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[2009] ZAGPPHC 332
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Keswa v S (A955/2007) [2009] ZAGPPHC 332 (29 September 2009)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG: PRETORIA DIVISION)
CASE
NO.: A955/2007
DATE:
29 SEPTEMBER 2009
NOT
REPORTABLE
In
the matter between:
NTELE
ABEL KESWA
APPELLANT
VS
THE
STATE RESPONDENT
JUDGMENT
WEBSTER
J
1.
The appellant, a […..] aged […..] years, together with
two others were convicted in the local circuit division
for the
Northern Circuit by Maluleke J on the following counts, namely,
(i)
two counts of armed robbery with aggravating circumstances (Counts 1
and 2);
(ii)
one
count of murder (Count 3);
(iii)
nine counts of attempted murder (Counts 4 to 12);
(iv)
contravention
of section 2 of the Arms and Ammunitions Act No. 75 of 1969 (Count
13);
(v)
contravention of section 36 of the Arms and Ammunitions Act No. 75 of
1969 (Count 14);
(vi)
contravention of section 32(l)(a) of the Arms and Ammunitions Act No.
75 of 1969 (Count 15);
(vii)
contravention of section 32(l)(e) of the Arms and Ammunitions Act No.
75 of 1969 (Count 16);
(viii)
two counts of theft of motor vehicles (Counts 17 and 18).
He
received various terms of imprisonment including life imprisonment on
count 3. It was ordered that the sentences imposed run
concurrently
with that of life imprisonment. He appeals against both conviction
and sentence to the Full Bench of this Court.
2.
The trial Court gave a detailed judgment dealing with the issues
which will be canvassed later in the judgment. It will serve
no
purpose to summarize the evidence of the various witnesses as this
was dealt with adequately and succinctly by the trial Court.
A brief
synopsis will suffice for the purposes of this appeal.
3.
It was common cause that the crimes set out in counts 1, 2, 3, 17 and
18 were committed on the relevant date. The appellant and
his fellow
co-accused pleaded not guilty and denied any participation in the
commission of the various crimes. It was also common
cause or at the
very least not disputed, that a large group of men travelling in
several motor vehicles including what was referred
to as a
Bantam/Mazda Bakkie ambushed a convoy of three motor vehicles
belonging to a security company known as Cash Paymaster Services
that
was en route to a pay point of old age pensions in a place called
Burgersfort. From a description of the attack in evidence,
it was
executed quickly and with utmost precision.
4.
The three vehicles belonging to Cash Paymaster Services were fired
at. The vehicle in which the cash was being transported was
rammed and it overturned. An occupant was
killed during this incident giving rise to the charge of murder. The
attack which consisted
of the use of firearms gave rise to the
various charges of attempted murder. After the convoy had come to a
standstill the occupants
of the three vehicles were robbed of their
property as well as a Good Samaritan who stopped shortly afterwards
to render assistance:
he too was robbed with the use of a firearm.
Their mission accomplished, the robbers made good their escape.
5.
It appears from the evidence that a large manhunt then ensued. Two
police officers who took part in it drove past a filling station
and
observed a Bantam/Mazda Bakkie stationary at the filling station.
They stopped to investigate. They approached the vehicle.
There was a
person behind the steering wheel with the engine running. On the seat
they saw a jacket. Upon investigation it was
found that a hand
machine carbine was wrapped up in this jacket. There was a large sum
of cash under the jacket. More cash was
found behind the seat of the
Bakkie. The person who was behind the steering wheel of this Bakkie
was then placed under arrest.
It was accused no. 2. He informed the
police officer that he was travelling with two other men. He stated
that one of those men
had entered the convenience store of the garage
whilst the second person had proceeded to the toilet. The police
officer then entered
the convenience store and found two persons
inside the store. It was the person serving in the shop/cafe as well
as a male who
subsequently turned out to be accused no. 3. Accused
no. 3 was approached by the police and arrested.
6.
Whilst this was going on, another police officer who had been driving
a different vehicle and following the police vehicle referred
to
above stopped shortly thereafter at the same filling station. He
observed a person running along the side of the filling station
building in the
direction of a toilet at
the rear of the filling station. He parked his vehicle and
immediately hastened to the toilet. He knocked
on the door. The
occupant would not open. He eventually had to use his police dog in
order for the occupant to open the door. Having
apprehended this
person, he then handed over this person to the two police officers
who had arrived at the filling station first.
That person was the
appellant. After their arrest, the three persons were conveyed to the
Labowakgomo Police Station and detained
in the cells.
7.
A
police officer, Ms Lizzy Lombard, learnt of the arrest of accused
no.
3
She had been requested by a
colleague of hers to attend court on the day of this incident, the
20
th
June 2003, to take note of the postponement of a certain case in the
Magistrate's Court. The accused in that case happened to be
accused
no. 3. Accused no. 3 was in default when that matter was called. A
warrant for his arrest was authorised. In the course
of the day she
learnt that the 3
rd
accused had been arrested and was being detailed at the Lebowakgomo
Police Station. She proceeded there to execute the warrant
of arrest
issued earlier that day. At the Lebowakgomo Police Cells she spoke to
accused no. 3. Accused no. 3 informed her that
he had been offered a
lift from his home in Mamelodi in Pretoria, by accused no. 1 on the
19
th
of June 2003. He had accepted the offer of accused no. 1. The
following day, that is 20 June 2003, accused no. 1 had picked him
up
earlier that day and they had then proceeded to Polokwane ostensibly
for accused no. 3 to appear for the remand of his case
but had been
arrested. Inspector Lombard testified further regarding the theft of
the motor vehicles referred to in the indictment.
8.
The
vehicle which had been stationary at the filling station was examined
by finger print experts. A finger print on the frame of
the
vehicle between the front windscreen and the
driver's door on the right side was lifted. When it was subsequently
compared with
other finger prints it was established that that finger
print had been deposited by accused no. 3. The State's case against
the
appellant rested on the statements made by accused no. 2 and 3 to
Superintendent Sebola and Sergeant Kgare, his arrest in the toilet,
identified by accused no. 2 and the evidence that he was seen running
to the toilet where he was found. The clear impact of this
evidence
is that he was in the vehicle in which the stolen money from the
robbery was found. The appellant did not testify in his
defence. His
fellow co-accused no. 2 and 3 did testify. Accused no. 3 denied
having made the disclosures that Ms Lombard testified
on. Their
versions were rejected by the trial Court. The Court has considered
their evidence and even-though no appeal has been
noted by these two
accused persons, the court is satisfied that the rejection of their
evidence and their conviction are in order.
The trail court found
that the persons involved in the robbery had acted in concert and
with a common purpose to rob (S v Mgedezi
and Others 1989(1) SA 687
(AD); S v Thebus & An other 2003(2) SACR 319 CC at 335). It found
further that the attack on the
admissibility of the statements made
by accused no. 2 and 3 which were made voluntarily and spontaneously
before being arrested
were "...premised on excessive adherence
to form [rather] than to substance". The trial court found
further that the
appellant had not rebutted the evidence of Sebola,
Selema, Kgare and Mpiyane which implicated him (S v Boesak 2001(1)
SACR 1 at
page 11.
9.
The conviction of the appellant was attacked on four grounds. These
are as follows:
(a)
the cogency of the evidence regarding the arrest of the appellant;
(b)
the admissibility of the "admission" by accused no. 3 which
implicated the appellant;
(c)
the appellant's failure to testify in his own defence and the
inference drawn from such failure; and
(d)
the splitting of charges.
10.
It was argued that the evidence relating to the arrest of the
appellant was contradictory and that the trial Court had erred
in
accepting such evidence more particularly with regard to finding that
the appellant had been arrested in circumstances testified
to by the
various police witnesses.
11.
It is now trite that in the absence of factual error or misdirection,
the trial Court's findings on factual issues are presumed
to be
correct (R v Dlumayo and Another 1948(2) SA 677 at 705; S v Robinson
and Others 1968(1) SA 666 (A) at 675).
12.
It is indeed so that there are contradictions in the evidence of the
three police officers who testified with regards to what
transpired
at the filling station. Amongst the issues testified to by
Superintendent Sebola who confronted accused no. 2 was that
accused
no. 1 had been brought to him by the members of the police who had
been manning a road block approximately 150 metres away.
Inspector
Kgare who had been travelling in the same vehicle as Superintendent
Sebola testified that he only saw the appellant after
his arrest by
the "Day Unit Force". Kgare also testified that accused no.
2 had informed him that the appellant was in
the toilet. Neither of
the aforesaid witnesses were aware of another police officer who
ultimately arrested the appellant, namely
Inspector Mpiyane who was
the officer who testified that he saw the appellant running towards
the toilet. His evidence was that
he actually drove to the vicinity
of the toilet and it is he who then ultimately got the appellant to
come out of the toilet as
set out above in this judgment. According
to his evidence, no other police officers, and in particular, the dog
unit was asked
to come to assist with the arrest of the three
suspects. He was questioned and confronted with his statement in
which he had stated
or written that he had "found the
Bantam...and three guys inside it...". He explained that he was
not fully conversant
with English. He testified that his mother
tongue was Sipedi and that he had written that statement in the best
English at his
command. When what he had written was interpreted to
him at the trial, he responded that it was because he could not have
expressed
himself more effectively in Sipedi and that he would have
done far better if he had had the right to record his own statement
in
Sipedi.
13.
The trial Court dealt with these contradictions and it is indeed so
that the type of contradictions referred to above would
manifest
themselves particularly if one has regard to the fact that the
incident occurred in 2003 whereas the trial only commenced
in 2005.
Two years may not be an extremely long time to the ordinary citizen
but this court has to take a realistic view that police
officers are
generally busy on a daily basis with investigation of crime, arrest
of suspects. The trial Court was correct in its
conclusion that these
contradictions are not material and in accepting the evidence of
these witnesses. What is particularly significant
with regard to the
arrest of the appellant is the second point of the argument in the
appeal, namely what accused no. 3 informed
Inspector Lombard with
regards not only to his failure to appear in court in Polokwane but
that he had been with the appellant
the previous day and that the
appellant had offered him a lift to Polokwane and that, in fact, they
had travelled to Polokwane
on the 20
th
of June 2003 together. In my view, the trial Court correctly accepted
the evidence of the State witnesses regarding the appellant's
arrest.
14.
Appellant's counsel had difficulty in convincing us that that
statement made by accused no. 3 to Inspector Lombard was anything
other than an exculpatory statement by the accused in explaining his
failure to appear at court earlier that day. It was argued
on behalf
of the appellant that accused no. 3 should have been warned of his
constitutional rights before being addressed at all
and that the
failure to so warn him rendered whatever he said which implicated the
appellant, inadmissible. This cannot be so on
two grounds. Inspector
Lombard was not investigating or a team member of the investigative
unit. She had a warrant against accused
no. 3. The latter was
providing a reason for his failure to attend Court at Polokwane.
Accused no. 1 was referred to as having
provided accused no. 3 with
transport to Court in the Bantam/Mazda Bakkie found at the filling
station. The presence of the appellant
at the filling station was
support for accused no. 3's explanation. Accused no. 3 in no way
implicated the appellant in any of
the offences that they were
charged with. It is not clear from the explanation given to Ms
Lombard whether, in fact, what accused
no. 3 was implying was that
they were still en route to the court when they were arrested. During
the trial this issue was debated
extensively between the Court and
the counsel for the accused as well as counsel for the appellant. The
trial Court correctly pointed
out, in my view, that even if what
accused no. 3 had disclosed to Lombard had been an admission that it
could, under the circumstances,
be regarded as the exception referred
to in section 3 of Act 45 of 1998 and therefore admissible in
evidence. Appellant's counsel
valiantly attempted to equate the
situation in this case with that in the well-know case of State v
Molimi 2008(2) SACR 76 (CC).
Of significance, this issue was raised
and debated very early in the trial. It is not necessary to consider
the various issues
that were dealt with in the Molimi case as the
fundamental difference is that accused no. 3 made no admission nor
can it be said
that what he said could be remotely considered as a
confession. Insofar as what accused no. 3 said, can be regarded as
hearsay
evidence against the appellant, it went no further than
merely stating that accused no. 3 and the appellant had travelled
together
in the vehicle that was found at the filling station. It can
never, in my view, be contended that that evidence, standing alone,
would have in any way resulted in the conviction of the appellant. It
is further so that accused no. 3 denied in his evidence having
made
this disclosure to Ms Lombard.
15.
Hearsay evidence is now admissible in terms of section 3 of the Law
of Evidence Amendment Act aforesaid. There are pre-conditions
which
are laid down in the Act for the reception of hearsay evidence. A
perusal of section 3(1 )(c) demonstrates clearly that what
accused
no. 3 said can in no way be deemed to fall within the eight
conditions set out therein. As already stated earlier in this
judgment, what accused no. 3 said was solely intended to be an excuse
for his non- appearance at his trial at Polokwane that day.
There was
no reference to the robbery, there was no reference as to what was
found in that vehicle. It was submitted in this regard
by State
counsel that the exclusion of this evidence would have brought the
proceedings into disrepute had such evidence been excluded
(S v
Ndhlovu and Others 2002(2) SACR 325 (SCA)). I agree with him.
16.
With regard to the third point on the appeal namely the appellant's
failure to testify and the inferences drawn by the trial
Court
therefrom, it is important to note that the money that was found
in the Bantam/Mazda vehicle, in which the three persons
were
travelling was identified as having formed part of the money which
was being conveyed by the vehicle that was ambushed and
robbed. The
vehicle also fitted the description given by the various witnesses
who testified that a vehicle similar to that found
at the filling
station had been used at the aforesaid robbery. These few strands of
evidence perhaps innocuous in a sense, when
viewed in the totality of
the evidence, clearly called for an explanation from the appellant
Boesak case supra).
His
failure to do so leads only to one inescapable conclusion and that is
that he was amongst the people who executed the robbery.
This was the
finding of the trial court.
17.
Appellant's counsel weakly submitted that the robbery of the various
victims at the scene of the incident constituted one continuous
act
and that therefore it constituted one act of robbery of various
victims. The evidence is clear that the robbers set out to
execute a
heist and to rob the inmates of the vehicle carrying the money.
Whilst it may have been within the contemplation of the
conspirators
that those who would be travelling in the vehicles forming that
convoy could be in possession of personal valuables
or money, there
is nothing on record to suggest that the conspiracy to execute the
primary robbery could have included the robbery
of the occupants in
the various vehicles. The robbers deliberately set about robbing the
various people. The inference from this,
in my view, is that there
cannot be said to be a duplication of charges or multiplicity of
charges. Each act of robbery of a victim
as each act of attempted
murder of the various victims, constitutes a separate and individual
criminal act. It is clear from the
evaluation of all the evidence on
record that the trial Court in no way misdirected itself in any way
with regards to the conviction.
18.
Insofar as the appeal against sentence is concerned, appellant's
counsel was hard-pressed to articulate the grounds on which
the
sentence imposed can be said to be inappropriate. All that he could
say was that the totality of the sentence is shockingly
inappropriate
and unreasonable and that no other Court would have imposed it.
19.
It is a well-accepted principle that the imposition of a sentence is
a matter eminently for the trial Court (R v Rabie 1975(4)
855 at 857;
S v Kgosimore 1999(2) SACR 238 at page 241(e-g)). A Court of appeal
will only interfere with a sentence if the trial
Court has
misdirected itself or the sentence is "startlingly inappropriate
or induces a sense of shock or where there is a
striking disparity
between the sentence imposed and the sentence the Court of appeal
would have imposed".
20.
The level of violent crime in this country and the regularity with
which heists are executed virtually on a daily basis, have
raised the
ire of the South African society. The image of this country has been
badly tainted. The level of violence has contributed
to the
emigration of many citizens of this country and it is no hyperbole to
say that the whole world is aware of the wanton violence
that
pervades our society. The sentence imposed by the trial Court is a
robust one. Having regard to the fact that it was imposed
in 2005 its
appropriateness is as fitting now as it was when it was imposed. It
is the duty of the Court, in the exercise of its
functions and
responsibilities, to mete out sentences which not only take into
account the personal circumstances of a convicted
person but should
reflect the interests of the citizenry of this country. Crime, and in
particular, violent crime can never be
tolerated. Indeed the
legislature through the General Law Amendment Act No. 105 of 1997
gave direction to the Courts of the need
for sentences involving
i.e., violence to be visited with the sentences imposed by the trial
Court.
21.
I have considered whether the trial Court erred in any way or failed
to have regard for any mitigating facts in favour of the
appellant. I
have sought for substantial and compelling circumstances or any
factors that are mitigating and none lend themselves
in this case. In
the circumstances, my considered view is that the trial Court did not
err in any way nor did it misdirect itself
on the sentence. In my
view
the sentence was a proper one
fitting the "criminal, the crime and the interests of
society..."
22.
The appeal against the conviction and sentence is accordingly
dismissed.
WEBSTER
JUDGE
IN THE HIGH COURT
I
agree
ISMAIL
AJ
ACTING
JUDGE IN THE HIGH COURT
I
agree
VORSTER
AJ
ACTING
JUDGE IN THE HIGH COURT