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[2008] ZAWCHC 185
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Diedericks and Another v S (A463/2007) [2008] ZAWCHC 185 (25 April 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION}
CASE
NO
:
A463/2007
DATE
:
25/04/2008
In
the matter between:
RASHIED
DIEDERICKS
2.
RASHAAD
TOFFA
versus
THE
STATE
JUDGMENT
WRAGGE.
A J
:
On
18 April 2007, the first accused, Rashied Diedericks, and the second
accused, Rashaad Toffa, were convicted or robbery with aggravating
circumstances, in that on 4 March 2006 and in Cape Town they
unlawfully and intentionally assaulted the complainant, Andre
Hendricks,
and with force took certain possessions from him. The
aggravating circumstances were that during the robbery the
complainant was
held at knifepoint.
Both
accused were sentenced to imprisonment for a period of 15 years. This
matter comes on appeal both in respect of conviction
and sentence
with the leave of the court a
quo.
Three
accused appeared at the trial, the first and second accused and
Karriem Toffa. It appears that there was a fourth accused,
Amanda
Olivier, but that she had disappeared before the trial commenced.
In
his evidence the complainant testified that on 4 March 2006, he was
travelling along Somerset Street, Cape Town, on his way to
visit a
friend. The immobiliser in his car unexpectedly engaged and he came
to a stop near a garage. At that stage four persons
jumped into his
car, three on the back seat and one next to him on the passenger
seat. One of the persons who had jumped into the
back seat pressed a
knife or sharp object to his neck. He was then obliged to drive to
the Bo Kaap where two of the men, who he
later identified as the
first and second accused, took him into a shack. At the time of their
arrival, there was a female in the
shack, who was later identified as
a prostitute named Amanda Olivier. The complainant testified that he
had not seen the accused
before. One of the accused, whom he
identified as the second accused, held him from behind and the first
accused proceeded to punch
his ribs and head. The first accused then
took one of the two cellphones that he had in his possession
{one
was for personal use and the other one was for business purposes),
and obliged the complainant to contact his wife and require
that she
should bring him R30 000,00, otherwise they would kill him.
The
accused then bundled the complainant into the boot of his car and
drove him some distance. The motor vehicle stopped and accused
No 2
took the complainant out of the motor vehicle and bound him to a tree
with one or more of the motor vehicle's seatbelts. The
complainant
was thereafter able to free himself and obtained assistance from a
man who took him to the police station. However,
he was hurt and in
shock, and was unable to explain to the police where the shack in
which he had been assaulted was. By this time
it was morning on the
following day.
After
returning home, where he spent a short while, he contacted a friend.
He explained to his friend where he had been taken by
the accused and
he and his friend drove to the centre of Cape Town and made
inquiries. These inquiries led him and his friend to
the shack where
he had been assaulted. They then went to the police station and in
the company of the police returned to the shack
where he identified
accused No 1 and 2, who were at the shack. He was able to identify
accused No
1
by
virtue of the fact that he had an unusual nose, and accused No 2 was
bald. The second accused is the first accused's father.
The third
accused was also arrested, who it turned out was the first accused's
uncle. Amanda Olivier was also arrested.
Amanda
Olivier then told the complainant and the police that she would show
them where the accused's (sic) motor vehicle was parked.
They were
taken to the motor vehicle which was parked in Woodstock and was in a
damaged state.
At
a later stage, the police showed him a Seiko watch, which he
identified as belonging to him (of some interest, the Seiko watch
is
not on the list of items allegedly stolen, which forms part of the
charge sheet).
The
complainant was cross-examined at length by the accuseds* attorney.
During the cross-examination it was put to him that the
evidence of
the accused would be that they had no knowledge of the incident, but
they knew the complainant because he purchased
drugs from them.
Constable
John Nagel of the Police Services thereafter testified that he had
collected the accused on the instructions of Inspector
Reyneke and
had brought them back to the police station. After the accused had
been taken out of the police van, he found a
Seiko watch in the van.
This watch was later identified by the complainant as belonging to
him. Constable Nagel asked the accused
about the watch and they told
him that they knew nothing about it and that this was the first time
that they had seen it.
Constable
Reyneke also gave evidence, which was in all material respects
consistent with the evidence given by the complainant insofar
as his
dealings with the police were concerned.
An
application for discharge at the close of the State's case was
unsuccessful and all three accused gave evidence.
Accused
No 1 testified that he knew nothing about the incident. In fact on
the day of the incident he had spent the afternoon drinking
beer and
had gone to bed early. He testified that he had seen the complainant
on two or three occasions, as the complainant visited
Amanda Olivier,
and Amanda Olivier purchased drugs and wine from his father, the
second
accused.
Under
cross-examination he was unable to furnish any reason as to why the
complainant should, for no reason, have identified him
as his
assailant.
The
second accused, the first accused's father, also testified that he
was at home. i.e. at the shack, on the day of the incident
and had in
fact gone to bed even earlier than the first accused. On the
following morning, he and the first accused, together with
the third
accused and other men, were sitting outside the shack when the police
arrived and they were arrested and taken to the
police station. The
second accused also testified that he had seen the complainant on two
or three occasions together with Amanda
Olivier. He could also not
give any reason as to why the complainant may have identified him as
being one of his assailants.
Neither
of the accused testified that the complainant himself had any
dealings with them. This is contrary to what was put to the
complainant during cross-examination that their evidence would be.
The
third accused, Karriem Toffa, testified that he also knew nothing of
the assault, as on the night in question he had been at
a dance.
The
magistrate convicted the first and second accused and discharged the
third accused.
In
a detailed judgment, the magistrate stated that the complainant had
impressed him as being a good witness. He accepted the complainant's
version of the events. He proceeded to confirm that the first accused
had a reasonably prominent nose, which was a characteristic
which
could not easily have been mistaken. He also confirmed that the
second accused was bald, as the complainant had testified.
The
magistrate attached importance to the fact that the complainant's
wristwatch had been found in the police van in which the
accused had
been transported to the police station and that Amanda Olivier had
taken the complainant and the police to the complainant's
motor
vehicle which had been left in Woodstock. Taking all of the
circumstances into account, the magistrate found that there was
sufficient evidence upon which to convict the first and second
accused.
As
regards the accuseds' sentences, a form SAP69 recording the various
convictions of the second accused only was produced. No evidence
as
to any previous convictions of the first accused was produced. The
first accused was therefore presumed, for the purposes of
sentence,
to be a first offender.
The
magistrate accepted that the first accused was 23 years old at the
time he was sentenced, he was unmarried and had two children.
He
had reached standard eight at school, worked at a taxi rank and paid
maintenance for his children.
He
found, however, that he, the second accused, and the other persons
involved in the abduction and robbery of the complainant all
had a
common purpose. The magistrate also accepted that the second accused,
at the time that he was sentenced, was 47 years of
age with three
children. He had reached standard five at school and was the
breadwinner for his family. The second accused has
a formidable list
of previous convictions.
The
magistrate was unable to find any substantial compelling
circumstances existed and therefore imposed the minimum sentence
prescribed
for the crime of robbery with aggravating circumstances,
being 15 years imprisonment.
Mr
Van Rensburg
,
who appeared for the appellants submitted that the evidence of the
complainant, particularly his evidence relating to the identification
of the accused, should be treated with caution. It is so that there
has generally been recognised that evidence of identification
based
upon a witness
1
recollection of a person's appearance maybe unreliable unless
approached with due caution (
S
v Mthetwa
1972(3)
SA 766 (A) at 768A - D). However, a Court's powers to interfere on
appeal with the findings of fact of a trial Court are
limited. In the
absence of any suggestion that the magistrate misdirected himself,
his conclusions, including his acceptance of
the complainant's
evidence, are presumed to be correct
(
S
v
Frances
1991(1) SACR 198 (A) at 204c - d). It was apparent from the judgment
that the magistrate was at alt times aware that he was dealing
with
the evidence of a single witness and that this, together with the
fact that the State's case hinged on the complainant's identification
of the accused, required him to exercise caution in the consideration
and evaluation of the complainant's evidence. I can see no
indication
that the magistrate misdirected himself in any respect. 1 can see no
reason to interfere with the magistrates assessment
and evaluation of
the evidence, and his evaluation of the witnesses. The complainant
testified that both of the accused has distinguishing
physical
characteristics, and this was confirmed by the magistrate in his
judgment. The evidence of the complainant was also to
an extent
confirmed by the fact that a co-accused, Amanda Olivier, who
disappeared before the trial, took the complainant and the
police to
the complainant's motor vehicle, and also by the fact that' the
complainant's Seiko wristwatch was found in the police
van used to
transport the accused from the shack where the assault occurred to
the police station. The two accused were also not
able to put forward
any possible reason as to why the complainant should wish falsely to
implicate them in the offence. Whilst
there is clearly no obligation
on an accused to give reasons as to why a witness may have given
untruthful evidence, the absence
of any reason why the complainant
might wish to implicate the accused in the crime is relevant to the
weighing up of the different
versions put before the trial Court. The
magistrate found the complainant to be a reliable witness. In my view
the record reveals
this to be the case. The complainant was
vigorously cross-examined, but his evidence as to the material
respects remained consistent.
In
rny view, therefore, the accuseds
1
appeal against their conviction must fail.
With
regard to the sentence imposed by the magistrate, he found that there
were no substantial and compelling circumstances which
justified the
imposition of a lesser sentence to that prescribed to the law of
robbery with aggravating circumstances in
Section 51
of the
Criminal
Law Amendment Act 105 of 1997
and therefore sentenced both accused to
15 years imprisonment, being the minimum period.
It
is conceded on behalf of the accused that if their convictions stand
and if the complainant's evidence is accepted, then it
is difficult
to point to any circumstance that the magistrate should have taken
into account but did not which might have justified
the imposition
of a lesser sentence than the prescribed minimum sentence. I
agree, when one weighs the seriousness
of the offence with
the circumstances of the accused, there is no indication of any
substantial or compelling circumstances which
would have warranted
the magistrate imposing a lesser sentence than the sentence
prescribed in
Section 51
of the
Criminal Law Amendment Act.
In
my view, therefore, the accuseds' appeal against both their
convictions and sentences should be
DISMISSED
.
WRAGGE,
A J
I
agree. Accordingly the appeal against both the conviction and the
sentence is
DISMISSED.
VAN
REENEN, J