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[2008] ZAWCHC 202
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S v Jawa (A698/2007) [2008] ZAWCHC 202 (16 May 2008)
JUDGMENT
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
A698/2007
DATE
:
16 MAY 2008
In the matter between:
THE STATE
versus
MAWETHU
JAVU (JAWA)
JUDGMENT
CLEAVER,
J
:
The Accused was convicted on the 26
September 2006 in the Regional Court of Malmesbury together with a
second accused of the crime
of robbery, the State having alleged that
aggravating circumstances were present and that in consequence the
provisions of the
minimum sentence legislation namely Act 105 of 1997
were applicable.
The Accused was legally represented,
pleaded not guilty and was duly found guilty and sentenced to a term
of imprisonment of 12
years. He now comes on appeal with the consent
of this court against both the conviction and the sentence.
The evidence for the State was
relatively brief. Mrs Sasson, an employee of a business in Malmesbury
testified that she and a fellow
worker, Mrs Fredericks, were
confronted by two black gentlemen who appeared on the scene. They
were threatened with a firearm held
by one of them and robbed of cash
of about R3 000. It is not in dispute that the assailants arrived in
a blue Volkswagen motor
vehicle which had yeflow number plates.
The
evidence for the State was principally that of Teresa Masoko. She was
the girlfriend of the owner of the Volkswagen motor vehicle
and
testified that her boyfriend had told her that the appellant, Accused
No. 2, in the court a quo would be fetching the motor
vehicle in
order to repair it. The Accused duly arrived at her house at about 8
o'clock on the day in question, collected the keys
from her and
returned the vehicle at about 12 o'clock.
In cross-examinatfon, it was put to
her that the Accused had brought the vehicle back sometime between
11.15 and 11.30 but she denied
that saying that she remembered that
it was about 12 o'clock. That was the time when toddlers came home
from school and can she
remember the toddlers were on their way home
when the accused arrived. More importantly, she testified that when
the Accused arrived
driving the motor vehicle, he did so at great
speed. He brought the vehicle to a stop, jumped out of it,
threw the keys of
the vehicle to her and then ran off in the company
of two other men who were with him in the motor vehicle. Shortly
thereafter
the police arrived. She indicated to them the name of the
Accused who she knew and the Accused was arrested shortly thereafter.
The
Accused confirms that he collected the motor vehicle that morning. He
says that he was actually going to collect some ceiling
boards from a
friend of his but that he found this friend in the village and
ascertained from him that he would not be able to
collect the ceiling
boards that morning. He said he then whiled away some time and came
across an acquaintance by the name of Siya
who asked him whether he
was going to the location as he wished to have a lift with him. He
says he wasn't in a hurry although
Siya was apparently in more of a
hurry. With Siya at that stage was the other accused in the trial.
For some reason or another,
he left Siya and the other accused
because a lady unknown to him had had some difficulty with a cell
phone. It wasn't entirely
clear from the record what the difficulty
was, but he accompanied her, he says, to Pick 'n Pay where the
problem with the cell
phone was resolved. However, the others - no
sorry, I've said that he left Siya and the other Accused; it was not
the other Accused,
it was another man apparently from Tulbagh. For
reasons which are not clear, he says he left the keys of the vehicle
with Siya
and the other man and was surprised when he returned to
find that the vehicle was not there He estimates that he was at Pick
'n
Pay at about 11 o'clock and that he waited about 15 to 20 minutes
before they returned with his vehicle. He then drove the vehicle
towards the location. On the way the man from Tulbagh, whom he did
not know, got off and they then came across Accused No. 2 at
the
container which is apparently used for telephones. Accused No. 2 then
got into the vehicle and after Siya had given him some
money to put
petrol in, they drove back to the house where he had picked up the
vehicle and dropped it in the normaE course and
then walked off as if
nothing had happened. He testified further that heJd arranged to go
to the house of Accused No. 2 because
the latter was going to dub
some CDs for him but that's not particularly important.
The
defence put up is in effect an alibi, namely that the Accused was not
at the scene at all and it is trite that in assessing
an alibi, a
court is required to consider the evidence of all the witnesses as a
whole and to establish that whether in the light
of that evidence the
version of the Accused can reasonably possibly be true. En the
present case there is no challenge to the evidence
of Mrs Basson and
in that regard it is important that she identified Accused No. 2 who
was also in the vehicle when it returned
to its home. She
had identified Accused No. 2 at an identity parade and as far as the
evidence before the Magistrate
is concerned, Accused No. 2 was
therefore part of one of the two assailants.
The established facts are that Mrs
Basson testified that two persons, one of whom was Accused No. 2, had
arrived in a blue Citi
Golf and held them up and it is common cause
that the Appellant and Accused No. 2 were in the car when it arrived
back at Teresa's
residence.
The Regional Magistrate was impressed
by the evidence given by Teresa Masoko. In his judgment he said that
she did not put a foot
wrong, that she was candid and convincing,
that she was transparent and truthful. In legal parlance, this means
that he found her
to be credible and honest. It is important that her
evidence was to the effect that the car returned at 12 or shortly
thereafter
which is very shortly after the robbery was committed. It
also must be accepted that the Accused arrived in a rush, threw the
keys
to Teresa and that he and the other occupants then ran away.
The Accused presented an elaborate
story to indicate that the time in question the car was not in his
possession. Two aspects are
particularly unlikely and improbable.
Firstly, why would he go off with a perfect stranger to help her sort
out something with
a cell phone? And, importantly and most
importantly, why would he hand the keys of the vehicle to the two men
who he says were
with him? There was no reason at all for him to give
them the keys. He says that they simply asked whether they could sit
in the
vehicle because the weather was not favourable.
The
Regional Magistrate found the Appellant to be a poor
witness
and said of him:
"He was argumentative, evasive
and hesitant. Sometimes he refused to answer certain questions. It is
clear from the evidence
of Accused No. 1 that he wanted to telt or
show the Court that he was not in possession of the motor vehicle
from around 11 until
he got the motor vehicle at around twenty past
eleven and then drove home."
Added to this, is that in
cross-examination of Teresa Moseka it was put her that he returned
the vehicle between 11.15 and 11.30
which clearly could not have been
the case There are also other discrepancies between his evidence and
that of Accused No. 2 as
highlighted by the Magistrate, but it is not
necessary for me to point that out.
In effect, the State relies on the
evidence of a single witness and the Regional Magistrate applied the
necessary caution in dealing
with her evidence, it is also true that
the State relies on circumstantial evidence and the test here is that
from the admitted
facts the conclusion which the State seeks to draw
must be the only reasonable conclusion. It is important that the car
was returned
very shortly after Mrs Basson said that she was robbed.
A car was identified by her as being used by the two persons who
committed
the robbery and was returned at great speed. In my view,
the Magistrate was perfectly correct in convicting the Accused and
the
appeal against the conviction must fail.
As to the appeal against the sentence,
the Magistrate found substantial and compelling circumstances to be
present and for that
reason did not impose the minimum sentence
prescribed by the legislation. For the Appellant to succeed on
appeal, he must satisfy
the Court that the Magistrate did not
exercise his discretion properly in arriving at the sentence of 12
years.
Having regard to the injunction in
State vs Malqas
a well-known decision of the Supreme Court of
Appeal, that the minimum sentence ought normally to be applied, there
is, in my view,
no reason to conclude that the Magistrate did not
apply his discretion properly. In the circumstances, the Appeal
against the sentence
must also fail.
And then, in the result, the
APPEAL
AGAINST BOTH THE CONVICTION AND SENTENCE IS REFUSED
and the
conviction and sentence are confirmed.
CLEAVER,J
I agree.
BRUSSER, AJ