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
>>
2009
>>
[2009] ZAFSHC 140
|
|
Thipe and Others v S [2009] ZAFSHC 140 (26 November 2009)
FREE
STATE HIGH COURT. BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No.: A169/2009
In
the case between:
LEHLOHONOLO
THIPE
….............................................................
1
st
Appellant
MOSA
MOSALA
….........................................................................
2
nd
Appellant
MOEKETSI
MARAKA
….................................................................
3
rd
Appellant
and
THE
STATE
….................................................................................
Respondent
CORAM:
C
J MUSI, ef MOCUMIE, JJ
JUDGEMENT:
MOCUMIE,
J
HEARD
ON:
2
NOVEMBER 2009
DELIVERED
ON:
26
NOVEMBER 2009
MOCUMIE.
J
[1]
The three appellants appeared in the Regional Court, Welkom on two
counts of robbery with aggravating circumstances. They were
convicted
as charged and sentenced to ten years imprisonment on each count.
They now appeal against their sentences with leave
of the trial
court.
[2]
Mr T B van Rensburg in his heads of argument and in his oral
arguments, on behalf of the first and second appellant, submitted
that the trial court overemphasized the seriousness of the offence at
the expense of the favourable personal circumstances of the
appellants. He submitted that strictly speaking the evidence led did
not show that the robberies were committed as part of a plan
and or
common purpose or that aggravating circumstances as contemplated in
section of the Criminal Procedure Act 51 of 1977
("theCPA
")existed.
[3]
He submitted further that the first appellant was 21 years at the
time of the commission of the offence. He was a student at
Free State
University; he was not married and had no dependants; and he was a
first offender. The second appellant was 17 years
old at the time of
the commission of these offences; he was still doing Grade 11 at Edu
College in Welkom; and had no previous
convictions.
[4]
Mr Pretorius, on behalf of accused 3 submitted that the accused was
21 years of age at the time of the commission of these offences;
he
was not attending school or working; he had a minor child that was
staying with its mother; he had been in custody since his
arrest on
23 December 2006, i.e. a year and eight months; and that he had no
previous convictions.
[5]
Mr Pretorius requested this Court to exercise its powers in terms of
section 309(3) of the CPA in so far as the conviction in
respect of
count two is concerned as the evidence did not prove aggravating
circumstances as contemplated in s1 of the CPA. To
put his submission
in context after the appellants were convicted as charged in the
trial court they applied for leave to appeal
against both conviction
and sentence in the same court. After considering their application,
the trial court, dismissed the application
with regard to the
conviction and granted leave to appeal to this Court on sentence
only. That is the basis on which this matter
came before this court
on appeal. Section 309(3) of the CPA provides:
"(3)
The provincial or local division concerned shall thereupon have the
powers referred to in section 304 (2), and, unless
the appeal is
based solely upon a question of law, the provincial or local division
shall, in addition to such powers, have the
power to increase any
sentence imposed upon the appellant or to impose any other form of
sentence in lieu of or in addition to
such sentence: Provided that,
notwithstanding that the provincial or local division is of the
opinion that any point raised might
be decided in favour of the
appellant, no conviction or sentence shall be reversed or altered by
reason of any irregularity or
defect in the record or proceedings,
unless it appears to such division that a failure of justice has in
fact resulted from such
irregularity or defect."
[6]
The proven facts of this case can be summarised as follows. On 23
December 2006 at about 2h00 am, in Bedelia, Welkom, the appellants
robbed the two complainants minutes apart. The first complainant went
into a tavern to buy liquor and left his father-in-law and
sister-in-law inside his bakkie. He was pelted with beer bottles
whilst inside the tavern and robbed of his Nokia cellular phone
and
R400, 00 cash. When his assailants went out of the tavern they went
to the bakkie and robbed his father-in-law of his Samsung
cellphone.
Apart from being hit with bottles the first complainant did not
sustain serious injuries. His father-in-law also although
assaulted
did not sustain serious injuries. The appellants' defence that they
did not rob the complainants in both counts was on
a conspectus of
all the evidence correctly rejected.
[7]
Mr Pretorius submissions must be seen in the light of the state's
evidence as a whole and definitely not selectively to suit
the
appellant's case. If one looks at the evidence of Ms van Niekerk who
said she had seen a knife in the third appellant's possession
at the
time the complainant in the second count was accosted there is indeed
no evidence that showed that the complainant in the
second count was
threatened with the knife or even saw it. But that is not the end of
the story because the second complainant's
answers to the prosecutor
on this aspect are also relevant. For this reason I quote directly
what he said on page 24 of the transcribed
record:
"...
toe Gerhard binne-in die winkel ingegaan het daar 'n paar mans gekom
en hulle het my uitgehaal en hulle het my aangerand,
my selfoon
gevat."
This
evidence was not challenged by any of the appellants and remained
uncontroverted to the end of this case.
[8]
In terms of section 1 of the CPA,
"aggravating
circumstance" in relation to robbery, or attempted robbery,
means -
(a)
the wielding of a firearm or any other dangerous weapon;
(b)
the
infliction of bodily harm
;
or
(c)
a threat to inflict grievous bodily harm, by the offender or an
accomplice on the occasion when the offence is committed, whether
before or during or after the commission of the offence.
(My
emphasis)
[9]
In this case as is clearly evidenced there was
"the
infliction of bodily harm"
on
both the complainants in count 1 and 2 so that this leg of
requirement, s1 (b) of the CPA, is satisfied. This case is on that
basis distinguishable from the facts of
S
v Isaacs and Another
2007
(1) SACR 43
(CPD) on which the appellant relied heavily for a
substitution of the conviction on robbery with aggravating
circumstances with
robbery simpliciter.
[10]
The test for the court of appeal to invoke its review powers in terms
of s309 (3) is set out clearly in the section: The irregularity
complained of must be such that if not removed by the court of appeal
justice would not be served (the principle of failure of
justice).
See
R
v Rose
1937
AD 467
- 477;
S
v
Mushimba en Andere
1977
(2) SA 829
(A) at 844H;
S
v
Lubbe
1981
(2) SA 854
(C) 860F - G;
S
v
Kok
2005
(2) SACR 240
(NC).ln essence the appellant must not only show a
possibility of prejudicial consequences of an irregularity but must
prove actual
prejudice which led to him or her not having received a
fair trial.
[11]
Courts are loathe to allow appellants who once granted leave to
appeal on one leg then on appeal seek indulgence of the court
of
appeal to address the other leg as well. Section 309(C) of the CPA
specifically provides for a route which an appellant in such
circumstances ought to follow.i.e to petition the Judge President of
the Provincial Division (s)he was convicted in. The facts
of this
case do not justify a departure from this procedure. Whatever
injustice the appellants believe was meted out against them
is not
supported by the evidence. The fact of the matter is that the
complainants were assaulted and robbed. That amounts to, in
my view,
"the
infliction of bodily harm"
contemplated
in s1 of the CPA justifying a heavier sentence than with robbery
simpliciter. The case may not be a clear cut case
or not prosecuted
as best as it could have been but I desist from invoking s309(3) at
all in these circumstances lest we open the
flood gates
unnecessarily.
[12]
The last aspect that Mr Pretorius raised that warrants attention is
that the third appellant did not receive a fair trial in
that:
(a)
The presiding officer did not assist him, on an undefended accused,
during the trial whenever he could have. For instance when
the
appellant did not cross examine the witnesses on aspects of their
evidence that linked him to the commission of the crimes;
(b)
By not insisting on the appellants seeking and or engaging a legal
representative when he faced prescribed minimum sentence.
[13]
Mr Pretorius however was constrained to concede that despite the
presiding officer's lack of going an extra mile as he ought
to have
done during the relevant stages of the trial, taking into account the
objective facts of the case and the admissions (direct
and
indirectly) made by the third appellant, the trial was overall fair.
[14]
Coming to the real issue before us, the sentence, the trial court
described these offences as very serious and thus carrying
the
prescribed minimum sentence of 15 to 25 years imprisonment in terms
of the
Criminal Law Amendment Act 105 of 1997
as amended. The trial
court correctly found that there were compelling and substantial
circumstances in respect of each of the
appellants to deviate from
imposing the prescribed sentences.
[15]
I agree entirely with the trial court that these offences are serious
and in addition I may say that these offences are escalating
at a
high rate. They are repeatedly committed by offenders in the age
groups of the appellants before us. That the appellants should
be
punished heavily is clear from the facts of this case. The first and
second complainants did not bother or provoke anyone. When
they were
attacked nobody came to their rescue. They lost valuable items and
money.
[16]
The appellants were not as youthful as portrayed. Their conduct on
the day in question distinguished them from their peers
who should be
dealt with more leniently. At that time of the morning they were at a
tavern; they had been drinking; they engaged
themselves in criminal
activities of serious nature that can hardly be committed by
law-abiding and respectful youth. In my view
correctional supervision
would not have been appropriate in these circumstances. At the same
time it seems to me that the cumulative
effect of the sentence the
trial court imposed is shockingly excessive.
[17]
The minimum sentence prescribed is fifteen years in respect of a
first offender. If the trial court truly deviated from imposing
the
prescribed sentence of fifteen years then I do not see any
justification to have imposed twenty years which is far in excess
of
the prescribed sentence of fifteen years for first offenders. There
is a close link between the offences and in such circumstances,
the
concurrence of sentences is always appropriate. In
S
v Koutandos and Another
2002
(1) SACR 219
(SCA) the Supreme Court of Appeal interfered with the
cumulative sentences of 15 and 27 years imprisonment imposed on two
appellants
respectively upon conviction of motor vehicle theft and
fraud. The court upheld the appeal and imposed lesser sentences on
the
basis that:
"...when
regard is had to the cumulative effect of the sentences imposed on
both appellants, the result strikes me as so excessive
as to justify
interference by this Court."
(per
Scott JA at 221 g) See too
S
v Mate
2000
(1) SACR
552
(T);
S
v Senatsi and Another
2006
(2) SACR 291
(SCA).
[18]
I am of the view that, utilising the
Koutandos
decision
supra
as
a guideline, whilst bearing in mind that every sentence must be
individualised, an effective seven years imprisonment in the
present
case would be appropriate. Such sentence can be attained by ordering
that the sentences imposed run concurrently.In the
circumstances, I
make the following order:
ORDER:
1.
The convictions are confirmed.
2.
The appeal on the sentences is upheld.
3.
The sentences imposed on 4 September 2008 by the Regional Court,
Welkom are set aside and substituted by the following:
"All
the appellants are sentenced to:
1.
Count 1: 10 (ten) years imprisonment of which 3 (three) years are
suspended for 5 (five) years on condition that the appellants
are not
convicted of robbery or attempt thereto committed during the period
of suspension.
2.
Count 2: 5 (five) years imprisonment.
3.
In terms of
section 280
of the
Criminal Procedure Act 51 of 1977
, it
is ordered that the sentence imposed in count 2 should run
concurrently with the sentence in count 1.
In
terms of
section 282
of the
Criminal Procedure Act 51 of 1977
the
sentence imposed is antedated to 4 September 2008."
B. C. MOCUMIE, J
I
concur.
C. J . MUSI, J
On
behalf of 1
st
and
2
nd
appellant:
Mr. T. B. van Rensburg
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the 3
rd
appellant:
Mr K. Pretorius
Instructed
by: Bloemfontein Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. Ferreira
Instructed
by: The Director: Public Prosecutions
BLOEMFONTEIN