Mbele and Another v S [2006] ZAFSHC 18 (17 August 2006)

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[2006] ZAFSHC 18
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Mbele and Another v S [2006] ZAFSHC 18 (17 August 2006)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No. : A246/2003
In
the appeal between:-
P
MBELE
First appellant
K
HLAHANE
Second appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI
J
et
MATHEBULA AJ
_____________________________________________________
HEARD
ON:
15 MAY 2006
_____________________________________________________
JUDGMENT
BY:
THE COURT
_____________________________________________________
DELIVERED
ON:
17 AUGUST 2006
_____________________________________________________
[1] The
appellants were tried in the Sasolburg Regional Court in connection
with multiple charges. The first appellant was convicted
on eight
out of the nine charges he was facing and sentenced to an effective
jail term of thirty five years. The second appellant
was convicted
on three of the seven charges he was facing and sentenced to an
effective imprisonment period of twenty years. They
now come on
appeal against all their convictions and all their sentences.
[2] The conviction of the
first appellant related to the following eight charges: The first
charge, robbery with aggravating circumstances;
the second charge,
robbery; the third charge, unlicensed possession of a fire-arm; the
fourth charge, unlawful possession of ammunition;
the fifth charge,
attempted robbery; the sixth charge, murder; the eighth charge,
robbery with aggravating circumstances and the
ninth charge,
attempted murder. He was acquitted in respect of the seventh charge
of robbery with aggravating circumstances.
[3] The
first appellant was sentenced to direct imprisonment as follows in
terms of section 276(1)(d) of the Criminal Procedure Act
No. 51/1977:
twelve years in respect of the first charge; five years in respect
of the second charge; four years in respect of
the third charge;
six months in respect of the fourth charge; twelve years in respect
of the fifth charge; fifteen years in respect
of the sixth charge;
twelve years in respect of the eighth charge and three years
imprisonment in respect of the ninth charge.
[4] In
terms of section 280(2) Act No. 51/1977 the court below ordered that
all the sentences should run so concurrently that the
first appellant
served an effective sentence of thirty five years imprisonment. In
addition to this and in terms of section 12(2)
Act No. 75/1969 the
court declared the first appellant unfit to possess a fire-arm.
[5] The
conviction of the second appellant related to the following three
charges: the first charge, robbery with aggravating circumstances;

the eighth charge, robbery with aggravating circumstances and the
ninth charge, attempted murder. He was acquitted in respect of
the
following charges: two counts of robbery with aggravating
circumstances, the seventh charge, and the tenth charge; as well
as two counts of attempted murder, the eleventh and the tenth
charges.
[6] The second appellant
was sentenced as follows in terms of section 276(1)(b) Act No.
51/1977: twelve years imprisonment; twelve
years imprisonment and
five years imprisonment in connection with the first, the eighth and
the ninth charges respectively.
[7] In
terms of section 280(2) Act No. 51/1977 the court ordered that the
three sentences should run concurrently and that they should
concurrently run in such a manner that the second appellant served an
effective sentence of twenty years imprisonment. In addition
to this
order the court declared the second appellant in terms of section
12(2) Act No. 75/1969 unfit to possess a fire-arm.
[8] Both
appellants were aggrieved by all their convictions and all their
sentences. Now they come on appeal against their respective
convictions and sentences.
[9] We
deem it expedient to group certain charges together according to
their historical background. For the sake of practical expediency
we
divide the nine charges challenged on appeal into the following four
categories: The first category consists of one charge, the
first
charge committed at Chris Hani, Sasolburg on 30 November 1997. The
second category consists of two charges, eight and nine
committed at
Chris Hani, Sasolburg on 21 December 1997. The third category
consists of three charges, two, three and four committed
at Chris
Hani, Sasolburg on 20 December 1997 and the fourth category consists
of two charges, five and six committed at Chris Hani,
Sasolburg on 4
January 1998.
[10] The version of the
State in connection with the first category was narrated by three
witnesses. It was alleged that the appellants
attacked and robbed
Matsidiso Barbra Motaung at Sasolburg on 30 November 1997 and robbed
her of R1 000,00 cash at gunpoint.
[11] Matsidiso
Barbra Motaung testified that she was busy working in the family shop
called “Four-in-One” at Chris Hani on Sunday
30 November 1997.
Her shop assistants were also in the shop. Among them were Thapelo
Motaung and Sellwane Chabb. At or about 17h00
she was in the kiosk.
She was doing the cashier’s work since the cashier was absent when
she heard commotion in the shop. She
looked up and saw three persons
in the shop. The first person was dressed in dark green pants, green
bottle-neck t-shirt and a black
leather jacket. He was armed with a
gun. He fired two shots inside the supermarket. He was a stranger.
She had never seen him
before. At one stage she was half a metre
away from him. He was looking directly at her. She saw his face.
He was right behind
when the three entered her supermarket. She
pointed the first appellant as the man she was describing.
[12] The
second person was dressed in a grey poloneck jersey and a t-shirt.
He was not a stranger. She had seen him before the incident.
He was
one of her customers. From time to time he bought things from her
shop. He was the person who physically assaulted her
by kicking her
in the chest. He was sandwiched by his two companions when they
entered the shop. She pointed out the second appellant
as the man
she was describing here.
[13] There
was a third person with the appellants. She did not see how he was
dressed. She did not recognise him. He was right
in front when they
walked in. He jumped over the counter into the kiosk. He demanded
money from her. She resisted. He wrestled
with her in an effort to
rob her. He overpowered her in the end. He took money from the till
in the kiosk. He also took some more
money out of the till in the
service area of the supermarket. After they had removed the money
the robbers fled from the scene on
foot. It was during the wrestling
that the first appellant fired a second shot and the second appellant
kicked her. The robbers
stole R1 000,00 cash. She called the police
on her cellphone.
[14] Thapelo
Motaung testified that he was on duty at “Four-in-One”
supermarket at Chris Hani on Sunday 30 November 1997. A group
of
four boys arrived at the supermarket. Two of the boys walked into
the fruit and vegetable section and two into the general section
of
the supermarket. He was standing at the door of the supermarket when
the group arrived. One of the boys closed the door, produced
a gun,
aimed at him and grabbed him before he fired in the air. Thapelo
managed to break loose and dashed out of the supermarket.
He singled
out the first appellant as the boy who perpetrated these criminal
acts.
[15] Sellwane
Chabb testified that she was on duty at “Four-in- One”
supermarket at Chris Hani on Sunday 30 November 1997. She
took an
order from a certain customer apparently to the kitchen. On her way
she looked back and saw the same customer jumping over
the service
counter of the kiosk. Then a commotion broke out in the shop. She
and her follow employees rushed to the main door
in order to run out.
In the vicinity of the door she noticed another robber pointing a
gun at one of her follow employees. She
and some of her fellow
employees turned away from the door and hid themselves behind the
shelves in the shop.
[16] She singled out the
first appellant as the man with the gun. Although she did not know
him before the incident, his face was
familiar. He looked like a
regular customer. She had been working at this supermarket for a
period of six months immediately preceding
the incident. From her
hiding place in the shop she heard two gunshots.
[17] On
9 January 1998 she attended an identification parade where she
pointed the second appellant out.
[18] The
version of the first appellant was that he was never involved in the
armed robbery at the said supermarket. He testified
that at or about
17h00 on Sunday 30 November 1997 he was at church where he was
singing in the church choir. Among others Rev. Mkhwanazi
and the
second appellant were also present. Mirriam Mbele testified on
behalf of the first appellant. She was apparently his sister.
She
stated that on Saturday 29 November 1997 the first appellant went to
Rev. Mkhwanazi’s church. He came back on Sunday 30 November
1997.
He spent the rest of the day sleeping at his parental home at
Holomisa. He was arrested on 8 January 1998.
[19] The
second appellant’s version was that on Saturday 29 November 1997 he
went away from his parental home at Zamdela. He spent
the night
singing in the church choir. He arrived back home on Sunday 30
November 1997 at 10h30. He spent the rest of the day home.
His
mother was present. He denied he was involved in the armed robbery
at “Four-in- One” supermarket.
[20] The trial court
evaluated the state witnesses and concluded as follows in connection
with the first category:
“
As die Hof die kumulatiewe effek
van hierdie getuie se uitkenningsgetuienis in oorweging neem is die
Hof tevrede dat die omstandighede
tydens die rooftog gunstig was vir
die maak van betroubare waarnemings. Die Hof is tevrede dat daar nie
‘n redelike moontlikheid
bestaan dat hierdie getuies eerlike maar
versigtige getuies kan wees, wanneer hulle getuig dat die twee
beskuldigdes twee van die
aanvallers was wie daar op die winkel
toegeslaan het nie.”
[21] Mr.
Pretorius contended, on behalf of the appellants, that the trial
court erred in finding that the evidence of the three state
witnesses
was credible and reliable to establish the identities of the two
appellants as members of the group of robbers involved
in the armed
robbery of the supermarket. But Ms Giorgi disagreed. She submitted,
on behalf of the respondent, that the three state
witnesses had ample
opportunity to identify the two appellants and that the court
a
quo
correctly found that the identification of the appellants by
the witnesses was reliable.
[22] It was clear that
identity was an issue in connection with the first charge. To
determine whether the identity of the appellants
had been proved
beyond reasonable doubt, the court had to determine whether the
observations made by the credible witnesses were
also reliable:
“
Because of the
fallibility of human observation, evidence of identification is
approached by the Courts with some caution. It is not
enough for the
identifying witness to be honest: the reliability of his observation
must also be tested. This depends on various
factors, such as
lighting, visibility, and eyesight; the proximity of the witness; his
opportunity for observation, both as to time
and situation; the
extent of his prior knowledge of the accused; the mobility of the
scene; corroboration; suggestibility; the accused's
face, voice,
build, gait, and dress; the result of identification parades, if any;
and, of course, the evidence by or on behalf of
the accused. The list
is not exhaustive. These factors, or such of them as are applicable
in a particular case, are not individually
decisive, but must be
weighed one against the other, in the light of the totality of the
evidence, and the probabilities;”
Per
Holmes JA in
S v MTHETWA
1972 (3) SA 766
(AD) at 768 A
– C.
[23] The
victim Matsidiso Barbra Motaung testified that the incident happened
broad daylight at 17h00; that the glass of the kiosk
was such that
she could see in the supermarket without herself been seen from the
supermarket; that the first appellant was about
1,5 metres away from
her when she saw him; that he was facing her directly; that she saw
his face; that he was armed with a gun
and that he was dressed in
green pants, green shirt and black leather jacket. The trial court
was aware of all these positive facets
of the witness’s
observation.
[24] There
were, however, certain negative aspects of the witness’s
observation which were apparently overlooked by the trial court
because no word was said about them. Barbra Motaung did not say how
long her observation of the robber with a gun endured. It seems
to
us her observation lasted for a relatively short time. The drama
unfolded pretty fast. The man with the gun, according to Thapelo
Motaung, walked in, closed the door, manhandled him and fired a shot.
There was already commotion in the shop when Barbra Motaung
looked
up. The employees were screaming and running for cover. She was
also probably shocked first by the commotion, then the sight
of the
man brandishing a fire-arm and then a shot. It seems unlikely in
such a commotion that the gunman would have starred in one
direction
for long. The widespread mobility in the supermarket probably also
detracted the witness attention somehow.
[25] Barbra
Motaung made a weak attempt to describe the physical features of the
gunman. The negative aspects raised in the aforegoing
paragraph
probably explained the reason why. If she had adequate opportunity
and favourable circumstances to make her observation,
she probably
would have said more about the facial features of the man with the
gun. The police were on the scene within fifteen
minutes after the
incident. She described the gunman to them as a tall man with a dark
complexion. She also described how he was
dressed. The description
of the clothes did not help very much because the first appellant was
not immediately arrested and found
wearing the clothes which matched
the description given by the witness. The description of a tall and
dark man was also not very
helpful even to the witness herself. Such
common description fitted thousands of men at Sasolburg. There is no
doubt about it.
We know that the accused was arrested five weeks
after the incident on 8 January 1998 and that an identification
parade was held
the next day on 9 January 1998. The witness, Barbra
Motaung, attended the identification parade. There she pointed out a
wrong
person as the gunman. However, at the trial on 28 August 1999
she readily pointed the first appellant as the gunman.
[26] Now
Barbra Motaung failed to identify the first appellant as one of the
robbers within five weeks after the armed robbery. If
she failed
within such a relatively short period of five weeks, how could she
have succeeded to make a correct identification after
a comparatively
long period of eighty one weeks? Bearing in mind the scientifically
proven fact that human memory naturally fades
away with the passage
of time, we are of the view that the positive dock identification of
the first appellant as the gunman made
approximately two years later
by Barbra Motaung, was highly unreliable. No satisfactory basis was
laid for her belated identification
in our view.
[27] Like
Barbra Motaung, Thapelo Motaung also identified the first appellant
from the dock eighty one weeks later. Whether this
witness attended
the identification parade or not, does not appear on the record. If
he did he probably failed to identify the first
appellant at that
early stage. Otherwise, the State would have led such crucial
evidence. If he did not attend the identification
parade the
question is why was he left out since he was such an important
witness. He was the only witness who came into physical
contact with
the gunman. Here too, no sound basis was laid to validate his
identifying or pointing out of the first appellant.
He hardly made
any attempt to describe the physical features or the clothes the
gunman was wearing. The only common factors between
Thapelo Motaung
and Barbra Motaung were that the robber at the door had a fire-arm
and that he fired a shot on his arrival. Therefore
Thapelo Motaung’s
evidence was, in my view, not reliable. It being unreliable, it
follows without saying that it cannot logically
serve as
corroboration for the materially unsatisfactory evidence of Barbra
Motaung.
[28] Sellwane
Chabb’s evidence was rather confusing. She really became mixed up
during her evidence in chief. She attributed to
the gunman certain
acts which were in fact done by the breadman. The converse also held
true. She wrongly attributed to the breadman
certain acts which were
committed by the gunman. She corrected the cardinal mistakes she
made in her evidence in chief during her
cross-examination by Mr.
Bernado, the second appellant’s lawyer. Because the appellants
were not labelled as accused number 1
and accused number 2 during the
trial, the witness ended up confusing the one for the other. Her
belated attempt to rectify the
apparent contradictions in her
testimony was not fully appreciated by the trial court. The
misunderstanding was not limited to only
the question of who was the
possessor of the gun. The misunderstanding went further than that.
Upon careful analysis and digestion
of her testimony we realised that
in many instances where she referred to the first appellant, she in
fact meant the second appellant
and
vice versa
. We note that
even counsel for the respondent was also led astray by the numerical
confusion pertaining to the dock sequence of
the appellants as the
accused in the court below.
Vide
paragraph 3.3 of the
respondent’s heads of argument.
[29] The
person or the robber who was earlier in the supermarket and enquired
about the whereabouts of the proprietor of the supermarket
was not
the gunman, but the breadman. He was the customer who ordered
“skambana” as a pretext to rob the supermarket. According
to
Sellwane Chabb the breadman was the robber who jumped over the
service counter into the kiosk. Before the robbery she saw and
spoke
to the breadman on two occasions of two minutes each from a distance
of one metre. She stated that as a result of the aggressive
actions
of the breadman, she and some of her fellow workers rushed to the
door. There they saw another robber, a male person with
a dark
complexion who had a gun and was pointing it at one of the employees.
We know now that Thapelo Motaung was held at gunpoint
at the door.
When Sellwane Chabb saw the perilous situation in which Thapelo
Motaung was, she changed her direction. Afraid that
she could be
shot dead if she dared run out; she changed her mind and sought
shelter behind the shelves in the supermarket.
[30] The
following passage of the exchange between Sellwane Chabb and the
prosecutor is important.
“
Het u geleentheid gehad om die man
met die vuurwapen mooi te identifiseer? --- Dit is korrek. Ek het na
die persoon gekyk alhoewel
ek nie duidelik na hierdie persoon gekyk
het nie, maar ek kan hom aan sy gelaatstrekke herken.
Sou u hom weer kon herken as u hom
gesien het? --- Edelagbare ja as hy miskien hier te voorskyn kan kom
sal ek in staat kan wees om
hom te kan uitwys.
Is hy vandag in die hof of nie? ---
Moet ek na al hierdie mense kyk wat hier in die hofsaal sit?
HOF
Ja. --- Die getuie wys na
no 1 beskuldigde in die beskuldigdebank.”
[31] She
later said that she fleetingly observed accused number two. In
actual fact she meant accused number one. This was another
instance
where Sellwane Chabb and the prosecutor were once again talking at
cross-purpose. Although she said she recognised the
first appellant
by means of his physical features. This assertion was not explored
any further. Despite this important intimation
the prosecutor
glossed over this vital aspect. The witness was never called upon to
spell out such features. From the above passage
one gets the
impression that she was not aware at that stage that the gunman was
present in court.
[32] The
value of her dock pointing out was drastically diminished by the fact
that no practical steps were taken to protect the first
appellant.
The trial court should have, at the request of the prosecutor, caused
the accused to be removed from the dock before
the identifying
witness or witnesses were ushered in. In a case such as this justice
demands that the accused should mingle with
the members of the
public, if not in the public gallery anywhere else in the court room,
but they certainly should not remain in
the dock. It is undesirable.
Since she and the prosecutor were not on the same page; this
adversely affected her identifying the
first appellant. We also
realised that Mr. Pretorius was also a victim of Sellwane Chabb’s
numerical confusion. The witness was
practically and suggestively
guided to the first appellant whose invidious position in the dock
made him vulnerable to baseless and
speculative guesswork
identification. Virtually no basis was laid for her bold pointing
out of the first appellant from the dock.
How she could recognise
him if he appeared after eighty one weeks when she failed to
recognise him after just five weeks, is difficult
to understand. To
us it is clear that the highly suggestive questions as reflected in
the passage quoted in paragraph [30]
supra
seriously had
everything to do with her belated pointing out.
[33] It
follows therefore that her evidence could not fairly be used as
corroboration for Barbra Motaung’s evidence. This is so
because
Sellwane Chabb’s evidence was just as unreliable as Barbra
Motaung’s. Like Motaung she failed to identify the first
appellant
at an identification parade held five weeks after the robbery, but
managed to point him out in court eighty one weeks after
the
incident. She gave no explanation at all as to what transformed and
ameliorated her re-collective mental powers. To her and
to the other
two witnesses the gunman was a total stranger. This then were the
negative aspects of the observations made by the
three state
witnesses. In
S v MARADU
1994 (2) SACR 410
(WLD) at
413 g – i Blieden J eloquently articulated the danger of dock
identification. He said:
“
This passage
affords a good illustration of the danger of accepting evidence of
identification in the circumstances of this case.
Once the witness,
Pantelis, sees the persons in the dock he feels reassured that he is
correct in his identification, even though
this may not have been the
position were they not there. To any member of the public, such as
Pantelis, the fact that an accused
is standing in the dock must
naturally be suggestive of him being one of the parties involved in
the crime, and no witness can be
blamed for making such an
assumption, even though it is incorrect.”
[34] As
regards the second appellant, he was not at all implicated by Thapelo
Motaung. The critique we previously levelled against
Barbra Motaung
in respect of the first appellant, applies equally well here.
Moreover, she could not say when first or last she
saw the second
appellant in her supermarket although she alleged she recognised him
as one of her regular customers. The alleged
frequent visits, if
there were recent visits, should have enabled her to give a more
detailed and satisfactory description of his
physical features. But
that was not the case. The unconvincing manner in which she
testified about such visits created the impression
that the last of
those visits was probably in the far distant past and not recent.
The supermarket started operating six years before
the incident. It
has to be mentioned that she could not point the second appellant out
at the identification parade. The circumstances
in which she pointed
him out in court left much to be desired. In our view, all these
negative aspects rendered the evidence of
Barbra Motaung unreliable.
[35] As
we have already mentioned, Thapelo Motaung’s evidence was no
corroboration for Barbra Motaung’s assertion that the second
appellant was one of the robbers and we proceed to examine the
identification evidence of Sellwane Chabb in respect of the second
appellant to determine whether it corroborates Barbra Motaung’s.
According to her shortly before the armed robbery a man walked
into
the supermarket, approached her and asked her where the owner of the
supermarket was. Since the owner was not there the man
went away.
The conversation lasted for about two minutes.
[36] Soon
afterwards the same man came back. He entered the supermarket,
approached her again and placed an order for “skambana”
in other
words bread. Like the first, the second encounter also lasted for
about two minutes. She walked away from the breadman
seemingly to
take his order to the staff at the back. Although she did not know
the breadman she recognised him as a frequent customer
of the
supermarket.
[37] On
her way to the kitchen she heard some commotion in the supermarket.
She looked back and saw the same customer, the breadman,
jumping over
the service counter into the kiosk where Barbra Motaung was. At the
identification parade on 9 January 1998 she pointed
the second
appellant out as the breadman, the customer who attacked Barbra
Motaung in the kiosk. In court on 24 August 1999 she
pointed the
second appellant out as the breadman, the robber in the kiosk. This
was the strongest evidence of identification in
this category.
However, the evidence of Barbra Motaung was that the robber who
jumped into the kiosk was not before the trial court.
He was the
third force, the unknown third man. Yet according to Sellwane Chabb
the robber in the kiosk was the second appellant.
This alone is a
material contradiction between the two witnesses. Their evidence as
regards the identity of the second appellant
is mutually exclusive.
We deem it a futile exercise to dwell any further on the serious
self-contradictions of Sellwane Chabb’s
testimony. From her
evidence we cannot find any corroboration for Barbra Motaung.
Instead the contradictions seriously watered
down their respective
assertions that the second appellant was a member of the criminal
gang of the four robbers involved.
[38] For
the reasons advanced above, we are seriously persuaded that the
assertions of the three prosecution witnesses were baseless
and
therefore unreliable. It seems to us the witnesses were honestly
mistaken.
“
What is perhaps
more important, though, is that there must be no reasonable doubt
that the witness is not mistaken. In our view that
will generally
require something more than the mere assertion by the witness that he
has correctly identified the culprit, if the
inherent risk of error
is to be guarded against. “
Per
Nugent J and
Schwartzman J in
S v
SITHOLE AND OTHERS
1999 (1) SACR 585
(WLD) at 591 (e). See
also
S v MARADU
,
supra
.
The
negative aspects of their individual and collective observations
totally eclipsed the positive aspects thereof. The contention
of the
appellants that the trial court misdirected itself in finding that
the testimonies of those witnesses were not only credible
but also
reliable has substance. We would therefore uphold the appeal in
respect of both appellants in connection with the first
charge.
[39] We
turn now to the second category. This group consists of two charges,
eight and nine. In this instance the version of the
State was
narrated by three witnesses namely Elizabeth Chakela, Johnny Chakela
and Johannes Lebitsa. It was alleged that the appellants
attacked
Elizabeth Chakela and Johnny Chakela at Sasolburg on 21 December 1997
and robbed them of R1 700,00 cash at gunpoint. This
was charge
number eight. It was also alleged in charge number nine that the
appellants attempted to kill Johnny Chakela at the same
place and
time by shooting him.
[40] Elizabeth
Chakela, the complainant in respect of charge number eight, testified
that she and her husband, Johnny Chakela, the
complainant in charge
number nine, were at their residence at Chris Hani at or about 21h00
on 21 December 1999. She was cleaning
the house while he was
relaxing in bed. The couple lived and conducted business on the same
premises. At or about 21h00 two boys
came into the shop under the
pretext that they wanted to buy cigarettes. She took their money and
walked towards the bedroom to
get change for them. As she was about
to enter the bedroom, she looked back and noticed that one of the two
young customers was
pointing a fire-arm at her. The boy without the
fire-arm ordered the one with the fire-arm to shoot her. The boys
demanded money
from the couple.
[41] The
fire-armless boy ordered her to escort him to the dining room where
he tried to rape her. She began screaming in there.
Her husband
walked in and attacked the boy. At that moment the armed boy also
entered the dining room and shot her husband twice.
She ran out to
seek help. She was not in a position to identify any of the two
boys.
[42] The
testimony of Johnny Chakela was that he was home with his wife on the
night in question. He was relaxing in the bedroom
when he heard some
noise in the house. He jumped out of bed. Shortly afterwards his
wife and two men entered the bedroom. The
one man was armed with a
knife, the other with a fire-arm. The man with the knife demanded
money from the couple. They took money
from the dressing table and
from the wardrobe. The total was R1 700,00.
[43] The
man with the knife took his wife to the dining room under the false
pretext that he wanted her to disconnect the hifi-set,
which they
also wanted so steal. Once in there, he tried to rape her. She
screamed and wrestled with him. He rushed in there and
rescued his
wife from the knife-man. As he turned to the gunman the latter shot
him twice. Having wounded him and robbed her, the
attackers fled
from the scene. The incident endured for at least 45 minutes. The
house was illuminated by means of electric lamps.
He pointed the
first appellant as the attacker with a knife and the second appellant
as the attacker with a gun.
[44] Johannes
Lebitsa testified that he was a sergeant in the employ of the SAPS.
On 21 December 1997 he attended the scene of the
crime at the
residence of the Chakelas where he assembled two empty 9 mm shells.
[45] The
version of the defence in connection with the second category was
narrated by four witnesses, namely Philemon Mbele, Mirriam
Mbele,
Koos Hlahane and Elizabeth Hlahane.
[46] Philemon
Mbele, the first appellant, testified that he was not involved in the
armed robbery of Elizabeth Chakela and the attempted
murder of Vusi
Johnny Chakela at Chris Hani on 21 December 1997. The two charges
were news to him on the day of his testimony.
He was not on the
scene at the time material to these two charges. On the day in
question he was home until 15h00. He then left
home for a choir
practice session at church. He left the church later and returned
home. By 17h30 he was already back home. He
never went anywhere
afterwards. He spent the rest of the day at his parental home with
his mother and sister.
[47] Mirriam
Mbele was the first appellant’s witness. As regards the Chakela’s
episode, she was uncertain about the first appellant’s
whereabouts
on 21 December 1997.
[48] Koos
Hlahane, the second appellant’s testimony was that he was not
involved in the Chakela episode at Chris Hani on 21 December
1997.
He stated that on the day in question he was not at Sasolburg. He
was at Sharpeville in Vereeniging from 19 December 1997
until 6
January 1998 when he arrived back at Sasolburg. During that period
he never returned to Sasolburg. At Sharpeville he was
visiting his
sister. He said he knew nothing about the particular incident.
[49] The
second appellant’s witness was Elizabeth Hlahane. She testified
that the second appellant was her brother. She confirmed
that he
paid her a social visit from 19 December 1997 until 6 January 1998.
During that period he never went anywhere else.
[50] The
trial court found that the Chakela couple were credible and
trustworthy witnesses. Moreover, the trial court also found
that
Vusi Johnny Chakela’s evidence, as it pertained to the identities
of the robbers involved, was reliable. In the opinion of
the trial
court no reasonable possibility existed that these witness was honest
but mistaken in his identification of the two robbers.
[51] On
behalf of the appellants Mr. Pretorius contended again before us that
the trial court misdirected itself by finding the evidence
of Vusi
Johnny Chakela as credible and reliable, particularly as regards the
identity of the robbers. Once again Ms Giorgi, on behalf
of the
respondent, contended that there was no such misdirection on the part
of the trial court.
[52] The
trial court said the following about the reliable attributes of Vusi
Johnny Chakela’s evidence:
“
Kyk die hof na die betroubaarheid
van sy waarnemings, dan is dit so dat die voorval in die aand
plaasgevind het en aan die ander kant
is dit sy onbetwiste getuienis
dat die woning elektries verlig was. Sy vrou was op daardie stadium
nog besig om die huis skoon te
maak. Dit blyk dat die twee
aanvallers wie identifiseer as beskuldigde no 1 en 2 ‘n geruime tyd
in die huis was, tussen 45 minute
en ‘n uur lank, waartydens hy sy
waarnemings kon doen. Dit blyk uit sy getuienis dat die twee
beskuldigdes ook deurgaans naby
hom was. Hy het onder andere met
hulle gesprekke gevoer, was ook in fisiese konfrontasie met een van
die beskuldigdes. As die Hof
die totaliteit van die feite en
omstandighede wat soos verwoord in die getuienis van Johnny Chakela
rondom die omstandighede wat
geheers het ten tyde van die maak van sy
waarnemings in oorweging neem, is die Hof tevrede dat daardie
omstandighede uiteraard ook
gunstig was vir die maak van betroubare
waarnemings. Daar bestaan ook nie ‘n redelike moontlikheid dat hy
‘n eerlike maar versigtige
getuie kan wees, wanneer hy getuig dat
die twee beskuldigdes die persone was wie vir hom en sy vrou daar in
die huis aangeval het
nie.”
[53] Those
then were chiefly the favourable attributes of Vusi Johnny Chakela’s
observation. Unfortunately virtually nothing was
said about a host
of the unfavourable qualities of the witness’s observation. In his
chief evidence, the witness made bold assertions
that the two
appellants were the two robbers involved. He made no attempt to
motivate his identificative assertion. No distinctive
physical
features or dresses were mentioned in respect of any of the
appellants. The witness did not even claim to have recognised
the
appellants by means of their general facial appearance. In short,
the witness did not lay down any sound basis for his identifying
of
the appellants as the robbers.
[54] Given
the length of time that he claimed to have spent with them in the
house, the witness should have been able to say something
more about
the robbers than he did. The law requires something more than the
mere assertion by the witness that he has correctly
identified the
culprit –
S v SITHOLE & OTHERS
,
supra
.
[55] Judging
by the criminal activities which occupied the robbers, it appears to
us improbable that the episode could have endured
for almost an hour.
Therefore the witness probably did not have such ample opportunity
to make his observation. The scene was not
static but highly mobile.
It shifted from the bedroom to the lounge as far as the identifying
witness was concerned. All along
a gun was pointed at him. He must
have been in the grip of fear, not only for his life and that of his
wife, but also the fear that
she was in imminent danger of being
raped.
[56] Eighteen
days after the incident the first appellant was arrested. The
identification parade was held on 9 January 1998. We
take it that
the second appellant was also arrested before the identification
parade, because Sellwane Chabb pointed him out on that
day. Whether
Vusi Johnny Chakela participated in the police identification parade
on that day does not seem to appear on the record.
No police witness
was called to testify about those investigative proceedings of the
identification parade. It is a great pity.
The investigating
officer was not called.
Elizabeth
Chakela was unable to identify the robbers. Her husband was
therefore a single witness. Moreover, he was an identifying
witness.
It is trite that here the trial court had to be doubly cautious. We
think it was not.
[57]
How Vusi Johnny Chakela identified the appellant was captured on
p.126. The passage which recorded the exchange between the
prosecutor and the witness, reads as follows:
“
Kan u enige van die mense uitwys?
Kan u vir die Hof ‘n aanduiding gee, is enige van die twee persone
vandag by die hof? --- Ja.
U kan maar voortgaan? --- Dit is
hierdie twee (die getuie verwys na die beskuldigdes).”
[58] The
witness made a dock identification. The two accused were sitting or
perhaps even standing alone in the dock in court. They
were
seriously unprotected, dangerously exposed and helplessly vulnerable.
Then a deadly suggestive question was put to the witness:
“......
is enige van die twee persone vandag by die hof?”
The
answer was simple and straight forward. Neither the prosecutor nor
the two defence lawyers asked the trial court to put in place
any
practical protective measures to safeguard the interests of the
accused before the identifying witness was called. It is incumbent
upon the State to alert the role players especially the presiding
officer, in advance of its intention to call an identifying witness
so that appropriate arrangements can be made before the identifying
witness is ushered in. We find it wise, advisable and meaningful
to
cause the accused to leave the dock and to let him take up a seat of
his choice anywhere in the public gallery or anywhere else
in the
court room for that matter. It was not done in this case. The
failure to do so severely jeopardised the interests of the
appellants
and diminished the value of the pointing out.
[59] When
an accused person is identified as the appellants were identified in
the instant case, the scale of justice is not fairly
balanced. The
playing field is uneven. In such circumstances considerations of
fairness, equity and justice demand that reduced
weight be attached
to the evidential value of such dock identification if the inherent
risk of erroneous pointing out or guesswork
identification is to be
guarded against –
R v SHEKELELE AND ANOTHER
1953 (1)
SA 636
(TPD) at 638 F – G. So treated, the diminished value of
this identification evidence alone becomes insufficient to sustain a
safe conviction. Worse still in this category is that the dock
identification was made almost eighteen months after the incident.

It was precisely on account of such inordinately long period that
Elizabeth Chakela frankly and honestly told the court that she
was
unable to recall how the robbers looked like. As a result of that
there was no corroboration for her husband.
[60] In
our view, the favourable aspects of the said single witness
observation were remarkably overshadowed by the unfavourable aspects.
The cumulative impact of all the evidential defects rendered the
evidence of Vusi Johnny Chakela unreliable. The contrary finding
of
the trial court was, in our respectful view, a misdirection. This
court sitting as it was in a appellate mode was entitled to
intervene. We would therefore uphold the appeal in respect of both
appellants. This then is our conclusion in connection with the
second group of offences.
[61] We
turn now to the third category which consists of the following three
charges, two, three and four in other words, an armed
robbery,
possession of a fire-arm and possession of ammunition. The State
alleged that the appellants committed these crimes at
Chris Hani on
20 December 1997. The version of the State was narrated by six
witnesses. They were Seromo Piet Mofokeng, Aaron Tshatsa,
Samuel
Hlomuka, Maria Zakay, Isaac Thulo and Modise Lucas Rampai.
[62] The
evidence of Mofokeng was that he lived at Bethlehem. On Saturday 20
December 1997 he arrived at Sasolburg from Bloemfontein.
He alighted
from the train and walked on foot from the railway station to his
brother’s residence. Three men appeared from nowhere
and
confronted him. They attacked him at or about 04h30 and robbed him
of his belongings. Among others they robbed him of his fire-arm
and
ammunition. He described his fire-arm as a 9 mm pistol with serial
number 35206. He could not identify any of the robbers.
The scene
was not well lit although there were burning street lamps. Later on
he received his fire-arm from the Sasolburg police.
[63] The
witnesses Tshatsa, Hlamoka, Thulo and Zakay were at Zakay’s
drinking place on 4 January 1998. According to Hlamoka and
Thulo,
the first appellant, Phillemon Mbele, was also at Zakay’s drinking
place. Thulo testified that among his three companions
there was the
first appellant. Thulo and Hlamoka testified that the first
appellant had a gun in his possession. Tshatsa saw an
unknown man
with a gun. Zakay also saw an unknown man with a gun. The four
witnesses heard gunshots. Tshatsa and Zakay saw a gunman
and his
companion pushing Zakay’s husband around at gunpoint.
[64] Rampai’s
testimony may be restated briefly as follows: He knew the first
appellant. On 7 January 1998 the first appellant
handed a fire-arm
to him. The first appellant said to him that he was quickly going to
town; that he should please keep the fire-arm
for him and that he
would fetch the fire-arm on his return from town. The first
appellant did not come back to fetch his gun. The
next day he
arrived home from school and received a message left by the police.
He then took the first appellant’s fire-arm to
the police station
and handed it to the police. The court also ruled the statement the
first appellant made before the magistrate
as admissible evidence.
Vide
exhibit G.
[65] The
first appellant’s version in connection with the third group of
offences was that he was not involved in the robbery of
Mofokeng near
the railway station on 20 December 1997. He testified that on 4
January 1998 he was at Zakay’s shebeen where he
was attacked. His
attacker used an assortment of objects such as a panga, beer bottle
and a gun. He disarmed the aggressive villain
while they were
wrestling for the possession of the villain’s gun. He overpowered
the villain and fled from the scene taking with
him the villain’s
gun. For two days after the assault he was not feeling well.
[66] He
decided on a Wednesday following his assault to hand the villain’s
fire-arm to the police. On his way to the police station
he met
Rampai, showed him the gun and explained to him how he obtained
possession of the gun. Rampai advised him that he should
first go to
the hospital in view of the serious nature of his injuries. In
addition Rampai also offered to keep the gun in the meantime
for him.
He followed Rampai’s advice and went to the hospital first. From
there he went back home to have a further recuperative
rest. The
next day, which was a Thursday, he was arrested. He then took the
police to Rampai’s residence to point out the gun.
[67] The
trial court rejected the version of the first appellant and found
that it was not reasonably and possibly true. It accepted
the
version of the State as proof beyond reasonable doubt that the first
appellant was one of the robbers of Seromo Piet Mofokeng.

Furthermore the trial court also found that from 20 December 1997
until his arrest on 8 January 1998 the first appellant was in
an
unlawful possession of Mofokeng’s loaded 9 mm pistol and that he
did not have a valid licence to possess such a fire-arm. Lastly
the
trial court further found that the first appellant was in an unlawful
possession of ammunition in that fire-arm.
[68] The
critical reasoning of the trial court is to be found in the paginated
court record from p. 216 – 217. We associate ourselves
with the
views expressed in that passage. The proven objective facts coupled
with the first appellant’s confession as well as
his patently false
testimony justified the reasonable and legitimate inference drawn by
the learned magistrate. The evidence given
by Modise Lucas Rampai
was particularly devastating to the first appellant’s defence.
Precisely fifteen days after Mofokeng was
robbed by unidentified
three robbers, the first appellant was seen at Zakay’s shebeen with
a gun. Three days later he delivered
a gun to Rampai. No doubt it
was the same gun that he head at Zakay’s shebeen three days
earlier. A day later Rampai delivered
the gun to the local police
community service centre. It turned out to be Seramo Piet Mofokeng’s
fire-arm.
[69] The
first appellant admitted possession of the aforesaid fire-arm; that
he delivered it to Rampai for safe keeping; that he
told the police
about its whereabouts and that Rampai handed it to the police. When
Mofokeng’s fire-arm emerged after the robbery,
it was in the hands
of the first appellant. In
S v RAMA
1966 (2) SA 395
(AD) at 400 C – E Rumpff JA, as he then was, said the following
about the principle of recent possession:
“
The third
submission made on behalf of appellant is that the possession of the
watches by the appellant was not so recent as to justify
the
inference that he stole them. The watch is an unusual and expensive
watch and the learned trial Judge found that it would not
pass
readily from person to person. The theft from the boot of the car
occurred on 29th May. According to Kaplan the watch was handed
to him
on 27th June. His evidence was not challenged. Mrs. Weertz told the
Court - and her evidence was also not challenged - that
two weeks
after she had seen the watch exh. 1 in Johannesburg, it was brought
to Pretoria by Marx. It follows from this that within
14 days after
the theft, appellant was in possession of exh. 1. The learned trial
Judge took into consideration the fact that appellant
had denied
possession of the watch, and his inference that the appellant was
guilty of theft is one which, in my view, this Court
cannot hold to
be wrong.”
We
are in respectful agreement. The principle of recent possession
dictates that when a person is found in possession of recently
stolen
goods the law deems him to have acquired such possession through his
participation in the crime of stealing unless he can
give a
reasonably satisfactory explanation to rebut the presumption.
[70] The
argument of the first appellant that the trial court misdirected
itself by accepting as credible and honest the collective
evidence of
the five state witnesses saved the qualified evidence of Hlamoka
concerning his involvement in the third group of offences
consisting
of charges two, three and four cannot be upheld. Here there was no
misdirection. That being the case, we are not at
liberty to
interfere. We would therefore uphold the convictions in this third
category.
[71] Now
we proceed to do an assessment of the fourth and final category. It
consists of two charges, namely charge five and six.
The State
alleged in charge five that the first appellant armed with a gun
attempted to rob Mlindelwa Mazinyo at Chris Hani on 4
January 1998.
The State also alleged in charge six that at the same place and time
the first appellant killed the said Mlindelwa
Mazinyo.
[72] The
version of the State in connection with the fourth group of offences
was narrated by five witnesses, namely Aaron Tshatsa,
Maria Zakay,
Isaac Thulo, Samuel Hlamoka and Modise Lucas Rampai. The summary of
their collective testimonies was that Tshatsa was
at the victim’s
place to ask for some money change. He sat down in the dining room.
Two men entered the dining room, walked straight
to Mazinyo and shot
him. Apparently Mazinyo was also in the dining room. The victim
stood up and walked towards the bedroom. The
one robber followed the
victim and demanded money from him. He heard a second gunshot later.
He saw the victim collapsing. The
robbers vanished. He could not
identify the robbers. The victim was not armed. The victim did not
attack his unidentified villains.
[73] Zakay’s
evidence was substantially the same as that of Tshatsa. She added
that she was in her bedroom when she heard the first
gunshot in the
dining room. Shortly after the first gunshot her husband entered the
bedroom followed by a person with a gun. The
victim and the gunman
again walked out of the bedroom. The next moment she heard a second
gunshot. The victim was not armed and
in fact had no fire-arm. The
second shot was fatal.
[74] The
composite testimonies of the remaining witnesses were as summed up in
paragraph [63]. We deem it unnecessary to repeat it
here.
[75] The
version of the first appellant was that Mazinyo, the victim, attacked
him, struck him with a panga, hit him with a bottle
and tried to
shoot him at Zakay’s shebeen on 4 January 1998. He and the victim
wrestled for the possession of the victim’s fire-arm
which had
fallen down to the ground. He managed to dispossess the victim.
Having done so he ran away taking with him the victim’s
fire-arm.
He was so assaulted by the victim that he felt weak for two days. He
nursed himself at his friend’s during those two
days. Three days
after his assault by the victim he met Modise Lucas Rampai on 7
January 1998. He was on his way to hand the fire-arm
to the police.
He told the latter about the circumstances in which he obtained
possession of the gun. Upon noticing his injuries
Rampai suggested
that in stead of going to the police station, he should rather go to
the hospital first. Besides the suggestion
Rampai also volunteered
to keep the fire-arm on his behalf until his return from the
hospital.
[76] From
the hospital he went back home for further recuperative rest. The
next day, on Thursday 8 January 1998 he was arrested
in connection
with the aforesaid incident at Zakay’s shebeen. He led the police
to Rampai’s home where the fire-arm was kept.
He denied the
charges that he attempted to rob Mazinyo and that he killed him in
the process.
[77] The
court
a quo
evaluated the two versions. Having done so, it
rejected the version of the first appellant as false beyond
reasonable doubt. The
court specifically rejected as false the first
appellant’s version as to how he acquired possession of the
fire-arm in question.
The court accepted the first appellant’s
admission that he was in possession of the fire-arm. But it found
that the first appellant
did not get the fire-arm by dispossessing
Mazinyo on 4 January 1998 but that in truth and in reality he got the
fire-arm by robbing
Mofokeng on 20 December 1997.
[78] The
court
a quo
found that Maria Zakay’s testimony corroborated
Aaron Tshatsa’s testimony. The significance of their collective
evidence lies
in the following credible facts: That the victim,
Mazinyo, was surprised and attacked in his house where he was
peacefully minding
his own business; that the victim did not have
the fire-arm in his possession and that the victim did not assault
any of his attackers;
that the motive for the attack was robbery and
that the victim was cold bloodedly shot dead because he did not hand
any money to
the attackers as they wanted.
[79] Thulo
and Rampai were also credible and honest witnesses. The former did
not witness the alleged assault of the first appellant
by the victim.
But the only person with a fire-arm that he saw was the first
appellant. Hlamoka’s testimony was heavily, but
correctly
criticised by the trial court. His testimony was accepted provided
it was not in conflict with that of a credible witness,
Tshatsa.
[80] On
the facts the contention of the first appellant that the trial court
misdirected itself by accepting the evidence of the aforesaid
witnesses concerning his involvement in the fourth category charges,
cannot be upheld. The findings of the court
a quo
that two
persons burst into the house of Mazinyo; that the first appellant
was one of the two men; that he was armed and dangerous;
that he
pointed a fire-arm at the victim; that he demanded money from the
victim and that he cold bloodedly shot the victim dead,
because the
victim would not surrender his money to him, were correct. It is our
considered opinion that the facts justified such
findings. Therefore
we are inclined to confirm the two convictions of serious assault and
murder as pronounced by the magistrate.
[81] Before
we proceed to deal with the second leg of the appeal, in other words
the sentence, we would like to make a few general
comments. Seromo
Piet Mofokeng was robbed of his 9 mm pistol loaded with 9 mm
ammunition on 20 December 1997. The next day, 21
December 1997,
Sergeant Lebitsa assembled two 9 mm shells on the crime scene in
respect of the Chakela’s incident. Fourteen days
after Mofokeng’s
robbery on 4 January 1998, Mazinyo was gunned down. Twenty one days
after Mofokeng’s robbery, on 7 January
1998, Rampai received a 9 mm
pistol from the first appellant. Twenty two days after Mofokeng’s
robbery the police received a 9
mm pistol from Rampai. Was there no
criminal link running from Mofokeng’s episode
via
Chakela’s
episode to Mazinyo’s episode? These facts strongly suggest that
the first appellant was involved in the Chakela’s
episode as well a
day after Mofokeng was robbed. Yet the first appellant has now
escaped. It seems to us that no forensic material,
assembled from
the scenes at Chakela’s, at Mazinyo’s and at Rampai’s, was ever
sent to the forensic science laboratory in Pretoria
for comparative
ballistic analysis. The chances are that had the important
microscopic examination and analysis been done, the first
appellant
would probably have been properly convicted on the strength of
possible ballistic evidence. Ballistic evidence and identification
parade evidence were disturbingly lacking in this case. As a result
of such neglect there was probable miscarriage of justice.
We are
not certain whether the case was poorly investigated or poorly
presented to the court or both.
[82] We
turn now to the sentences. As regards the first appellant the
relevant sentences relate to the following remaining convictions:

two, three, four, five and six. It will be recalled that the first
appellant was sentenced to imprisonment for five years, four
years,
six months, twelve years and fifteen years for these charges
respectively.
[83] It
is a serious offence to take another person’s life. In such
circumstances the personal circumstances of the appellant should
yield to the seriousness of the offence. See
S v WEARNE
1979 (1) SA 820
(A) at 823 C – E. Furthermore in
RAMOKO v
DIRECTOR OF PUBLIC PROSECUTIONS
2003 (1) SACR 200
(SCA) at
204 – 205 the court emphasised that the objective gravity of the
offence plays an important role. In
S v MOHASE
1998
(1) SACR 185
(O) at 193 the court said,
inter alia
, that the
sentence imposed must sent a clear message to potential offenders as
well.
[84] In
sentencing the first appellant the court
a quo
took into
account the following mitigating factors: The first appellant was
twenty years of age at the time he committed the crimes.
He passed
standard five at school. He stayed with his parents on whom he was
largely dependent for his basic needs of subsistence.
He had no
fixed gainful employment, but he occasionally did some casual jobs
here and there. He was still unmarried. He had no
dependent minor
children. He was a first offender. It is also important to bear in
mind that the first appellant remained incarcerated
for three years
before he was sentenced.
[85] The
other side of the coin shows that the court
a quo
also took
into account the following aggravating factors: The nature and the
seriousness of the crimes such as robbery and murder;
the prevalence
of the crimes; the thorough planning of the crimes; the cold
bloodedness of Mazinyo’s shooting; the widespread
culture of
violence in the jurisdiction of the trial court; the rampant
trivialising of human life; the constant criminal violation
of the
general interest of society.
[86] On
behalf of the first appellant it was contended that the cumulative
effect of the sentences was shockingly severe and therefore
inappropriate, given the first appellant’s mitigating factors. On
behalf of the respondent, however, it was contended that in
imposing
the various sentences on the first appellant, the court
a quo
carefully took the cumulative effect thereof into account.
[87] In
the course of passing sentence the trial magistrate commented:
“
Dit is so dat die Hof ook nie sy oë
kan sluit vir die werklikheid nie – dat misdrywe van geweld, moord,
roof met verswarende
omstandighede en ook misdrywe waarby vuurwapens
‘n prominente rol speel, dikwels met lewensverlies soos maar ook
weer in die onderhawige
saak misdrywe is wat op ‘n baie groot skaal
voorkom in jurisdiksie-gebied van hierdie Hof in besonder.”
Vide
p. 226: 14 – 24.
The
remarks were justified to a great extent. Where crime is rife, stiff
sentences are called for. All these crimes were prompted
by the
sinister and criminal objective to rob. These criminal enterprises
have become ravaging social evils. What is particularly
aggravating
here is that the first appellant did not perpetrate these crimes
alone. He was a member of a criminal gang which tormented
the small
community of Chris Hani especially the small emerging vendors. The
other members of his gang are still at large.
[88] We
have painstakingly considered the individual sentences. We am
satisfied that three out of the five sentences imposed on the
appellant are in order, namely five years imprisonment in respect of
count two, robbery, six months imprisonment in respect of count
four,
possession of unlawful ammunition and fifteen years imprisonment in
respect of count six, murder.
“
As the essential
inquiry in an appeal against sentence, however, is not whether the
sentence was right or wrong, but whether the Court
in imposing it
exercised its discretion properly and judicially, a mere misdirection
is not by itself sufficient to entitle the Appeal
Court to interfere
with the sentence;”
Vide
S v PILLAY
1977 (4) SA 531
(AD) at 535 E – F per
Trollip JA.
[89] The
first appellant was acquitted in respect of the charge of attempted
robbery in other words count five, but was convicted
for assault with
intent, which is a competent verdict. He was then sentenced to
twelve years imprisonment. In my view, the sentence
is not within
the generally acceptable limits of reasonableness. It is shockingly
severe and therefore inappropriate. The disparity
between the crime
and the sentence is of such a wide degree of seriousness that it
suggests that the court
a quo
did not exercise its discretion
at all or that it exercised its discretion improperly or unreasonably
to the detriment of the first
appellant. The misdirection is one
which vitiates the decision of the court on sentence.
Vide
S
v PILLAY
,
supra
at 535 F – G.
[90] The
misdirection therefore calles for our interference. It appears to me
that reducing the sentence by seven years would be
commensurate to
the crime for which the first appellant was found guilty in the end.
Lastly, the law forbids a sentence longer than
three years
imprisonment for the crime of unlawful possession of a fire-arm in
contravention of section 2 Arms and Ammunition Act
No. 75/1969. It
follows therefore that the sentence imposed on the first appellant in
respect of count three was excessive. The
misdirection compels us to
reduce the sentence in order to bring it within the appropriate
statutory parameters of sentencing. We
are of the opinion that a
reduction of one year will do. The five crimes boil down to two
criminal transactions. We would therefore
find a way of tempering
with the cumulative impact of these multiple sentences to avoid undue
hardship. It must be borne in mind
that an important mitigating
factor in this case is the fact that the appellant was incarcerated
for three years before he was sentenced.
As regards this the
appellant is entitled to full credit for this period.
Vide
S
v NKOMONDE
1993 (2) SACR 597
(WLD).
[91] As
regards the second appellant, his appeal on the merits was successful
against all the three convictions. Obviously all the
corresponding
sentences have to be set aside.
[92] Accordingly
we make the following order as regards the first appellant:
92.1
In respect of charges one, eight and nine the appeal succeeds. The
conviction and the sentences are set aside.
In respect of charges
two, three, four, five and six the appeal on the merits fails. The
convictions are confirmed.
In respect of charges
two, four and six the appeal against the sentences fails. The
sentences are confirmed.
In
respect of charges three and five the appeal against the sentences
succeeds. These sentences are set aside and it is substituted
therefore: three years imprisonment and five years imprisonment
respectively.
We
direct in terms of section 280(2) Act No. 51/1977 that the
sentences of five years, three years, six months, five years and
fifteen years imprisonment in respect of the charges two, three,
four, five and six shall all run concurrently so that the first
appellant serves an effective sentence of twenty two years
imprisonment.
The aforegoing
sentences shall be deemed to have been imposed on the first
appellant on 21 November 2000.
[93] The
appeal of the second appellant succeeds
in toto
. The
convictions and the sentences are set aside in respect of charges
one, eight and nine.
______________
M.H. RAMPAI, J
___________________
M.A.
MATHEBULA, AJ
On
behalf of the appellants: Attorney K. Pretorius
Instructed by:
The
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. S Giorgi
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/sp