About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 147
|
|
Molehe and Another v S (A71/10) [2012] ZAFSHC 147 (19 July 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A71/10
In the appeal between:-
PULE JAN MOLEHE
….....................................................
First
Appellant
DIPHOKO CHRISTIAN
MOTUMI
….............................
Second
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
MOCUMIE, J
et
MURRAY,
AJ
_____________________________________________________
HEARD
ON:
11 JUNE 2012
_____________________________________________________
DELIVERED
ON:
19 JULY 2012
_____________________________________________________
MOCUMIE, J
[1] On 29 August 2006 the
two appellants appeared in the Regional Court, Thaba Nchu on one
count of robbery read with section 1
of the Criminal Procedure Act
(“the CPA”)
and
section 51 of the Criminal Law Amendment Act
(“the
Criminal Law Amendment Act”)
. Both were
convicted as charged. On 26 February 2007 they were sentenced as
follows:
“
Accused 1:
10 years imprisonment
Accused 2: 15 years imprisonment.”
[2] The complainant in
the trial was at a local tavern in Thaba Nchu on 13 April 2006 with a
person by the name of Mafense. The
two appellants were also at the
same tavern although not in his company. At some stage, he left the
tavern to smoke outside where
he again saw both appellants. He gave
the first appellant a cigarette. He had a conversation with them. In
the fifteen minutes
he was outside the tavern the two appellants and
two other people who the police did not arrest, assaulted him by
stabbing him
with knives and robbed him of R400, 00 cash. He
identified the two appellants on the following basis: The two were
known to him
over three years. Prior to this attack, he saw them in
town during the day. He spoke to them shortly before the attack as he
was
smoking outside the tavern. The area where he had a short
conversation with them, just before they grabbed him and pulled him
to
the dark area behind the tavern, was illuminated.
[3] The first appellant
denied the allegations levelled against him vehemently. He disputed
that the complainant knew him well prior
to this day. He maintained
that when the complainant left the tavern, he stayed behind with a
person called Noko who the complainant
confirmed was at the tavern as
well on that night. He left the tavern together with Noko until each
went to his home.
[4] The point must be
made immediately that Mr. Pretorius did not draw up the heads of
argument. In his oral submission in court
Mr. Pretorius submitted
that taking into account all the circumstances of the case, he could
not argue that the trial court committed
any misdirection on the
merits. To the contrary, he was of the view that the trial court was
helpful at every step of the proceedings.
Both appellants understood
their rights and exercised their choice in terms of the Constitution.
[5] I am persuaded to
think otherwise on one issue, although I agree that the trial court
was helpful. In my view the trial court
had the latitude to invoke
section 186 of CPA to call any witness, which would assist it in
coming to a just decision.
[6] Section 186 of the
CPA provides:
“
186 Court
may subpoena witness
The court may at any stage of criminal
proceedings subpoena or cause to be subpoenaed any person as a
witness at such proceedings,
and the court shall so subpoena a
witness or so cause a witness to be subpoenaed if the evidence of
such witness appears to the
court essential to the just decision of
the case.”
[7] In his
evidence-in-chief and cross-examination the first appellant alleged
that he was at all times in the company of Noko.
The complainant
admitted that, that person was present at the tavern on this fateful
night. In my view this witness was not only
relevant but would have
shed light on whether the first appellant was telling the truth.
Alternatively he would have made the State’s
case even
stronger.
[8]
The first appellant, however, decided not to call him as a witness as
he wanted the trial to be finalised, as it had been dragging
on for
too long and he knew he was not guilty. After closing his case and
hearing that the court was using the fact that he did
not call Noko
as a witness to corroborate his version together with other evidence
to convict him, he realised his mistake and
asked for the witness to
be called. An application was entertained after the trial court had
delivered its verdict .The trial court
was of the correct view that
it was
functus officio
and
could no longer entertain this matter.
Unfortunately
this matter was not raised on appeal on the basis that the trial
court was correct. Thus no further evidence including
that of Noko
was allowed.
[9] What is abundantly
clear is that the trial court did not only rely on the evidence of
the complainant of identification at the
scene of the robbery but
also on the fact that both appellants were well known to the
complainant and importantly that he had seen
them during the day and
a few minutes before the attack. In any event in so far as s186
witnesses are concerned there is no guarantee
that the witness that
was never called,Noko, would have come to tell the court something
different in the absence of any evidence
presented and tested as in
this case. This is a typical case of the first appellant trying to
get a second bite of the cherry.
[10] Despite my view that
this is a case where the presiding officer could have invoked s186
but to the extent that the two appellants
were clear on their rights,
I am satisfied that on a conspectus of all the evidence, its
probabilities and improbabilities the
conviction in respect of both
appellants ought to stand.
[11] As far as the
sentences imposed are concerned, Mr. Pretorius was
ad idem
with the State that the sentences imposed were neither severe nor
inappropriate taking into account the seriousness of the offence
committed and the serious injuries the complainant sustained.
[12] The trial court
invoked section 51 of the Criminal Law Amendment Act and found that:
12.1 In respect of the
first appellant there were compelling and substantial circumstances,
which justified it to deviate from the
prescribed minimum sentence of
fifteen years for a first offender. It imposed ten years
imprisonment.
12.2 In respect of the
second appellant who had previous convictions of theft (4 October
2002) and robbery (17 February 2005) there
were no compelling and
substantial circumstances which justified it to deviate from the
prescribed minimum sentence. It imposed
fifteen years imprisonment.
[13] The trial court
however without any explanation, then, imposed fifteen years on the
second appellant who had previous convictions
of robbery and theft
instead of the prescribed twenty years. Theft is a competent verdict
or similar offence to robbery. Besides
the theft conviction, the fact
remains that the second appellant had a previous conviction of two
counts of robbery dated 17 February
2005, hardly a year before the
commission of this robbery. The trial court was bound to take that
into account to bring the second
appellant as a second offender
within the twenty years imprisonment prescribed sentence. That on its
own is an irregularity on
the part of the trial court. The question
this Court must address is whether such irregularity vitiates the
proceedings.
[14] Section 51 read with
Part IV of Schedule 2 lays down minimum sentences for robbery. It
provides that if a person has been convicted
of robbery when there
are aggravating circumstances, a court must impose the following
sentences:
14.1 fifteen years for a
first offender;
14.2 twenty years for a
second offender;
14.3 twenty five years in
respect of a third or subsequent offender.
[15] I cannot find fault
in the trial court’s approach to the first appellant’s
case. In my view, it took into account
all the factors it ought to
have taken into account especially the first appellant’s active
and leading role in the commission
of the robbery and came to a
justifiable conclusion that ten years was appropriate in the
circumstances.
[16] In respect of the
second appellant, the trial court was indeed correct to find that
there were no compelling and substantial
circumstances justifying a
departure from the prescribed minimum sentence. However the fifteen
years it imposed, is not a competent
sentence in terms of the law.i.e
taking into account that he was not a first offender.
[17]
In
S
v Malgas
2001
(1) SACR 469
(SCA) the Supreme Court of Appeal emphasised that if
the sentencing court, on
consideration of the circumstances of the particular case, is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
1
The same approach was
adopted by the Supreme Court of Appeal recently in the judgment of
Simange
Wiseman Mthembu v The State
Case
No 206/11 delivered on 29 September 2011
albeit
it in
the context of a higher sentence than the prescribed minimum
sentence.
[18]
Importantly,
it is trite that
when
the court of appeal contemplates a sentence greater than the sentence
imposed the appellant must be forewarned of that fact.
Arguably,a
s
in the circumstances of this case, the second appellant was not
forewarned of the possibility of the imposition of twenty years
as
prescribed, this Court cannot impose such increased sentence as it
would be unfair to the appellant to be ambushed in that fashion
and
at such late stage.
In
my view, the irregularity committed as alluded to above in para [13]
is not one that vitiates the proceedings.
[19] In the circumstances
the appeal is dismissed and the convictions and sentences imposed on
26 February 2007 are confirmed.
_______________
B.C.
MOCUMIE, J
I
concur.
______________
H.
MURRAY, AJ
On behalf of appellants:
Mr. K. Pretorius
Instructed by:
Legal-Aid SA
BLOEMFONTEIN
On behalf of respondent:
Adv. E. Liebenberg
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
(Ref.: K
PRETORIUS/pl/X337180011)
BCM/
1
In
Malgas
at para [18] Marais JA made it plain that “
What
stands out quite clearly is that the courts are a good deal freer to
depart from the prescribed sentences than has been supposed
in some
of the previously decided cases.”