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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2013] ZAKZPHC 17
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Mabaso v S (AR 528/12) [2013] ZAKZPHC 17 (16 April 2013)
In the KwaZulu-Natal High
Court, Pietermaritzburg
Republic of South Africa
Case
No : AR 528/12
In
the matter between :
Mfanafuthi
Patrick Mabaso
................................................................................
Appellant
and
The
State
......................................................................................................
Respondent
Judgment
Lopes J
[1] The appellant in this
matter was convicted on the 3
rd
August 2011 on two counts
– one of robbery with aggravating circumstances, and one of
attempted murder.
[2] The charges arose out
of a robbery committed on the 21
st
July 2009 of the
Mphazima Store at Osizwini, during which the complainant in Count 2,
Sikhumbuzo Joshua Sibiya was shot.
[3] The appellant was
sentenced to undergo fifteen years imprisonment on Count 1, and eight
years imprisonment on Count 5. Five
years of the eight year sentence
on Count 2 are to run concurrently with the sentence on Count 1.
[4] The matter comes
before us by way of leave to appeal against both conviction and
sentence, granted by the learned magistrate
on the 9
th
December 2011.
[5] The central issue
raised by the appellant is the question of identification. Ms
Takchund,
who appeared for the appellant, submitted that the
identification of the appellant was a ‘dock identification’.
That
was not the case.
[6] It was quite by
chance that Mr Sibiya, whilst attending court in an unrelated matter,
whilst accompanying a friend, saw the
appellant in the courtroom. He
then subsequently went with his friend to the Madadeni Police Station
and reported what he had seen
to Warrant Officer Mabaso, who was,
coincidentally, in the company of the appellant. The learned
magistrate found that Mr Sibiya
was a very good witness who had had
every opportunity to implicate the appellant’s co-accused, but
chose not to do so. This
was even after the appellant had told Mr
Sibiya that it was his co-accused who had shot him.
[7] Mr Sibiya testified
that when he attended at the police station, in the presence of
Warrant Officer Mabaso, the appellant had
apologised to Mr Sibiya and
said that he had not been the one who had shot Mr Sibiya but that he
had been shot by another person,
whom he named. Ms
Takchund
submitted that this statement by the appellant was tantamount to a
confession and should have been held by the learned magistrate
to be
inadmissible. In my view the apology is capable of being interpreted
in various ways, not all of which would amount to an
unequivocal
acknowledgement of the appellant’s guilt. Whatever
interpretation is put upon the statement by the appellant,
the
identity of the appellant was sufficiently established by Mr Sibiya
on the remainder of his evidence. In any event, the confession,
if it
was one, was made to a member of the public and not to a police
officer, even though he may have been present.
[8] The appellant was, as
pointed out by the learned magistrate, a poor witness. He raised an
alibi for the first time in his evidence
and this had not been put to
any of the witnesses. This also applied to the existence of a diary
which he allegedly gave to the
investigating officer Warrant Officer
Mabaso. In addition, the accused’s explanation as to the fact
that he did not appear
in C Court simply does not stand up to the
scrutiny of the documents and the evidence of the witnesses. In my
view he was rightly
disbelieved by the learned magistrate.
[9] I raised with Ms
Takchund
the fact that both the witnesses Sibiya and Warrant
Officer Mabaso were asked by the prosecution whether they would like
to refresh
their memories from the statements which they made. While
there was nothing extraordinary in the witnesses being allowed to
refresh
their memories from the statements which they had made, this
was done after the witnesses had been giving evidence in chief for
some time. I am satisfied that, notwithstanding the fact that
procedurally this may have been undesirable, no irregularity arises
which could assist the appellant. He was clearly identified by Mr
Sibiya.
[10] In all the
circumstances the learned magistrate correctly found that the
appellant was guilty of robbery with aggravating circumstances
and
attempted murder.
[11] With regard to
sentence, given the age of the appellant and his previous convictions
the sentences imposed by the learned magistrate
do not induce a sense
of shock. In my view the learned magistrate correctly found that no
substantial and compelling circumstances
existed which would have
entitled him not to impose the minimum sentence prescribed by the
Criminal Law Amendment Act, 1997
. The aggravating circumstances which
accompanied the robbery were clear.
[12] The only aspect of
the sentence which concerned me is that the appellant was
incarcerated for a period of two years and seven
months prior to his
conviction and sentence. In terms of the dicta in
S v Vilakazi
2009 (1) SACR 552
(SCA) Nugent JA stated at paragraph 60 :
‘
While
good reason might exist for denying bail to a person who is charged
with a serious crime it seems to me that if he or she
is not promptly
brought to trial it would be most unjust if the period of
imprisonment while awaiting trial is not then brought
to account in
any custodial sentence that is imposed.
’
This was not dealt with
in any way by the learned magistrate.
[13] In the circumstance
I would make the following order :
The conviction is
confirmed;
the appeal is upheld
with regard to sentence and the sentence imposed on the appellant is
set aside and the following sentence
is substituted :
‘
The
accused is sentenced to fifteen years imprisonment on Count 1 and
eight years imprisonment on Count 2;
Five years of the
sentence on Count 2 are to run concurrently with the sentence on
Count 1.
In calculating the date
upon which the appellant’s sentence is to expire, two years
and seven months are to be deducted.
__________________
__________________
Madondo J : I agree.
Date of hearing : 2
nd
April 2013
Date of judgment : 16
th
April 2013
Counsel for the Appellant
: S Takchund (instructed by the Legal Aid Board)
Counsel for the
Respondent : P G Shange (instructed by the Director of Public
Prosecutions)