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[2012] ZAGPPHC 317
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Zikhale v S (A397/2012) [2012] ZAGPPHC 317 (27 November 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: A397/2012
DATE:27/11/2012
IN
THE MATTER BETWEEN:
MAX
ZIKHALE
.................................................................................
APPELLANT
and
THE
STATE
....................................................................................
RESPONDENT
JUDGMENT
DE
KLERK, AJ
[1]
The appellant was one of 5 accused arraigned on charges of
[2]
robbery with aggravating circumstances (2 counts)
[3]
murder
[4]
attempted murder
[5]
unlawful possession of fire arms
[6]
unlawful possession of ammunition
[7]
escaping from lawful custody.
The
crimes referred to in the first five sub-paragraphs were all
committed on the 16
th
April 2001 at SINOVILLE in the
Pretoria-North district, whilst the five accused escaped from the
cells at the Pretoria-North Magristrate’s
Court during one of
their postponements, on the 29
th
November 2001.
[8]
On the
16
th
April 2001 the five accused robbed two employees of the Action Pub
and Grill at SINOVILLE, Jennifer Malan and Nadine Madgwick,
shot one
Jaoa de Oliviera in his leg in an attempt to kill him and shot and
killed one Suzie Tels Goncalves, using unlicensed fire
arms and
ammunition. Ms Malan's golden necklace was robbed after the robbers
had assaulted her, whilst Ms Madgwick's NOKIA 7110
was robbed.
As
the robbers exited from the premises they shot and killed the late Ms
Goncalves whilst Mr De Oliviera grappled with and hit one
of the
robbers, but was shot in the leg when he gave chase after the
robbers.
The
robbers crossed the street in front of the premises, jumped into a
Mazda 626 and drove away from the scene of crime.
[9]
Mr and Mrs Gouws were passing by when
they heard two shots being fired; saw the four robbers emerging from
the Wonderwaters Shopping
Centre where the Action Pub and Grill is
situated, where the crimes were committed; saw them crossing the
street in front of the
Gouws’ vehicle; getting into the Mazda
and saw the Mazda speeding off in the direction of Pretoria North.
Mrs Gouws phoned
the police and supplied the vehicle’s
registration number to them whilst Mr Gouws was pursuing the Mazda.
They lost sight
of the vehicle at one stage and turned back, but
noticed the vehicle again in Phoenix Street and waited till the
police arrived.
There the previous accused number 3 and the accused
who escaped (number 5) were arrested by the police.
[10]
On information received, two of the
policemen proceeded to Reiger Street where three persons alighted
from the Mazda and there Sergeant
Moodie arrested accused numbers 1
and 4, whilst inspector Terblanche arrested the appellant, the former
accused number 2.
[11]
When giving evidence and attempting to
exculpate himself, the erstwhile accused number 3 who drove the Mazda
motor vehicle, implicated
all of the other accused, including the
appellant and corroborated the State witnesses as to the route he
followed, dropping off
accused numbers 1 and
4.
as well as the appellant and from there proceeding to Phoenix Street,
where he and accused number 5 were arrested.
[6]
The trial court carefully analysed the
evidence of all the witnesses and the accused, including evidence of
an identification parade,
and convicted all four accused (who stood
trial) of the two counts of robbery, murder, attempted murder and
escaping from custody.
Accused number 3 was also convicted of the
offences relating to unlawful possession of the fire arms and its
ammunition.
[7]
The conviction of the appellant was
attacked on very general grounds and legal principles and his
counsel’s heads of argument
did not deal at all with the
damning evidence of accused number 3, who placed all five accused on
each and every scene attested
to by the State witnesses. Identity was
therefore no issue as far as appellant was concerned. Details of the
crimes and the participation
of each accused were supplied by the
testimony of the various state witnesses. Each accused was identified
either by the clothing
he wore or at the identification parade on
that day, as photos were taken on the day of their robbery spree.
[8]
As is required by S v K
1972 (2) SA 898
(A) 902 B the trial judge supplied full reasons for his findings and
ultimate convictions of all four accused, including the appellant.
[9]
This court, after having read the record
and counsels’ heads of argument and having heard argument by
both counsel for the
appellant and counsel for the respondent, has to
decide appellant’s appeal along the guidelines laid down in Rex
v Dhiumayo
and Another
1948 (2) SA 677
(A) 705-706, which has been
followed constantly by the Supreme Court of Appeal over the past 64
years. As recent as December 2010
it was also followed by the
Constitutional Court in its judgment reported as Bernert v Absa Bank
Ltd
2011 (3) SA 92
(CC) 120-1 (paragraphs [105] and [106] thereof).
[10]
I am of the view that the appellant has
not succeeded in convincing the court that the trial judge has
misdirected himself on the
facts of the appellant's case or that
inferences which he drew from the evidence in relation to the
appellant have not properly
been drawn, as required by cases such as
Rex v Biom
1939 AD 188
at p. 202 and Rex v De Vilhers
1944 AD 493
at
pp. 508-9. He was steeped in the atmosphere of the trial he saw and
heard all the witnesses, as well as the appellant, and he
had the
opportunity to observe their demeanour, appearance and whole
personality. I am not left in any doubt as to the correctness
of the
trial Judge’s conclusions, which should be upheld. His reasons
were satisfactory and he did not overlook any facts
or probabilities.
I
am satisfied that the trial Judge correctly found that the respondent
had proved the appellant’s guilt beyond reasonable
doubts, as
required by cases such S
v Glegg
1979 (1) SA 34
(A). In coming to this conclusion I have been mindful
of especially the quotation in paragraph [105] of
Bernert
v Absa Bank Ltd,
taken from SARFU III,
being
President of the Republic of South
Africa
v
South
African Rugby Football Union and Others
2000 (1) SA 1
(CC).
In
my view, the appellant’s appeal against his conviction should
be dismissed.
[11]
As far as sentence is concerned, the respondent’s counsel
reminded the court that the appellant was sentenced in 2002
when the
Correctional Services Act, Act No 8 of 1959 was still in force, as
the new
Correctional Services Act No 111 of 1998
, as amended, only
commenced on the 31
st
July 2004.
In
terms of the Correctional Services Act, 1959, in particular in terms
of section 32 (2) (a) of the Act, the prison sentences imposed
on
other counts than the murder count (on which a sentence of life
imprisonment was imposed) will be served concurrently with a
sentence
of life imprisonment. The same provision appears in section 39(2) (a)
(ii) of the Correctional Services Act, Act No 111
of 1998, as
amended.
Appellant
was sentenced to the minimum prescribed sentence of life imprisonment
in terms of Schedule 2 Part 1 (c) (ii) as it was
part of their
robbery spree. As far as that count is concerned, no substantial and
compelling circumstances existed, for the minimum
sentence of fife
imprisonment not to have been imposed.
Counsel
for appellant found himself unable to advance any argument that the
sentences imposed on the counts other than the murder
count were in
themselves shocking or disproportionate.
It
is my considered view that those sentences were appropriate, having
regard to the particular facts and they should be confirmed.
Our
sister drew my attention to the decision of S
v
Makena
2011 (2) SACR 294
(GNP) regarding
the following comment and recommendation of the trial judge:
‘
Die
effektiewe vonnins wat beskuldigdes 1, 2 en 4 aanbetref is een van
lewenslange gevangenisstraf, plus 'n verdure 35 jaar gevangenisstraf.
Die effektiewe vonnis wat beskuldigde 3 opgele is, is een van
lewenslange gevangenisstraf, plus ‘n verder 41 jaar
gevangenisstraf.
Dit
word aanbeveel dat die Department Korrektiewe Dienste nie die
beskuldigdes op parooi of andersins sal vrylaat alvorens huile
ten
minste 40 jaar gevangenisstraf van hulle opgelegde vonnisse uitgedien
het nie.’
Paragraph
[12] of the decision of the full court of this division in the
Makena
-matter
is applicable to the trial judge’s recommendation:
‘
Given
the doctrine of separation of powers under the present Constitution,
I am of the view that it is best left to the Department
of
Correctional Services, which forms part of the executive arm of
government, to determine when the accused should be released
on
parole without any suggestion or recommendation in this regard from
the court. The Correctional Services Department, which functions
under the executive branch of government, may not influence, nor seek
to do so. the courts in their pursuit of the administration
of
justice. Likewise, the courts may not influence Correctional Services
in their own duties and functions.
It
is indeed so, and perhaps only human, that a court may view the facts
in a
case
so seriously that it may be of the considered view that its
abhorrence and desire to protect society from the accused’s
conduct should be conveyed to Correctional Services. Whilst that may
find favour with the intellect, it overlooks the fundamental
independence of Correctional Services which, to my mind, does not
operate from the premise that those convicted by the courts and
channelled to it are incorrigible and beyond redemption from a life
of crime, and beyond rehabilitation, it is my considered view
that a
recommendation along the lines in the sentence on count one should be
avoided, and left uninfluenced in the hands of the
appropriate
department.’
[12]
The following order is made:
12.1
The appeal against conviction and
sentence is dismissed, and the conviction and sentence are confirmed.
12.2
The sentence of the trial court is
altered as follows:
‘
Die
effektiewe vonnis wat beskuldigde 2 aanbetref, is dat hy 35 jaar
gevangenisstraf samelopend met lewenslange gevangenisstraf
sal
uitdien.’
L.S.
DE KLERK
Acting Judge of the
North Gauteng High Court
I
agree
N.V.
KHUMALO
Acting
Judge of the North Gauteng High Court
I
agree (and it is so ordered)
M.W
MSIMEKl
Judge
of the North Gauteng High Court
CASE
NO: A397/2012
HEARD
ON: 14 November 2012
FOR
THE APPELLANT: ADV. L.M. MANZINI INSTRUCTED BY: Polokwane Justice
Centre
FOR
THE RESPONDENT: ADV. P.C.B. LUYT INSTRUCTED BY: Director of Public
Prosecutions
DATE
OF JUDGMENT: 27 November 2012