S v Mathys (631/2008) [2008] ZAFSHC 148 (4 December 2008)

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
>>
2008
>>
[2008] ZAFSHC 148
|

|

S v Mathys (631/2008) [2008] ZAFSHC 148 (4 December 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 631/2008
In the case between:
THE
STATE
and
BAZEARI
MATHYS
_______________________________________________________
CORAM:
WRIGHT, J
et
MOCUMIE,
J
_______________________________________________________
JUDGEMENT:
MOCUMIE, J
_______________________________________________________
DELIVERED
ON:
4 DECEMBER 2008
_______________________________________________________
REVIEW
JUDGEMENT
[1] This
is
an automatic review in terms of section 302 read with 304 of the
Criminal Procedure Act, No. 51 of 1977 (“the CPA”). The
accused
appeared on 27 August 2006 in the Bloemfontein Magistrate court on a
charge of robbery. He was convicted as charged
and was sentenced to
12 (twelve) months imprisonment of which 6 (six) months was
suspended for a period of 3 (three) years on
certain conditions.
[2] I was of the view
that the conviction may not be correct and that in any event the
sentence was too harsh in the circumstances
of this case. The
presiding officer responded and I thank her.
[
3] The
accused pleaded guilty and the presiding officer asked him questions
in terms of sections 112 of the CPA. From the questions
and answers
provided by the accused it was not clear that the accused was guilty
of robbery. For the purposes of this judgment
it is convenient to
quote the questions and answers verbatim as reflected on the
transcribed record on page 3 to 8:
“
COURT:
Do you plead guilty to this charge freely and voluntarily without
any undue influence?
ACCUSED:
Yes.
COURT:
Were you on the … … (indistinct) the charge sheet?
On the 5
th
day of August 2008 … (door) near … (indistinct; door) Bochabela
in the district of Bloemfontein?
ACCUSED:
I am staying there.
COURT:
Did you meet Elisa Nthabiseng Motshoeneng?
ACCUSED:
… (intervenes).
TOLK:
Nee, antwoord net die vraag meneer.
Dié
dag van die 5de ...
BESKULDIGDE:
Ja.
TOLK:
Het jy met Ntabiseng ontmoet het?
BESKULDIGDE:
Now wie is Nthabiseng?
TOLK:
Die klaer, die persoon wat gesê het jy het haar selfoon
gesteel.
BESKULDIGDE:
...(onduidelik)
ACCUSED:
(Through interpreter:) no, I did not, met Nthabiseng Elisa
Motshoeneng.
COURT:
Whom did you meet?
ACCUSED:
… (reply not interpreted).
TOLK:
Ken jy die vrou wat jy haar selfoon gegryp het?
ACCUSED:
It is only this lady or the complainant whom I met at night and
grabbed her cellphone and ran away.
COURT:
…(indistinct) exactly what I am asking, did you, met the
complainant?
ACCUSED:
…(intervenes).
COURT:
… (speaking simultaneously).
TOLK:
Ken jy die persoon wat die klagte of wat u laat vang het, het jy
daardie persoon wat haar selfoon gegryp het of weggevat het,

ontmoet?
BESKULDIGDE:
Nee.
COURT:
Okay, what happened that you were arrested?
ACCUSED:
It is only two gentlemen that I met who hit me with kieries an took
me to Mangaung Police Station and alleged … (intervenes).
COURT:
Sir, what did you do on that day … (interpreter intervenes) that
led to your arrest?
ACCUSED:
I took the cellphone or brought the cellphone … (intervenes).
COURT:
Explain in detail what, how did you take the cellphone form the
complainant?
ACCUSED:
Hit and run.
COURT:
… (indistinct) hit and run here. You can hit and run only when
ugh, ugh … (intervenes).
INTERPRETER:
In a car.
COURT:
In a car … (indistinct) what did you do?
ACCUSED:
I was coming from behind this person or this complainant, the lady,
this lady, who was playing with her cellphone. Then while
she was
this cellphone in her hand I grabbed the cellphone and ran away with
the cellphone.
COURT:
You are saying you grabbed the cellphone from behind or …?
INTERPRETER:
He came from behind while the lady whom he was following was
playing with her cellphone.
COURT:
Uhm.
INTERPRETER:
Then he grabbed the cellphone and after grabbing it ran away with
it.
COURT:
Did you have the right to take the, to grab the cellphone from her
hand?
ACCUSED:
No.
COURT:
Why did you do it?
ACCUSED:
I was under the influence of liquor.
COURT:
What did you do with the cellphone?
ACCUSED:
I sold it.
COURT:
Sold it?
INTERPRETER:
Yes, your honour.
COURT:
Did you know what you were doing was wrong … (indistinct) the
cellphone of the complainant without her consent?
ACCUSED:
Yes.
COURT:
Did you know that your conduct was … (indistinct) and punishable
by a court of law?
ACCUSED:
I do not know.
COURT:
…(indistinct) do not know … (indistinct) repeat the question?
TOLK:
Meneer, moet die vraag gevra word, het hy geweet dat dit onwettig
is om iemand goed te vat …?
BESKULDIGDE:
Ja.
TOLK:
Sonder die …
ACCUSED:
Yes, I do know that is unlawful.
COURT:
What cellphone, what was the name of the cellphone?
ACCUSED:
A Nokia.
COURT:
Do you confirm or … (indistinct) that the value of that cellphone
was R600,00?
ACCUSED:
The value, it is R400,00 of that cellphone.
COURT:
According to you it is R400,00, sir … (indistinct)?
ACCUSED:
What I saw in the pamphlets it was, the vale of that cellphone was
R400,00.
COURT:
How much did you sell it for?
ACCUSED:
It is one fifty. I said R200,00 but they offered me one fifty.
COURT:
State?
PROSECUTORS:
Your worship, the value of the phone is plus minus four hundred,
six hundred. So I will accept that four hundred.
JUDGMENT
Sir, after questioning you in terms
of
section 112(1)(b)
of the
Criminal Procedure Act (51
of 1977) I am
satisfied that you admit all the elements of the offence.
You are, therefore found
GUILTY
AS CHARGED.
”
[
4]
CR
Snyman in
Criminal
Law
,
5
th
Edition
,
517 defines robbery as follows:
“
Robbery consists of theft of
property by unlawfully and intentionally using.
violence to take the property from
somebody else; or
threats of violence to induce the
possessor of the property to submit to the taking of the property.”
[5] From
this definition it is clear that the elements of the crime are the
following:
(a) the theft of
property
(b) through the use of
either violence or threats of violence
(c) causal link between
the violence and the taking of the property
(d) unlawfulness and
intention.
[
6] The
courts have in the past not been able to draw a clear distinction
between robbery as defined above and theft committed
in a situation
where the victim was not assaulted or threatened with assault to
induce submission. The so-called “bag-snatching”
cases similar
to this case. In these cases there is no violence against the
person or victim. The perpetrator simply grabs
the item(s) he wants
to steal from the victim when the latter least expects. This
situation is distinguishable from robbery
and has been recently
recognised as theft in
Snyman
Criminal
Law
,
5
th
Edition
,
519. See also
S
v Gqulowe
1992 (2) SACR 172
(E) at 174;
S
v M
1996 (2) SACR 127
(T) at 132.
[
7] The
facts of this case as accepted by the state and as gleaned from the
section 112
questions and answers is that the accused ran from
behind the complainant and without any violence directed at her
snatched her
cellphone “as she was playing with it” and ran
away. She did not have the cellphone in her grip as was the case in
S
v Gqulowe
and
S
v M
supra
.
The accused did not use any force or violence or threats of any
nature to threaten or assault her in order to take the cellphone.

He did it unexpectedly for the complainant not to be able to offer
any resistance. The conviction on robbery in these circumstances
of
this case stands to be vitiated. As already indicated in the
paragraphs above what the accused committed, was theft.
[8] Having
come to the conclusion that the conviction on robbery which is a
more serious offence does not stand, it goes without
saying that the
sentence imposed is inappropriate as it was imposed on the basis
that the accused had committed robbery. I may
just add that even if
the accused was correctly convicted of robbery the sentence imposed
would still not have been appropriate
in the particular
circumstances of this case taking into account all the mitigating
factors in favour of the accused. The sentence
imposed is in my
view inappropriate and ought to be set aside.
[
9] It
appears that there have been inordinate delays in this case on the
side of both the court
a
quo
and this Court due mainly to administrative errors. I am of the
view that this matter should be disposed of in the manner
in which I
do hereunder to prevent more injustice perpetuated against the
accused.
[10] In
the circumstance I make the following order.
Order
1. The
conviction of robbery by the presiding officer on
27
August 2006 is hereby set aside and substituted with the following:
“The accused is
found guilty of theft.”
2. The
sentence imposed by the presiding officer o
n
27 August 2006 is hereby set aside and substituted with the
following:
“
R800,00 (eight
hundred rand) or 8 (eight) months imprisonment of which R400,00
(four hundred rand) or 4 (four) months imprisonment
is suspended on
condition that the accused is not convicted of theft or attempt
therefore committed during the period of suspension.”
3. This judgment
should be made available to Correctional Services Mangaung and the
accused immediately.
________________

B. C. MOCUMIE, J
I
con
cur.
___
____________
G.
F. WRIGHT
,
J
/em