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[2011] ZAFSHC 191
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Mahlatsi v S (A173/10) [2011] ZAFSHC 191 (24 November 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A173/10
In
the appeal between:-
MOKETE
JOHANNES MAHLATSI
….......................................
Appellant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MTHEMBU,
AJ
_____________________________________________________
HEARD ON:
7
NOVEMBER 2011
_____________________________________________________
DELIVERED ON:
24 NOVEMBER 2011
_____________________________________________________
JUDGMENT
_____________________________________________________
MTHEMBU, AJ
[1]
The appellant was convicted on robbery with aggravated circumstances
as provided for in section 1 of Act 51 of 1977. The appellant
was
convicted on 6 April 2009 and sentenced to 15 years imprisonment on
the same day
[2]
He was aggrieved by the conviction and sentence. With the leave of
the court a quo he now appeals against conviction only
[3]
The facts of this case are briefly the following. Rose Malefane and
Alina Lesege were both employed at the Bloemspa Guesthouse.
On 9 June
2008 in the early hours the doorbell rang at the guesthouse. They
were awaiting a guest who had earlier on made a reservation.
They
went to the reception. Through the door, they could see a person.
Alina spoke with this person who said that he was looking
for a room
for six people. Rose left the area to go and make arrangements for
the guest. Alina opened the door for this man. Then
approximately
five to six other persons stormed inside. Alina was pointed with a
firearm
[4]
The robbers were looking for the safe. Earlier in the day a dove had
entered the guesthouse and it then began flying around.
Thinking that
it was some of the guests, the robbers then fled.
[5]
After the robbers had fled, it was discovered that Rose’s
cellphone missing. The police were called. They came. The waitresses
learnt from the police that a plasma TV, coffee machine and the cash
register were missing.
[6]
The two witnesses could not identify any of the robbers, as they were
clad in balaclavas.
[7]
The appellant was linked to the robbery in the following manner:
7.1
The appellant previously worked for a security company at the
guesthouse and that is where he met Alina
7.2
While he was working at the guesthouse, he proposed love to Alina
7.3
They had each other’s cellphone numbers.
7.4
Appellant’s services were terminated.
7.5
He later met Alina on a bus travelling from Botshabelo to
Bloemfontein.
7.6
In the bus, the appellant informed Alina that there were things that
he wanted at the guesthouse.
7.7
Alina realised that it was wrong and was afraid to take part,
however, the appellant promised her that he would reward her.
7.8
The appellant informed her that he would phone her when they came. On
the day of the robbery the appellant phoned her and told
her that
they were coming. She was afraid, but agreed with the plan.
7.9
The appellant phoned her when they arrived, but she did not answer
her phone.
7.10
During cross-examination it was not denied that the appellant is also
known as “Castro”.
[8]
The appellant did not testify in his defence nor did he call other
witnesses in his defence.
[9]
In his heads of argument , appellant’s submissions were that:
9.1
Alina did not identify the appellant as Castro. She also did not
identify the voices of the robbers as that of the appellant.
9.2
There was no indication that the cellphone numbers that appeared on
Alina’s cellphone were those of the appellant.
9.3
It is uncertain if the Castro referred to is the same Castro as the
appellant.
9.4
The court
a quo
in a leading question linked Castro with the
appellant and Alina simply confirmed this.
9.5
It was submitted that the court
a quo
incorrectly relied on
this evidence to find a nexus between the said Castro and the
appellant.
9.6
In the absence of any other evidence, the evidence was insufficient
to justify the conclusion that the only reasonable inference
that the
appellant was part of the group of robbers or that he was involved in
the robbery.
9.7
It was submitted on behalf of the appellant that, the telephone calls
were insufficient to prove beyond a reasonable doubt that
they were
linked with the robbery.
9.8
The trial court erred in finding that the television set and coffee
machine were part of the items that were robbed since such
finding
was based on hearsay evidence and therefore inadmissible
9.9
The evidence regarding Malefane’s missing cellphone was
unsatisfactory and it could not be found beyond a reasonable doubt
that the robbers were responsible for the disappearance thereof.
9.10
No
prima facie
case was made against the appellant and there
was no onus on him to testify.
[10]
During argument, Mr. Pretorius on behalf of the appellant, conceded
that the appellant was correctly identified as Castro.
He also
conceded that the issue regarding the stolen goods was not taken up
in the court
a quo
and he did not intend to proceed with it. It then flows from the
above that the Castro that Alina had been in conversation with
is
indeed the appellant. Accordingly then the circumstantial evidence is
overwhelming against the appellant
[11]
In light of the above concessions and on a conspectus of all the
evidence I am of the view that the court
a
quo
acted regularly and did not
misdirect itself in any manner or in any material respect with regard
to the conviction which would
entitle this court to interfere with
its decision. As Greenberg JA stated in
REX v DHLUMAYO
AND ANOTHER
1948 (2) SA 677
(AD)
at 705
– 706:
“
3.
The trial Judge has advantages - which the appellate court cannot
have - in seeing and hearing the witnesses and in being steeped
in
the atmosphere of the trial. Not only has he had the opportunity of
observing their demeanour, but also their appearance and
whole
personality. This should never be overlooked.
4. Consequently the appellate court is
very reluctant to upset the findings of the trial Judge.
5. ......
6. ......
7. Sometimes, however, the appellate
court may be in as good a position as the trial Judge to draw
inferences, where they
are either drawn from admitted facts or from
the facts as found by him.
8. Where there has been no
misdirection on fact by the trial Judge, the presumption is that his
conclusion is correct; the appellate
court will only reverse it where
it is convinced that it is wrong.”
See too
S v HADEBE
AND OTHERS
1997 (2) SACR 641
(SCA) at 645 e – f.
In my view the conviction
on robbery with aggravated circumstances is in order and the appeal
ought not to succeed. The appellant
has not appealed against his
sentence.
[12] I make the following
order:
12.1 The appeal against
conviction is dismissed
12.2 The conviction is
confirmed
The sentence stands
________________
J.B. MTHEMBU, AJ
I
concur.
______________
M.H. RAMPAI, J
On
behalf of appellant: Mr. K. Pretorius
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: A. Bester
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/sp