Daly v Road Accodent Fund [2006] ZAFSHC 169; [2006] ZAFSHC 141 (16 February 2006)

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[2006] ZAFSHC 169
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Daly v Road Accodent Fund [2006] ZAFSHC 169; [2006] ZAFSHC 141 (16 February 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A108/2004
In the appeal of:
VICTOR TONY
TSHABALALA
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
EBRAHIM, J
et
MATSEPE,
AJ
HEARD ON:
17 OCTOBER 2005
_____________________________________________________
JUDGMENT:
MATSEPE, AJ
_____________________________________________________
DELIVERED ON:
3 NOVEMBER 2005
_____________________________________________________
[1] The appellant who was
18 years at the time when he was arraigned before the magistrate’s
court in Sasolburg was convicted on
4 charges namely:
1. Attempted murder in
that on the 1
st
day of March 2002 at 6344 Chris Harni, Zamdela in the district
Sasolburg he unlawfully and intentionally attempted to kill Obed
Masanga
by shooting him with a firearm.
2. Robbery
with aggravating circumstances as prescribed in Section 1 of Act 51
of 1977 read with Section 155 (5) of Act 51 of 1977
and Section 51 of
Act 105 of 1977 in that on the 1
st
of March 2002 at Zamdela in the district of Sasolburg within the
jurisdiction of the regional court Free State, he unlawfully and
intentionally robbed Jabulani Patrick Lata, a 20 year old man by
assaulting him and by using force and took the following items from
him:
(i) A Siemens cellphone
valued at R699,00;
(ii) A jersey valued at
R150,00;
A hat valued at R40,00;
Cash of R150,00.
which items were the
property of Jabulani Patrick Lata and at the time the crime was
committed, he or his accomplices used firearms
and caused physical
injury to Jabulani Patrick Lata.
3. Robbery with
aggravating circumstances, as prescribed in Section 1 of Act 51 of
1977 read with Section 155 of Act 51 of 1977 as
well as Section 51 of
Act 105 of 1997; in that on the 1
st
of March 2002 at Zamdela in the district of Sasolburg within the
jurisdiction of the regional court Free State, he unlawfully and
intentionally assaulted and with force took the following items from
Pule Shadrack Thulo, a 20 year old male:
a hat valued at R200,00;
a belt valued at
R105,00;
cash valued and R30,00
which items were the
property of Pule Shadrack Thulo and during which time he or his
accomplices had firearms and threatened to cause
physical harm to
Pule Shadrack Thulo.
4. Robbery with
aggravating circumstances as prescribed in Section 1 of Act 51 of
1977 read with Section 155 of Act 51 of 1977 as
well as Section 51 of
Act 105 of 1997. In that on the 1
st
of March 2002 at Zamdela in the district of Sasolburg within the
jurisdiction of the regional court Free State, he unlawfully and
intentionally assaulted and with force took the following items from
Mvula Nzimankulu, a 17 year old male:
one black trouser valued
at R100,00, which item was the property of Mvula Nzimankulu during
which time he or his accomplices had
firearms and threatened to
cause physical harm to Mvula Nzimankulu.
[2] The accused pleaded
not guilty to all charges against him. He was convicted on the 19
th
of March 2003 and sentenced on the 23
rd
of May 2003 as follows:
(i) Count 1 : 15 years
imprisonment;
(ii) Count 2 – 4: 11
years imprisonment on each count.
In terms of Section 280
of Act 51 of 1977 it was ordered that the sentences ought to run
concurrently and that the effective sentence
would be 26 years.
[2] The appellant appeals
against the judgment and the sentence imposed.
[3] The appellant also
applied for condonation for the late filing of his notice of appeal.
The notice of appeal is
dated 9 December 2003. The letter with his notice of appeal to the
clerk of the court is dated 21 December
2003. The stamp of the
magistrate in the Heilbron magistrate’s court is dated 20
th
January 2004 and the one for the Sasolburg magistrate’s court is
dated 6
th
February 2004. The appellant’s affidavit in support of his
application mentions that the failure to file his notice of appeal
timeously was due to the commissioner in charge as well as prison
authorities.
[4] The accused was still
in his youth at the time of sentence. He was not having any legal
representation. It does not appear from
the record that at the end
of his trial his rights pertaining to appeal and further legal
representation were explained to him.
See in this regard the
provisions of section 309D of the Criminal Procedures Act No. 51 of
1977.
[5] Based on the decision
in
S
v N
1991 (2) SASV 10 A which confirms that the test in deciding whether
there are reasonable prospects of success in the appeal, which
would
lead to the granting of condonation, is less stringent in nature.
The AD in finding against the refusal of the condonation
application
declares as follows on page 13, paragraph A-D:
¡°
Afgesien
van die vraag al dan nie van redelike vooruitsigte van sukses was dit
gemene saak tussen appellant en die staat tydens die
aanhoor van die
appèl dat daar aan al die vereistes vir die toestaan van kondonasie
voldoen is, onder andere is daar voldoende rede
aangevoer waarom die
betrokke reëls nie behoorlik nagekom is nie. Hierdie appèl wentel
dus alleenlik om die vraag of redelike
vooruitsigte van sukses
aangetoon is – dit, synde ‘n geykte voorvereiste van die toestand
van kondonasie. Dit is ‘n mindere
toets as die wat toegepas word
om te besluit of ‘n appèl behoort te slaag of nie.”
[6] In this matter the
first question to be answered is whether there are sufficient reasons
why the relevant rules were not properly
complied with.
[7] The accused’s
circumstances do indicated that there are good reasons why he was
unable to comply with the relevant rules, more
especially that he had
no clue about the consequences of the failure to comply with the
rules at the end of his trial.
[8] The
question as to whether there are reasonable grounds for success on
the appeal must also be answered in the positive in the
light of the
State’s concession in not opposing the application for condonation.
I come to the conclusion that justice demands
that the application
for condonation of the late filing of the appeal be granted and find
that there is a proper appeal before the
court against the conviction
and sentence of the appellant.
[9] The state relied on
four witnesses as far as all the counts were concerned and each one
of the witnesses testimony relates to
the crime perpetrated against
him. The evidence indicates that the appellant does not deny having
been at the scene at all relevant
times when each one of the crimes
were committed. The question of identity regarding his presence is
thus not in dispute.
[10] His defence is that
he was present and acted in collaboration with two persons, one named
Jackson and the other named Snipe,
who forced him by assaulting him
and threatening him to join them in their spree of violence. The
counsel for the appellant correctly
argues that the issue to be
decided by the court is whether there was a misdirection or an error
in the finding of the magistrate
in the court
a
quo
as
to whether the appellant freely and voluntarily associated himself
with the acts of the said Jackson and Snipes and whether there
are
grounds to find that the version of the appellant is reasonably
possibly true.
[11] In this regard the
court was referred to
REX
v M
1946 AD on page 1023. In the light of the fact that the crimes were
committed one after the other, the evaluation of the evidence
must be
weighed in its totality. However, it is necessary first to determine
whether the duress or coercion relied upon by the accused
in this
matter, if accepted on the evidence, would entitle him to the benefit
of the defence of
vis
compulsiva.
The question whether the appellant can rely on necessity as a defence
must now be considered. The case of
STATE
v GOLIATH
1972 (3) SA (A) page 1 is instructive on the question as far as the
South African Law is concerned. As indicated, in establishing
whether
the appellant acted under duress in the circumstances of this case,
the evidence of each one of the complainants, relevant
to the
presence of compulsion or not, must be examined. I then deal with
the evidence of each one of the complainants in as far
as it relates
to the issue of compulsion.
[12] As far as the
evidence of Masango is concerned, the following observations are
made:
1. He states on page 28
of the record line 3 that the appellant was in front of the other two
assailants who were following him and
that he had the firearm. It is
the appellant who commanded him to open the entrance to his dwelling.
2. On page 30 line number
5 he states that it is the appellant that shot him.
3. On page 30, line
number 21 he states that the appellant’s accomplices were standing
behind him (the appellant).
This testimony was not
convincingly challenged during cross-examination and he stood by it.
The magistrate in the court
a
quo
found no reason to reject it and thus this evidence stands proven.
[13] As far as this count
is concerned therefore it is found that the appellant was not acting
under duress or under compulsion.
It is found that he was part of
the group of people who attacked the complainant and further that he
seemed to be the one who was
playing the leading role as he fired the
shots at the complainant in an attempt to murder him.
[14] As far as count 2
and 3 is concerned the counsel for the appellant argued that in the
event that the court finds that the conviction
on count 2 is correct,
that in fact there should only be one conviction, relating to counts
2 and 3 in that the charges against the
appellant would amount to a
duplication of convictions. In this regard he referred the court to
the case of
THE
STATE v GROBLER & ‘N ANDERE
1966 (1) AA on page 511 to 522.
On page 511 paragraph 8
of the said decision the learned judge Rumpff, AR states that:
¡°
Die
probleem onstaan in die strafreg, o.a. deurdat een handeling meerdere
misdade mag skep (bv. verkragting van ‘n dogter deur haar
vader) en
meerdere handelinge, een misdaad (bv. roof).
On
page 512, paragraph C-D:
“
Roof is wesenlik ‘n vorm van
diefstal. Dit is diefstal wat met geweld gepaardgaan. Dit bestaan
uit twee afsonderlike handelinge,
wat erge misdaad op sigself is en
die staat sal ook altyd een van beide kan kies om die beskuldigde mee
aan te kla. Wat vermy te
staan te word is om ‘n persoon twee maal
aan dieselfde misdaad skuldig te bevind om hom twee maal daarvoor te
straf. Indien die
staat ‘n beskuldigde sou aankla van roof en van
diefstal of van roof en aanranding: wanneer die diefstal en
aanranding die roof
uitmaak, sou die beskuldigde twee maal gestraf
word vir die diefstal of vir die aanranding.”
In the present matter we
are dealing with two separate acts of robbery. The first act relates
to the activities of the appellant
and his accomplices in relation to
complainant in count 2. The second act which occurred more or less
simultaneous with the one
relating to count 2 is perpetrated by the
appellant and his accomplices and is directed at complainant in count
number 3, Mr. Thulo.
[15] The appellant as far
as count 3 is concerned is directly involved with the act of robbery
as will latter appear from my comments
below.
[16] As far as the
perpetration of the attack on the complainant in count 2 is
concerned, the appellant associates himself with the
act committed by
his accomplices and should be found guilty, if the evidence so
establishes it, of this crime, as an accomplice.
The circumstances
herein can clearly not compare with those as described in
STATE
v GROBLER
supra
.
[17] In this regard the
court makes the following observation in the
GROBLER
case,
supra
on page 513 G:
¡°
Indien
dit bv., so blyk dat volgens die bewese feite 2 klagtes in die
klagskrif een en dieselfde strafbare feit behels, sou die hof
die
beskuldigde alleen op een klag skuldig bevind.”
[18] In the present case
the facts indicate that there are two separate acts perpetrated by
different individuals with the difference
that they are acting as
accomplices regarding each of the separate acts.
[19] It is therefore
found that there is no irregularity in the charges being dealt with
separately. I thus consequently deal with
the different charges
separately.
As far as count 2 is
concerned the evidence of the complainant was not shaken during
cross-examination by the defence and the following
can be noted
relevant to the appellant’s defence:-
Page 42 he states that
the assailants were walking together casually. Accused did not have
the firearm as he was talking with Pule,
the complainant in count 3.
On page 44 he states
that the person who had the firearm was the leader of the group and
that it was not the appellant.
On pages 46, line 20 he
states that after the robbery the accused and his accomplices left
the scene of the crime together.
On page 48, line 24 he
states that the accused and his accomplices were happy (gelukkig)
and they were all walking together. This
evidence was also not
successfully challenged in cross-examination and thus can safely be
regarded as having been proven beyond
reasonable doubt. The
appellant, as far as this count is concerned, is found to have been
acting in concert with the two other
assailants.
[20] As far as count
number 3 is concerned, the following may be noted about complainant’s
evidence:-
He, the complainant,
knew the appellant before the day. Appellant took his belt and a
hat.
On page 50 of the
record the complainant states that the one who had the firearm
threatened to shoot him whereupon the appellant
said “skiet hom”.
On page 52 he states that he was of the view that the group was
working together because the appellant
ordered the other one to
shoot him and the other one was saying that they should not shoot
him i.e. complainant in count 2.
He further states that they were
talking together and laughing together. At no stage were they
fighting with each other.
Under cross-examination
by the defence he states in line 16 - 17 of the record that the
group was a gang with the name “madulammoho”
meaning we leave
together and that it is the gangs’ name.
The evidence as far as
this count is concerned also indicates that there was no duress by
any of the other accomplices, forcing him
to rob the complainant, On
the contrary, it established that he was part of a gang and was the
most aggressive one.
[21] As far as count 4 is
concerned, the following aspects needs to be highlighted regarding
the presence or the absence of coercion:-
Page 64 – the
complainant states that the appellant pressed the firearm against
his head.
Page 65 – the
appellant told him that he must give money.
The appellant also
followed him.
[22] There is no room for
making a finding that the version of the appellant should be
accepted. It is totally improbable. In any
event on his own
account, he had ample opportunity to escape the other two
accomplices. The fact that he failed to report the incident
to the
police and in fact came back to Sasolburg were he was seen selling
cigarettes in the street and subsequently arrested, leads
to the
conclusion that his version is improbable and indeed false. The
observation by the court
a
quo
that his evidence be rejected as false is supported.
[23] The court
a
quo
asked for a pre-sentence report before passing sentence and having
considered all the aspects that needed to be considered as far
as the
sentence is concerned, in particular the personal circumstances of
the appellant, it states the following:-
¡°
As
‘n mens nou verder gedagtig is aan die 13 maande wat hy reeds in
die gevangenis deurgebring het en ‘n mens vat al die
genade
wat jy kan bymekaarkry
in
die betrokke geval.”
Page
101.
It is clear that the
court was at pains to consider each and every aspect that needed
consideration, and cannot be faulted on the
sentence imposed.
[24] The appeal against
the conviction and sentence is dismissed.
______________
V.
MATSEPE, AJ
I concur.
_____________
S.
EBRAHIM, J
For the appellant:
Adv. N.L. Skibi
Instructed
by:
Justice
Centre
BLOEMFONTEIN
For the respondent:
Adv. B.G. Claassens
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/em