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[2012] ZAGPPHC 226
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Lebelo and Another v S (A646/2011) [2012] ZAGPPHC 226 (4 October 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASENO.A646/2011
DATE:04/10/2012
In
the appeal of:-
THABO
LEBELO First Appellant
THEMBA
NDLAZI Second Appellant
and
THE
STATE Respondent
JUDGMENT
Van
der Byl AJ:-Introduction
[1]
The two Appellants were charged, as Accused Nos 2 and 3, together
with another accused, as Accused No. 1, in the regional court
sitting
in Pretoria on nine charges of robbery with aggravating circumstances
(counts 1 to 8 and 18) and nine counts of the contravention
of the
Arms and Ammunition Act, 1969 (Act 75 of 1969) ("the Arms and
Ammunition Act') (counts 9 to 17), relating to an armed
robbery of
Nedbank at its Pretoria branch and of some of its employees and
clients on 7 April 1997.
(I
will for the sake of convenience refer to the Appellants as Accused
No. 2 and Accused No. 3 and, where applicable, to their co-accused
as
Accused No. 1)
[2]
The trial commenced on 22 June 1999 when the then three Accused
pleaded not guilty on all the charges and indicated that they
elected
to exercise their right to silence.
[3]
After the matter was postponed on two occasions the trial eventually
proceeded on 3 September 1999.
[4]
The court adjourned for lunch after the State and the defence,
Accused Nos 1 and 2 having elected not to give evidence and Accused
No. 3 having testified in his defence, had closed their respective
cases and the legal representative acting on behalf of Accused
No. 1
had delivered his address on the merits.
[5]
During the lunch hour the three Accused, however, some how managed to
escape.
[6]
After Accused No. 2, who was at the time represented by a certain Mr.
Mahlangu, was re-arrested during 2004, the proceedings
against
Accused No. 2 were separated from the proceedings against Accused
Nos. 1 and 3 in terms of section 159(3) of the Criminal
Procedure
Act, 1977 ("the CPA"), and postponed to 5 August 2004 so as
to afford Mr. Mahlangu an opportunity to address
the court on the
merits.
[7]
However, before the trial could proceed on 5 August 2004 Accused No.
2 again escaped, but was soon thereafter, together with
Accused No.
3, re-arrested.
[8]
After the case was on various occasions postponed in order, as I will
indicate below, to reconstruct the record, the trial eventually
proceeded on 4 February 2011 on which occasion Accused Nos 2 and 3
were convicted on counts 1,2,5 and 7 and Accused No. 2 on count
11
and Accused No. 3 on count 13.
[9]
These counts were the following, namely:-
Count
1, a count of Robbery with Aggravating Circumstances in that upon or
about 7 April 1997 and at or near Pretoria the Accused
did unlawfully
and intentionally assault Deon van Deventer, Francina van Aarde,
Sarah Krugerand Eunice van Niekerkand did then
and there with force
take from their possession an amount of R864 608,58 in cash and a
videotape, the property of Nedbank, the
aggravating circumstances
being that firearms were used.
Count
2, also a count of Robbery with Aggravating Circumstances in that
upon or about the same date and at or near the same place
as in count
1 the Accused did unlawfully and intentionally assault Jan Mtsweni
and did then and there with force take from his
possession a wallet
containing credit cards and an amount of R20, his property or in his
lawful possession, the aggravating circumstances
being that firearms
were used.
Count
5, also a count of Robbery with Aggravating Circumstances in that
upon or about the same date and at or near the same place
as in count
2 the Accused did unlawfully and intentionally assault one Andries
Maswanganye and did then and there with force take
from his
possession a bundle of keys, his property or in his lawful
possession, the aggravating circumstances being that firearms
were
used.
Count
7, also a count of Robbery with Aggravating Circumstances in that
upon or about the same date and at or near the same place
in count 5
the Accused did unlawfully and intentionally assault one Elize
Kleinschmidt and did then and there with force take from
her
possession a wrist watch, her property or in her lawful possession,
the aggravating circumstances being that firearms were
used.
Count
11 being a contravention of section 2 of the Arms and Ammunition Act,
in that Accused No. 2 upon or about the same date and
at or near the
same place as in count 7 did unlawfully and intentionally possess a
firearm, to wit a 7,65 mm pistol.
Count
13, being a contravention of section 2 of the Arms and Ammunition
Act, in that Accused No. 3 upon or about the same date and
at or near
the same place as in count 11 did unlawfully and intentionally
possess a firearm, to wit a ,45 revolver.
[10]
On 14 April 2011 -
(a)
the Accused were sentenced on each of counts 1, 2, 5 and 7 to 10
years imprisonment in respect of which it was ordered that
counts 1
and 2 and counts 5 and 7 should run concurrently so that the Accused
were each to serve an effective sentence of 20 years;
(b)
the two Accused were in respect of counts 11 and 13 each sentenced,
respectively, to 3 years imprisonment.
[11]
Before dealing with the evidence on which the two Accused were
convicted and sentenced, I need to refer to the history which
preceded their respective convictions.
The
history which preceded the convictions of the two Accused
[12]
Accused No. 2 (who was then represented by a certain Mr. Mahlangu)
was re-arrested during 2004.
[13]
It was then discovered that the charge sheet and the whole record of
the proceedings, except for Exhibits A to J, were missing.
[14]
On 15 June 2004 the magistrate then, with the assistance of notes
kept by him in the course of the trial, prepared a reconstructed
version of the record of the proceedings.
[15]
Ex facie the record, as so reconstructed, the prosecutor and Mr.
Mahlangu agreed that the reconstruction was in order.
[16]
The proceedings against Accused No. 2 were then separated from the
proceedings against Accused Nos. 1 and 3 in terms of section
159(3)
of the CPA and postponed to 5 August 2004 so as to afford Mr.
Mahlangu an opportunity to address the court on the merits.
[17]
However, before the trial could proceed on 5 August 2004 Accused No.
2 again escaped, but was soon thereafter, together with
Accused No.
3, re-arrested.
[18]
They were then represented by a certain Mr. Matsheng.
[19]
It was then discovered that the record of the proceedings, as
reconstructed on 15 June 2004, was, to the dismay of the parties,
like the original record also missing.
[20]
The magistrate, thereupon, again with the assistance of the same
notes used in reconstructing the previous reconstructed version,
prepared a further reconstructed version on 12 March 2008.
[21]
The correctness of this reconstructed version was, however, then
disputed by Accused Nos. 2 and 3, particularly, in relation
to the
evidence of three witnesses, namely, Sergeant Kinnear, Sergeant Vos
and Mr Madala Willie Tlou (incorrectly referred to as
Klowe in the
reconstructed record). On this occasion an affidavit by Mr. Mahlangu
was handed in which he disputed that he agreed
to the correctness of
the reconstruction effected on 15 June 2004.
[22]
The case was then postponed to 13 May 2008 so as to effect a further
attempt to reconstruct the record, but the case seems
to have
eventually been postponed to 10 December 2008.
[23]
On 10 December 2008 Mr. Sibiya appeared on behalf of Accused Nos. 2
and 3 on the occasion of which the magistrate indicated
that there
was in the meantime a break in into his office and that all his notes
and the exhibits in this case were stolen, but
that fortunately he
still had the previous reconstructed version of the proceedings.
[24]
The trial was thereafter eventually postponed to 17 March 2009 since
Mr. Sibiya had briefed Mr. Pistorius who was then not
available.
[25]
On 17 March 2009, because of the dispute on the correctness of the
reconstructed record relating to the evidence of the aforesaid
three
witnesses, as recorded in the reconstructed version of the record,
Sergeant Kinnear was, obviously in accordance with the
guidelines
laid down in, inter alia, S v Matthys 1985(1) SA 209 (C), called in
order to, particularly, comment on the correctness
or otherwise of
the reconstructed version of his evidence as given at the trial on 3
September 1999.
[26]
Mr Kinnear, thereupon, confirmed the correctness of the reconstructed
version.
[27]
Mr Pistorius then, as will be indicated in detail below, commenced
cross-examining the witness.
[28]
The case was then postponed to 25 June 2009 for further
reconstruction of the record, inter alia, to trace the witnesses Vos
and Tlou, but it appeared on that day that Sergeant Vos was, ex facie
the reconstructed record, not traceable and that Mr. Tlou
was sick.
[29]
On 3 August 2009, being the date to which the case was postponed for
the evidence of Mr. Tlou, it, however, appeared that Mr.
Tlou was
shot and subsequently died on 2 November 2008, whereupon, the
contents of his police statement was read into the record.
[30]
After the matter was postponed on two more occasions the trial
proceeded on 4 February 2011.
The
evidence which was, according to the latest reconstructed version of
the proceedings, adduced in respect of the charges on which
the
Accused were convicted
[31]
In respect of count 1 the evidence of six employees of the Bank
indisputably showed that on the day in question approximately
eight
robbers of whom some or all were armed with firearms, entered the
Bank, demanded money and ordered the employees and various
clients
who were at the time in the Bank to lie down and robbed the Bank at
gunpoint of R864 608,58 in cash. In the process one
of the employees
was grabbed by her hair by one of the robbers and dragged to the
video recorder from which the video tape was
removed and taken away.
[32]
In respect of count 2 the complainant, Mr. Jan Motsweni, who was at
the time a security officer at Nedbank, testified that
he saw a
person who entered the Bank who produced a firearm which he pointed
at him and ordered him to lie down. Whilst he was
lying down he was
kicked and his wallet containing his credit card and R20 was taken
from him. He was unable to identify the person
who assaulted and
robbed him of his property.
[33]
In respect of count 5 the complainant, Mr. Willem Schultz, testified
that on the day in question at about 15h20 he was in the
Bank busy
depositing money in an amount of R21 190. Whilst standing at the
counter where the cashier was busy counting the money
with his back
to the door he heard a shuffle behind him, but before he could look
around to the door someone pushed a firearm against
his neck and
ordered him to look in front of him. The person asked him whether he
had any money with him. He denied having had
any money with him. All
persons in the Bank were then ordered to lie down. As he took too
long to lie down he was kicked in his
back. His wallet, containing
his credit cards and small change, was then removed from his pocket.
The money which the cashier was
counting was taken from the cashier.
The following day he identified his wallet and his credit cards at
the offices of the Murder
and Robbery Unit.
[34]
In respect of count 7 the complainant, Ms. Elizabeth Kleinschmidt,
testified that on the day in question she was at the Bank
in
connection with a motor vehicle loan. Whilst sitting in the reception
area she saw two persons entering the Bank. She then heard
one
shouting that all should lie down. As she was lying down they came to
her and ordered her to get up. One produced a firearm.
She was then
taken to an office. After a while one came back to her and attempted
to remove her watch from her arm. He did not
succeed and ordered her
to take it off from her arm. She obeyed and he then took the watch.
On 22 April 1997 she identified her
watch at the offices of the
Murder and Robbery Unit.
[35]
Mr Willie Tlou testified that on 7 April 1997 at approximately 15h25
he was at the Bank to deposit moneys for his wife. When
he got to the
door of the Bank he found it to be closed, but he heard a commotion
inside the Bank. He then moved back to his vehicle,
a Volkswagen
Kombi, which was parked some 10 metres from the Bank. Whilst at his
vehicle he saw seven or eight black males leaving
the Bank. One had a
blue bag with him and something covered in a dust jacket. Some of
these males moved to a vehicle which was
parked some 20 metres from
his vehicle and drove away after they got into the vehicle. The rest
of the group moved to a vehicle
parked across the street. A police
vehicle arrived and he pointed that vehicle out to them which was at
that stage being boarded
by some of the members of the group. The
police vehicle, thereupon, followed the vehicle. He later again saw
the vehicle together
with the police vehicle standing in a crossing
some distance from the Bank.
[36]
Sergeant Elwyn Kinnear testified that he was at the time stationed at
the flying squad of the SAPS. On 7 April 1997 at about
15h26 he,
whilst on duty with Sergeant
Vos,
received a radio report of a robbery that was in progress at Nedbank.
They immediately drove to Nedbank in Mitchell Street.
As they drove
into the parking area he noticed a blue Volkswagen Kombi parked in
front of the Bank. They immediately confronted
a person standing at
the Kombi (who, incidentally, was the witness Tlou) who pointed them
at a white Jetta vehicle parked at the
corner of Mitchell and Zeiller
Street. He saw three black males who were busy boarding the vehicle.
They then followed the vehicle,
initially, with two vehicles between
them whilst they called for reinforcements. When there were
eventually no vehicles between
them he realized that the driver must
have noticed them as he then started to give chase. As he switched
the blue lights and siren
on the vehicle attempted to drive into a
one way street against oncoming traffic and was forced to stop.
Having ordered the occupants
by way of a loudspeaker to alight from
the vehicle he noticed the one occupant sitting at the back on the
right cocking a firearm.
He again ordered them to alight from the
vehicle with their arms in the air. Accused No. 1 was sitting at the
back on the left,
Accused No. 3 was the driver whilst Accused No. 2
was sitting at the back on the right. The fourth person was in the
front in the
passenger seat. They eventually alighted from the
vehicle and were handcuffed by him and Sergeant Vos.
[37]
After reinforcements arrived he went back to the vehicle. On the
floor opposite the left front passenger he saw a ,38 revolver
as
depicted on photos 14, 15, 16,17 and 18 of Exhibit G. At the back
opposite the left passenger seat he saw another ,38 revolver
as
depicted on photos 24, 25, 26 and 27 of Exhibit G. On the right
passenger seat at the back he saw a cocked pistol as depicted
on
photos 28, 29, 30, 31 and 32 of Exhibit G. At the driver's seat on
the floor he found one 9mm round as depicted on photo 13
of Exhibit
G. Between the two front seats he found another 9mm round as depicted
on photos 10 and 12 of Exhibit G. In the cubbyhole
he found a men's
watch as depicted on photo 11 of Exhibit G. In possession of Accused
No. 2 he found a bundle of keys. In possession
of Accused No. 3 he
found an identification document. In possession of Accused No. 1
Sergeant Vos found a wallet as well as a ladies
watch (which was
later identified by Ms. Elizabeth Kleinschmidt, the complainant in
count 7). It would appear that he also found
a wallet in the
possession of the fourth person containing the bank cards of Mr.
Schultz, the complainant in count 5. In a cubbyhole
underneath the
steering column they found another firearm. None of these persons
gave any explanation in relation to their presence
in the vehicle.
[38]
Sergeant Vos confirmed in his evidence that he accompanied Sergeant
Kinnear on this day in the police vehicle concerned and
that they
eventually gave chase after the vehicle in which the four suspects
were travelling. He, furthermore, testified that he
searched the
fourth person and found a wallet containing the credit cards of Mr.
Schultz (who is the complainant in count 5) and
the keys of a
Volkswagen in his possession. In Accused No. 1's possession he found
a ladies' watch (which was later identified
by the witness Ms.
Kleinschmidt (who is the complainant in count 7).
[39]
The complainants in the other counts were not called as witnesses and
the Accused were discharged on those charges.
The
Accuseds' case
[40]
At the end of the State's case Accused Nos. 1 and 2 elected not to
give any evidence in their defence whilst Accused No. 3
elected to
give evidence under oath.
[41]
Accused No. 3 confirmed in his evidence that he was arrested in the
vehicle concerned of which he was the owner. According
to him he did
not know the occupants of his vehicle. He stopped at the panelbeaters
in Mitchell Street when he was approached by
the three persons who
asked him for a lift to a taxi rank in Bloed Street and offered to
pay him R10. All they had with them was
a plastic bag containing
chicken and cold drinks. Whilst driving he was stopped by a police
vehicle. He denied that there were
any firearms in his vehicle and
that he attempted to give chase. He also denied that he at any stage
escaped from the cells.
Findings
by the magistrate
[42]
The magistrate held that, because of the attitude of the defence on
the reconstruction of the record, he would disregard the
evidence of
Sergeant Vos and Mr. Tlou.
[43]
In so far as the State failed to adduce any evidence on counts 3, 4,
6 and 8 the magistrate held that the Accused should be
acquitted on
those charges.
[44]
The magistrate, in my view correctly, rejected the evidence of
Accused No. 3 as being improbable in various respects. This
finding
has not been challenged on appeal and I do not regard it necessary to
dwell any further on this finding.
[45]
In taking into consideration the fact that various items robbed from,
particularly, the complainants in counts 5 and 7, the
magistrate
concluded that, in the absence of any exculpatory explanation in
relation to the presence of those items in the vehicle,
the vehicle
and its occupants were connected with the robbery which had shortly
before taken place in the Bank and that the State
has proved its case
on counts 1,2,5 and 7 beyond all reasonable doubt.
[46]
In relation to counts 9 to16, the magistrate held -
(a)
that according to the undisputed evidence of Sergeant Kinnear he saw
Accused No. 2 whilst sitting at the back of the vehicle
cocking a
firearm and that a cocked firearm was later found on the floor of the
vehicle where he was sitting was the firearm specified
in count 11;
(b)
that the only reasonable inference drawn from the evidence is that
the firearm found in the cubbyhole under the steering column
is the
firearm specified in count 13 which could only have been placed there
by Accused No. 3.
Grounds
of appeal
[47]
The two Accused now appeal, with leave of the magistrate concerned,
against both their convictions and the sentences imposed
upon them.
[48]
As is apparent from an Amended Notice of Appeal filed on 13 June
2012, it is contended -
(a)
that the magistrate erred by convicting the two Accused on counts
1,2,5 and 7 by holding that the State proved these charges
against
them beyond a reasonable doubt (para 1 of the Notice);
(b)
that the magistrate erred by in effect holding that the State proved
counts 11 and 13 against Accused Nos. 2 and 3, respectively
(paras 2
and 3 of the Notice);
(c)
that the magistrate erred by convicting the two Accused on various
charges of robbery and by so doing erred by duplicating the
convictions when the facts of the case suggested one continuous
criminal act (para 4 of the Notice);
(d)
that the magistrate erred by relying on the reconstruction of the
record and more particularly placing reliance on the single
evidence
of Sergeant Kinnear (para 5 of the Notice);
(e)
that the magistrate erred by making factual findings in the light of
the incorrect reconstruction of the record as it was disputed
by the
Accused as accepted by the magistrate (para 6 of the Notice);
(f)
that the magistrate erred by disallowing the legal representative of
the Accused to cross-examine the Sergeant Kinnear at the
time he was
recalled (para 7 of the Notice);
(g)
that the magistrate erred, in particular given, particularly the fact
that no evidence or reliable evidence existed upon reconstruction
of
the record which linked the Accused to the actual commission of the
robbery (paras 8 and 10 of the Notice);
(h)
that the magistrate erred in particular to reject the evidence of
Accused No. 3 (para 9 of the Notice);
(i)
that the magistrate erred by making adverse findings on
circumstantial evidence which were not supported by the evidence upon
reconstruction of the record
(para 11 of the Notice).
[49]
As is apparent from the aforegoing, it is difficult to establish,
because of the lack of any reasons advanced, as to why it
is
contended that the magistrate erred in the majority of the
contentions raised in the Notice which actually renders the Notice
to
be invalid (See: Himunchol v Moharom
1947 (4) SA 778
(N) at 781;
Harvey v Brown
1964 (3) SA 381
(E) at 383D; Tzouras v SA Wimpy (Pty)
Ltd
1978 (3) SA 204
(W), 205E; Kilian v Geregsbode, Uitenhage
1980
(1) SA 808
(A) at 815B; Molebatsi v Federated Timbers (Pty) Ltd
1996
(3) SA 92
(B), 941; Songomo v Minister of Law and Order
1996 (4) SA
384
(OK), 3851).
[50]
If regard is, however, had to the Heads of Argument filed and the
submissions made at the hearing of this appeal on behalf
of the
Accused, it would appear as if the appeal were limited to the
following, namely -
(a)
that the magistrate erred, as is contended in para 7 of the Notice,
in disallowing the legal representative of the Accused to
cross-examine Sergeant Kinnear, in the words of counsel, de novo]
(b)
that the magistrate erred in holding that Sergeant Vos was
untraceable ;
(c)
that the magistrate erred in holding that the only evidence enabling
him to come to a decision was the evidence of Sergeant
Kinnear
whilst, so it is contended the evidence of Sergeant Vos was in dire
contrast and in material contradiction of the evidence
of Sergeant
Kinnear;
(d)
that the magistrate erred in holding that the Accused were guilty of
the various charges of robbery since the perpetrators of
the robbery
entered the Bank with a single intent and that was to rob.
Evaluation
of grounds of appeal as elaborated upon in Heads of Argument and
submissions made on behalf of the Accused
[51]
Before considering these contentions, I deem it necessary to
highlight the following which emerged from the evidence, if
considered
in context, namely -
(a)
that the evidence indisputably showed that a gang of armed robbers
consisting of seven or eight male persons entered the Bank
on the day
in question at about 15h20 with the obvious and common intent to rob
the Bank and indeed robbed the Bank by manhandling
its employees, at
gunpoint of an amount of R864 608,58 in cash;
(b)
that at the same time clients of the Bank who happened to be in the
Bank at the time were also robbed of their personal property
by
individual members of the gang;
(c)
that the occupants, consisting of Accused Nos. 2 and 3, together with
a person who was charged as Accused No. 1 and a fourth
person, of a
vehicle that was seen driving away from the Bank was almost minutes
after the robbery stopped and arrested by members
of the flying
squad;
(d)
that, apart from four firearms found in the vehicle, certain items
robbed from at least two complainants who were in the Bank
at the
time were found in the vehicle.
[52]
In the absence of any reasonable or acceptable explanation by any of
the Accused as to how these items and the firearms came
to be in the
car, the inescapable and only reasonable inference to be drawn is
that they formed part of the gang of robbers involved
in the robbery
in the Bank.
[53]
Against this background there is, in my view, no substantiation or
relevance in the contention that the magistrate erred in
having held
that Sergeant Vos was untraceable (which in any event is a fact which
seems to have been uncontested) and that, in
so far as there may be
contradictions between the evidence of Sergeant Vos and Sergeant
Kinnear, such contradictions do not in
any way detract from the
evidence that firearms and some of the items robbed earlier in the
Bank were found in the vehicle. Having
read the evidence of these two
witnesses I, in any event, fail to see any material contradictions in
their evidence.
[54]
In view of the aforegoing, the only grounds of appeal which call for
consideration is the question -
(a)
whether the magistrate erred in allegedly disallowing the legal
representative to de novo cross-examine Sergeant Kinnear at
the time
of the reconstruction of the record;
(b)
whether the conviction of the Accused on the four charges of robbery
constitutes a duplication of convictions.
[55]
I deal seriatim with these contentions.
Cross-examination
of Sergeant Kinnear
[56]
Mr Pistorius who appeared on behalf of the Accused indicated that he
wished to cross-examine the witness de novo, but that
the magistrate,
contrary to the decisions in S v Catsoulus 1974(4) SA 371 (T)
andSvMatthys 1985(1) SA 209 (C), disallowed him to
do so.
[57]
The magistrate denies that he, although he enquired about the line of
cross-examination, disallowed Mr. Pistorius to cross-examine
the
witness.
[58]
As is apparent from the record pp. 128 to 140 Mr. Pistorius indeed
cross-examined the witness exhaustively.
[59]
Except for the occasion on which the magistrate asked him whether he
was busy to revisit the trial and whether the purpose
at that stage
was merely to determine for reconstruction purposes what was
testified at the trial by the witness, Mr. Pistorius
obviously
proceeded on his line of questioning.
[60]
In this regard the following is recorded at the end of his
cross-examination:
"Agbare
met respek, mag ek my kliente nader vir 'n oomblik? Ja agbare,
dankie. Ek het instruksies dat hulle my kliente tevrede
is dat die
kruisverhoor wat ek onderneem het namens hulle behoorlik hulle
opdragte weerspieel, so ek het dus nie verdere vrae nie.?.
[61]
On a reading of the record of proceedings it would seem that Mr.
Pistorius' submissions appear to be nothing more than sheer
opportunism.
[62]
In any event Mr. Pistorius interpretation of the decision in the
Catsoulus case, supra is in my view clearly wrong if regard
is had to
the following passage from the judgment at 373G:
"Die
posisie in die onderhawige deelsverhoorde strafsaak skyn my dan te
wees: dat die verhoor tot op die stadium wat dit reeds
bereik het, 'n
behoorlike, geldige verhoor was en daar dus nog rede nog
regsbevoegdheid bestaan om die gedeeltelike verhoor nietig
te
verklaar; dat dit die administratiewe taak van die landdros en/of die
klerk van die hofis om 'n oorkonde van die afgelope verhoor
opnuut
saam te stel op enige wyse wat billik en so betroubaar moontlik is;
dat dit 'n administratiewe ondersoek en aksie behels
en niks met die
verhoor as sodanig te doen het nie; dat by die hervatting van die
verhoor nadat die oorkonde ten beste herstel
is, is die landdros uit
hoofde van art. 210 van die Strafproseswet, 56 van 1955, geregtig om
die klaerterug te roeo as getuie,
aan horn sv herstelde getuienis
voor te le en te vra of dit strook met die getuienis wat hv
aanvanklik by die verhoor afgele het.
Die klaer as getuie sal dan
onderhewig wees aan kruisverhoor deur die verdediging beide oor sv
antwoorde op die landdros se vrae
oor die korrektheid van die
oorkonde en oor die inhoud van sv getuienis teen die beskuldigde.
Daarna kan die verhoor sy gewone
loop neem. (My emphasis)".
[63]
It is obvious from this quotation that the intention is at that stage
of the proceedings to test the correctness of the reconstructed
version of the witness' evidence and not that a cross-examiner be
allowed carte blanche to cross-examine the witness concerned
afresh.
[64]
In my view there is accordingly no merit in the submission made in
this regard on behalf of the Accused.
Duplication
of convictions
[65]
Our Courts have repeatedly held that there are two tests to be
applied whether an undue splitting of charges occurred.
[66]
In R v Johannes
1925 TPD 782
at 786 Curlewis JP expressed himself in
this regard as follows:
it
seems to me that the Court can safely lay down that under certain
circumstances both those tests, or the one, or the other, maybe
applied, namely, the test of whether two acts are done with a single
intent and constitute one continuous criminal transaction,
and the
test as to whether the evidence necessary to establish one crime
involves proving another crime. It depends entirely on
the
circumstances of each particular case".
See
also: S v Prins en Andere
1977 (3) SA 807
(A) at 81 AC; S v Moloto
1982 (1) SA 844
(A)
[67]
In S v Grobler 1966(1) SA 507 (A) it was held (at 512) that whether
one or more offences have in particular circumstances been
committed
depends on the definition of the respective offences.
[68]
We have been referred by Mr. Pistorius to the judgment in S v Maneli
2009(1) SACR 509 (SCA) in which the Court was faced with
a case where
the appellant was convicted of two counts of robbery in circumstances
where five men arrived at the farm of the complainant
where they
approached him in his office where one of them produced a gun and
asked for his money whereafter he was robbed of his
money and he and
his gardener were tied up. From there the robbers walked over to the
homestead where they assaulted the persons
there and stole further
items. The Court held {at 512b) that the complainant "was
probably tied up, not only to induce submission
to the taking of the
money he kept in his office but also to induce submission to the
taking of goods from his house" and
that ll(i)nsofar as the
goods taken from the house are concerned the assaults on the people
found in the house were committed with
the same object in mind\
[69]
Except for the fact that the facts in that matter are in my view
distinguishable from the facts in this matter in the sense
that the
robbers obviously entered the Bank with the intention to rob the Bank
and in the process, incidentally, decided to also
rob the clients who
happened to be in the Bank at that stage, a view different from the
one expressed in the Maneli case, supra,
is to be found in the case
of S v Dhlamini 2012(2) SACR 1 (SCA).
[70]
In the Dhlamini case, supra, the appellant was convicted, amongst
other offences, of three charges of robbery. According to
the
evidence the three complainants were attacked and robbed at gunpoint
by three men, one of which was the appellant,. At the
time two of
them were sitting in a vehicle as a third one was approaching the
vehicle as they had an arrangement to go to a church
meeting. The
three men demanded that they hand over their possessions which they
did. The three charges related to the robbery
of each of these
complainants. In the Court's majority judgment its was held (at 15c,
para [51 J) that there was a separate intent
by the three robbers to
rob each of the women which intent was executed separately in respect
of each woman.
[71]
I am in respectful agreement with the reasoning in this decision.
[72]
This is exactly what happened in this case. The gang, having acted in
circumstances where they all associated themselves with
the acts
perpetrated by their individual gang members, obviously intended to
rob, not only the Bank, but also the individual clients
in the Bank
at the time by threatening each of them with a firearm and having
subdued each of them, taken their property. I find
it difficult to
comprehend, as indicated by the learned Judges, how the taking by
force of the property on one complainant can
be regarded as a robbery
of another complainant. To hold otherwise would be contrary, as held
in s v Whitehead and Others 2008(1)
SACR 431 (SCA) at 443e, para
[35], to one's common sense, experience and sense of fairness.
[73]
I am accordingly satisfied that the respective convictions do not
constitute a duplication of convictions.
[74]
In the result I am unpersuaded that the magistrate in any respect
erred in convicting the Accused.
[75]
This brings me to the question of sentence. Sentence
[76]
It is trite that, as, inter alia, held in S v Rabie
1975 (4) SA 855
(A) at 857D-F that in every appeal against sentence, whether imposed
by a magistrate or a Judge, the Court hearing the appeal -
11
(a) should be guided by the principle that punishment is
'pre-eminently a matter for the discretion of the trial Court'; and
(b)
should be careful not to erode such discretion: hence the further
principle that the sentence should only be altered if the
discretion
has not been judicially and properly exercised'".
[77]
As indicated in S v Shapiro
1994 (1) SACR 112
(A) at 119J-120c, the
test under
(b)
above is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate.
[78]
The word "misdirection" was interpreted in this context by
Trollip JA in S v Pillay
1977 (4) SA 531
(A) at 535D as an error
committed by the Court in determining or applying the facts for
assessing the appropriate sentence and
that such misdirection must in
addition be of such a nature, degree, or seriousness that it shows,
directly or inferential^, that
the Court did not exercise its
discretion at all or exercised it improperly or unreasonably.
[79]
The offences of which the Accused were convicted are, no doubt,
extremely serious and brutal offences which obviously call
for the
imposition of a long term of imprisonment.
[80]
Our Courts have as long back as in 1997 expressed their concern on
the high levels of violence and serious crimes in this country
to
such an extent that it indicated that "it seems proper that, in
sentencing especially such crimes, the emphasis should
be on
retribution and deterrence. . . . Retribution may even be decisive"
(see: S v Mhlakaza
1997 (1) SACR 515
(SCA) at 519c).
[81]
In having considered the magistrate's considerations in sentencing
the Accused, there are in my view two areas of some concern,
namely -
(a)
the fact that the magistrate elected to take counts 1 and 2 and
counts 5 and 7
together
for purposes of sentence; and
(b)
the extent in which the magistrate considered the period during which
the Accused were detained awaiting trial.
[82]
In relation to the first area of concern, I find it difficult to
understand why the magistrate elected to take, on the one
hand,
counts 1 and 2 and, on the other hand, counts 5 and 7, together for
purposes of sentence, bearing in mind, particularly,
the fact that
count 1 relates to the Accuseds' main aim when they entered the Bank
and that counts 2, 5 and 7 in essence relate
to the so-called
individual robberies that occurred whilst the robbery of the Bank was
in progress. In my view counts 2, 5 and
7 should, from a logical
point of view, rather have been taken together for purposes of
sentence.
[83]
In relation to the second area of concern, it would seem that the
magistrate was, having indicated that the case took a long
time to be
finalized for which they were solely responsible, not really prepared
to take the period of their detention into consideration.
It is true,
as indicated by the magistrate, that their case would have been
finalized on 3 September 1999 had they not escaped.
The matter was,
however, delayed for a long time during the time it took to have the
record reconstructed after it had gone missing
on at least two
occasions. I do not think that they can be blamed for the records
having gone missing. It was during the process
during which the
record was reconstructed that they were detained since about more or
less June 2004 to 4 April 2011, ie., a period
of about seven years.
In my view this is a factor that should have been taken into
consideration (S v Vilakazi 2009(1) SACR 552
(SCA) at 574h) and that
we can for this reason interfere in the sentences imposed.
[84]
For the reasons set out in this judgment the following order is
made:-
1.
THAT the Appellants' appeal against their conviction be dismissed.
2.
THAT the appeal against the sentences imposed be upheld.
3.
THAT the sentences imposed be replaced with the following sentences:-
1.
On count 1, Accused Nos. 2 and 3 are each sentenced to ten years
imprisonment.
2.
On counts 2, 5 and 7, taken together for purposes of sentence,
Accused Nos. 2 and 3 are each sentenced to ten years imprisonment.
3.
On count 11, Accused No. 2 is sentenced to three years imprisonment.
4.
On count 13, Accused No. 3, is sentenced to three years imprisonment.
5.
It is ordered that five years of the imprisonment imposed on counts
2, 5 and 7 shall be served concurrently with the ten years
imprisonment imposed on count 1 resulting in the two Accused being
imposed an effective sentence of 18years imprisonment".
4.
THAT the sentence of 18 years referred to in paragraph 3 of this
order be antedated to 4 April 2011.
PC
VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
I
agree
P
M MABUSE
JUDGE
OF THE HIGH COURT
ON
BEHALF OF THE APPELLANTS: ADV P F PISTORIUS
Tel:
082 577 4532
On
the instructions of:MTHEMBU SIBIYA ATTORNEYS
235
Burlington House
Church
Street
PRETORIA
Ref:
Mr Sibiya
Tel:
Not provided
ON
BEHALF OF THE RESPONDENT:ADV S MAHOMED
DPP,
PRETORIA
Ref:
A646/2011 - 21/09/12 SM
Tel:
012 351 6736
DATE
OF HEARING: 21 September 2012
JUDGMENT
DELIVERED ON: 4 October 2012