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[2004] ZAWCHC 35
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Swart and Others v S (A713/2002) [2004] ZAWCHC 35 (5 March 2004)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A713/2002
DATE
:
5
MARCH 2004
In
the matter between:
JONATHAN
SWART
1
st
Appellant
JOSEPH
ChOBELE 2
nd
Appellant
BOETIE
DUBASIE 3
rd
Appellant
THE
STATE
Respondent
JUDGMENT
MEER,
J
On
6 December 1999 the first, second and third appellants were
convicted in the Regional Court, Worcester, of robbery with
aggravating
circumstances and each sentenced to 12 years'
imprisonment. In addition, the second and third appellants were
convicted for unlawful
possession of a firearm (count 2), and
unlawful possession of ammunition (count 3), in contravention of
Section 2 read with Section
39 of Act 75 of 1969. They were each
sentenced to six months' imprisonment on count 2 and three months'
imprisonment on count
3. Second appellant only was convicted on an
additional count of pointing a firearm in contravention of Section
(1)(ii) read
with Section 29 (2) and 39 (3) of Act 75 of 1969 (count
4) for which he was sentenced to three months
1
imprisonment.
The
appellants pleaded not guilty to the charges. Their convictions
stemmed from a robbery committed on 21 December 1996 at
Shoprite-Checkers, Russell Street, Worcester, in which cash in the
amount of R106 760,70 was stofen. Appellants appeal against
their
convictions and sentence and in so doing seek condonation for the
late filing of their notices of appeal. They cite an
inability to
obtain legal aid and administrative delays unrelated to them as
reasons for the Eate filing. The se
,
I am satisfied, constitute just cause and condonation is accordingly
granted.
The
State's case in broad terms was that the appellants had planned the
robbery for 21 June 1996 and had enlisted the assistance
of two
employees at the Shoprite Centre, namely Riaan Solomons and one
Rossouw Unbeknown to the appellants, SoEomons informed
both the
police and Checkers management about the planned robbery. On the day
in question all three appellants were arrested;
appellants 2 and 3
near the cash control office, and appellant 1 outside Checkers.
The
evidence upon which appellants were convicted was as follows;
Stephen Dauce, the store manager, testified that the police
informed
him about the planned robbery two weeks prior t hereto. He was given
a description of first appellant and told to watch
out for him. in
anticipation of the robbery, Dauce had arranged extra security at
the store. On the morning of Saturday, 21 December
1996, he
recognised the first appellant at the bakery counter in the store
just before 9 am. He said that as per usual the cash
pick-up from
the till occurred around mid-morning. This involved the cash from
each til! being emptied into red bags which were
then put into a
large bag and taken up the stairs to the cash office, a floor up.
Dauce himself accompanied the security personnel
during the
"pickup" and upstairs to the cash office, There the
money was put on the desk for the four women who
worked in the cash
office to attend to.
Dauce
then returned to the shop floor and shortly thereafter received a
message to go back to the cash office. At that point the
police
entered the store with guns and he realised the robbery was in
progress. Shoppers started to panic. Dauce proceeded to
the cash
office. On the stairs he encountered the police with appellants 2
and 3 in captivity. By that stage chaos reigned in
the store, Dauce
returned to the shop floor and assisted in evacuating the public.
He saw the two appellants being taken away
by the police. Thereafter
he returned to the cash office in search of the four women staff,
but they were nowhere to be found.
He unlocked the built-in safe and
discovered that they had been locked in there together with Riaan
Solomons. Solomons had blood
on his head. After Sofomons and the
women were taken to hospital, Dauce went to the police station where
he recovered the money,
still in the red Shoprite bags, all R106
000, 00 of it.
Riaan
Solomons, a cleaner at the Shoprite Centre, shed fight on how the
robbery was planned, and explained his role in facilitating
events
that day. Two weeks before the robbery, first appellant, whom he
knew as "Uile\ approached him to assist in the robbery.
He
asked for a map of the shop and details about the cash "pick-ups".
Solomons referred him to Rossouw who worked at
the centre for Gray
Security. Soon thereafter Solomons testified first appellant,
Rossouw, and him, travelled in first appellant's
BMW to Zweletemba
where they met the second and third appellants and discussed plans
for the robbery. Solomons could not remember
how many times they met
in Zweletemba.
Unbeknown
to the appellants, Solomons went to the police and informed Captain
Smit about the plans for the robbery. He was unsure
whether he had
made this report after his first visit to Zweletemba. He told the
police that the robbery was planned for immediately
after the cash
pick-ups on Saturday 21 December 1996. He also said that the plan
was that Solomons would signal by winking to
first appellant who
would be in the shop after the cash pick-up and once the money was
taken to the cash office. Second and third
appellants would then
enter the shop dressed in blue overalls like ordinary workers.
Solomons would go up to the cash office
followed by them. Solomons
would how his face at the office of the cash office door and the
staff would open for him as he often
went in to get money. He would
light a cigarette and then nip it. This would be the sign for
appellants 2 and 3 to storm into
the office and take the money. They
would then leave through the machine room and pass the money to
first appellant through an
opening which would be cut for that
purpose in the fence outside the machine room.
Captain
Smit told Solomons to play along with the planned robbery. On the
Friday evening before the robbery, Solomons testified
that he cut an
opening in the fence outside the machine room and showed the
appellants how the door of the machine room worked.
Solomons
testified that on the morning in question, first appellant had
arrived at Shoprite at 7am. The other two appellants
were also
there. Everything went as planned Solomons gave the agreed signal
and appellants 2 and 3 entered the cash room.
Appellant 2 had a gun
and hit Solomons on the head with it, as planned. Appellant 3 took a
black rucksack from his back and began
packing the money into it.
Appellants 2 and 3 then locked Solomons and the cash office staff in
the safe. The staff remained
there until Dauce unlocked the safe and
they were taken to hospital. Solomons denied there had been any
animosity between him
and first appellant in the past and for that
reason he had implicated first appellant in the robbery.
Dorothy
Issei and Eileen Wehr who were locked in the safe corroborated
Solomons' account of what transpired in the cash office.
3n addition
Issel testified that one of the robbers was armed and said "hou
jou bek of ek skiet jou\ Neither of them however
identified second
and third appellants.
Then
there was the evidence of various policemen who had come to the
scene in anticipation of the robbery. Captain Smit of the
Crime
Prevention Unit in Worcester with 15 years' experience in the police
force, corroborated Solomons' testimony about plans
for the robbery.
Smii's evidence was as follows; After instructing Solomons to play
along with the planned robbery, he obtained
the assistance of the
Reaction Unit in Paarl, a unit more accustomed to operations of this
kind. Members of that unit met with
him and Solomons to work out
the logistics for dealing with the robbery. Captain Smit was put in
charge of operations outside
the store, whilst Captain Korabie of
the Reaction Unit was in charge of operations in the store. Those
inside were instructed
to look out for two black men in blue
overalls, whilst those outside had to look out for a tall coloured
man with "hangoe".
On
the morning of the robbery the members of the police force took
their positions, dressed in civilian clothes and were in cellphone
and radio contact. Smit received a report that the men in blue
overalls had entered the store He proceeded inside the store and
up
the stairs to the cash office. There he encountered second and third
appellants lying on the floor of the landing, having
been caught by
members of the Reaction Unit. A bag of money lay next to them. Their
faces were injured. Thereafter, they were
arrested. Smit had made a
statement to the police about this but his statement had been
mislaid.
The
first appellant was known to Smit who had often seen him driving
around m a cream BMW. He had also seen him being arrested
and after
his arrest, at which stage first appellant's eye was swollen. The
appellants had all been taken to hospital for the
injuries the day
after the event. Finally, Smit made mention of a shooting in the
store that morning, but this was not confirmed.
Captain
Korabie of the Paarf Reaction Unit who was in charge of operations
inside the store and Constable Grobbelaar, a member
of his team,
testified about their observations of the appellants that morning as
welt as how they, together with Sergeant van
Wyk, had effected the
arrest of appellants 2 and 3 on the stairs outside the cash office.
Korabie and Grobbelaar have twelve
and six years' experience
respectively in the police force. Grobbelaar observed first
appellant that morning, initially alone
at the bread counter, and
then again later in the company of second and third appellants. All
the appellants appeared nervous
to him. First appellant, he said,
had indicated the stairs to second and third appellants, whereafter
he went outside. Second
and third appellants then went up the
stairs, the latter with a rucksack on his back. Soon thereafter a
woman started screaming
that there was someone with a gun, the
customers began panicking, and Korabie, Van Rooyen and Grobbelaar
went to the stairs.
Korabie arrested second appellant at the bottom
of the stairs. He had a gun. Grobbelaar and Van Rooyen caught third
appellant
at the top of the stairs with the bag of money on him.
They pushed him to the floor and in the process Grobbelaar conceded
first
appellants nose may have bled.
Grobbelaar
seized the bag of money and transported it to the police station.
Grobbelaar had also found the safe keys in the bag.
These were later
used to unlock Sofomons and the others who were locked in the safe.
Korabie testified that when he caught the
second appellant he
removed a gun from him. The public he said was very aggressive
towards the appellants and they had to be
whisked into the police
van for their own protection.
Sergeant
Morgan, who has nine years
1
experience in the police force according to his testimony, gave an
account of what he saw whilst on observation duty outside
the store
as part of the Crime Prevention Unit team. He had known first
appellant as "Uile" as they had been in school
together.
He had seen all three appellants nearby the store at the entrance to
Pep Stores earlier that morning, and had pointed
them out to
Korabie. He too described the second and third appellants in blue
overalls, the latter with a rucksack, which first
appellant helped
to put under his coat. He had also seen first appellant hand a gun
to second appellant, Morgan also saw second
and third appellants
lying on the stairs after they were caught by members of the
Reaction U nit.
Inspector
Snyman testified that he had seen all three appellants in a cream
BMW at 7.30 that morning He too knew first appellant
from school.
Captain Heunis, who was also on observation duty, said after second
and third appellants had been caught, he received
a message to this
effect and was instructed to arrest the first appellant at that
stage. He duly arrested first appellant, known
to him as "UMe\
who was standing at the opening of the clipped fence, in
anticipation of the money being passed to him through
the opening in
the fence.
Finally,
there was the testimony of Wolmarans, the fingerprint expert, about
third appellant's palm imprint being on the door
of first
appellant's cream BMW. There was also the testimony of Inspector
Engelbrecht to the effect that the fence had indeed
been cut. That
was the evidence on which the appellants were convicted.
I
now go on to consider briefly the versions of the appellants. First
appellants
1
defence was a bare denial of any involvement in the robbery, as well
as a denial that he knew the second and third appellants.
He
testified that he had come to meet a Mr Bam that morning in
connection with the sale of chickens and on his way to the bus
stop
near the Shoprite Centre he was assaulted by the police for no
reason, thrown into the van and only later did he realise
that he
was being arrested for a robbery. Solomons, he said, bore him a
grudge because of a physical altercation involving
a girl at a dance
some time previously, Solomons had falsely implicated him for that
reason.
On
appeal, Mr
Pothier
,
for the first appellant, submitted that Solomons' evidence was not
sufficiently credible to establish beyond reasonable doubt
that
first appellant had been part of planning the robbery. Solomons
could not recall accurately and consistently when he informed
the
police about the robbery and whether he had read his statement to
the police. The Court should have treated Solomons' evidence
with
circumspection because of this. Mr
Pothier
questioned also the reliability of the identification of first
appellant by the police officers.
Appellants
2 and 3 did not testify at the trial. Their versions, as put by
their legal representatives, also amounted to bare
denial. Second
appellant's version was that he was arrested in the shop at the
door, taken to the stairs and assaulted by the
police. He had
neither a rucksack, bag of money, nor a gun. Third appellant's
version similarly is that whilst he was shopping,
Constable
Grobbelaar asked that he accompany him to the stairs where he was
assaulted.
On
appeal second and third appellants represented
themselves. The grounds for appeal relied on by them are,
in
essence, that the Court a
quo
erred
in accepting the State had proved its case beyond reasonable doubt
and not accepting their version as being reasonably possibly
true.
U
was
also submitted that they were subjected to an unfair and biased
trial. They too deny their involvement in the robbery. They
highlighted also aspects of the evidence which were of concern to
them and complained about the treatment meted out to them by
the
police, that they were assaulted by the police and conveyed in the
boot of a vehicle, amongst other matters.
The
Court expressed its concerns about these events. This
notwithstanding, I am of the view that given the overwhelming,
consistent
and corroborative evidence against the appellants, their
grounds of appeal simply cannot be sustained. In a well-reasoned
judgment
the learned magistrate accurately referred to a "golden
thread" that ran though the evidence of the State, as witness
after witness corroborated one another and implicated the appellants
in the planning and execution of the robbery. Moreover,
as was
pointed to by Mr
Badenhorst
for the State with reference to
S
v Boesak
2000(1) SACR 633 (SCA), appellants 2 and 3 did not lead any evidence
in rebuttal of the State's strong
prima
facie
case,
which consequently became conclusive proof upon which the Court was
entitled to make a finding of proof beyond reasonable
doubt.
With
regards to the conviction of second appellant on count 4 for
pointing a firearm, Mr
Badenhorst
submitted that such conviction was not in accordance with justice
and stood to be set aside. The pointing of the firearm was
one
continuous act with the robbery by gunpoint and second appellant
ought to have been charged with one offence only. I agree.
It is
clear that both acts were committed with a single intent and
constituted one criminal transaction (see
S
v Benjamin
1980(1) SA 945 (A) 956E-H).
In
view of all of the above, I find that the learned regional
magistrate correctly convicted the appellants on counts 1, 2 and
3
and that the conviction of second appellant on count 4 stands to be
set aside.
I
now turn to the question of sentence. It is accepted law that the
question of sentence Is in the discretion of the trial Court
and
that an appeal Court will only interfere with sentence in the event
of an irregularity or misdirection, of if the sentence
is shockingly
inappropriate (see
S
v Rabe
1975(4) SA 855 (A) at 857D-E). I can find no grounds to interfere
with the sentences imposed in respect of counts 1-3. The magistrate
reflected on all relevant factors in passing sentence, including the
personal circumstances of the appellants and their not negligible
convictions, and he imposed sentences which were neither shocking
nor inappropriate.
I
would accordingly make the following order;
The
APPEAL
IN RESPECT OF COUNTS 1, 2 AND 3 IS DISMISSED
.
The
CONVICTION
OF SECOND APPELLANT ON COUNT 4 IS SET ASIDE.
MEER,
J
SELJKOWITZ
J
:
I
agree the convictions and sentences of the Court
a
quo
are
confirmed, save in respect of the conviction and sentence of
appellant number 2 on count 4, that is set aside.
SELIKOWITZ,
J