S v Jacobs and Another (CA&R 73/08) [2009] ZANCHC 8 (13 February 2009)

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[2009] ZANCHC 8
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S v Jacobs and Another (CA&R 73/08) [2009] ZANCHC 8 (13 February 2009)

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IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
no: CA&R 73/08
Date
heard:
2009-02-09
Date
delivered:
2009-02-13
In
the appeal of
:
SHANE
JACOBS
FIRST
APPELLANT
MOSES VAN
WYK SECOND APPELLANT
versus
THE
STATE
RESPONDENT
Coram: MAJIEDT J et TLALETSI J
JUDG
MENT
ON APPEAL
MAJIEDT J:
The
Appellants appeal with leave of the
Trial
Court against their convictions on robbery with aggravating
circumstances as well as their sentences of 15 years imprisonment

and 20 years imprisonment respectively.
During
their trial the Appellants were both represented by an attorney
.
They elected not to disclose the basis of their defence and required
the State to prove all the essential elements of the offence.
The
State relied on the evidence of two witnesses, namely the
complainant, Mr. Itumeleng Monnamorwe, and a policeman, constable

Boitumelo Tlhako. Both Appellants testified in their defence.
The
following facts were common cause or not seri
ously
placed in issue during the trial:
4.1 That
the complainant was accosted by two men and robbed of an amount of
money which he had in his possession.
4.2 The
complainant pursued one of these assailants and the police arrested
the two Appellants shortly after the robbery in Roper
street, which
is not far from the scene of the robbery.
4.3 The
Appellants were searched and an amount of R255 was found on the
second Appellant.
4.4 The
first Appellant has a hole in his nose and at the time of the
incident he had a ruby inserted there.
4.5
Neither
of the Appellants were known to the complainant prior to the
incident.
4.6
The
witness constable Tlhako, was one of the two policemen who had
arrested the two Appellants at the insistence of the complainant
who,
as I have stated, was in hot pursuit of one of his attackers.
The
primary issue in the trial was the question of identification. As
indicated above, neither of the two Appellants were previously
known
to the complainant. It was submitted on behalf of the Appellants by
Mr. Cloete
,
that the opportunity for identification was very limited, that the
robbery must have happened quickly and that the complainant
must
have been severely traumatised by the experience, having been
stabbed by one of his assailants. The complainant’s testimony
was
that it was the first Appellant who had stabbed him.
The
matter is somewhat complicated by the fact that no identity parade
was held subsequently to the arrest of the Appellants.
A
further complicating factor
is
the several discrepancies which had arisen between the evidence of
the complainant and constable Tlhako, primarily relating
to the
circumstances of the arrest of the Appellants.
I was
somewhat taken aback by these discrepancies and, had it not been for
the
corroborative
factors which I will allude to shortly, the State would have had
serious problems in justifying a conviction of
the Appellants
herein. While it is not necessary to decide this particular aspect,
I hold a strong
prima
facie
view
that constable Tlhako’s evidence is much more unreliable than that
of the complainant, where the two of them diverge on
the details of
the arrest and what had preceded it. It seems to me that the
complainant, who struck me as an intelligent gentleman
and who had
remained fairly calm under the circumstances, was much more
observant and reliable as a witness than constable Tlhako.
In
addition, constable Thlako’s written statement seriously
contradicted his oral testimony on material aspects.
It is well established
that, in assessing identification evidence, a trier of fact should
be satisfied beyond reasonable doubt
not only as to the honesty of
an identification witness, but also as to the reliability thereof.
See
generally:
S
v Mthethwa 1972(3) SA 776 (A)
at
768 A-C;
S v
Zitha 1993(1) SACR 718 (A)
at 721 c-e.
At
721
e
of the
Zitha
matter, Howie AJA (as he then was), emphasized again the importance
of a description of the physical appearance of a suspect being
given
by an identification witness. In
S
v Carolus 2008(2) SACR 207 (SCA)
the
Court, per Mhlantla AJA (as she then was) also laid much emphasis on
the correctness of a description of a perpetrator given
by an
identification witness. At 213 g (par [25]), the learned Judge
stated that:
“…
it would be a
remarkable coincidence if (the identification witness) were mistaken
about the identity of the appellant.”
These remarks are
particularly apposite to the circumstances in this case as I shall in
due course show.
In
the present matter, the complainant testified that he was
accosted
by two men armed with knives. He was told to close his eyes and he
did so, but he peeped through his half-closed eyes
and had observed
that the one assailant had a ruby in his nose and that the other one
was taller than the first. He was stabbed,
on the instructions of
the taller one, by the assailant with the ruby in his nose. The
taller of the two assailants was the
one who took R250,00 in cash
from him, which consisted of R200 in notes which he had just
previously withdrawn from an automatic
teller machine at a bank,
namely two R100 notes and a R50 note. He also had R5 in coins which
was the change which he had received
from the taxi which he had
taken to town that morning.
The
police, as I have stated, arrested the two Appellants shortly
thereafter. It was common cause
at
the trial that the first Appellant had a hole in his nose where he
previously had a ruby inserted and that the second Appellant
is
somewhat taller than the first Appellant. Upon searching the second
Appellant, the exact same amount of R255 in cash was
found on him by
the police. This amount was made up exactly as the complainant had
testified, namely two R100 notes, a R50 note
and R5 in coins. This
money was later handed in and recorded in the SAP 13 register which
was produced at the trial. The second
Appellant, in his evidence,
claimed that the money was his own that it in fact consisted of two
R100 notes and R55 in coins.
This evidence was directly
contradicted not only by the complainant, but also by the objective
facts, consisting of the SAP
13 register which indicated that the
serial numbers of the notes had been recorded including the serial
number of a R50 note.
For this reason, the Court
a
quo
was
correct in rejecting the second Appellant’s version and accepting
that of the complainant on this particular aspect.
In my
view Mr Kgatwe for the Stat
e,
is correct in his contention that it was too great a coincidence
that a tall person with R255 in his possession and another
shorter
person with a hole in his nose would be apprehended by the police
shortly after the robbery on the complainant by two
persons with a
similar description. Moreover and importantly, the complainant’s
evidence was that he had followed the one
attacker, namely the one
who had stabbed him and who had a ruby in his nose (i.e. the first
Appellant) and that, while in hot
pursuit, he never lost sight of
this particular assailant until the police arrived on the scene.
It is
plain
therefore that the Magistrate was correct in convicting the
Appellants on the evidence before him. In my view the complainant

was not only an honest identification witness, but also extremely
reliable as is borne out by the objective facts, namely that
the
description of the two assailants match those of the two Appellants
arrested by the police. The fact that the exact amount
of R255,00
was found on the one appellant is also conclusive proof of that
reliability. The Magistrate was further correct in
rejecting the
versions of the Appellants, particularly that of the second
Appellant that the money found on his person belongs
to him, for the
reasons enunciated above. There is therefore no merit in the appeal
against conviction. I might add that another
aspect which had
completely been overlooked by the Magistrate and by Counsel, is that
a cautionary rule also applied to the evidence
of the complainant as
a single witness on the robbery. For the reasons set out above, I
am of the view that the complainant’s
evidence was satisfactory in
all material respects and that he therefore passed muster as a
single witness.
The
sentence imposed is in my view excessive and induces a
sense
of shock. In my view the Magistrate erred in coming to a hasty
decision that, since there were no substantial and compelling

circumstances as prescribed in s51 read with s52 of Act 105 of 1997,
the imposition of the minimum sentence of 15 years is justified
in
the case of the first Appellant and, in the case of the second
Appellant given his previous convictions, a sentence of 20
years
imprisonment was justified.
The
Appellants’ personal circumstances
were
as follows:
15.1 The
first
Appellant was 23 years old, unmarried with no dependants and he had
left school in grade 11. He was unemployed at the time
of the
commission of the offence and had been in custody from the time of
his arrest until he was sentenced, i.e. approximately
5 months.
15.2 The
second Appellant was 36 years old, unmarried with a 3-year old child
whom he had maintained. He had several previous convictions,
inter
alia
for
housebreaking with the intent to steal and theft and robbery. In
respect of the last robbery conviction he had been sentenced
to 8
years imprisonment during 2003. He was employed at the time as a
“
jump
boy
”
(a taxi-assistant).
In
S
v Malgas 2001(1) SACR 469 (SCA)
at
par. [12], Marais JA set forth the circumstances in which a court of
appeal may interfere with the sentence imposed by a trial
court,
particularly where a minimum sentence is applicable. The learned
Judge of Appeal held that:
”
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh. In doing so,
it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance. As it
is said, an appellate Court is at
large. However, even in the absence of material misdirection, an
appellate court may yet be justified
in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence of the trial
court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that it can properly
be described as 'shocking', 'startling' or
'disturbingly inappropriate'. “
Furthermore
in that same judgment it was held that where
,
on consideration of the circumstances of a particular case, a
sentencing court is satisfied that they render the prescribed
sentence
unjust in that it would be disporportionate to the crime,
the criminal and the needs of society, it may impose a lesser
sentence.
See:
S
v Malgas,
supra
at
482 e-f.
I am
of the view that the present matter falls in that category and that
the Trial Court should have reached that conclusion on
the facts and
circumstances before it. This finding renders it unnecessary to
consider whether there were, in any event, compelling
and substantial
circumstances proved. Suffice to state that, on a conspectus of all
the mitigating and aggravating factors, in
my view such circumstances
do in fact exist.
In
S
v Blignaut 2008(1) SACR 78 (SCA),
a
34-year old accused had been convicted of robbery with aggravating
circumstances. He was sentenced to 15 years imprisonment
by the
Regional Court, with application of the minimum sentence prescribed
in Act 105 of 1997. On appeal, the Supreme Court
of Appeal set
aside the sentence and replaced it with a term of 5 years
imprisonment. While the facts and circumstances of that
matter
admittedly differ considerably from the present one, I cite the
judgment in support of my view that the sentences imposed
on both
Appellants, particularly on the first Appellant, is grossly
disproportionate to their crime, the Appellants’ circumstances
and
the legitimate interests of the society.
S
v Blignaut
reiterates the obligations on a sentencing court to strike a balance
between these three elements.
See
also in this regard:
S v Mahomotsa 2002(2) SACR 435 (SCA)
at
par. [20].
We
are therefore at liberty to consider afresh a suitable sentence.
There
can be little doubt that a custodial sentence is justified in the
circumstances of this case. The two Appellants brazenly
accosted a
much older gentleman in broad daylight and in the vicinity of the
railway station where there must have been a few
other persons
present. They threatened him with knives and the first Appellant
cold-bloodedly on the instructions of the second
Appellant stabbed
the complainant after they had already divested the complainant of
his cash. Society expects the courts to
act with the necessary
seriousness in imposing deterrent sentences for such crimes. But a
suitable sentence must always be cognisant
also of the need for the
rehabilitation of offenders. A careful balancing exercise is
therefore required. Upon consideration
of all the facts and
circumstances, I am of the view that a sentence of 7 years
imprisonment for the first Appellant and 10 years
impirsonment for
the second Appellant would be appropriate.
The following order is
issued:
19.1 The appeal
against conviction is dismissed.
19.2 The
appeal against sentence is upheld. The order of the Court
a
quo
in
respect of sentence is set aside and substituted with the following:
“
FIRST APPELLANT IS
SENTENCED TO 7 (SEVEN) YEARS IMPRISONMENT.
SECOND APPELLANT IS
SENTENCED TO 10 (TEN) YEARS IMPRISONMENT.”
19.3 Both the
aforementioned sentences are antedated to 5 April 2007.
___________
________
SA MAJIEDT
JUDGE
I agree:
___________
______
PL TLALETSI
JUDGE
FOR
THE APPELLANT
S : ADV
PJ CLOETE INSTRUCTED BY THE KIMBERLEY JUSTICE CENTRE
FOR
THE RESPONDENT :
ADV
KM KGATWE INSTRUCTED BY THE DPP