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South Africa: Free State High Court, Bloemfontein
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2006
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[2006] ZAFSHC 143
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Kolobe v S [2006] ZAFSHC 143 (16 February 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A63/2005
In
the case between:
TAELO PHILLIMON
KOLOBE
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
BECKLEY, J
et
M.A.
MATHEBULA, AJ
_____________________________________________________
HEARD ON:
6 FEBRUARY 2006
JUDGEMENT:
MATHEBULA, AJ
_____________________________________________________
DELIVERED ON:
16 FEBRUARY 2006
_____________________________________________________
[1] The appellantâs
appeal before this Court is against sentence. The appellant pleaded
guilty before the regional magistrate,
Phuthaditjhaba, on a charge of
robbery with aggravating circumstances. He was sentenced to fifteen
(15) years imprisonment. It
was further ordered that he be declared
unfit to possess a firearm in terms of section 12(1) of the Arms and
Ammunition Act 75 of
1969 as amended.
[2] The appellant was
sentenced in terms of
section 51(2)(a)(i)
of the
Criminal Law
Amendment Act 105 of 1997
read with
Part II
of Schedule II which
obliges a regional magistrate to sentence a first offender to 15
years imprisonment if such person is convicted
of robbery with
aggravating circumstances. The sentence can only be lesser if there
exists substantial and compelling circumstances.
In this matter the
court
a
quo
found that there were no substantial and compelling circumstances and
imposed a sentence of 15 years imprisonment.
[3] The
facts are briefly as follows:
On the 22
nd
January 2001, the appellant together with Joseph Toola, Themba Gift
Sithole, Jan Phillips and Mohale Malefane robbed Katlehong Bottle
Store at Phuthaditjhaba. They made off with goods valued at R44
501,25 in possession of Molefe Aaron Likhojane. Later goods in
the
sum of R8 673,50 were returned to the aforementioned Molefe Aaron
Likhojane.
[4] Although
a 9mm pistol was used to scare Molefe Aaron Likhojane and his
employees no shots were fired. During the robbery Molefe
Aaron
Likhojane suffered some bruises as he was shoved into submission.
[5] It was submitted by
Mr. K. Pretorius, on behalf of the appellant that the court
a
quo
erred in finding that there were no substantial and compelling
circumstances in accordance with
STATE
v MALGAS
2001 (1) SALR 469
(SCA) at 482. Thus the sentence imposed was
inappropriate. The submission was that the court
a
quo
erred by not taking into account that the appellant was a first
offender and that he pleaded guilty. We were referred to
RAMMOKO
v DIRECTOR OF PUBLIC PROSECUTIONS
2003 (1) SALR 200
(SCA) pages 204 â 205 wherein the Court
emphasised that the objective gravity of the crime plays an important
role. Mr. K. Pretorius
therefore submitted that the amount of
violence used was minimal. Furthermore it was submitted that
appellant was 28 years old with
one dependent.
[6] On behalf of the
respondent Mr. D. Pretorius submitted that the personal circumstances
of the appellant should yield to the seriousness
of the offence as
per
S
v WARNE
1979 (1) SALR 820
(AD) at 823 C â E. It was further submitted that
according to
S
v MOHASE
1998 (1) SALR 185
(O) at 193 the Court held that it was important
that a clear message must be sent out to potential offenders of
zero
tolerance
(my emphasis) by the courts.
[7] I now turn to the
totality of the evidence before this Court. The appellant and his
accomplices staged a planned armed robbery
against the complainant
and his employees. The complainant was slightly injured during the
armed robbery. They also made off with
substantial amount of cash
and other valuable items. Only a small portion was accounted for and
the rest is still missing.
[8] This armed robbery,
according to the appellant, was motivated among others by a quest to
have more money as per his Notice of
Appeal. This is nothing but
greed because the appellant was working at the time receiving a
salary to maintain himself and his dependants.
[9] Evaluating the
matter, I am not convinced that the court
a
quo
erred in not finding substantial and compelling circumstances hence
the imposition of the sentence appealed against by the appellant.
In
my view the court
a
quo
was
even lenient in this regard. Armed robbery is the scourge of our
society and every effort must be garnered to root it out.
The
society is looking at the courts to act as the last line of defence
against this rampant offence. The sentence is by no means
shockingly
inappropriate and there is no reason to interfere with it. The
appeal ought to be dismissed.
[10] In
the circumstances the following order is made:-
The
appeal against sentence is dismissed.
___________________
M.A.
MATHEBULA, AJ
I
concur.
_______________
A.P.
BECKLEY, J
On
behalf of the appellant: Attorney K. Pretorius
Instructed
by:
Legal
Aid Board
BLOEMFONTEIN
On
behalf of the respondent: Adv. D.J. Pretorius
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/em