 900.00 were
stolen. It was not in dispute, either, that the appellant’s
fingerprint was lifted from the exterior of the
front left door of
the vehicle. What was in dispute was the appellant’s
involvement in the break-in and theft.
[14] The complainant, Mrs Smit, testified that she worked at the
Voortrekker High School Hostel in Bethlehem and that she left
her GWM
vehicle in one of the parking lots in the schoolyard at 18h00 on 24
September 2009. All the windows were closed, the face
of the radio
removed and the doors locked. When she returned to her vehicle at
8h30 the next morning she found the left front window
completely
shattered, part of the dash board ripped out, the car radio removed
and items worth R 7 900.00 stolen from the vehicle.
She testified
that she was told that the police had lifted the appellant’s
finger-print from the outside of the car’s
left front door. She
admitted that she sometimes bought groceries from Pick-and-Pay, but,
like the complainant in Count 1, she
remained adamant that she had
never seen the appellant before.
[15] The fingerprint expert, Clark, confirmed that he had lifted the
print of the appellant’s right ring-finger from the
exterior of
the left front door of the complainant’s vehicle. He explained
that due to the nature of the material inside
the vehicle, it was
impossible to lift any usable prints from the interior and that the
other prints that he found on the vehicle
have not been identified.
The only discrepancy between his testimony and that of the
complainant was that he averred that she was
present when he lifted
the print, while she maintained that she was not there when he did
so.
[16] The appellant testified that he did not know the complainant,
did not remember her car, its colour or its registration number,
and
had never been in the Voortrekker High schoolyard. He claimed to have
worked at Pick-and-Pay as a car-guard from early July
(“
after
the contract was terminated and we were then retrenched at Nonco...”)
to around October. He would put customers’ bags in the
boot, or would assist in closing the car doors when someone had a
young
child. He would also put a card on the wind-screen next to the
wipers. Therefore, he would touch cars “
many times”.
The latter part of his version was never directly put to the
complainant.
[17] In cross-examination the appellant admitted that he was released
from gaol on parole on 30 or 31 July and that he started
working at
Pick-and-Pay after that. As for his finger-print on the car, he
claimed that it might be a coincidence that he might
have touched the
vehicle on the day that it was broken into.
THE CONVICTION:
[18] It is not in dispute that the appellant’s conviction was
based on circumstantial evidence. He denies that the State
has proved
its case beyond a reasonable doubt. He claims, furthermore, that the
presence of his palm- and fingerprints at the two
scenes was the only
evidence linking him to both crimes, that his explanations were
reasonable and that the court
a quo
erred in finding that the
only possible inference to be drawn from the evidence was that he was
involved in both crimes.
[19] In assessing the evidence, the Court
a quo
accepted the
evidence of the complainants and the fingerprint experts, and
rejected the appellant’s version. The appellant
contends that
it could not have done so on the evidence before it.
[20] Viewed in isolation, the Appellant’s explanations for the
presence of his prints at the crime scenes might very well
sound
plausible. But, viewed in the context of the entire case, they are
not.
[21] Holmes AJA, with reference to an
alibi
defence in
R
v HLONGWANE
1959 (3) SA 337
(A) at 340H-341B, (and which
principle Nugent, J (as he then was), in
S v VAN DER MEYDEN
,
1999 (2) SA 79
(WLD) at 81 B – C, said applied to all defences
which might present themselves) stated that:
“
...it is important to bear in mind...
that the alibi does not have to be considered in isolation... The
correct approach is to consider
the alibi in the light of the
totality of the evidence in the case, and the Court’s
impressions of the witnesses.”
[22] The holistic approach to circumstantial evidence followed in
S
v VAN TELLINGEN
,
1992 (2) SACR 104
(C) and
S v VAN DER
MEYDEN
,
supra,
has been approved and followed
in several instances by the Supreme Court of Appeal. (See:
S v
VAN ASWEGEN
2001 (2) SACR 97
(SCA),
S v TRAINOR
[2003] 1 ALL SA 435
(SCA),
S v MBULI
,
2003 (1) SACR 97
(SCA),
S v STEVENS
[2005] 1 All SA 1
(SCA),
NAUDE
& ANOTHER v S
[2011] 2 ALL SA 517
(SCA) and
S v
CWELE AND ANOTHER
2013 (1) SACR 478
(SCA)).
[23] In
S v VAN DER MEYDEN
,
supra,
at 80 I-J and
81 A-C Nugent J (as he then was), stated that
“
In order to convict, the evidence must
establish the guilt of the accused beyond reasonable doubt, which
will be so only if there
is at the same time no reasonable
possibility that an innocent explanation which has been put forward
might be true... In whichever
form the test is expressed, it must be
satisfied upon consideration of all the evidence. A court does not
look at the evidence
implicating the accused in isolation in order to
determine whether there is proof beyond reasonable doubt, and so too
does it not
look at the exculpatory evidence in isolation in order to
determine whether it is reasonably possible that it might be true.”
[24] Nugent J (as he then was), in
S v VAN DER MEYDEN
,
supra,
at 82 A and C – E stressed that the court’s
conclusion, whether it be to convict or to acquit, had to account for
all
the evidence. He made it clear that that cannot be done by
examining the ‘defence case’ in isolation to determine
whether
it is so contradictory or improbable as to be beyond the
realm of reasonable possibility. He also emphasised that the court
cannot
look at the exculpatory evidence in isolation. (See also
S
v MBULI
,
supra,
at 110e.)
[25] This approach was echoed in
S v TRAINOR
,
supra,
which warned against “
a piecemeal assessment of facts”
instead of basing a conclusion on a conspectus of all evidential
material; in
S v STEVENS
,
supra,
which warned
against the dangers of a ‘
compartmentalised approach’
to the assessment of evidence which separates the evidence before
the court into compartments by examining the ‘
defence case’
in isolation from the ‘
State’s case’,
and in
NAUDE & ANOTHER v S
,
supra,
at [29].
[26] The essential question with which this Court is faced,
therefore, is whether on the basis of all the evidence presented by
both the State and the appellant, a reasonable doubt remains as to
the appellant’s guilt.
[27] In
S v CHABALALA
2003 (1) SACR 134
(SCA) at 139i –
140d in par [15] the Supreme Court of Appeal held that:
“
The trial Court’s approach to the
case was ... elastic and in this it was undoubtedly right (S v Van
Aswegen 2001(2) SACR
97 (SCA)). The correct approach is to weigh up
all the elements which point towards the guilt of the accused against
all those
which are indicative of his innocence, taking proper
account of inherent strengths and weaknesses, probabilities and
improbabilities
on both sides and, having done so, to decide whether
the balance weighs so heavily in favour of the State as to exclude a
reasonable
doubt about the accused’s guilt ...”.
[28] The court
a quo
indeed listed the strong points of the
State’s case which point towards the guilt of the accused. In
doing so it, first of
all, considered the testimony of Marais and
specifically listed those aspects which contradicted the appellant’s
version.
It found that there were few aspects thereof that it could
criticise and accepted the testimony as “
straightforward”.
[29] Even though Marais was, strictly speaking, a single witness, I
cannot find any reason to fault the court
a quo’
s
finding. His testimony was clear and satisfactory in all material
respects. The court
a quo
had the opportunity to observe him
in the witness box and evidently believed him. Nothing in the record
indicates that Marais would
have had any reason to falsely implicate
the appellant.
[30] Although the court
a quo
did not explicitly apply the
cautionary rule when he assessed the two complainants’
evidence, there is no reason to doubt
that he approached the evidence
with caution. He did not, for instance, blindly accept everything
that they said. In
R v J
1966 (1) SA 88
(SRA) Macdonald
AJP aptly stressed that ‘
the exercise of caution should not
be allowed to displace the exercise of common sense.’
And I
agree with Shongwe JA’s acceptance of the stance in
R v
DHLUMAYO AND ANOTHER
1948 (2) SA 677
(A) at 678 that
‘‘
an appellate court should not
seek anxiously to discover reasons adverse to the conclusion of the
trial judge
’ and that ‘
it
does not necessarily follow that, because something has not been
mentioned, therefore it has not been considered’’
.
[31] Such a more flexible approach to single witness testimony has
been endorsed in,
inter alia,
R v BELLINGHAM
1955 (2) SA 566
(A),
S v BUDA AND OTHERS
2004 (1) SACR
9
(T) and
S v FORTUIN
2008 (1) SACR 511
(C) at [9]. And
in
S v MAHLANGU AND ANOTHER
2011 (2) SACR 164
(SCA) at
[23] – [24] it was expressly held that a court’s failure
to expressly use the words ‘cautionary rule’
was not
necessarily fatal. It was held that as long as the court has
considered the conspectus of the evidence, weighed the pros
and cons,
made a judiciously considered judgment and observed the rules
regarding the onus of proof, there would be no reason to
intervene on
appeal.
[32] In
R v NHLAPO
1953 (1) PH H 11 (A) Schreiner, JA,
held, furthermore that:
‘
it does not mean... that [an] appeal
must succeed if any criticism, however slender, of the witness’
evidence were well-founded’.”
[33] The court
a quo
made no explicit finding as to the
credibility of Mrs Smit’s testimony, but accepted it by
implication. I cannot fault its
dismissal of the discrepancy between
her averment that the appellant’s fingerprint was lifted in her
absence and the expert’s
averment that it was lifted in her
presence as inconsequential because the appellant’s fingerprint
was indeed found on the
door.
[34] Likewise, I cannot fault the court
a quo’s
unconditional acceptance of both fingerprint experts’
testimony as “straightforward”. The value of fingerprint
evidence as evidential material to connect an accused to a crime is
well-known. (
S v LEGOTE EN ‘N ANDER
2001 (2) SACR
179
(SCA) at 182b). Also that its evidential value depends on the
possibilities as apparent from the evidence as a whole. It is trite
that if a fingerprint expert’s evidence is clear and
convincing, a conviction could even be based solely on the
fingerprint
without any additional evidence connecting the accused to
the offence (
S v ARENDSE
1970 (2) SA 367
(C)).
[35] Both experts complied with all the technical requirements for
acceptable fingerprint evidence. As stated in
R v NKSATLALA
1960 (3) SA 543
(A) it would then be good enough for the Court to
satisfy itself that the expert’s opinion is reliable and to act
accordingly.
Although the expert, Teepa, did not testify about the
probable age of the palm-print, the probability of the palm-print
having
been on the screen for any significant length of time is so
remote as to justifiably be rejected as a reasonable possibility. The
appellant averred that his print could have landed on the TV screen
when he removed it from the box. He testified that Petrus also
handled the screen. He also testified that he did not assist in
mounting the screen. Other people therefore handled the screen
during
the installation. They would not have had any reason to wear gloves.
Yet no other prints were found on the screen. It is
most improbable
that despite the installation only his palm-print would have remained
undisturbed until the break-in almost three
months later. The
photographs handed in by Teepo shows the house to be extremely neat
and clean. It is most improbable therefore,
too, that the screen
would not have been cleaned after the installation, or for the next
three months or would have been cleaned
in such a way as to
incidentally leave only his palm-print.
[36] Contrary to the “straightforward” evidence of the
first complainant, the accused’s version is evidently
rife with
inconsistencies and improbabilities. The so-called “personal
details” regarding complainant on which the
appellant relied as
“proof” of his having been a part of the renovation team,
are simply details anybody who was observing
the house could have
noticed, namely: that there was a ‘For Sale’ sign in
front of the house when the complainant moved
in in November 2009;
that there were tenants on the property; that the complainant had a
small child when he moved in; that the
complainant owned a Kia
Sportage, a grey car, and a Kia bakkie; that he paid his employees on
a weekly basis and that the appellant
knew what the complainant’s
wife looks like. I have to agree with the court
a quo
that
that information merely showed that the appellant had observed the
property for some time and could even be construed as his
having
planned the break-in for some time.
[37] The court
a quo
analysed the appellant’s
explanation and his averments under cross-examination, pointed out
the material inconsistencies,
and found his explanation not to be
reasonably possibly true. It rejected his version as a mere “
bare
denial”
and “
false beyond doubt in so far as it
contradicts the state’s version”.
This the appellant
attacks on appeal. But, apart from the various aspects of his
evidence that were contradicted by the complainant,
the
inconsistencies and improbabilities in the appellant’s own
version must have led the court
a quo
to have grave doubts
about his credibility and the reasonableness of his explanations.
[38] One of the appellant’s numerous alleged grounds for appeal
was that the Court
a quo
had applied the civil measure of
‘balance of probabilities’ regarding the evidence. But,
as held in
S v VAN TELLINGEN
,
supra,
in a
full-bench appeal at 106d-f, the fact that it is wrong to reject an
accused’s version merely because the State’s
version is,
on a balance of probabilities, more plausible, does not mean that the
probabilities are irrelevant in the weighing
of the competing
versions of the State and the accused. Nor does the fact that an
accused’s evidence, when viewed in isolation,
cannot be
criticised mean that there can be no question of a positive rejection
of his evidence: the quality and weight of the
opposing evidence may
be so persuasive that the Court is compelled to eliminate the
possibility that the accused’s version
may be true.
[39] In the instant case the court
a quo
indeed explicitly
found the quality and weight of the State’s evidence on both
counts “
overwhelming”,
in other words sufficiently
persuasive to reject the appellant’s version as false beyond a
reasonable doubt.
[40] In my view the appellant’s explanation for his fingerprint
on the door in Count 2, for instance, amounts to pure speculation.
His testimony is vague in the extreme. He does not remember the
complainant, her vehicle, its colour or its registration number.
He
does not allege that he did assist her – he merely said that
because he often touches cars he might have touched hers
and it might
be a coincidence that the break-in occurred on the same day. His only
factual averment is that he worked at Pick-and-Pay
as a car-guard in
September 2009. In
LACHMAN v S
[2010] 3 All SA 483
(SCA) at 495 par [43] the court dealt with speculative testimony
rather than factual averments which might lead to an accused’s
explanation being found wanting.
[41] The fact that the Court rejected the appellant’s
explanation regarding Count 2 as false, can, in view of all the
evidence
before the court, not be faulted either. There simply were
no other facts to support his version. The court
a quo
explicitly
found that although the complainant admitted shopping at Pick-and-Pay
occasionally, there was no evidence that she had
ever been there with
a child or that the Appellant had ever assisted her to close her
vehicle’s doors. She flatly denied
ever having seen him before.
[42] In my view, furthermore, the appellant’s own testimony
renders his explanations unreasonable. Both explanations imply
some
measure of personal contact with the complainants which would make it
highly improbable that both complainants would simply
have
‘forgotten’ him and would for that reason have persisted
in denying that they had ever seen him before.
[43] On his version on Count 1 there would have been at least three
incidences of direct contact between him and Mr Marais: namely
when
he was picked up from the street, when Mr Marais told him and Petrus
to handle the television screens carefully and when Mr
Marais
‘
ordered
’ them to remove the screens from the
boxes. Further contact would have occurred if he had indeed worked
there for three weeks,
since he testified that Mr Marais was there
from time to time. All of this makes it most improbable that Mr
Marais would have simply
have ‘
forgotten’
that the
Appellant had indeed worked for him as alleged. I cannot fault the
court
a quo
for rejecting his version as a mere ‘
bare
denial
’.
[44] On his version on Count 2 for his fingerprint to have
accidentally landed on the complainant’s door, he would have
had to assist the complainant with her purchases or with a child or
would have asked her permission to ‘guard’ her vehicle.
If any of those had indeed occurred, she would have had to see him.
She says she never has. To my mind the scenario presented on
behalf
of the appellant relies on pure speculation and must be rejected as a
reasonable explanation.
[45] The fact that a number of mutually independent factors point in
the same direction is of great importance. Although it is
possible
that each fact in isolation could separately be reconciled with
innocence, their combined persuasive force needs to be
assessed. (
R
v MTEMBU
1950 (1) SA 670
(A) at 679 – 680). In view of
the evidence in totality, the appellant’s explanations were
simply too improbable to
be true. So was the ‘coincidence’
of the car being broken into on the specific day that he ‘might
have’
touched it. And so, for that matter, was the presence of
his prints at both crime scenes, and the presence of only his
palm-print
on the TV screen.
[46] Also, in view of the appellant’s own testimony, the fact
that both complainants independently denied ever having seen
the
appellant before is too much of a ‘coincidence’ for his
version to be either probable or reasonable.
[47] In
R v SOLE
2004 (2) SACR 599
(LesHC) at 664h –
666i it was held that:
“
The Court cannot convict an accused
unless, on the proved facts, the inference of guilt is not alone a
reasonable inference, but
is the only reasonable inference”.
[48] Although the court
a quo’s
reasoning was not as
comprehensive and explicit as it should have been, especially
regarding the evidence on Count 2, in view of
the totality of the
surrounding evidence and the court’s acceptance of the State’s
evidence as straightforward and
overwhelming, I cannot fault the
court
a quo
for rejecting the appellant’s version as
false beyond every reasonable doubt. As Nugent J (as he then was)
said in
S v VAN DER MEYDEN
supra,
at 81 I –
82 E:
“
It is difficult to see how a defence can
possibly be true if at the same time the State’s case with
which it is irreconcilable
is “completely acceptable and
unshaken”.
[49] I am of the view, therefore, that the only reasonable inference
in the conspectus of all the evidence was indeed that the
appellant
had been involved in both crimes and in my opinion, despite certain
criticisms that can be levelled against the judgment,
the conviction
was fully justified on the evidence.
[50] The court
a quo
in my opinion, therefore, correctly found
the appellant guilty as charged on both Counts 1 and 2.
SENTENCING:
[51] It is trite that a court of appeal will only interfere with the
sentence imposed by another court if it is convinced that
the court
a
quo
misdirected itself or that the sentence is shockingly
inappropriate (
S v PIETERS
1987 (3) SA 717
(A) at
728B-C and
S v PILLAY
1977 (4) SA 531
(A) at 535E-F). I
have to agree with the submission on behalf of the State that the
court
a quo
followed a balanced approach to all the relevant
factors regarding sentencing.
[52] The Court explicitly considered the following mitigating
circumstances:
52.1 That the appellant was 32 years old;
52.2. That he is unmarried;
52.3. That he has two children of 4 years and 1 month old,
respectively, who are in the care of his mother who is a pensioner;
52.4. That he only passed Standard 9 in school;
52.5. That he did do odd jobs;
52.6. That he was incarcerated for more than a year.
[53] The court also considered the numerous aggravating
circumstances,namely:
53.1. That the appellant had numerous previous convictions;
53.2. That most of his previous convictions were related to
housebreaking with intent to steal and theft;
53.3. That he had nine recent convictions on housebreaking with
intent to steal and theft for crimes all committed in a single
day;
53.4. That the appellant was on parole for those convictions when he
committed the present crimes;
53.5. That he was released early from a 10-year incarceration
sentence for the said nine convictions only to commit the present
crimes;
53.6. That both present crimes are serious;
53.7. That the appellant regarding Count 1 evidently observed the
relevant property and the first complainant’s other assets;
53.8. That he then committed the break-in after having observed the
property for some time.
53.9. That both counts are connected to the crime scenes by way of
the appellant’s prints;
53.10 That none of the stolen items were recovered;
53.11. That the appellant did have a job at the time and therefore
did not need to commit the crimes but did so out of mere greed;
53.12. That it was not the appellant’s first conviction for
housebreaking and theft; and
53.13. That due to the number of his previous similar convictions he
runs the risk of being declared a habitual criminal.
[54] The court
a quo
explicitly considered and weighed up the
appellant’s personal circumstances against the interests of the
community and the
seriousness of the offence without over-emphasising
anything. It addressed the needs of the children and noted that in
its opinion
the sentence imposed would not have a direct impact on
them since they are in the care of their grandmother. I cannot
disagree
with that in view of his having been in gaol anyway for the
past seven years.
[55] The court also correctly considered alternative sentencing
options, namely a suspended sentence, a fine, or correctional
supervision and decided that, based on the appellant’s history,
a custodial sentence in the form of direct imprisonment was
the only
appropriate option seeing that he had already violated his parole.
[56] Since the appellant had already been serving an effective
10-year imprisonment sentence for his recent nine convictions on
housebreaking with intent to steal and theft, I disagree with his
submission that the two five-year terms amounting to an effective
sentence of 10 years’ imprisonment is a harsh and shockingly
inappropriate sentence.
[57] I cannot find that the court
a quo
has misdirected itself
or that the sentence is shockingly inappropriate and therefore find
no reason to interfere with the sentence.
WHEREFORE THE FOLLOWING ORDER IS MADE:
The appeal is dismissed and the conviction and sentence
confirmed.
____________________________
MURRAY, AJ
I concur.
___________________________
EBRAHIM, J
On behalf of the Appellant: Mr L Tshabalala
Justice Centre
St Andrews Street
BLOEMFONTEIN
On behalf of the Respondent: Ms E Liebenberg
Director of Public Prosecutions
3
rd
Floor Waterfall Centre
C/o Aliwal & St Andrews Streets
BLOEMFONTEIN