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2012
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[2012] ZAGPPHC 89
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Selepe v S (A897/2011) [2012] ZAGPPHC 89 (4 June 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: A897/2011
DATE:04/06/2012
In
the matter between
THOMAS
LUCAS
SELEPE
...........................................................................................
Appellant
and
THE
STATE
......................................................................................................................
Respondent
JUDGMENT
MATOJANE
J
[1]
The appellant was convicted on count 1, attempted robbery and count
2, contravention of section 51(1) of Act 51 of 1977 (Escaping
from
lawful custody) in the Regional Division of Mpumalanga held at Piet
Retief, having been charged with robbery with aggravating
circumstances in terms of
section 51(2)
of the
Criminal Law Amendment
Act, 105, of 1997
. The aggravating circumstances were alleged to be
that the complainant had suffered serious injuries during the
robbery.
[2]
The appellant pleaded not guilty to the charges. On 13 July 2011 the
appellant was sentenced to 3 years imprisonment in respect
of count 1
and 1 year imprisonment in respect of count 2. Leave to appeal
against both conviction and sentence was granted on petition.
The
appeal before us is against both conviction and sentence.
[3]
Briefly,.the facts, which gave rise to the charges, are the
following: The complainant was in the company of the appellant and
a
certain Sabelo at about 18:30 and they were on their way to a tavern.
They all worked for the same employer and had received
their salaries
that day. Appellant informed them that he had to meet somebody and
disappeared into the bush only to emerge later
undressed. Appellant
tripped the complainant and proceeded to throttle him. The appellant
held his one hand over the mouth of the
complainant while using the
other hand to throttle him. The complainant suffered an epileptic
attack and bit off a portion of the
thumb of the appellant in the
process. The appellant thereafter fled into the bush.
[4]
Contrary to what is alleged in the charge sheet, the complainant
himself testified that no property of his was robbed from him,
neither his cell phone nor any money. He further testified that
appellant had not made any demands of money from him as he was
busy
attacking him. The complainant thought that the reason appellant
attacked him might have been because appellant received very
little
money from his employer that day.
[5]
No evidence was presented to prove what type of injury the
complainant had sustained after the appellant throttled him. In my
view, the evidence presented by the state has failed to prove the
charge of attempted robbery. At most the evidence proves the
offence
of common assault which in terms of
section 260
of the Criminal
Procedure Act, Act 51 of 1977, is a competent verdict on a charge of
robbery.
[6]
The state further alleged that the appellant had escaped from lawful
custody while being processed in the charge office at the
police
station. Constable Kesha testified that he arrested the appellant and
upon arrival at the police station, appellant attempted
to escape
from the police station before he could be booked into the criminal
register. Appellant was apprehended inside the police
station just
outside of the charge office. Constable Kesha did not find it
necessary to open a docket for escaping from lawful
custody.
The
appellant for his part testified that the police officers were
injuring his injured thumb and that is the reason why he moved
away
from them.
[7]
In my view, the single evidence of Constable Kesha has merely proved
an attempt by the appellant to escape. It therefore follows
that the
magistrate misdirected himself in considering and evaluating the
evidence presented before him. The misdirection entitles
this court
to intervene.
[8]
In the result, the following order is proposed:
(a)
The appeal against both conviction and sentence is upheld.
(b)
The conviction and sentence imposed by the court a quo are set aside.
(c)
The accused is convicted of common assault in respect of count 1 and
attempted escape in respect of count 2.
(d)
Both counts are taken together for purpose of sentencing and the
accused is cautioned and discharged.
KE
MATOJANE
JUDGE
OF THE HIGH COURT
I
agree
MW
MSIMEKI
JUDGE
OF THE HIGH COURT