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[2009] ZAGPPHC 119
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Chowe v S (A197/09) [2009] ZAGPPHC 119; 2010 (1) SACR 141 (GNP) (18 September 2009)
IN THE HIGH COURT SOUTH
AFRICA
(NORTH GAUTENG HIGH COURT)
CASE NO: A 197/09
In the matter between
JOHANNES CHOWE
APPELLANT
And
THE STATE
RESPONDENT
JUDGMENT
MAVUNDLA J.,
[1] The appellant was convicted by the
Regional Court in Soshanguve on 10 July 2007 on count one: robbery
with aggravating circumstances
and on count two: unlawful possession
of a firearm. The appellant in respect of count one was sentenced to
fifteen years imprisonment
and in respect of count two three (3)
years imprisonment. It was ordered that both sentences are to run
concurrently. It was further
ordered in terms of section 103 of Act
60 of 2000 that he is not fit to possess a firearm. The appellant was
granted leave to appeal
aqainst both conviction and sentence.
[2] The appellant was dully represented
during the trial. The charges against the appellant were that on 18
October 2006 and at
Block K Soshanguve he unlawfully robbed the
complainant Mr. David Mahila of his Nokia 6310i cell phone, with
aggravating circumstances
being present in that a firearm was used,
and was unlawfully in possession of a firearm without being a holder
of licence for such
a firearm. He pleaded not guilty to both counts.
The appellant pleaded not guilty to both charges and exercised his
right of silence.
[3] The State called the complainant Mr
David Mahila as its first witness. The evidence of Mahila is that 18
October 2006 at around
19:00 he was at a church in the company of a
friend. He closed the church gates and accompanied his friend. As
they were walking
they saw two persons ahead of them. As they came
nearer to these two unknown persons, these then turned around and
produced firearms
and pointed them therewith. He further testified
that the appellant searched him and took his Nokia 6310i cell phone.
He further
said the appellant inquired from him where he stays. He
informed the appellant that he stays at Block K. The appellant and
his
socio in crime instructed him to take a different route. The
complainant informed his friend that he would no longer accompany him
and walked alone. Along the way the appellant then noticed the
appellant and his socio in crime walking ahead of him. At that point
the appellant saw a police van which he flagged down and informed the
police of his ordeal. The police summoned other police who
arrived in
a police van. He then pointed the direction the appellant and his
friend were heading to.
[4] The appellant together with the
police went in search of the appellant and his friend and found them
in the vicinity of the
police station. The appellant was apprehended
whilst his friend upon seeing the police van run away. The police
searched the appellant
and found on his body a firearm.
[5] On further questions by the
prosecutor, the appellant explained that when the appellant was
searching him, he looked at the
appellant in the face. The appellant
at that stage then instructed him to look down. He says that his
friend was searched but he
does not know what was taken from him.
[6] Mahila said that the area was
illuminated by street lights, an Apollo light and he was able to see
the appellant in the face
and could also see his clothes. He says
further that the appellant was wearing a blue lumber jacket which had
a cream white colour
and a white Nike's cap, a trousers and the blue
part of the of lumber jacket was in the front and the back part
thereof is cream
white. He further says that he is certain that the
person arrested by the police is the same person who robbed him
earlier and
is the appellant. He further said that the value of the
cell phone is R600.
[7]
Mahila
was
cross examined. He was cross examined on the features upon which he
identified the appellant. The version of the appellant was
also put
to him. The version of the appellant put to Mahila was that the
appellant and the complainant had earlier been together
at a place
where they together with others were gambling with dice. At some
stage, so was it put to Mahila, at about 20: 00 Mahila
was involved
in a fight with Tshepo, with whom the appellant arrived at the dice
gambling. After this fight, the appellant left
together with Tshepo
and walked in the direction of Red Onion Hotel where they proceeded
from west to east direction. They were
subsequently stopped by police
and Tshepo ran away whilst the appellant stopped. One of the police
chased after Tshepo and a shot
was fired. The appellant was assaulted
by the police. Mahila disputed the version of the appellant as put to
him, save that the
appellant was arrested and instructed to lie down.
[8] It is trite that the State must
prove the guilt of the appellant beyond reasonable doubt. Where the
version of the appellant
is reasonably possibly true, the appellant
is entitled to his acquittal.
1
[9] In casu, the complainant is a single
witness, in so far as the robbery is concerned. He is also testifying
on identity of the
appellant being the person who robbed him. Where
the identity of the accused person depends on the evidence of a
single witness,
it is trite that the evidence of that single witness
must be approached with caution.
2
Generally the evidence of a single witness is accepted if such
evidence is satisfactory in all material respect or there is
corroboration,
3
and the witness is truthful.
4
It is important to look at, inter alia, the opportunity the
identifying witness has had to see the identified person, whether the
identified person is known to the identifying person, the
illumination and the prevailing circumstances. One must also look at
whether there is real risk of an error by the identifying witness.
5
The evidence of the appellant requires an objective assessment.
[10] According to the complainant, he
was robbed at about 19:00.
6
He observed the clothes of the person who robbed him. He gave a
description of the clothes of the person who robbed him.
7
The complainant gave a description of the people who accosted him.
8
He further stated that the area was illuminated.
9
The appellant pointed to the police the direction in which the person
who accosted him and his friend headed towards.
[12] Kruger says that the complainant
gave them the description and the clothes of the persons who robbed
him.
10
According to Mariba, they received the complaint about 19:30,
11
and they took about ten minutes looking for the culprits. The
evidence of the appellant in so far as the description of the clothes
of the persons who accosted him is being corroborated by the evidence
of Kruger
12
and Mariba.
13
But besides, the appellant on his own version, he was with the
appellant earlier, although he says at a gambling with dice. The
question of identity is therefore not really so much in dispute, it
is the circumstances at which he would have seen the appellant
earlier.
[13] According to the appellant, he was
with the appellant at the game of dice between 16:00 and 19:00.
14
The appellant testified that "at about past-seven there erupted
a fight and the game was stopped and I left the hostel. I
moved along
the road that leads to the station. "He then left the game of
dice after the fight together with the person who
was involved in the
fight whose name is unknown to him.
15
This version that he does not know the name of the person involved in
the fight does not accord with the version put by his legal
representative to the complainant that it was Theo with whom the
complainant was involved in the fight.
16
I can only assume that the appellant is lying when he says he does
not know the person's name, otherwise the name Tshepo would
not have
been put to the complainant by his legal representative, Mr. Botha.
[14] The complainant and his friend were
accosted by two persons who pointed them with firearms. When the
police stopped next to
the appellant and his friend, his friend ran
away. According to the State witnesses, a firearm was found on the
appellant. The
appellant says that the police chased after his friend
and returned with the firearm and then alleged that it was found on
him.
The magistrate rejected this version of the appellant on the
basis that Kruger had testified that it was dark where the other
person,
with whom the appellant was, ran into and as the result a
search could not be conducted.
[15] It needs mention that in rejecting
the evidence of the appellant; the magistrate also had regard to the
fact that the appellant
had testified that he was assaulted by the
police and sprayed with a pepper. The appellant also under cross
examination stated
that although blinded with the pepper spray he
could still see which police assaulted him with a brick. The
magistrate found it
improbable that the appellant could have seen in
that blinded state who assaulted him and that he was assaulted with a
brick. Further
the magistrate also took into consideration that what
was put to some of the witnesses as to be what would be the
appellant's version
differs as to what was eventually testified to by
the appellant.
[16] In my view, the magistrate has not
misdirected himself in eventually rejecting the evidence of the
appellant as false. I am
further of the view that the magistrate has
not misdirected himself in rejecting the version of the appellant and
accepting the
evidence of the State witnesses. Consequently, I am of
the view that the appeal on conviction must fail.
[17] The appellant was sentenced to
fifteen years in respect of the conviction of robbery with
aggravating circumstances. He was
sentenced to three years
imprisonment in respect of count 2 of unlawful possession of a
firearm possession. The sentence of three
years imprisonment was
ordered to run concurrently with the sentence of 15 years
imprisonment. The appellant was also declared
unfit to possess a
firearm in terms of section 103 of Act 60 of 2000.
[18] The magistrate reminded himself of
the fact that the conviction on the count of robbery fell within the
ambit of s51 (2) (a)
of Act 105 of 1997. The magistrate considered
the appellant's personal circumstances, namely that he is 26 years
old, single but
has a child who is 7 years old and he was employed at
SASKO where he was earning an amount of R3000. 00. The magistrate had
regard
to the fact that the appellant had a previous conviction of
housebreaking and theft, but accepted that this previous conviction
does not relate to any robbery so as to warrant that he must be
treated as second offender for purposes of imposition of the minimum
prescribed sentence, but treated him as a first offender.
[20] The magistrate had regard to the
decision of State v Malgas
17
wherein it is stated inter alia that firstly, the court has a duty to
consider all the circumstances of the case, including the
many
factors traditionally taken into account by courts when sentencing
offenders. Secondly, for circumstances to qualify as substantial
and
compelling, they do not have to be exceptional in the sense of seldom
encountered or rare.
[21] The magistrate also had regard to
the fact that the value of the item robbed, namely a Nokia cell
phone, was only an amount
of
R600. The magistrate found that there
were no substantial and compelling Circumstances warranting that he
must depart from imposing
the cirminimum sentence of 15 years.
[22] In casu, I have been unable to find
anywhere indicating that at the commencement of the trial, the
accused was warned that
the Minimum Sentence Act would be applicable
in the event of being found guilty as charged. In my view, the right
to a fair trial
entails, inter alia, that the accused person must be
fully advised of the offence levelled against him and that the
Minimum Sentence
Act is applicable.
[23] During the sentencing, the
magistrate said the following:
"Mr. Chowe during the address on
sentence, the public prosecutor as well as Mr. Botha appearing on
your behalf, properly argued
before me that due to the nature of the
offence that I have convicted you of as well as the first count
concerned, that offence
falls under the part 2 of schedule 2; in that
the offence you are convicted of as far as the first court is
concerned, it is robbery
with aggravating circumstances. That being
the case the court has to consider the penal provision contained in
section 51(2) (a)
of Act 105 of 1977 in coming to an appropriate
sentence in this matter."
[24] From the above mentioned
magistrate's statement it is clear that the appellant had not been
warned at the beginning of the
case that the Minimum Sentence is
applicable. The fact that the accused was legally represented, in my
view does not take away
the need to inform the accused that such
Minimum Sentencing Act dispensation would be relied upon for
sentencing. S35 (3) (a)
18
of the Constitution requires that the accused must be informed of the
charge with sufficient detail to answer to it. This entails,
in my
view, inter alia, the applicability of the Minimum Sentence Act.
19
[25] I am of the view that a perfunctory
approach by the lower courts with regard to the Minimum Sentence
regime is not to be countenanced.
The record must speak for itself,
that right at the pleading stage, irrespective whether such an
accused person is legally represented
or not, he has been informed of
the applicability of the Minimum Sentence Act. By so insisting we
shall be ensuring that the right
to a fair trial is ingrained in our
criminal jurisprudence, ensuring that at all times the accused
persons make an informed decision
in the preparation and the
conducting of their defences.
[26] Further in casu, the magistrate
quite correctly stated that he must look at the traditional factors
in considering what an
appropriate sentence would be. The magistrate
was referred to S v
Rabie
In this
Rabie
case the Appeal Court re-emphasis, inter alia, that punishment
must fit the criminal, taking into account the interest of society,
as well as the need to blend the sentence with a measure of mercy.
20
[27] When considering the presence or
otherwise of substantial and compelling circumstances, it requires,
in my mind, that the judicial
officer must also look at the prospect
of rehabilitation, the value of the goods involved in the robbery,
the manner in which the
offence was committed and whether there was
resultant physical harm during the commission of the offence. This
must be so having
regard to the fact that there is a discretion in
deciding whether to or not to impose the Minimum Sentence Act.
[28] In casu, the accused is 26 years
old, which makes him a good prospect for rehabilitation. The value of
the cell phone robbed
is R600. 00. The complainant was not harmed,
save to have been pointed with the firearm. All these factors taken
together, in my
view, require departure from the imposition of the
Minimum Sentence. Put differently, the combination of these factors
amount to
the presence of substantial and compelling circumstances.
The imposition of minimum sentence, which is by its very nature, a
very
long imprisonment, must be reserved for those callous and
heinousness offences.
[29] In my view, the magistrate in
finding that there are no substantial and compelling circumstances in
casu failed to judicially
exercise his mind and has therefore
misdirected himself, thus warranting the interference by this court.
Having regard to the circumstances
of this case and the personal
circumstance of the accused, including the fact that he is, strictly
speaking, not a first offender
because he has a previous conviction
of housebreaking and theft, and he has been in custody since 28
October 2006 and was sentenced
on 4 March 2008
21
after his bail was withdrawn, I am of the view that the following
sentence would be appropriate in this case.
[30] In the result, I recommend that
the following order should be made:
1. That the appeal on conviction on both
counts one and count two is dismissed.
2. That the appeal on sentence in
respect of count two is dismissed and the sentence of 3 (three) years
is confirmed.
3. That the appeal on sentence in
respect of count one is upheld and substituted with the sentence set
out herein below and the
magistrate's order is varied to read as
follows:
"1. That the accused is convicted
on count one and
two as charged; 2. That the accused in
respect of count one of robbery
is sentenced to 10 (ten) years
imprisonment;
3. That the accused in respect of count
two (unlawful possession of a firearm) is sentenced to 3 (three)
years imprisonment.
4. That in term of s280 (2) of Act 51 of
1977 it is hereby ordered that the two sentences run concurrently,
5. That in terms of s 103 of Act 60
of 2000 the accused is declared unfit to posses a firearm.
HEARD: 27 JULY 2009
DELIVERED 18 September
2009
N M MAVUNDLA
JUDGE OF THE COURT
IAGREE AND IT IS SO
ORDERED
M. F. LEGODI
JUDGE OF THE COURT
1
S v V
2000 (1) SACR 453
at 455a-c Zulman JA held that:
"It
is trite that there is no onus upon an accused person, where the
State bears the onus, 'to convince the court*. If
his version is
reasonably possibly true he is entitled to his acquittal even
though his explanation is improbable. A court
is not entitled to
convict unless it is satisfied not only that the explanation is
improbable but that beyond any reasonable
doubt it is false."
2
R
v Mokoena
1956 (3) SA 81
(A) AT 85â6: S v Lesedi
1963 (2) SA 471
(A) at 473F: S v Sauls and Others
1981 (3) SA 172
at 180EâG);
Leburu v S |
2003] 2 ALL SA 531
(NC) at 535d-g
3
S
v Artman and Another
1968 (3) SA 339
(A) at 341A-B.
4
S
v Sithole and Others
1999 (1) SACR 585
(W) at p591
5
S
v Sithole (supra) at 591e-f the Court said that: "Where a
conviction depends on that evidence alone, a court must quite
obviously be satisfied that the witness is truthful. What is perhaps
more important, though, is that there must be no reasonable
doubt
that the witness is not mistaken. In our view that will generally
require something more than the mere assertion by the
witness that
he has correctly identified the culprit, if the inherent risk of
error is to be guarded against. It may be that
the person concerned
is well known to the witness. Or it may be that the person has some
distinctive feature. But once one accepts
that there is an inherent
potential for mistaken identification, which a court is bound to do.
it would seem to us that without
something more, the mere assertion
by a witness that he recognizes the offender will seldom suffice."
6
Paginated
page 31 line 16-4 at paginated page 32.
7
Paginated
page 38 lines 9-17."What clothes was he wearing?âHe had a
blue lumber jacket, it is nice lumber jacket which
is blue and it
has, it is blue at the back, it has a cream white colour, he was
wearing a cap and Nike's.
COURT:
Just a minute before you proceed, I do not get the description
quite well. It is blue, it is cream white. I do not know blue
where
white? I do not get the description. It is a nice lumber jacket, on
the front part it is blue, the back part it is cream
white, he was
also wearing a cream white pair of trousers and the cap, a white
cap, it is a Nike white cap."
8
Paginated
page 37 line 4-10: Sir. these two persons, the accused and the
other person, is there anything
about
the two of them that sets them apart? The description of both of
them is there anything different from
both
of them?âYes
What?âOne
is tall, one is short.
Who
is tall?- It is the one that ran away
The
one that ran that ran away he is tall?âThe one that ran away is
short. Is the accused tall? âYes. he is tall."
9
Paginated
page 37 line 11-16: "Sir, how was visibility around that
area?âYes, there are lights at the tarred road which
also one is
also able to can see around the area using the lights. What lights
is that?âIt is an Apollo light
So
you say that the area is lit?âYes, I was able to see the person
clearly.
10
Paginated
page 81 line 1-5: Now when you got this complainant what did he
tell you: did he tell you" I was robbed by two
people. I will
show you" or what was the situation?âYes. he informed us
what the person who robbed him, the clothes
that he was wearing and
that he was willing to drive us to see if we can catch the suspect.
At
line 2.1 of the same page: You said the complainant gave the
discretion when he came to your vehicle, what was the description
he gave of the two people?âThere was two, a short one and a tall
one and he gave the discretion of the tall one. was the
clothes,
with a white cap and the cream, white and blue top Nike and white
pants."
11
Paginated
page 67 line 4-7 "Sir, if the accused testifies he will testify
that indeed he was walking with another person
near the Red Onion
Hotel but it was more near to the 20:00 the eveningâYes. the
accused is right, it could be around 20:00
be cause we received the
complaint at 19:30; then we could have taken sort often minutes to
arrive there."
12
Paginated
page 75 Kruger testified at line 4 "That specific evening
round about that time. 19:30 at night, inspector Makubela
contacted
us over the radio and informed us that he was at BP Filling Station
opposite
hostel
blockade with complainant of armed robbery.....(at line 9-19) "..
and he got into the police bakkie
with
us. As we got into the vehicle with us we drove in the direction of
Soshanguve train station. As we drove, the complainant
pointed out
two men walking next to the road as the two. as the people that
robbed him. I stopped next to them: as we got myself
and Constable
Mariba got out of the bakkie. he managed to arrest the one suspect.
Who
did he manage to arrest, sir?âOut of the two suspects there was a
shorter one and a taller one: the taller one as the
complainant
described to us. was the one wearing the light pants with the
cream, white and blue Nike top and white cap. that
is the person
that hew arrested."
13
At
paginated page 56 line 16-24 Mariba testified as follows:
Prosecutor:
Tell me sir: did the complainant give you discretion of these two
person who robbed him?
COURT:
Just a minute Mr. Mariba, please do not rush, do not talk whilst
other people are talking.âOkay. Please do thatâYes. your
worship. The description of the suspect was the other one was tall,
the other one was short. And the short one was swearing
a black
short as well as a black T-shirt. Then the tall one was wearing
white trousers, a sweater which was blue on the front
part and grey
on the back part as well as a white cap."
14
Paginated
page 99 line 3-6 : "Can you tell the court from when you went
to the dice what happened, the incident where you
were involved in.
what happened on that day?- -It was after 16: 00 in the afternoon
when we went to this game of dice. I spent
some time there up to
about past the evening.
Paginated
page 102 line 8: "Now you said you started at around about
16:00 in the afternoon and left roundabout 19: 00
when the fight
broke out. correct?âYes.
15
Paginated
page 99 line 13-17 "When you said you left, did you leave
alone?- No Who was with you?âI was together with
one who was
fighting at the game
This
one who was fighting, does he have a name?âNo. I do not know his
name."
16
Paginated
page 50 line 6:
"
BOTHA:
Your worship, it is actually 2006. And he will also testify that
about 16: 00 the afternoon he went with two other male persons,
one
called Mike and one Tshaepo to a place where the people gamble,
they play dice... Yes. he approached me around 19:00. seven
PM.
The
accused will testify that at this place where the people play dice,
you were also thereâNo. 1 was at church."
He
will testify' that while playing it was about 20:00. you started an
argument with the person calied Tshepo-No. 1 do not know
Tshepo.
The
accused will also testify that your argument turned into a physical
fight and himself and the other people at the dice stopped
youâNo.
you see around Block L I do not have a friend there. I do not know
Block . ..
The
accused will then testify that after the fight was stopped you
played again and then after about ten minutes you left.âNo
The
accused will also testify' that ten minutes after that, himself and
Tshepo also left the dice... At paginated page 51 line
7: He will
also testify that he himself when the police stopped just kept on
walking but Tshepo the person with him ran away-Yes
he ran away and
then
I
told
the police officers that this one has a firearm as well. The police
searched him and from his possession a firearm was
found."
17
2001
(1) SACR 469
(SCA).
18
Constitution
of South Africa. Act No 108 of 1996
19
S
v Ndlovu
2003 (1) SACR 331
(SCA) at 337e-f.
20
S
v Rabie
1975 (4) SA 855
(AD) at 861A-862F.
21
He has been in custody for 8 months and a week, which is may be seen
as being equivalent to 8 months and two weeks.