Mokhatala v S [2006] ZAFSHC 79 (29 June 2006)

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[2006] ZAFSHC 79
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Mokhatala v S [2006] ZAFSHC 79 (29 June 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A167/2005
In the appeal between:
JOUBERT MOKHATLA
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
C.J.
MUSI, J
_____________________________________________________
JUDGEMENT:
RAMPAI, J
_____________________________________________________
HEARD ON:
26 JUNE 2006
_____________________________________________________
DELIVERED ON:
29 JUNE 2006
_____________________________________________________
[1] The appellant was
tried as accused number 2 in the Bethlehem Regional Court on three
charges. On the 24
th
April 2002 he and his co-accused, Sentu Isaac Mosia, in other words
accused number 1, were convicted. The next day on the 25
th
April 2002 an effective sentence of 15 years imprisonment was imposed
on each of them. Now the appellant comes on appeal against
the
conviction and the sentence.
[2] The appellant stood
accused of the following charges: The first charge was robbery with
aggravating circumstances. The second
charge was unlicensed
possession of a firearm, a .38 special revolver. The third charge
was unlawful possession of 5 rounds of ammunition.
It was alleged
that the accused committed all these offences at Boiketlo Village in
Qwa-Qwa on the 1
st
February 2001.
[3] The trial started on
the 15
th
October 2001. The appellant pleaded not guilty to all the charges.
Notwithstanding his plea, he was convicted on the 24
th
April 2002. The next day a 15 year jail term was imposed on him in
respect of the first charge and a 3 year jail term in respect
of the
second and the third charges. The two were taken together as one for
the purpose of sentence. The court below directed that
the three
year sentence should run concurrently with the 15 year jail sentence.
Therefore the appellant is currently serving an
effective sentence
of 15 years imprisonment.
[4] The version of the
prosecution was narrated by seven witnesses, namely: Anna Falatsi,
Pulani Litali, Ben Bite Mofokeng, Liza
Mosia, Sergeant L. D. Mokone,
Inspector T. N. Lerotha and Inspector T. M. Mokoena.
[5] Briefly stated the
following were the facts. In the morning of the 1
st
February 2001, Falatsi was on duty at the Vodacom street telephone
stall. She was an employee. At or about 10h00 Litali was inside
the
same Vodacom street telephone stall to make a call. She was a
customer. The two ladies were alone in the stall when three men
attacked the stall. One of the attackers was armed with a gun. They
robbed Falatsi of her Siemens cellular phone and Litali of
her Bosch
cellular phone. In addition they robbed Falatsi of R1 100 cash and
Litali of her white t-shirt. One of the robbers who
stood guard at
the door was wearing a white t-shirt with the word Vodacom printed on
it.
[6] Mofokeng
was in the same stall shortly before the armed robbery. He was still
in the vicinity when he heard a woman screaming.
He then saw two men
running away out of the stall. He chased the two fugitives up to the
playground where he noticed that one of
them had a firearm in his
hand. Mofokeng never lost sight of the two fugitives at any stage
during the chase.
[7] The police arrived at
the stall, picked Litali up and pursued the two fugitives just like
Mofokeng. Litali directed them in the
direction in which the
fugitives fled. Both fugitives were arrested in accordance with
Litali’s pointing out. Mofokeng witnessed
the arrest. Inspector
Lerotha confirmed that there was a boy who was chasing the suspects
and that he found the boy with the suspects
on the playfield. One of
the fugitive suspects was wearing a white t-shirt with the word
Vodacom printed on it. Such fugitive was
identified as the
appellant. Inspector Mokone apprehended the appellant’s fellow
fugitive. He searched him and found a firearm,
ammunition and two
plastic money bags containing R426,25. Later the two plastic money
bags were identified as those that were stolen
at the stall. The
appellant was arrested by Inspector Lerotha.
[8] The cellular phones
of the victims were recovered by the police and handed back to the
victims. Litali received hers within six
days of the armed robbery
and Falatsi received hers within 6 months thereof. The one cellular
phone was recovered from a certain
suspect, Mowane and the other from
Liza Mosia, accused number 1’s mother.
[9] Inspector Mokoena
established that the firearm belonged to a certain Yolanda van Zyl.
The firearm was loaded with five live rounds
of ammunition. There
was no explanation from the suspects as to how the firearm came into
the possession of the appellant’s co-accused.
[10] The version of the
defence was narrated by the two accused, Mosia and Mokhatla. They
put up a common defence of an alibi. I
deem it unnecessary to set
out the finer details of the appellant’s defence in the light of
the concession made before us by his
attorney, Mr. Reyneke. The
lawyer carefully weighed up the evidence of the seven state
witnesses. In view of such evidence he conceded
that the alibi
defence as raised by the appellant could not be reasonably and
possibly true. He concluded that on the merits, he
could not make
any sensible submission as to why the court
a
quo
can
be said to have misdirected itself in convicting the appellant as
charged.
[11] The court below
followed the correct approach in dealing with the conflicting
versions. In the case of
S
v MATTIODA
,
1973 (1) PH H24 (N) at 27 Leon J articulated the correct approach as
follows:
“
The
proper approach in a criminal case is to consider the totality of the
evidence. That is to say to examine the nature of the state
case,
the probabilities of all the witnesses and then to ask oneself at the
end of all this whether the guilt has been established
beyond the
reasonable doubt.”
See also
S
v NTULI
1975 (1) SA 429
AD and
S
v RADEBE
1991 (2) SACR 166
(T) at 167 J.
[12] The
court with appellate jurisdiction does not likely interfere with the
trial court’s live observation and evaluation of the
oral testimony
precisely because of the fact that the trial court unlike the court
of appellate jurisdiction is in a privileged position
to observe all
the witnesses live.
S
v FRANCIS
1991 (1) SACR (AD) at 204 c – e and
R
v ABELS
1948 (1) SA 706
(O).
[13] During
the course of his judgment the magistrate remarked:
“
Mnr
Peete was inderdaad korrek soos die Hof reeds gesê het, kon hy
aangevoer het dat hierdie saak draai rondom identiteit. En nou
is
dit so dat dit geykte reg is dat getuienis wat handel oor identiteit
deur die Hof met groot versigtigheid benader moet word.
Die rede
daarvoor is dat ‘n getuie soms selfs al is hy hoe eerlik ‘n
vergissing kan begaan, of ‘n fout kan maak wanneer iemand
uitgeken
word. Wanneer die Hof getuienis oor identiteit beoordeel dan kyk die
Hof na ‘n veelvoud van faktore. Die Hof kyk na
die sig op die
betrokke dag toe die voorval plaasgevind het, of dit lig was of dit
donker was, of daar enige versperrings was ensomeer.
Die Hof kyk ook
na die tydsduur van die waarnemeings, omdat dit logies is dat hoe
meer tyd ‘n persoon het om ‘n uitkenning te
maak, hoe
betroubaarder of meer betroubaar sal so ‘n uitkenning uiteindelik
wees. Die Hof kyk ook na vorige kennis van ‘n persoon,
omdat dit
makliker is om iemand uit te ken wat aan ‘n mens bekend is. Die
Hof beoordeel ook die waarnemeingsvermoë van ‘n spesifieke
getuie,
en ook sy vermoë van rekolleksie.”
[14] The aforegoing
passage was in keeping with the principle enunciated by Homes JA in
the case of
S
v MTHETWA
1972 (3) SA 766
AD at 768 a – d. The following reliable aspects of
the prosecution’s evidence as regards the identity of the robbers
were telling
against the appellant. The armed robbery took place
during brought daytime at or about 10h00. The victim’s encounters
with the
robbers endured for approximately ten minutes. The robber
standing at the door was in a position where he was visible to the
victims.
There were no obstructive obstacles between him and the
victims. He was wearing a white t-shirt with the word Vodacom
printed on
it. A man wearing such a shirt was seen fleeing from the
scene and chased by an independent witness. Shortly after the
robbery
a man wearing such a shirt was spotted on the playground by
one of the victims, Litali, and pointed out to the police. He was
later
identified as accused number 2. During the robbery in the
stall one of the robbers had a gun. The appellant’s companion was
found
with a loaded gun in his possession. The appellant tried to
run away from his companion shortly before their arrest. Besides the
gun, the appellant’s companion was found in possession of money.
The money was contained in incriminating plastic bags. The two
men
arrested at the sportsground were dressed the same way as the robbers
in the stall. The victim Litali knew the appellant before
the
robbery. She recognised him as Detere’s boyfriend. Detere and
Litali were neighbours.
[15] The testimonies of
the seven state witnesses did not form one perfect and harmonious
version. There were contradictions, discrepancies
and other
unsatisfactory aspects. However the two lawyers before us were
unanimous that the finding of the trial court that such
differences
as existed in the respective accounts of the witnesses were not of a
material nature. On the whole the credibility and
the reliability of
the collective version of the seven witnesses was not materially or
substantially diminished as a result of one
or more or all of such
discrepancies. I have no hesitation in endorsing the findings of the
trial court that their evidence was
both credible and reliable.
[16] I am therefore
inclined to confirm the conviction of the appellant in respect of the
first charge, namely armed robbery. However,
as regards his
conviction in respect of the second charge, unlawful possession of a
firearm and the third charge unlawful possession
of ammunition, I
have some reservations. The available accepted and proven facts
showed that the appellant never had the gun or
the ammunition in his
physical possession throughout the entire episode. The undisputed
facts indicated that the firearm was continuously
in the physical
control of a different member of the criminal gang. There was
glaring lack of evidence to establish beyond reasonable
doubt that
such physical detentor intended to exercise such physical possession
on behalf of the appellant or the gang as a whole.
Similarly there
was a glaring lack of evidence to suggest that the appellant intended
that the real detentor should possess and
use the gun as he did for
the mutual benefit of the gang.
S
v MBULI
2003 (1) SACR 97
SCA at paragraph 71 – 72 per Nugent JA. In
contrast see
S
v KHAMBULE
2001 (1) SACR 501
SCA per Olivier JA.
[17] Mrs. Ferreira’s
argument for the confirmation of the conviction in this regard boiled
down to justification of the doctrine
of common purpose and not that
of joint possession. As regards the former, it must be readily
appreciated that the appellant has
correctly been found guilty of an
armed robbery although he did not personally have a firearm in his
hands or physical possession.
As regards his participation in that
common mission the appellant has therefore been duly punished. He is
paying his debt to the
society offended by serving a prison term of
15 years. The conviction of the appellant as a joint possessor in
respect of these
last two charges would have been justified, for
instance, if there was evidence that the appellant was seen drawing
the gun out and
handing it over to the real detentor during the
robbery. Therefore I would set aside the conviction of the appellant
in respect
of the aforesaid second and third charges.
[18] As regards the
sentence I am satisfied that the court below followed the correct
approach by considering the personal circumstances
of the appellant
as an offender, the gravity of the crime of armed robbery as well as
the interests of the society. As a court with
appellate jurisdiction
we have limited powers to interfere with the sentence imposed by the
trial court. We can only interfere provided
we are satisfied that
the court
a
quo
materially misdirected itself or that the court
a
quo
imposed a sentence which was shockingly severe and inappropriate and
therefore unbalanced in all the circumstances. Where a court
a
quo
has
exercised its sentencing discretion in a reasonable and proper manner
there is no room for a court with appellate jurisdiction
to alter the
sentence.
S
v PIETERS
1987
(2) SA 717
(AD) at 728 b – c.
S
v PILLAY
1997 (1) SA 531
(AD) at 535 e – f.
[19] The court
a
court
took into account all the mitigating factors peculiar to the
appellant’s individual profile. In addition the court
a
quo
also took into account all the aggravating factors. I am of the view
that in doing all this the court
a
quo
maintained a proper balance between the mitigating factors on the one
hand and the aggravating factors on the other.
[20] The penal
provisions of section 51 of the Criminal Law Amendment Act No.
105/1997 was kept in mind by the trial court. Its
conclusion that
there were no substantial and compelling circumstances in favour of
the appellant to justify a lesser sentence than
the prescribed
minimum sentence of 15 years imprisonment cannot be faltered. Indeed
this much Mr. Reyneke conceded. On the facts,
the sentence of 15
years imprisonment in respect of robbery was justified in my view.
In would therefore confirm it. The sentence
of 3 years imprisonment
in respect of the unlawful possession of a firearm and the unlawful
possession of ammunition cannot be allowed
to stand for the reasons I
have enumerated.
[21] Accordingly
I make the following order:
The appeal against the
conviction in respect of the first charge, in other words the armed
robbery, fails.
The conviction in
respect of the armed robbery is confirmed.
The appeal against the
conviction and sentence in respect of the second charge, the
unlawful possession of a firearm, is upheld.
The conviction and
sentence in respect of the second charge are set aside.
The appeal against the
conviction and sentence in respect of the third charge, unlawful
possession of ammunition, is upheld.
The conviction and
sentence in respect of the third charge are set aside.
The appeal against the
sentence of 15 (fifteen) years imprisonment imposed in respect of
the first charge is dismissed.
The sentence imposed in
respect of the 1
st
charge is confirmed.
______________
M.H. RAMPAI, J
I
concur.
_____________
C. J. MUSI, J
On
behalf of the Appellant: Prokureur J. D. Reyneke
Instructed
by:
Legal
Aid Board
BLOEMFONTEIN
On
behalf of the Respondent: Adv. A. Ferreira
Instructed
by:
Director of Public
Prosecutions
BLOEMFONTEIN
/em