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[2013] ZAFSHC 170
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Mokheseng v S (A320/2013) [2013] ZAFSHC 170 (26 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A320/2012
In
the appeal between:
MOJALEFA MOKHESENG
.....................................................
.Appellant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
DAFFUE, J
et
LEKALE, J
_____________________________________________________
JUDGMENT:
DAFFUE, J
HEARD ON:
16 SEPTEMBER 2013
_____________________________________________________
DELIVERED ON:
26 SEPTEMBER 2013
_____________________________________________________
INTRODUCTION
[1] On 28 July 2011
appellant and his co-accused, to whom I shall refer herein as accused
one, were convicted in the Regional Court,
Bloemfontein of one count
of housebreaking with the intention to steal and theft. On 16 January
2012 they were sentenced to five
years’ imprisonment. The
appellant’s application for leave to appeal against his
conviction and sentence was dismissed
by the court
a quo
, but
on 9 May 2012 the High Court granted leave to appeal on petition.
GROUNDS OF APPEAL
[2] The conviction is
attacked, mainly on the basis that the court
a quo
erred in
finding that the only reasonable inference to be drawn from the
proven facts was that the appellant took part in the crime,
the
reasons being that evidence tendered on behalf of the State and
accused one indicated that appellant was under the influence
of
alcohol and that another reasonable inference to be drawn was that he
was fast asleep or so intoxicated that he could not act
at all at the
stage when the offence was committed. It should be mentioned at this
stage already that appellant elected not to
testify.
[3] Regarding sentence
the court
a quo
is blamed for not considering other sentencing
options and that five years’ imprisonment is shockingly
excessive. Reliance
was placed on the appellant’s clean record,
the fact that he was in the employ of the South African National
Defence Force,
already nine years at the time the trial was
concluded, that his wife and their five year old child were fully
dependent upon him,
that he was seriously intoxicated during the
commission of the offence and that these aspects were not duly taken
into consideration.
THE FACTUAL MATRIX
[4] Mr Bantjes, who
appeared for appellant, accepted the court
a quo
’s
factual findings and did not criticise its acceptance of the evidence
tendered on behalf of the State, in particular where
same was
allegedly corroborated by accused one. The following facts were
common cause:
4.1. On Saturday
afternoon, 6 December 2008, Mr Koupis, the owner of Delta Bottle
Store in Westdene, Bloemfontein, locked his premises.
Early Sunday
morning, the 7
th
of December 2008 and when it was still
dark, he was informed by his security company, Bloemsec Security,
that the alarm in his
business premises had been activated. When he
arrived at the scene he noticed that the glass of the glass door was
broken and that
several boxes of expensive whiskeys which were on
display close to the door, were missing.
4.2. A close circuit
security system was installed within the premises and although Mr
Koupis watched the recording at a later stage,
none of the offenders
could be identified. This recording vanished inexplicably and could
not be presented as evidence. Some of
the stolen goods were retrieved
and returned to him.
4.3. Mr Olivier, an
employee of Bloemsec Security, who worked nightshift on this
particular night, attended to the alarm when activated
at the Delta
Bottle Store. As he approached the premises, he noticed a white Mazda
323 motor vehicle leaving it. He passed the
vehicle and upon
discovery that a break-in had been effected, he made a U-turn and
followed the vehicle, simultaneously alerting
his colleagues in other
vehicles per radio.
4.4. The Mazda increased
speed and at times travelled at 130 – 140 km/h, ignoring red
robots and even entering a one-way street
from the wrong side.
Personnel of Chubb Security were also called upon to help with the
chase and eventually the white Mazda was
pushed off the road in
Moshoeshoe Road in Batho suburb.
4.5. During the chase by
Mr Olivier, Mr Fourie, a reaction officer and co-employee of Bloemsec
Security, attended a different scene.
When his assistance was
requested over the radio, he went to the junction of East Burger- and
Alexander Streets where he parked
his vehicle in the junction in
order to block any oncoming traffic. A white Mazda, followed by a
Bloemsec vehicle, speeded towards
him and he had to remove his
vehicle in order to prevent the Mazda from colliding with him. He
also followed the Mazda and confirmed
the high speeds and other
traffic offences referred to by Mr Olivier. Just before he pushed the
Mazda off the road in Moshoeshoe
Road, the passenger sitting in the
left rear seat threw a box containing whiskey bottles out of the
vehicle. He managed to avoid
the objects and thereafter pushed the
vehicle off the road. During the chase Mr Fourie at a stage put his
vehicle’s lights
on bright and ascertained that toilet paper
was used to camouflage the registration number plate of the Mazda to
an extent that
the letters were clearly legible, but the numbers were
not easy to make out.
4.6. There were five
people in the Mazda. When it stopped, the person sitting in the front
passenger seat fired two shots with his
firearm towards Mr Fourie and
nearly struck his colleague. Mr Fourie returned fire and fired shots
in the direction of the Mazda,
but aiming to ground level.
4.7. Four of the five
people in the Mazda got out of the vehicle and ran away. The person
sitting in the middle of the rear seat
did not get out of the
vehicle. Messrs Fourie and Olivier approached the vehicle with their
firearms ready and pointed at the person
as they were uncertain
whether he was armed or not. This person, who was identified as
appellant, was pulled out of the vehicle
and left on the ground until
he was later on when the police arrived thrown into the police van.
4.8. According to Mr
Fourie the appellant was not drunk, although there was white froth
coming from his mouth. On the other hand,
Mr Olivier was of the view
that appellant was under the influence of alcohol and he detected the
smell of liquor.
4.9. Mr Piater, a
co-employee at Bloemsec, arrived later and he and Mr Olivier
apprehended accused one who was hiding in an outside
room
approximately fifty metres from the scene. On accused one’s own
version he ran away and jumped over two fences in order
to escape.
4.10. It is apparent from
photographs taken at the scene that the Mazda vehicle contained
several boxes of whiskey of different
brands. There were two boxes at
the passenger’s side in the front of the vehicle, one on the
seat and one on the floor and
another two boxes in the rear, one on
the seat and the other on the floor.
4.11. Accused one
testified in his defence. He not only contradicted statements made by
himself to the witnesses, but also the plea
explanation of appellant.
According to him he was at the Zanzibar Tavern which is near the
Batho police station. Between 02h00
and 03h00 Sunday morning he
requested appellant – the two of them were not drinking
together at the tavern – whether
he could go and sleep in his
vehicle as he was drunk. This was arranged and although he was aware,
at a later stage, of people
inside the vehicle, he was so drunk that
he did not identify these people and was totally unaware of
housebreaking and the chase
at high speed through the streets of
Bloemfontein. He was awakened only by the speed humps in Moshoeshoe
Street just prior the
vehicle coming to a standstill. He was also
aware of firearm shots being fired at their vehicle and this was the
reason why he
fled from the scene as he was afraid of being shot. A
statement to the one state witness pertaining to his degree of
intoxication
was met with a reply of disbelief. The witness indicated
that it would be improbable not to have woken up, bearing in mind the
very loud noise made by the alarm at Delta Bottle Store, the high
speed the car was travelling at and the corners that had to be
executed at high speed in order to try and get away from the chasing
vehicles. He also mentioned that the boxes containing whiskey
bottles
were probably put on the laps of the persons in the vehicle and
others at their feet.
4.12. According to
accused one appellant was fast asleep and lying down on the rear seat
at all relevant times prior to and during
the chase. According to him
he was hopelessly intoxicated. Contrary to the version of the state
witnesses, accused one testified
that he was sitting on the passenger
seat in the front of the vehicle.
4.13. The appellant
elected not to testify. He made a plea explanation and several
statements to the state witnesses, which obviously
cannot be regarded
as evidence at all. However it is deemed apposite to quote the plea
explanation:
“
Op
Sondagoggend 7 Desember 2008 was beskuldigde 1 in Zanzibar Klub, naby
Batho Polisiestasie, in die teenwoordigheid van sy twee
swaers. Hulle
het baie gedrink. Beskuldigde 1 en ‘n onbekende persoon vra ‘n
rygeleentheid van beskuldigde 2 vanaf
die klub. Nadat beskuldigde 2
sy twee swaers in die woonbuurt afgelaai het, voel hy nie lekker nie
(was te dronk) en vra beskuldigde
1 sy vriend om beskuldigde 2 se
motor te bestuur. Beskuldigde 2 laat dit toe, want hy sou in
dieselfde straat gaan slaap as waar
beskuldigde 1 woon. Beskuldigde 2
raak agter in die motorvoertuig aan die slaap. Hy word wakker toe die
motor teen ‘n hoë
spoed oor hobbels ry en teen iets bots.
Beskuldigde 2 dra nie kennis van enige inbraak of diefstal nie en was
nie betrokke by enige
inbraak of diefstal nie.”
According to statements
made to Mr Fourie appellant was so intoxicated that he did not even
hear the shots fired by the firearms.
EVALUATION OF THE
COURT
A QUO
’S JUDGMENT IN RESPECT OF CONVICTION
[5] In considering the
appeal I accept that the court
a quo
was in a more favourable
position than this court to form a judgment, because it was able to
observe the witnesses during the questioning
and was absorbed in the
trial from start to finish. A court of appeal assumes that the court
a quo
’s findings are correct and will accept these
findings, unless there is some indication that a mistake has been
made. Also,
the trial court enjoys a particular advantage when the
demeanour of a witness or witnesses is of importance and when
inferences
from proven facts are in issue. It can be in a more
favourable position than the court of appeal, because it is better
able to
judge what is probable or improbable in the light of its
observations of persons who have appeared before it. However it is
accepted
that sometimes a court of appeal may be in as good a
position as a trial court to draw inferences where they are either
drawn from
admitted facts or from facts as found by the trial court.
See:
R v Dhlumayo
and Another
1948 (2) SA 677
(AD) at 705 and 706.
[6] In order to interfere
with the court
a quo
’s judgment it has to be established
that there were misdirections of fact, either where reasons on their
face are unsatisfactory,
or where the records shows them to be such.
There may also be misdirections, though the reasons were
satisfactory, if it has been
shown to have overlooked other facts or
probabilities.
[7] Having considered the
reasoning of the court
a quo
and the evidence presented to it,
I am satisfied that the court
a quo
committed no
misdirections. I have reconsidered and revaluated the evidence and
bearing in mind that courts of appeal are slow to
disturb findings of
credibility, I am satisfied that even if it could be said that this
court had the benefit of an overall conspectus
of the full record and
is in a better position to draw inferences, the court
a quo
cannot be faulted. Having perused the full record and the reasons of
the court
a quo
the following
dictum
of the Supreme
Court of Appeal is apposite
in casu
:
“
This court's
powers to interfere on appeal with the findings of fact of a trial
court are limited. It has not been suggested that
the trial court
misdirected itself in any respect. In the absence of demonstrable and
material misdirection by the trial court,
its findings of fact are
presumed to be correct and will only be disregarded if the recorded
evidence shows them to be clearly
wrong (S v Hadebe and Others
1997
(2) SACR 641
(SCA) at 645e - f). This, in my view, is certainly not a
case in which a thorough reading of the record leaves me in any doubt
as to the correctness of the trial court's factual findings. Bearing
in mind the advantage that a trial court has of seeing, hearing
and
appraising a witness, it is only in exceptional cases that this court
will be entitled to interfere with a trial court's evaluation
of oral
testimony (S v Francis 1991 (1) SACR 198 (A) at 204e).”
See:
S v Monyane
and Others
2008 (1) SACR 543
(SCA) at par [15].
[8] In adjudicating the
evidence in its totality the court
a quo
correctly considered
the inherent probabilities and improbabilities.
[9] In
R v De
Villiers
1944 AD 493
at 508 and 509 the Appeal Court referred
to the well-known
dictum
in
R v Blom
1939 AD at
202 pertaining to the test to be applied when reliance is placed on
circumstantial evidence and pointed out that it
is not each proved
fact that must exclude all other inferences, but the facts as a whole
must do so, and continued as follows:
“
The Court
must not take each circumstance separately and give the accused the
benefit of any reasonable doubt as to the inference
to be drawn from
each one so taken. It must carefully weigh the cumulative effect of
all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way; the
Crown must satisfy the Court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.”
See also
S v Ntsele
1998 (2) SACR 178
(SCA) at 182b – f cited with approval in
S
v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA) at par
[13]
p 638f.
[10] It is clear from the
evidence that accused one tried his best to exculpate his friend, the
appellant. Notwithstanding appellant’s
plea explanation and his
statements to the State witnesses, which is no evidence at all, and
the version of accused one which was
rightly rejected by the court
a
quo
, there was absolutely no evidence placed before the court
a
quo
that appellant was so drunk that his muscular movements were
involuntary or that he was unconscious at all relevant times or so
fast asleep as a result of his intoxication that he could not act
and/or form an intent to commit the act of housebreaking with
intent
to steal and theft together with his co-perpetrators. Such an
inference cannot reasonably be drawn from the proved facts
and
consequently the trial court correctly convicted appellant as
charged.
[11] Over and above the
court
a quo’s
findings the following improbabilities
appear from the evidence:
11.1. It is improbable
that appellant would just hand over his vehicle to strangers at a
stage when he was in the vicinity of his
brothers in law’s
residence.
11.2. There was no reason
for the strangers to camouflage the registration number plate of the
white Mazda vehicle which did not
belong to them, but to appellant,
if appellant was not part of the gang that planned to commit the
offence of housebreaking at
Delta Bottle Store.
11.3. It is improbable
that the gang members who have come in possession of a valuable tool
such as a motor vehicle, would keep
appellant and accused one in the
vehicle in circumstances where they were not part of the gang and
could not make any contribution
in support of the criminal activities
and would in any event just be in the way and taking up space which
could have been utilised
to load extra liquor.
11.4. On all
probabilities the gang members should have considered that the two
innocent intoxicated people might wake up at any
stage during the
trip and cause alarm, or they might identify them and later give
incriminatory testimony against them in a court
of law.
[12] It is necessary to
consider a final aspect. Mr Bantjes argued that it was not necessary
for appellant to testify as he was
not called upon to prove the
State’s case for it. He also relied on appellant’s
constitutional right to remain silent.
However, appellant’s
constitutional right is not at stake
in casu
. He had the right
to remain silent and not to testify, but being so, he must be
prepared to suffer the consequences of relying
on such constitutional
right. Mr Bantjes admitted that the State has made a
prima facie
case against the appellant, but that it was not enough
in casu
.
I accept that
prima facie
inference does not necessarily mean
that if no rebuttal is forthcoming, the
onus
will have been
satisfied. The Supreme Court of Appeal dealt with this issue as
follows in
S v Boesak
supra
at paras [47] and
[48] p 646f – i:
“
But one of
the main and acknowledged instances where it can be said that a prima
facie case becomes conclusive in the absence of
rebuttal, is where it
lies exclusively within the power of the other party to show what the
true facts were and he or she fails
to give an acceptable
explanation. In the present case the only person who could have come
forward to deny the
prima
facie
evidence that he had authorised, written or signed the letter, is the
appellant. His failure to do so can legitimately be taken
into
account.”
It was for the appellant
to testify and to indicate, for example how much he drank, that he
was at all relevant times so intoxicated
that he could not act and/or
form an intention to commit the criminal offence of which he was
accused and that he knew nothing
of the housebreaking, including
events prior thereto and immediately thereafter. Such failure could
legitimately be taken into
account. As indicated the conviction is in
order.
THE SENTENCE
[13] It is trite that a
court of appeal will not interfere with the sentence imposed by the
court
a quo
unless it is satisfied that the sentence has been
vitiated by a material misdirection or is disturbingly inappropriate.
In casu
the court
a quo
has been accused by appellant’s
legal representative of not taking into consideration all the
mitigating factors referred
to above.
[14] I agree with the
court
a quo
that the seriousness of the offence did not
warrant a non-custodial sentence. The following
dicta
of
Ponnan JA in
S v Kekana
2013 (1) SACR 101
(SCA) at 105d
– i are apposite:
“
It is true
that the appellant has an unblemished record and that he was a useful
member of society in gainful employment at the
relevant time. Those
circumstances, however, have to be weighed against the nature and
severity of the offence and the requirements
of society.
Notwithstanding those mitigating factors being present, the
seriousness of the offence makes it necessary to send out
a clear
message that behaviour of the kind encountered in this case cannot be
countenanced. The natural indignation that the community
would feel
at conduct of this kind warrants recognition in the determination of
an appropriate sentence…Moreover, as the
version of the
appellant was found by the trial court to be false and in effect
contrived, it is difficult to conclude in his favour
that he has
demonstrated any remorse or contrition. In all of the circumstances
of the case, therefore, the moral reprehensibility
of the appellant’s
conduct remains undiminished.”
There is no reason to
interfere with the imposed sentence.
[15]
Consequently the following order is issued:
The appeal is dismissed
and the conviction and sentence are confirmed.
_____________
J.P. DAFFUE, J
I
concur.
_____________
L.J. LEKALE, J
On behalf of appellant:
Adv B.L. Bantjes
Instructed by:
Kramer, Weihmann &
Joubert
BLOEMFONTEIN
On behalf of respondent:
Adv A. Bester
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/spieterse