S v Maarman (1/2006) [2007] ZANCHC 33 (11 May 2007)

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[2007] ZANCHC 33
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S v Maarman (1/2006) [2007] ZANCHC 33 (11 May 2007)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
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to Magistrates: Yes / No
IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case no:1/2006
Date delivered: 11/05/2007
JOHN
MAARMAN APPELLANT
versus
THE
STATE RESPONDENT
JUDGMENT
ON LEAVE TO APPEAL
MOKGOHLOA AJ
The
appellant appeared before me with other two accused on charges of
housebreaking with intent to rob and robbery with aggravating
circumstances; murder; and housebreaking with intent to steal and
theft. He was legally represented and pleaded not guilty to
all the
charges. I nevertheless convicted him on the first and second
counts and also on theft on the third count. He was sentenced
to 18
years imprisonment on count 1; life imprisonment on count 2; and 8
years on count 3. I ordered that the sentences on counts
1 and
3
run concurrently with the sentence of life imprisonment.
The appellant’s
grounds for leave to appeal fashioned by himself and dated 21
November 2006 are as follows:
“
Skuldigbevinding
Die
geleerde regter het gefouteer deur:
Te bevind dat die
staat sy saak bo redelike twyfel bewys het.
Nie genoegsaam te
let op die weersprekings van die staatsaak nie.
Nie my weergawe as
redelik moontlik waar te aanvaar nie.
AD VONNIS
Die
geleerde landdros het verder gefouteer deur:
Die erns van die
misdryf en die belange van die gemeenskap te veel beklemtoon.
Nie my persoonlike
omstandighede genoegsaam in ag te neem.
‘
n
Vonnis op te lê wat redelik en onvan toepaslik nie.
”
AD
CONVICTIONS
The
state’s case was based on circumstantial evidence. The deceased
was attacked at his home. The intruders broke into his house
assaulted him gruesomely and left him to die. They then stole some
of his furniture and his motor vehicle, a Colt bakkie which
was
parked in front of the garage.
The
police uplifted shoe prints from the scene of crime. These prints
matched the prints on the shoes and tekkies that were found
when the
appellant and his co-accused were arrested. There was evidence that
the appellant and his co-accused were driving the
deceased’s Colt
bakkie on that night in question. There was some furniture in that
bakkie which furniture was off-loaded at
accused 3’s house. The
furniture was later identified as belonging to the deceased.
Further evidence was that the appellant
and his co-accused drove the
Colt bakkie to Mooinooi to the place of one Ms Jabonki. The
appellant admitted having travelled in
the bakkie that night but
claimed that he was given a lift to Mooinooi. The appellant
admitted having driven the bakkie to off-load
the furniture at
accused 3’s place though he said he was acting on the instructions
from one Masaka who denied this. It was
through Masaka’s
information that the police managed to arrest the appellant and his
co-accused.
The
deceased’s Colt bakkie was found at Mooinooi at Ms Jabonki’s
place. A bag belonging to the appellant was also found there.
In
this bag the keys which were later identified as belonging to the
deceased’s outbuildings were also found.
The appellant made a
statement to the police wherein he confirmed that he told his story
to the Inspector and to the Captain. At
the beginning he denied
making the statement. He later admitted signing the statement but
said that he did not understand what
he signed. Inspector Luis and
other police officials present when the appellant’s constitutional
rights were explained to him
testified that indeed the appellant
made that statement. Inspector Luis also testified that the
appellant confessed to having
committed all three offences.
The
appellant himself testified. He denied all allegations against him
except that he drove the deceased’s Colt bakkie and delivered
the
furniture therein at accused 3’s place. He said that this was
through Masaka’s instructions. He further admitted to have
travelled to Mooinooi in that Colt bakkie but that he was just a
passenger.
The
appellant failed to rebut the
prima
facie
case that the State proved against him through the evidence of
credible witnesses. I was accordingly satisfied that the State
had
proved its case beyond a reasonable doubt and rejected the
appellant’s evidence as false. In
Osman
and Another v Attorney-General, Transvaal 1998(2) SACR 493 (CC)
at
501 B-C Madala J
said:
“
Our
legal system is an adversarial one. Once the prosecution has
produced evidence sufficient to establish a prima facie case, an
accused who fails to produce evidence to rebut that case is at risk.
The failure to testify does not relieve the prosecution of
its duty
to prove guilt beyond reasonable doubt. An accused, however, always
runs the risk that, absent any rebuttal, the prosecution’s
case may
be sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach
of the right to
silence. If the right to silence were to be so interpreted, it would
destroy the fundamental nature of our adversarial
system of criminal
justice.
”
Having
regard to the aforegoing I am convinced that the appellant has no
reasonable prospects of success against the convictions.
AD SENTENCES
The
appellant did not give evidence in mitigation of sentence. His
legal representative merely addressed me from the Bar. Only
the
appellant’s personal circumstances were proffered. Despite his
best endeavours, the appellant’s legal representative was
unable
to argue that those personal circumstances constituted substantial
and compelling circumstances.
The
appellant was given an opportunity to consult with the Probation
Officer who would then compile a pre-sentencing report. The
appellant refused to cooperate with that Probation Officer. I was
satisfied that there existed no substantial and compelling

circumstances that warranted the departure from the imposition of
the prescribed minimum sentence on count 2. I also took into
account the triad enunciated in
S
v Zinn 1969(2) SA 537 (A) at 540 G
and all other relevant factors applicable to sentencing.
I am
satisfied that there are no prospects of success on appeal on the
sentences as well.
I therefore make the
following order:
The application for
leave to appeal against both convictions and sentences is dismissed.
________________________
FE MOKGOHLOA
ACTING
JUDGE
NORTHERN CAPE DIVISION
FOR
THE APPELLANT :
Adv.
Rasethunsa
Instructed
by: The Legal Aid Board
FOR
THE RESPONDENT :
Adv.
Cloete
Instructed
by: The Director for Public Prosecution