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[2007] ZANCHC 44
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S v Mosiea and Another (CA&R 206/04) [2007] ZANCHC 44 (29 June 2007)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr : CA&R 206/04
Heard
: 11/06/07
Delivered: 29/06/07
In
the appeal of:
HAROLD
MOSIEA 1
ST
Appellant
VINCENT
MOSIEA 2
ND
Appellant
And
THE
STATE Respondent
JUDGMENT
ON APPEAL
Tlaletsi
J:
Introdudction
[1]
This
appeal concerns an incident that happened on 29 August 2000, at Van
Wyksvlei Municipality in the district of Carnavon. Morné
Adams, an
employee of the Municipality, locked the office door on 28 August
2000 having made sure that the strongroom, safe and windows
were
properly closed. On the morning of 29 August 07h55 he reported for
duty. He opened the front door of the municipality building
and
entered. He was confronted by a male person who poked him on his
chest with a firearm. Adams was wearing what he described
as a
smooth surfaced jacket. In the process, the firearm slided on his
jacket and a bullet was discharged and it brushed him on
his right
side causing a flesh wound. The bullet went through the steel door
leading outside. The second person blocked his mouth
with an
adhesive tape. He also tied his hands on his back and with the extra
rope, he tied it around his mouth. He was taken into
a nearby toilet
inside the building.
[2]
Mr
Nieuwegeld, the foreman at the municipality entered the building. He
had been outside the building when he heard a shot being
fired. He
moved towards the table calling Adams. Someone grabbed him on his
chest from behind and blocked his mouth with his other
hand. He
noticed that it was an unknown person who had his face covered. He
pushed him into a toilet threatening to kill him should
he make
noise. The other person joined in. They pressed his head onto the
toilet seat. They thereafter pushed his head between
the toilet pipe
and the wall and ordering him not to look back at them.
[3]
Ms
Tarrien De Kock, the training officer at the municipality arrived at
08h00. She parked her motor vehicle in front of the office.
She
entered the office and placed the items she was carrying on the
table. As she turned back to offload more, she saw someone
standing
behind her with a pistol in his hand wearing a balaklava. She was
ordered to stand still. He blocked her mouth with his
hand and took
her to the kitchen. She noticed two other people. The other one had
a revolver in his hand with his face covered with
a balaclava. The
other one had covered his face with a woolen hat. She was pushed
towards Adams in the toilet. She also noticed
the presence of
Nieuwegeld in the same toilet. The three were thereafter taken into
the strongroom. The robbers removed money which
was in the safe and
placed it in a dark coloured sports bag. They also robbed them of
their personal belongings such as rings earings
and wristwatches.
They demanded cellularphones and Ms de Kock told them that they do
not have cellularphones as there was no network
coverage in the area.
The three robbers locked them in the strong room and left.
[4]
Hans
Goeieman, who was employed as a tractor driver, was waiting on the
premises when he heard a shot being fired. He confirmed
that he
reported this to Nieuwegeld and Ms De Kock before they entered the
building. He later saw three men emerging from the building
and ran
down the street towards the direction of one Hans Adamâs house.
These three men were also spotted by two other state witnesses,
Sofia
Blom and Margret Reent running in the same direction and one of them
carrying a dark coloured sports bag.
[5]
Rolene
Adams testified that she noticed a red motor vehicle with two male
occupants sitting in the front. This car parked in front
of her
house which is ± 50 meters from the municipality building. She then
saw them open the rear doors. Three men came running
and entered the
motor vehicle and it drove fast to the direction of the
Copperton/Prieska road. She took down the registration numbers
of
the motor vehicle which were CC10484. She provided this information
to the police.
[6]
Johan
van den Berg, an inspector in the SAPS testified that after receipt
of the information and the particulars of the motor vehicle,
he was
accompanied by one Sers. Nieuwoudt and they drove on the
Vosburg/Prieska road. They noticed a cloud of dust on the road and
they continued to drive through it. They saw a red Mazda motor
vehicle parked outside the road. They saw this vehicle when they
were on the main road and it had stopped on the bridge, changing
drivers. The motor vehicle matched the description and registration
numbers provided to them. Inside the motor vehicle was the two
appellants and three other male persons who became their co-accused.
They also found,
inter
alia
,
the robbed items together with two firearms, a pistol and a revolver,
a magazine and rounds of ammunition. They also discovered
the
balaclavas and the woolen hat. Nieuwoudt and the three other police
officers who searched the accused at the police station
also
testified about what they discovered from them respectively.
[7]
The
appellants and two others ultimately stood trial in the regional
court sitting at Carnavon on charges of Housbreaking with intent
to
commit an offence unknown to the public prosecutor; Robbery with
aggravating circumstances as described in sec 1 of Act 51 of
1977;
Kidnapping; Contravention of sec 36 read with section 39(1)(h) and
39(2) (a) (iv) and/or sec 39 (2)(b)(i) and 39(3) of Act
75 of 1969
(unlawful possession of 1x7.65 round and 29x 9mm rounds of
ammunition); Contravention of Sec 2 read with Sec 1,39 (i)
(h) and
39(2) (b)(i) of Act 75 of 1969 (unlawful possession of the two
firearms) and Attempted Murder. The four accused pleaded
not guilty
and in their defence they denied any involvement in the offence. In
their plea explanation it was disclosed that the
four of them were
traveling in a motor vehicle which broke down on the road due to
mechanical failures. They left the car next to
the road to seek
help. They got a lift from one Peterson in the red Mazda motor
vehicle. The latter was the fifth accused and he
died before the
trial commenced. The accused were legally represented at their
trial.
[8]
The
regional court magistrate rejected their versions as false and were
all convicted on 8 May 2003. Both appellants were convicted
of
Housebreaking with intent to Rob and Robbery with Aggravating
circumstances as described in Sec 1 of Act 51 of 1977; Kidnapping
and
Attempted Murder. The other accused who is not before us was in
addition, convicted of the charges relating to the possession
of
ammunition and the firearm. The two appellants were sentenced to
seventeen and a half and five years imprisonment respectively
and for
Attempted Murder to ten years imprisonment. The court ordered that
the sentences should run concurrently with the effect
that all the
accused should serve twenty years imprisonment.
[9]
The
two appellants are now appealing against both their convictions and
sentences. In their notice of appeal, the appellants have
raised a
number of grounds all of which turn to contend that the state had not
proved its case beyond reasonable doubt. They state
that the trial
court erred by finding that they were part of the five robbers who
robbed the Municipality and the complainants.
In argument, Mr Van
Heerden who appeared before us to argue the appeal on their behalf,
correctly conceded that there is overwhelming
evidence to show that
the two appellants were part of the five people who robbed the
Municipality. I am also satisfied that this
aspect has been proved
beyond any reasonable doubt. To find otherwise would be to defy
logic. The following factors support this
conclusion. The evidence
relating to the commission of the offences was not disputed. The
robbed items were found in the motor
vehicle in which the appellants
were found by the police which was shortly after the robbery and
within a short radius of the robbery
scene. Furthermore, a magazine
with bullets that fitted the 9mm firearm that was used in the
commission of the offences was found
inside the pocket of one of the
co-accused who the appellants alleged that he had been in their
company at all times. A letter opener
belonging to Ms De Kock was
found hidden under the inside lining of the shoe of their co-accused
and bank notes were also found concealed
inside the other accusedâs
shoe. They made no report to the police about their alleged motor
vehicle which they abandoned on the
road when they all left to seek
assistance. The police also, did not come across any motor vehicle
on the road except a donkey cart
whose navigator told the police that
a red car had just gone past him on the same road. I remain
convinced therefore, that there
can be no doubt that the appellants
constituted two of the five robbers.
[10]
The
only point relating to the conviction which I find meritorious, is
that the conviction on the Housebreaking and Robbery together
with a
charge of Kidnapping, amount to a duplication of convictions. With
regard to the charge of Kidnapping, the regional magistrate
had the
following to say:
â
W
at
betref aanklag 3, die klag van menseroof, was dit myns insiens
duidelik dat ân deel van die sameswering was dat die werknemers
van
die Munisipaliteit buite aksie gestel moes word ten einde die rowers
die geleentheid te bied om hulle uit die voete te maak,
maar of die
instapkluis van die begin af deel van die sameswering en die
beplanning uitgemaak het, was dit myns insiens deel van
die
beplanning dat hulle in die betrokke kluis toegesluit moes word na
die roof.
Ek is ook tevrede
dat die roof reeds afgehandel was alvorens die werknemers totaal van
hulle vryheid uitneem was toe hulle in die
kluis toegesluit is. Die
staat het myns insiens ook daarin ook geslaag om bo redelike twyfel
die element van aanklag 3 te bewys.â
[11]
In
my view, the removal of the three complainants from the toilet and
taking them into the strongroom was for the purposes of the
robbery
of the money which was known to be in the safe. In this strongroom
they were also robbed of their personal belongings.
Leaving them
inside the strongroom after the robbery cannot on its own constitute
a separate offence. Likewise, locking the strongroom
was merely to
ensure that they are able to escape with their loot without
hindrance. It is for this reason why they initially left
and
returned immediately and enquired from them inside the strongroom if
they had cellular phones. Therefore, locking them inside
the
strongroom was part of the single intention, being the robbery. I am
therefore of the view that a conviction on the Kidnapping
charge is a
duplication and should be set aside. I am mindfull of the argument
of Mr Barnard(on behalf of the respondent) that it
was not necessary
to lock the strongroom as these people were already robbed. It may
not be necessary but to them it was the safest
way to flee without
being caught, although their escape was ultimately shortlived.
(See:
Du Toit et al: Commentary on the Crimimal Procedure Act: Juta
at p14-6 to 14-8A and the authorities therein cited). There is no
reason why my conclusion in this regard should not be extended
to the
other co-accused who are not before us.
[12]
The
next consideration is the effect of the setting aside of the
conviction on the Kidnapping charge on sentence. Mr Van Heerden
argued that the sentence of 20 years imprisonment is shockingly
inappropriate regard being had to the fact that the second appellant
was 23 years old at the time. He submitted that the cumulative
effect of the sentences on the appellants calls for reduction. The
first appellantâs personal circumstances were that he was 32 years
old, not married with 5 minor children aged between 3-15 years.
He
passed grade 12 and was unemployed. He had one previous conviction
of assault committed on 31 March 1995 to which he was sentenced
to a
fine of R400.00 or 4 months imprisonment. This conviction was not
taken into account for the purposes of sentence. He had
been
awaiting trial for 18 months. The second appellant was 25 years old
at the time of sentencing, not married and had one minor
child who
was 6 months old. He was unemployed and was a first offender.
[13]
The
aggravating features of the case are that the appellants travelled
from Kimberley to a poor rural area where they executed a
carefully
planned robbery. They gained entrance into the building by damaging
the window and apparently with full knowledge, waited
for the
officials to arrive one by one, and kept them hostage until they
accomplished their mission. The robbery itself took some
time and
they acted patiently. There was an opportunity to reflect on their
actions but persisted on their goal. They then locked
their victims
in the strongroom so that they could get away with ease. They have
shown no remorse. Instead, they conjured up an
incredible and
foolish story as a defence. Their victims were traumatised and it is
perhaps only through luck that Adams was not
fatally injured. They
should not benefit the luck which is not of their own making or
initiative.
[14]
In
my view, their personal circumstances are by far outweighed by the
seriousness of the offence as well as the aggravating features
of the
case. The rural communities deserve protection against this conduct
from city dwellers. The effective sentence of 20 years
imprisonment
is in my view not shockingly inappropriate. In effect, the
appellants are only to serve two and a half years of the
ten years
for the Attempted Murder. Mr Van Heerden could also not point to any
misdirection on the part of the regional magistrate
that warranted
our interference. I am also of the view that there should not be any
differentiation with regard to the sentences
of the appellants.
In
the result it is ordered as follows:-
The
convictions and sentences of the appellants on counts one, two and
six are confirmed.
The
conviction and sentence of the appellants as well as their
co-accused at the trial, Donald Modau and Joseph Mpohatho, on count
three are hereby set aside.
The
order by the regional magistrate that the sentences of the
appellants are to run concurrently so that they can serve an
effective
sentence of twenty years imprisonment is confirmed.
___________________
L
P TLALETSI
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
I
agree
_____________________
H
LACOCK
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION