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1986
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[1986] ZASCA 126
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S v Sibeko (33/86) [1986] ZASCA 126 (18 November 1986)
ENOCH SIBEKO
Appellant and
THE STATE
Respondent
Case No
.: 33/86
IN THE SUPREME COURT OF
SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
ENOCH SIBEKO
Appellant
and
THE STATE
Respondent
CORAM:
HOEXTER, JACOBS JJA et BOSHOFF, AJA
HEARD:
7 November 1986
DELIVERED:
18 November 1986
JUDGMENT
HOEXTER, JA
2.
HOEXTER
, JA,
In the regional court at Hillbrow, Johannesburg, the appellant was found
guilty of theft and sentenced to three years imprisonment.
He appealed
unsuccessfully to the Witwatersrand Local Division. With leave of this Court he
appeals against both his conviction and
sentence.
The facts are shortly these. On the evening of 13 April 1984, and at the Rand
Easter Show, the complainant, Miss Vanessa Lane, was
used by the police as a
decoy to entrap pickpockets. Over her right shoulder the complainant wore a
sling-bag within which there
was a purse containing R30. The sling-bag had a zip
fastening device and the zip had been left partly open. As she walked about the
Showgrounds the complainant was kept under observation by Warrant-Officer Allen
and Sergeants Erasmus and Davis, all of the South
African Police. In due course,
but unbeknown to the complainant, a light-fingered rogue removed the purse
from
3. from the sling-bag whereupon the three policeman
arrested three young black men, one of whom was the appellant.
The three young men thus arrested were jointly charged with robbery in the
trial court and each was convicted of theft. At the trial
the appellant was
accused no 2. The witnesses for the prosecution were the complainant and W/O
Allen. The complainant did not herself
witness the theft and the State case
therefore hinged on the testimony of W/O Allen. In his evidence-in-chief W/0
Allen gave the
following account of the events immediately preceding the arrest
of the three accused -
"We had just left the amusement park and we were walking up Victoria Avenue,
in a southerly direction, when I observed the three accused
before Court,
walking down in the opposite direction. I could see that the three of them were
together, as they were talking to each
other, and they were walking right next
to each other. They were looking around, every time a woman walked past, they
kept looking
around, and looking at the handbags. As Miss Lane passed them,
accused no 3 saw the handbag and I saw him speak to his two companions
and they
all
three
4.
three immediately turned around, and they walked up behind her. They closed
right in behind her, with accused no 1 walking in the
middle. They got right
behind her and I saw accused no 1 with his left hand, Your Worship, take hold of
this sling-bag and with his
right hand, pull the zip open. Miss Lane had carried
on walking, she could not feel what was going on, he then removed the wallet
that was in the bag and they all three immediately turned around to walk away.
At that stage, Sergeant Davis, Sergeant Erasmus and
myself, we approached them
and arrested them. As accused no 1 was grabbed by Sergeant Davis, I saw him drop
the wallet to the ground.
I picked up the wallet and it was handed back to Miss
Lane and she was very surprised that this wallet had been taken out of her
handbag, and she checked the contents and the R30 was still in the handbag.
Did the accused have anything to say about this?
All that the accused said, was that they
were scholars and they had been walking around the show."
At the trial none of the three co-accused had legal representation but the
mother of the appellant (the latter being 17 years old
at the time) was present
at the proceedings. Both the appellant and his mother were allowed to
cross-examine the State witnesses
and to argue on the
evidence
5.
evidence adduced. At the close of the State case each of the three accused
testified in his own defence, and in turn each asserted
his own innocence.
According to accused no 1 the other two accused had been unknown to him at the
time; and he said that he had not
even seen the complainant. The appellant said
in his evidence that he was related to accused no 3. They were scholars who had
visited
the Rand Easter Show and while they were on their way to the exit they
were arrested by the police f or no reason whatever. Accused
no 3 affirmed the
truth of the appellant's version. Having examined the rival versions of the
prosecution and the defence, the trial
Court accepted the testimony of W/O Allen
and rejected the evidence of each of the three co-accused as false. In the
original notice
of appeal, dated 7 August 1984, the sole ground of appeal
against the conviction was that the evidence did not sustain, as the only
reasonable inference, that the appellant had "participated in the commission of
the offence". By notice dated 15 January 1985
the
6.
the grounds of appeal were augmented by the addition of a
ground that the trial Court had erred in convicting the appellant.-
" in the absence of evidence that his"
(the appellant's) "conduct facilitated the commission of the offence."
In the Court below the appeal was heard by DE VILLIERS and STEGMANN, JJ, the
judgment of the Court being delivered by the latter.
Both in the Court below and
before us the appeal was argued for the appellant by Mr
Beaton
,
concerning whose submissions to the Court below STEGMANN, J remarked in his
judgment -
"He does not argue that the evidence given by the appellant could reasonably
possibly be true. He accepts the factual findings of
the Magistrate, and argues
a law point."
For the sake of completeness I should mention that despite the
narrow
7.
narrow grounds upon which Mr
Beaton
sought to attack
the
conviction in the Court below, this Court caused notice in
advance to
be given to both counsel for the appellant and
counsel for the State that at
the hearing of the appeal
argument would also be required as to the adequacy
of the
evidence identifying the appellant as one of the trio who
had
closed in on the complainant. To this end counsel were
invited to file
additional heads and the regional magistrate
was requested to file
supplementary reasons in regard to the
issue of identification. We would
express our appreciation
to both counsel and to the regional magistrate for
the
helpful response received from each of them. Suffice it to say that in the
light of the supplementary heads of argument and the additional
reasons for
judgment, and having heard argument on this particular issue, I am entirely
satisfied -despite Mr
Beaton's
submissions to the contrary - that on all
the facts of the present case any reasonable possibility of mistaken
identification of
the appellant may safely be
excluded.
In
8.
In the Court below counsel for the appellant argued tbat on
the facts found by the regional court the evidence fell short of establishing
that the appellant had done anything at all to facilitate the commission of the
theft. In rejecting that contention STEGMANN, J said
the following -
"The
contrectatio
was proved against Accused No. 1. What was proved
against the appellant was that he stood by ready to assist if necessary (e g by
distracting the complainant's attention from her bag or by receiving the stolen
purse from Accused No. 1), although in the event
his intervention did not become
necessary."
Mr
Beaton
urged upon us that the Court
a quo
erred in so
concluding. Counsel for the appellant candidly conceded, as I think he was bound
to concede, that already at the stage
when they were first noticed by
Warrant-Officer Allen the three accused shared a common purpose to steal from
any woman carrying
a bag who appeared to the trio to be an easy victim. Counsel
went on to argue, however, that there
existed
9. existed a reasonable possibility that by the time of the
actual
contrectatio
by accused no 1 the appellant might have abandoned
his earlier intention to steal; the appellant's presence at the very scene of
the crime and his close proximity to the thief being explicable, so it was
suggested, on the basis that having started of f in the
company of accused nos 1
and 3 the appellant simply remained with them. The hypothesis that despite the
anterior common purpose to
steal the appellant kept company with his two
companions while the complainant was stalked and thereafter actually
pick-pocketed
simply for the pleasure and comfort to be derived from the society
of accused nos 1 and 3, seems to me to be utterly implausible.
From the moment
when the trio spotted the complainant and the gaping bag which she was carrying
there took place a concerted and
co-ordinated exercise. Not only did the
threesome proceed at once in pursuit of their quarry but before the theft was
actually committed
they closed ranks immediately behind her. It is clear,
I
10. I think, that this last-mentioned manoeuvre was executed
in order to reduce the risk of detection of the contemplated theft by
shielding
the complainant's bag so far as possible from the view of potential witnesses to
the rear of the complainant. The inference
that the appellant's whole conduct as
witnessed by Allen was in furtherance of the common purpose to steal is
irresistible. Such
conduct included, as the Court below correctly found, the
appellant's physical act of standing by, ready to assist if need be, at
the time
of the actual
contrectatio
. Such conduct included, no less, the closing
in on the complainant from the rear before the
contrectatio
was effected,
In my view the appellant was rightly convicted.
I turn to the appeal against the sentence. Despite his youth the appellant
has a bad criminal record. In July 1981 he was convicted
of theft of R30 and
sentenced to a whipping with a light cane. In September 1982 he was
found
11.
found guilty of attempted robbery involving threats with a knife and
sentenced to a whipping with a light cane. In November 1983 the
appellant was
convicted on three separate counts of robbery each,of which involved threats
with a knife and the theft of a fairly
substantial cash amount. The first two
counts were taken together for purposes of sentence and in respect thereof the
appellant was
sentenced to two years imprisonment conditionally suspended for
five years. In respect of the third count the appellant was sentenced
to a
whipping with a light cane. In the light of the appellant's past record Mr
Beaton
was constrained to concede that for his present crime a sentence
of actual imprisonment was entirely fitting. The only submission
made was that
the period of imprisonment imposed (three years) was so long as to be
disturbingly inappropriate, and that a portion
of it should have been
conditionally suspended. I am unable to agree. The sentence imposed is a stiff
one, but in all the circumstances
it cannot be said, so I
consider
12. consider, that lt is disproportionately severe.
In the result the appeal is dismissed.
G G HOEXTER, JA
JACOBS, JA ) BOSHOFF, AJA ) Concur