Skhosana v S [2006] ZAFSHC 48 (23 November 2006)

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[2006] ZAFSHC 48
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Skhosana v S [2006] ZAFSHC 48 (23 November 2006)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No. : A28/2004
In
the appeal between:
BOONTJIE
SKHOSANA
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
H.M.
MUSI J
et
MOLEMELA AJ
_____________________________________________________
HEARD
ON:
13 NOVEMBER 2006
_____________________________________________________
JUDGMENT
BY:
H.M. MUSI J
_____________________________________________________
DELIVERED
ON:
23 NOVEMBER 2006
_____________________________________________________
[1] The
appellant was charged with one count of robbery with aggravating
circumstances (count 1) and two counts of attempted murder
on Mr.
Jacobus Frederick Pretorius (Pretorius) and Mrs. Anna Pretorius (Mrs.
Pretorius) being counts 1 and 3 respectively, in the
Regional Court
sitting in Bloemfontein. He was, on 4 February 1999, duly found
guilty as charged and sentenced to 10 (ten) years
imprisonment on the
robbery conviction and 8 (eight) years imprisonment on each of the
attempted murder convictions. It was ordered
that 3 (three) years of
each of the attempted murder sentences should run concurrently with
the 10 (ten) years imprisonment on count
1, so that the effective
term of imprisonment was 20 (twenty) years. The appellant now
appeals against both the convictions and
the sentences imposed.
[2] The
focus of the appeal in respect of conviction was the issue of
identity, but Mr. Skibi, who appeared for the appellant in this
Court, also contended that the Court
a quo
erred in convicting
the appellant on counts 2 and 3. He suggested that because the
complainant in count 2, Pretorius, was not struck
by any bullet or
injured, attempted murder had not been proved. Regarding count 3, he
suggested that the appellant should have been
convicted only of
assault.
[3] This
contention that the attempted murder convictions were not competent
is without merit. The evidence is that the attacker
whose face was
initially covered with a mask and who was subsequently identified as
the appellant, not only pointed a fire-arm at
Pretorius at close
range after the latter’s hands had been fastened behind his back,
but that he actually pulled the trigger during
the course of which
cartridges were released. That Pretorius was not shot was due only
to the fact that the fire-arm malfunctioned
and no bullet was
released. This attempt at shooting happened on three occasions but
on each occasion the fire-arm malfunctioned.
Two cartridges were
subsequently found, one in the TV room where the first attempt to
shoot occurred and the second in the office
or study where two more
attempts were made. The only reasonable inference to be drawn from
such conduct is that the attacker intended
to kill. That he failed
to do so is precisely why the correct verdict is attempted murder and
not murder.
[4] As
far as the attack on Mrs. Pretorius is concerned, this occurred at
the time that the alarm system had been activated, when
one would
have expected the robbers to flee. Instead they hit the defenceless
complainant with the butt of the gun so severely that
she sustained
inter alia
a fracture of the skull. That they did not kill
her is probably due to the alarm that was raised by the activated
alarm system.
The inference is inescapable that they wanted to
eliminate her in order to stop her from identifying the appellant.
The conviction
on count 3 is therefore fully justified.
[5] Regarding
the issue of identity, the evidence is that when the third attempt at
shooting Pretorius failed, the attacker removed
the mask from his
face in order to see why was the fire-arm not functioning. In doing
so, he exposed his face. It is instructive
to refer to the relevant
passage from the record at page 13:
“
..... o ja ek het nou gesê
die tweede keer het hy mos nou al toe op my gerig en wat hy toe
onmiddellik daarna doen is toe klap
hy die skerm voor sy gesig weg om
te kyk na die pistool wat gaan hier aan natuurlik.”
And further:
“
Toe hy dit doen toe skreeu ek vir
my vrou Here, kyk wie is hierso.
Ja? -- Nog voor ek sy naam kon sê
toe sê sy, toe sy opkyk toe sê sy Sipho, jou vuilgoed of
so iets.”
That
was the evidence of Pretorius and it is fully corroborated by his
wife, Mrs. Pretorius. The latter further testified that she
became
agitated when she realised that the attacker was their former
employee whom she knew by the name of Sipho, that she spontaneously
threw objects lying on the desk at him and then dashed past him and
ran to another room where she switched on a panic button and
thus
activated the alarm system.
[6] This
piece of evidence by the complainants was not challenged or
contradicted by any other evidence. Their conduct is that of
people
who were truly taken by surprise to see that it was a person they
knew very well who was thus attacking them. It is a natural
and
logical reaction and has all the hallmarks of truth. It is
undisputed that the appellant worked for the complainants for some
four years before he left a few months prior to the incident and he
himself conceded that they knew him well as a result.
[7] Regarding
sentence, Mr. Skibi conceded that 10 (ten) years imprisonment on
robbery with aggravating circumstances and 8 (eight)
years on
attempted murder were appropriate sentences. He submitted, however,
that the cumulative effect of the sentences in the
form of the
effective term of twenty years imprisonment was shockingly
inappropriate and urged us to intervene and substitute an
appropriate
effective term of imprisonment. He also pointed out that the Court
a
quo
had not taken into account that the appellant had spent some
two years in custody whilst awaiting trial. Mr. Chalale, for the
State,
did not have any objection to the effective term of
imprisonment being reduced as long as the sentences imposed on each
individual
count were not interfered with.
[8] Now
the Court
a quo
fully motivated its decision on sentence and
considered the triad of sentence as well as the purposes of
punishment. However, there
are two issues that need to be addressed,
both of which relate to the issue of the effective term of
imprisonment. As counsel for
the appellant correctly pointed out,
the Court
a quo
did not take into account the two years that
the appellant spent in custody prior to sentence. In this regard see
S v VILAKAZI AND OTHERS
2000 (1) SACR 140
(W).
[9] The
second issue is that the Court
a quo
found that counts 2 and 3
were not committed during the course of the robbery and that they
could not be made to run concurrently
with the sentence on count 1.
I respectfully differ. The first and the second attempts at shooting
Pretorius occurred during the
course of the robbery and it cannot be
said that the robbery was over when the last attempt was made. It
could well be that the
robbers were not satisfied that all the money
had been given to them and would have proceeded to demand more had
they not been interrupted
by the dashing away of Mrs. Pretorius.
Likewise the assault on Mrs. Pretorius was probably meant to stop her
from phoning. At any
rate, the victims of all these offences were
the same complainants and the offences were committed at the same
time. At the very
least the offences are closely linked to one
another to justify making the respective sentences to run
concurrently. Compare
S v MATE
2000 (1) SACR 552
(T);
S v BELELIE
1997 (2) SACR 79
(W). Furthermore although
the complainants were subjected to the real risk of serious harm, the
fact is that Pretorius in particular
sustained no injuries.
Certainly the sentence on count 2 should have been made to run
concurrently with the sentence on count 1.
Allowing for the 2 (two)
years that the appellant spent in custody whilst awaiting trial, 16
(sixteen) years effective term of imprisonment
would, in the
circumstances of this case, be appropriate.
[10] In
the premises, the following order is made:
(a) The
appeal against the convictions and the sentences imposed on each
individual count is dismissed;
(b) The order relating to
the concurrent running of the sentences and the effective term of
imprisonment is set aside and replaced
with the following:
The
sentence of 8 (eight) years on count 2 is to run concurrently with
the 10 (ten) years sentence on count 1.
2
(two) years of the 8 (eight) years imposed on count 3 is to run
concurrently with the sentence imposed on count 1.
The
effective term of imprisonment is 16 (sixteen) years, which is
antedated to 4 February 1999.
___________
H.M.
MUSI, J
I concur.
__________________
M.B. MOLEMELA, AJ
On
behalf of appellant: Adv. N.l. Skibi
Instructed by:
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. S. Chalale
Instructed by:
Director Public
Relations
BLOEMFONTEIN
/sp