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[2003] ZAGPJHC 1
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S v Ncube (A244/2001) [2003] ZAGPJHC 1 (4 April 2003)
IN THE HIGH COURT OF SOUTH AFRICA
(
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
)
CASE
NO
: A244/2001
DATE
:
2003-04-04
Reportable:
No
Of
interest to other judges: No
Revised:
No
In
the matter between
THE
STATE
and
LUCKYJACOB
NCUBE Accused
JUDGMENT
STEGMANN,
J
: With the leave of the court below
the Regional Court for Southern Transvaal held at Springs four
appellants appealed against their
convictions and sentences in
respect of various of thirteen counts in the charge sheet in the
trial court. Mr Myburgh has
appeared on behalf of three of the
appellants, who at the trial were referred to respectfully the 1
st
,
4
th
and 5
th
accused. Mr Tukwane has appeared on behalf of the appellant who
at the trial was referred to as the 2
nd
accused.
Mr
Schutte has opposed the appeals on behalf of the State. In as
much as different documents have different headings referring
to the
appellants by different numbers there is danger of confusion and the
system that has been adopted in the course of argument
and that I
shall adopt in this judgment is to refer to each of the four
appellants as they were referred to in the record and in
the court
below, that is as the 1
st
,
2
nd
,
4
th
and 5
th
accused respectively. They were indeed the only four accused at the
trial, there were originally a 3
rd
and a 6
th
accused but the State withdrew the cases against them.
The
State believe that it had given due notice of the set down of this
appeal and called for heads of argument to be filed a month
before
the date of the appeal. That was not done. Application
for condemnation was made however Mr Schutte has made
an enquiries
and established that the clerks in die DPP’s office are unable
to demonstrate that the notice of set down was
duly given. In
these circumstances the appellants and their attorneys were put to
undue inconvenience and it is not for them
to obtain condemnation in
the matter. Indeed it is fortunate that Mr Myburgh and Mr
Tukwane have been able to be ready to
deal with the matter today.
I
turn to the merits of the appeal. The four appellants are Mr
Lucky Jacob Ncube the 1
st
accused, Mr Vilape Sylvester Zwane the 2
nd
accused, Mr Howick William Motswuatupe the 4
th
accused and Mr Sibusiswe Assentian Tshabalala also known as London
the 5
th
accused.
The
thirteen charges arose out of six separate incidents during the
period from July to December 1999. Certain of the incidents
had
interconnecting threats which assumed considerable importance in the
reasoning of the trial Magistrate. All four of the
accused
pleaded not guilty to all of the charges. They were defended at
their trial by Mr Hoffman.
26
July 1999 the first instant occurred at about 18:40 not long after
darkness had fallen on the 26
th
of July 1999 at the house of Dr and Ms Montalbano,
M-o-n-t-a-l-b-a-n-o, of number 5 Lead Street, Sunward Park,
Boksburg.
Dr and Ms Montalbano had returned home at the same
moment but in separate cars. He driving a Mazda MX5 and she a
Landrover
Freelander 4 x 4. When the garage doors had been
opened the Mazda MX5 put into the garage and the Landrover standing
in the
driveway they were set upon by a gang of four robbers at least
of whom carried guns. They were robbed of their two cars, of
their possessions in the cars and the various possessions that were
taken from their persons.
The possessions they lost in this way
included Dr Montalbano’s 9mm browning pistol C83197 complete
with a magazine containing
eleven rounds of ammunition and packed in
a small case together with the pistol. A second magazine containing a
further eleven
rounds. This case was contained in a briefcase that
was in Dr Montalbano’s car. The metal parts of the pistol
had a
silver colored finished and so did one of the magazines, the
other magazine was black.
This incident gave raise to three
charges namely count 1 robbery with aggravating circumstances
relating to the forcible taking
of Dr Montalbano’s Mazda MX5
and various other of his possessions.
Count 2, unlawful possession of a
firearm in contravention of Section 2 of the Arms and Ammunition Act
75 of 1969.
Count 3, robbery with aggravating
circumstances relating to the forcible taking of Ms Montalbano’s
Landrover Freelander and
various other of her possession.
At the end of the trial the Magistrate
held all four accused had been proved guilty on all three of these
charges. He imposed
the same sentences on each of them namely
count 1, 15 years imprisonment. Count 2, 3 years imprisonment.
Count 3, 15
years imprisonment.
12 August 1999 the second incident
occurred at about 20:00 at the house of Mr and Mr Bell at 18
Constantia Road, Freeway Park, Boksburg.
It was dark.
They returned home with their daughter in Mr Bell’s Toyota
Prado Land Cruiser 4 x 4. They had just
entered through the
electrically controlled gate and were waiting in the driveway for the
gate to close behind them before getting
out to open their second
gate when they were set upon by a gang of four robbers.
Mr Bell saw one of them [indistinct] a
handgun and using an unusual grip. He gripped the bud of the
gun with both hands out
stretched. What was unusual was
that he did not hold the gun vertically in the normal manner but
twisted horizontally
in aiming it at Mr Bell. Mr
Bell got out of the bell and put up a show of resistance. The
armed robber
fired a warning shot into the ground near Mr Bell’s
feet. Mr Bell then fell back. A second shot was
nevertheless
directed at Mr Bell, it struck him and shattered the
bones of his left hip. Mr PJ Fourie lived across the street
from Mr
Bell. He had heard the first sounds of the
confrontation between Bell and his assailants and had realized at
once that Bell
was being robbed. Fourie had immediately taken
out his own handgun, a CZ75 9mm pistol and had hurried to his own
front door.
He had heard the first shot fired at Bell.
When Fourie reached his own front door
and had opened it the confrontation between the armed robber and Bell
had taken place directly
in front of him at a distance that he
estimated at no more than 10 to 15m. The scene had been lit by
a nearby streetlight.
Fourie had seen the armed robber fire the
second shot at Mr Bell and had seen Bell fall to the ground.
Then another of the
robbers had jumped into the driver’s seat
of Bell’s Toyota Prado and had started to reverse it down
Bell’s drive.
The robber who had shot Bell ran out
of the driveway and turned to run down the street. Fourie had
had the opportunity to
take a steady aim at him and he fired a shot
at him. He believed that the shot must have struck the robber
but it had not
brought him down.
He had seen another man climb into the
Toyota Prado. He had also seen a white hatchback car reverse
into the street from the
driveway of the Stols’ two doors down
the street from the Bell’s house.
The robber whom Fourie believed that
he had wounded had evidently escaped from the scene either in the
white hatchback or in the
Toyota Prado. Fourie was not able to
identify any of the robbers.
Ms Stols also testified. She had
seen the white hatchback turn into her driveway and stop. She
had seen three men emerge
and go into the direction of Bell’s
property. She had seen that a fourth man had remained in the
driver’s seat
of the white hatchback. She had heard the
shooting, then she had seen the white hatchback reverse out of her
drive and seen
it drive away together with Bell’s Toyota
Prado. She had not been able to identify any of the robbers
however she was
able to say with certainty that a fourth robber had
been involved.
The robbers made off with the Toyota
Prado. The police who came to the scene soon afterwards found
two empty 9mm cartridges
and put them away carefully. As will
be seen below the browning pistol C83197 that had been taken with Dr
Montalbano’s
other possessions on the 26
th
of July
1999 was recovered at a later stage in September 1999.
Ballistic evidence established that one of the two cartridges
found
by the police at the Bell’s premises on the 12
th
of
August 1999 had been discharged by Dr or from Dr Montalbano’s
browning pistol that had been stolen in the robbery on the
26
th
of July 1999.
This incident at the Bell’s
house gave rise to a further four charges namely count 4, robbery
with aggravating circumstances
relating to the forcible taking of
Bell’s Toyota Prado and his cell phone and other possessions.
Count 5, the attempted murder of Mr
Bell. Count 6, unlawful possession of arms and count 7 unlawful
possession of ammunition
in contravention of Section 36 of Act 75 of
1969.
The Magistrate held that all four
accused had been proved guilty on all four of these charges with one
exception he imposed the
same sentences on all of them namely count
4, 15 years imprisonment. Count 5, 10 years imprisonment for
the 1
st
, 2
nd
and 4
th
accused and 15
years imprisonment for the 5
th
accused because he was held
to have fired the shot that wounded Mr Bell and represented the
attempt to murder him. Count
6, 3 years imprisonment.
Count 7, 1 year imprisonment.
26 August 1999 the third incident
occurred sometime between 17:30 and 19:30 after dark on the 26
th
of August 1999 in the driveway of a property in Dinsley Road Freeway
Park Boksburg. Mr MA Scruby together with his wife and
two
young children had just arrived there in their Volkswagen VL6 Jetta
to have dinner with Mr Scruby’s parents.
As Mr and Ms Scruby had stopped in the
driveway and emerged from the front doors and were about to open the
back doors to lift the
children out three men quickly came up the
driveway. Two of them were armed with silver colored pistols.
The two armed men
went to either side of the car. One pointed
his pistol at Mr Scruby and took the car keys from him. The
other pointed
his pistol at Ms Scruby and relieved her of her
handbag. The third man also came up on the driver’s side
of the car,
took over the car keys and climbed into the driver’s
seat.
Mr and Ms Scruby had removed the two
children from the backseat. At this stage the robbers took a
number of their personal
possessions and also cash from their
persons. When the children were out the two armed robbers got
into the car and drove
away steeling not only the car and the
possessions and cash taken from the persons of Mr and Ms Scruby but
also various possessions
that had been carried in the car.
Mr and Ms Scruby were not able to
identify any of the robbers who had assailed them. This
incident gave rise to a further
two charges namely count 8, robbery
with aggravating circumstances relating to the forcible taking of Ms
Scruby’s Volkswagen
VL6 Jetta and the cash and various
possessions taken from them and count 9 unlawful possession of arms.
The Magistrate held that all four of
the accused had been proved guilty on each of these counts. He
imposed the same sentences
on all of them namely count 8, 15 years
imprisonment. Count 9, 3 years imprisonment.
28 September 1999 the fourth incident
occurred sometime between 19:00 and 20:30 when it was dark on the
28
th
of September 1999. A radio message was
broadcast over the police frequency asking police in the vicinity of
Freeway Park
to keep a lookout for a white Volkswagen GTi Golf with
registration number FRK464GP. At that stage Sergeant SJ Botha
and
Sergeant P Abdele of the East Rand Flying Squad of the SAPS were
patrolling in a police car in or near Freeway Park. They
received the radio message.
Not long afterwards they saw the white
Volkswagen Golf in question coming towards them without lights.
Sergeant Botha who
was driving the police car turned and followed the
Volkswagen Golf and switched on the flashing blue lights of the
police car with
the view to stopping the car, however the Golf
responded by increasing its speed in an obvious attempt to escape.
Sergeant
Botha gave chase.
The Golf raced past a stop sign
without stopping and through a number of red traffic lights and it
also made a number of left and
right turns, however it was unable to
shake off the pursuing police car. Eventually they came to what
Sergeant Botha described
as an S-bent where traffic had first to make
a left turn followed within a short distance by a right turn.
As
the Gold entered the S-bent and made the left turn
both Sergeant Botha and Sergeant Abdele noticed two shining objects
fly out
of the left rear window of the Golf. The Golf then made
the right turn and some 15m after completing the S-bent it suddenly
stopped a distance of some 45 or 50m beyond the point where the shiny
objects had been ejected.
Sergeant Botha stopped the police car
10m behind the Golf. He and Sergeant Abdele then approached the
Golf carefully.
They ordered the occupants of the Golf to get
out one at a time. Accused 4 emerged from the driver’s
seat. It
is common cause that the Golf which is to be seen in
the photographs in EXHIBIT B, is accused 4’s car. Accused
1 emerged
from the front passenger seat. Accused 2 came out of
the left rear seat beside the window out of which the shiny objects
had been seen to fly. Accused 5 emerged from the right rear
seat behind the driver’s seat.
The Sergeants secured the scene
evidently by satisfying themselves that the four men were not armed
and by making them lie face
down on the ground at a distance from
each other. Sergeant Botha then left Sergeant Abdele on guard
over the four men while
he went to see what shiny objects had
apparently been thrown from the Golf.
At the spot in question he found a
silver colored browning pistol and two magazines one of which were
silver colored and the other
black. Sergeant Botha asked the
four occupants of the Golf about these objects, each of them denied
all knowledge of them.
He arrested the four men on a charge of
unlawful possession of an arm and took them to the police station.
A docket was opened.
The browning pistol was sent to the
police laboratories for ballistics examination and tests. The
charge on which the four
accused had then been arrested was not
pursued. Presumably it was not found feasible to prove joined
possession of the pistol
on the part of all four of them, nor could
possession by any particular one of them be proved on the available
evidence.
In any event the four accused were released.
At a later stage patient and thorough
police work for which in my view the investigating officer Sergeant
GS Cloete of the Organized
Crime Unit at Springs and the remainder of
the team who contributed to it are to be commended, established
further relevant facts
about this browning pistol. As a result
of what they had established a number of admissions were made by
defense in terms
of Section 220 of Act 51 of 1977 and recorded in
EXHIBIT D.
The facts admitted include the
following –
1.
The silver colored 9mm browning pistol
retrieved by Sergeant Botha on the 28
th
of September 1999 was number C83197 the property of Dr E Montalbano.
2.
This pistol had been taken from the
possession of Dr Montalbano in the course of an armed robbery on the
26
th
of June 1999. Note, having regard to the other evidence in the
matter the reference in EXHIBIT D to 26
th
of June 1999 is an obvious error for 26
th
of July 1999.
3.
Of the two empty 9mm cartridge cases found
by the police at the scene of the robbery and wounding Mr Bell on the
12
th
of August 1999 one had been discharged in the browning pistol C83197
as stated in the ballistics report EXHIBIT K made by Inspector
G
Kloppers in terms of Section 212(4)(a) and 212(8)(a) of Act 51 of
1977. Note, the admission made in EXHIBIT D is that both
of the
two cartridge cases found on the scene of Mr Bell’s wounding
had been discharged in the same pistol, however having
regard to the
contents of EXHIBIT K it is clear that another error was made in the
admissions. The only admission that was
justified was that the
single 9mm Parabellum caliber cartridge found on the scene of the
crime was established to have been discharged
in Dr Montalbano’s
pistol. The other cartridge was not linked to any gun.
This fourth incident did not give rise
to any of the thirteen charges
on which the four accused were triad.
1 November 1999 the fifth incident
occurred at about 19:00 in the evening after dark on the 19
th
of November 1999, on the 1
st
of November 1999 at 16
Scribante Street, Libradeen Boksburg die home of Ms BJ Petersen.
She has been referred to in the annexure
to the charge sheet as
Brenda Patterson. Ms Petersen had just arrived home in her BMW
325i. She had opened the garage
door by hand and had switched
on the florescent lights that illuminated the interior brightly and
also the lights outside the garage.
Then she had driven her car
into the garage.
Before
she could get out of her car in the garage a man had appeared at the
driver’s window with a gun in his hand.
He had threatened
to shoot her. He had pulled her out of the car and put his gun
against the back of her head. A second
man also with a gun had
[indistinct] up against her back. Together they had pushed her to the
front of the car. She had seen
a third man in the garage, he
had locked the door that lead from the garage to the house.
The
two men with guns had pulled her gold chain she was wearing over her
head. Had taken her other jewelry her watch, “et
cetera”
a term that evidently included the car keys. Then they had
forced her to the ground inside the garage.
The first man to
have accosted her had got into the driver’s seat of her BMW.
He had reversed out of the garage.
The other two had
evidentially also got in and they had driven away with a number of Ms
Petersen’s possessions in the BMW.
This
incident gave rise to a further two charges namely count 10, robbery
with aggravating circumstances relating to the forcible
taking of Ms
Petersen’s BMW 325i and other possessions and count 11,
unlawful possession of arms.
The
trial Magistrate found that accused 1 and accused 4 had been proved
guilty of both of these offences. He sentenced each
of them to
the same punishments namely count 10, 15 years imprisonment.
Count 11, 3 years imprisonment.
6
December 1999 the sixth incident occurred at about 20:00 after dark
during the evening of 6 December 1999 at 36 Overkruinstraat,
Heidelberg the home of Mr Gerald John Pike. Mr Pike came home
at that hour in his Toyota Prado Land Cruiser registration
number
777SLYGP. He opened the electronic gate to the drive by remote
control, drove in, opened the electronic doors to the
garage by
remote control, drove into the garage and stopped.
Before
he could get out of the car two men with handguns appeared in the
driver’s, on the driver’s side and pointed
their guns at
him. One of them used an unusual two handed grip. He held his
arms out stretched with the handgun held in both
hands and what was
unusual was that he did not hold the pistol vertically in the normal
manner but twisted his arms to hold it
horizontally.
The
two robbers ordered him to climb out of the car, not to look at them
and to lie face down on the ground which he did, however
he had
already had a good view of their faces. They then robbed Mr
Pike of various possessions on his person. One of
them got into
the driver’s seat of the Toyota Prado and reversed down the
drive to the street while the other stood guard
over Mr Pike. Then
the guard ran down to the Toyota Prado and jumped in and they drove
away.
This
incident gave rise to a further two charges namely charge 12, robbery
with aggravating circumstances relating to the forcible
taking of Mr
Pike’s Toyota Prado and other of his possessions and count 13
unlawful possession of arms.
The
Magistrate found that accused 4 and accused 5 had both been proved
guilty of each of these offences. He sentenced them
to the same
punishments namely count 12, 15 years imprisonment. Count 13, 3
years imprisonment.
In
the result the position of each of the four accused was the
following.
Accused
1 was found guilty on each of counts 1 to 11 and not guilty on count
12 and 13. The sentences imposed on him if
served successively
would run for a total of 98 years. The Magistrate ordered that
some of the sentences should run concurrently
with others so that
accused 1 will effectively serve a term of 70 years imprisonment.
Accused
2 was found guilty on each of counts 1 to 9, not guilty on counts 10
to 13. The sentences imposed on him if
served
successively would run to a total of 80 years. The Magistrate
ordered that some should run concurrently with others
so that
accused 2 would effectively serve a total of 55 years imprisonment.
Accused 4 was found guilty on all 13
counts. His sentences totaled 116 years. The Magistrate
ordered some to run concurrently
with other so that the effective
sentence became 85 years imprisonment.
Accused 5 was found guilty on counts
1 to 9 and counts 12 and 13 and not guilty on counts 10 and 11.
His sentences totaled
98 years. The Magistrate ordered that
some should run concurrently with others so that accused 5’s
effective sentence
would total 75 years imprisonment.
I turn now to consider in the light of
the arguments advanced on appeal by Mr Myburgh for accused 1, 4 and 5
and by Mr Tukwane for
accused 2 and by Mr Schutte for the State to
what extent if at all the evidence at the trial justified the various
convictions.
There
was no dispute about the fact that the robberies had all been
committed. What is an issue is whether there were evidence
that
placed the identification of each of the four accused respectively as
one of the robbers involved in each incident in respect
of which he
had been convicted. I proceed to sum up the relevant evidence
on that aspect.
Almost
immediately after the first incident which had occurred on the 26
th
of July 1999 at the Montalbano’s house the police were alerted
to a tracking signal being sent out from Dr Montalbano’s
red
Mazda MX5. Inspector van Wyngaardt of the SAPS testified that
he accompanied by a female Inspector Cronjé and
Sergeant Timpt
had followed the signal. It had led them to house number 13539
in Seakwane Street, Kwatema and in particular
to the garage of that
house. A woman was living in the house. She had denied knowing
how the Mazda had come to be in the
garage.
It is accused 2’s case that he
is a taxi owner and that he has two houses one of which is number
13539 in Seakwane Street.
However he testified that he had not been
living at 13539 at the time because some alterations were being
affected there.
One of his girlfriends had been staying there.
Accused 2 admitted that he had paid a
visit to 13539 on the 26
th
of July 1999 apparently shortly
before the police had arrived there. He had been surprised to
find that a red Mazda was parked
in the garage. He had no idea
how it had come to be there. He had opened the door and got
into the Mazda to look at
it and to see if there were indications of
whose it was. He accepts that he left fingerprints in the
Mazda. In terms
of Section 220 of Act 51 of 1977 he admitted in
EXHIBIT D that fingerprints found inside the Mazda were correctly
identified as
his own, however he denied all knowledge of the
robbery.
According to the evidence of Inspector
van Wyngaardt the keys of the Mazda were found in house 13539 on the
26
th
of July 1999 by female Inspector Cronjé.
The police drove the Mazda back to the police station at Boksburg
North.
There it was returned to its owner Dr Montalbano within
about three hours of the robbery.
The Landrover Freelander was said to
have been recognized and recovered shortly afterwards either at
Komatiepoort or at Northern
Kwa-Zulu Natal near the Maputo border.
It was returned to Ms Montalbano. Its recovery did not occur in
circumstances that
linked any of the accused to the robbery.
Shortly after this incident on the
26
th
of July 1999 Ms Montalbano assisted the police by
putting together identikit pictures of three of the four robbers that
she had
seen that day. These pictures became EXHIBITS A1, A2
and A3 at the trial. Ms Montalbano testified that EXHIBIT A1
was
a picture giving a fair resemblance of the first accused although
he had afterwards altered his appearance to an extent by shaving
his
head or having his hair cut very close to the scalp. She also
testified that EXHIBIT A2 was a good resemblance of accused
4.
Sergeant Stevens testified that EXHIBIT A2 had enabled him to
recognize accused 4. He stated further that when after
accused
4’s arrest he had shown EXHIBIT A to accused 4, accused 4 had
voluntarily acknowledged that it was a picture of himself.
These identikit pictures played a further role that I shall mention
later. It was in connection with the first accused’s
photographs of, of six persons including, five or six persons
including all four of the accused.
Ms Montalbano testified that on the
2
nd
of August 1999 only a week after the robbery she had
seen accused 4 a second time. She had been driving and he too
had been
driving in his white Volkswagen Golf. At an
intersection she had seen him drive into the intersection from the
side.
He has very distinctive facial features and a yellowish
skin. She had recognized him at once with a shock.
The second incident and the robbery
and shooting at Mr Bell occurred on the 12
th
of August
1999. As already mentioned Mr Fourie testified that he had shot
at and believed he had struck the robber whom he
had seen fire at and
wound Mr Bell. Three days later on Sunday the 15
th
of August 1999 Detective Sergeant Edge Siboya of the Murder and
Robbery Squad of the SAPS at Germiston acting on information he
had
received went to the house of accused 5.
He found the 5
th
accused at
home with a pajama jacket over his upper body. Sergeant Siboya
could see that the 5
th
accused was bandaged from his right
shoulder and all around the upper part of his chest. He
questioned the 5
th
accused about the robbery of Mr Bell on
the 12
th
of August 1999 and how the 5
th
accused
had come to be injured. The 5
th
accused made a
statement that was reduced to writing the next day the 16
th
of August 1999 and it became EXHIBIT S at the trial. EXHIBIT
S raises and alibi defense. The 5
th
accused is there
said to be a taxi driver who [indistinct] routes from Kwatema to
Springs and Tsakane. The 5
th
accused knows denying
where Freeway Park is. He claims that on the 12
th
of
August 1999 he had worked in his taxi as usual from 05:30 in the
morning to 19:30 in the evening and had then parked the taxi
at his
house at Tsakane.
Then he had gone out with his
girlfriend Nxtehbeo [indistinct]. They were walking to a bus
stop. Two unknown men had
come up from behind and tried to
abduct Nxthebo. There was an altercation, Nxthebo ran away and
the accused 5 was shot by
one of the unknown men. A passing
motorist whom he cannot identify took him to the Bopulong Medical
Centre where he had been
treated by Dr Moses and discharged.
The 5
th
accused did not report the incident to the police.
Detective Sergeant Siboya arrested the
5
th
accused on suspicion of involvement in the robbery on
the 12
th
of August 1999 but there was insufficient
evidence and the 5
th
accused was again released.
At a much later stage on the 7
th
of December 1999 the 5
th
accused was again arrested.
The investigating officer Sergeant Cloete took the 5
th
accused out to test the veracity of his alibi in EXHIBIT S. He
testified that the 5
th
accused had been unable to put him
in touch with the alleged girlfriend Nxthebo [indistinct], that
Bopulong Medical Centre had
no record of having treated the 5
th
accused as alleged or at all and that enquiries at Bopulong Medical
Centre indicated that there was no Dr Moses there as alleged
by the
5
th
accused. The 5
th
accused did not go
into the witness box to defend his alibi.
The robbery of Mr Scruby occurred on
the 26
th
of August 1999. He lost his Volkswagen VR6
and other possessions. I have mentioned the incident on the
28
th
of September 1999 when all four accused were found in
accused 4’s Volkswagen Golf from which a pistol that was later
identified
as Dr Montalbano’s had been thrown with two
magazines. All four accused were then arrested but released.
In the
case of accused 5 this was his second arrest on suspicion and
his second release for want of sufficient evidence.
On the 1
st
of November 1999
Ms Petersen was robbed of her BMW 325i and other possessions.
On the 3
rd
of November 1999 Sergeant Cloete discovered
some important facts relevant both to the robbery of Mr Scruby on the
26
th
of August and the robbery of Ms Petersen on the 1
st
of November 1999. His first discoveries related mainly to the
robbery of Ms Petersen and the involvement of the first accused.
Sergeant Cloete acting on information
received went in the early hours on the 3
rd
of November
1999 to 72 Cladvalley Street Kwatema where he believed that the 1
st
accused lived. A man who identified himself as the 1
st
accused’s father informed him that the 1
st
accused
lived in an outside room. Sergeant Cloete knocked at the door
of the room so indicated. It was opened by a
woman who denied
that the 1
st
accused was there. Sergeant Cloete
found signs that the 1
st
accused had very recently climbed
out of the window and fled. His bed was warm and there were
footprints in soft earth outside
the window. Condensational
dust on the window had been disturbed.
In the 1
st
accused’s
room Sergeant Cloete found a number of items of importance.
First he found two sets of BMW keys. One
set operated a BMW
that was on the premises. The second set of keys operated a
similar model of BMW that was found across
the street at number 75
Cladvalley Street. Sergeant Cloete attached both BMWs, the one
at 75 Cladvalley Street whose keys
had been beside the 1
st
accused’s bed was identified as the BMW stolen from Ms Petersen
two days earlier. It was restored to her.
Second Sergeant Cloete found two
photographs in the 1
st
accused’s room. One was
a photograph of the 1
st
accused himself. This helped
him to track the 1
st
accused down. The second
photograph was a group of five men that was later found to include
all four of the accused.
I refer above to the three identikit
pictures EXHIBITS A1, A2 and A3 that Ms Montalbano had helped the
police to prepare after
the robbery on the 26
th
of July
1999.
Sergeant Cloete by comparing the
identikit pictures with the photographs was he said able to identify
the 1
st
accused and the 4
th
accused as two of
the persons in the group photograph. This helped him in
tracking down both the 1
st
accused and the 4
th
accused.
Third Sergeant Cloete found men’s
watches and jewellery, rings and chains in a cupboard beside the 1
st
accused’s bed. One of the watches was a “time”
watch that Mr Scruby positively identified as a watch taken
from him
during the robbery on the 26
th
of August 1999. The
strap had began to break and Mr Scruby had himself repaired it in a
way that enabled him to say with
complete certainty that the watch
recovered from the 1
st
accused’s room was his own.
At the trial the 1
st
accused went into the witness box and met this evidence that at first
sight linked him with the robberies of Mr Scruby on the 26
th
of August and Ms Petersen on the 1
st
of November with a
denial that he had been the occupant of the room in which these
articles including the keys to the stolen BMW
had been found.
Cross-examination revealed him to be a very unreliable witness and
that his attempts to distance himself
from the articles found in the
room could not reasonably possibly be true.
One of the inconsistencies in his
evidence was that the time watch which had been found in the room of
which he had first denied
being the occupant had nevertheless been
given to him by his brother Mandla who he said claimed to have bought
it from an unidentified
person in the street.
Sergeant Cloete’s next important
discovery also on the 3
rd
of November 1999 related to the
involvement of the 2
nd
accused. On the strength of
information from an informer and suspecting that the 2
nd
accused had been concerned in the robbery of Ms Petersen on the 1
st
of November Sergeant Cloete went to the address of one of the 2
nd
accused’s two houses namely the house at 13539 Seakwane Street
in Kwatema. On this occasion the 2
nd
accused was at
home.
Sergeant Cloete arrested him and
searched the house. He found certain items that he attached on
suspicion that they were stolen
goods. They included,
1.
A Casio digital camera.
2.
What he described as an attorney’s
briefcase in the garage and
3.
Some jewellery.
After further investigation Sergeant
Cloete concluded that he could not prove that the 2
nd
accused was linked with the robbery of Mr Petersen on the 1
st
of November. He therefore released the 2
nd
accused
who had meanwhile been cooperative and had agreed to assist Sergeant
Cloete in his investigations.
Sergeant
Cloete continued his investigations. What he then discovered
was that the briefcase he had taken from the 2
nd
accused’s house contained a pay slip from Coke Cola relating to
Mr Scruby. Following up this lead he got into touch
with Mr
Scruby and established from him that,
He
had been robbed of his Volkswagen Jetta VR6 and its contents on the
26
th
of August.
That
the contents that had disappeared with the car had included both the
briefcase described by Mr Scruby as a pallets case and
the Casio
digital camera both of which had been found at the 2
nd
accused’s house and
That
on the same occasion Mr Scruby had been robbed of the time watch
that Sergeant Cloete had found in the 1
st
accused’s room and that Mr Scruby could positively identify as
his own.
Mr Scruby also positively identified
the pallets case and the digital camera as his own. The camera
had pictures of his family
stored in its memory.
Although
Sergeant Cloete had released the 2
nd
accused because he had not known of any link with the robbery of
Scruby and could not prove the suspected link with the robbery
of Ms
Petersen Scruby’s information plainly established some link
between the 2
nd
accused and the robbery of Scruby. In addition the 2
nd
accused having agreed to cooperate with Sergeant Cloete later
provided some information that indicated that he had some knowledge
of the Scruby robbery. At a much later stage on the 22
nd
of December 1999 the 2
nd
accused informed Sergeant Cloete that the Volkswagen Jetta VR6 that
had been stolen from Scruby on the 26
th
of August had been recovered by the police at Vryheid. Next day
23
rd
of December 1999 Sergeant Cloete accompanied Mr Scruby to Vryheid and
Scruby there identified his Vollksagen Jetta. It was brought
back to
the Witwatersrand and eventually handed over to the insurance company
that by then had rights to it.
On
the ground of all these links Sergeant Cloete came to the conclusion
that he had a strong case against the 2
nd
accused of involvement in the robbery of Mr Scruby on the 26
th
of August. It now became necessary for him to find the 2
nd
accused again.
Meanwhile
on the 6
th
of December 1999 Mr DG Pike had been robbed of his Toyota Prado and
other possessions in Heidelberg. Sergeant Cloete received
information that enabled him to send out Sergeant Stevens and
Sergeant Smith next day 7
th
December with orders to look out for accused 4 whose appearance was
known from Mr Montalbano’s identikit EXHIBIT A2 and from
the
group photograph found in the 1
st
accused’s bedroom on the 3
rd
of November.
It
was also known to accused 4, it was also known that accused 4 would
be driving on a particular route in his white Volkswagen
Golf with
registration number FAK464GP. With that information Sergeants
Stevens and Smith were indeed able to stop and to
arrest accused 4
that day on a charge of robbing Mr Pike of his Toyota Prado on the
6
th
of
December.
In
accused 4’s possession, on his person they found a gold wedding
ring with two diamonds in each of four rows, a gold watch,
a gold
chain and a Motorola cell phone. They attached these
items as suspected stolen property.
According
to the evidence of Sergeants Stevens and Smith accused 4 although not
admitting any involvement was quite cooperative.
He voluntarily
guided them to a house in Highlands in Kwatemba, house number
Clacula Street where a Toyota Prado with registration
number 777SLYGP
was standing. Accused 4 so voluntarily pointed out who was
involved in the robbery according to him.
He took Sergeants
Stevens and Smith to the house of accused 5’s father.
Accused
5 was found there and accused 4 identified him as London Tshabalala.
They arrested accused 5 on a charge of robbing
Mr Pike on the 6
th
of December. Accused 4 and accused 5 were then lodged at the
cells at the Boksburg Police Station.
On
the 8
th
or 9
th
December 1999 Mr Pike identified both his Toyota Prado that had been
recovered from 2239 Clacula Street Kwatemba and his personal
possessions that Sergeants Stevens and Smith had found on the person
of accused 4 namely the gold diamond ring, the gold watch,
gold chain
and the cell phone. These identifications pointed to the
conclusion that accused 4 had been one of the
robbers who had
assailed Mr Pike on the 6
th
of December 1999.
On
the 14
th
of December 1999 according to the evidence of Sergeant Bester or on
the 14
th
of January 2000 according to the evidence of Sergeant Cloete a police
detachment of which they were members acting on information
received
went to room 511 in the Europe Hotel in Claim Street Hillbrow and
there found and arrested accused 1. They recognized
him by Ms
Montalbano’s identikit and from his own photograph taken by
Sergeant Cloete from his outside room at his father’s
house in
Kwatemba on the 3
rd
of November.
On
the 11
th
of January 2000 according to the evidence of Sergeant Cloete he
received information that accused 2 was hiding at 972 Squareview
Street Geluksdal. Next day 12
th
of January Sergeant Cloete went there, found accused 2 and arrested
him. All four accused were now in custody.
Next
day, 13
th
of January 2000 the first of two identification parades was held.
If Sergeant Cloete’s evidence was correct this was
the very day
of the arrest of the 1
st
accused in the early morning. The identification parade was
held at 14:00 at the Boksburg Police Station.
EXHIBIT
D purports to contain an admission by all four accused in terms of
Section 220 of Act 51 of 1977 that an identification
parade was held
on the 1
st
of January 2000. This is an obvious error. Form SAP329
relating to the identification parade copies of which are EXHIBITS
E,
F and G and which had been admitted to be correct show that the first
identification parade was held on the 13
th
of January 2000 at 14:00.
Each
of the 1
st
,
2
nd
,
4
th
and 5
th
accused was on the parade. It involved a lineup of 32 men.
In EXHIBIT D it is also being admitted by all four accused
in terms
of Section 220 that there was no irregularity in the conduct of the
identification parade and that the results had been
correctly
recorded. It is admitted that Mr N Bell who had been robbed on
the 12
th
of August had pointed out only the 5
th
accused as one of the robbers. Mr Bell’s evidence in
court was that he had had a clear view of the 5
th
accused as the robber who had held his gun in the curious way already
described and who had shot and wounded him.
In
the case of each identification of an accused the identifying witness
was asked in the course of his evidence in chief to state
the
lighting conditions, his opportunity for observation and the features
by which he claimed to be able to recognize the accused
whom he
identified as a robber. In each case the witness was closely
cross-examined on these particulars. I do not
intent to repeat
the particulars of each of these examinations other than to say that
I am satisfied that they were conducted with
due care and
thoroughness in each case.
In
the case of Mr Bell he was induced to concede in cross-examination
that there was a possibility that he might be mistaken in
his
identification of the 5
th
accused. The Magistrate was by no means satisfied that this
concession created a reasonable doubt as to whether the 5
th
accused had been one of the robbers. Mr Bell’s concession
was plainly made on the basis that anything is possible.
A
remote possibility is by no means sufficient to find a reasonable
doubt. The Magistrate found that Mr Bell’s concession
of
possible error was made in such circumstances as not to create a
reasonable doubt.
It
is also admitted in EXHIBIT D that Ms P Petersen who had been robbed
on the 1
st
of November had pointed out the 1
st
accused at the identification parade as one of her assailants.
In her evidence at the trial Ms Petersen stated that he had
been the
second of the two robbers who had accosted her with guns on the
occasion in question. It is further being admitted
in EXHIBIT D
that Mr DG Pike who had been robbed on the 6
th
of December had pointed out both the 4
th
and the 5
th
accused at the identification parade as two of his assailants each of
whom had pointed a gun at him.
In
his evidence in the trial he identified the 5
th
accused as the one who had first, who had at first been closest to
his driver’s window, who had held his gun with the same
unusual
twisted two handed grip that Mr Bell had described, who once he was
lying down had kicked him in the face and who had kept
guard over him
whilst the other robber had reversed the Toyota Prado out of the
garage and into the street.
He
identified the 4
th
accused as the robber who also pointed a gun at him, had warned him
not to look at the robbers, had climbed into the driver’s
seat
and reversed the Toyota into the street.
The
second identification parade was held on the 2
nd
of June 2000 at 10:45 at Boksburg Police Station. Again all
four accused were on the parade. In EXHIBIT D it is admitted
that the accused, by the accused in terms of Section 220 that there
were no irregularities in the conduct of this identification
parade,
that it was correctly recorded in EXHIBIT J being form SAP329 duly
completed and that the result had been that Ms Yvette
Montalbano had
pointed out accused 4 as one of the four assailants who had robbed
her on the 26
th
of July 1999.
In
her evidence at the trial Ms Montalbano stated that accused 4 had
been the person she had first noticed in the garage with a
gun in his
hand and who she had initially mistaken for a security guard until he
had made it plain that he was a robber and had
demanded her car
keys. Accused 4 was also the person she had recognized a week
later driving a white Volkswagen Golf.
A
few days after the second identification parade had been held the
trial began in the Regional Court for the Southern Transvaal
held at
Boksburg. The four accused were all represented by Mr Hoffman,
they all pleaded not guilty and tendered no plea explanation.
The
evidence that I have summarized was placed before the Magistrate.
It was expanded in two particular respects that should
be mentioned.
Ms Montalbano who had not been present at the first identification
parade and who had pointed out only accused
4 at the second
identification parade testified that she had in fact seen the 1
st
accused at the second identification parade. As he had cut his
hair very short she had decided not to point him out for fear
that if
she was mistaken it would detract from the force of her
identification of the 4
th
accused of whose identity she was entirely certain. However
when she saw the 1
st
accused in the dock she felt able to identify him with certainty.
The
Magistrate considered that particularly in the light of the fact that
Ms Montalbano had been able to put together an identikit
picture that
bore sufficient resemblance to the 1
st
accused to be of assistance in the police enquiries he could give
some weight to this dock identification of the 1
st
accused notwithstanding Ms Montalbano’s failure to point him
out at the identification parade.
Ms
Petersen also testified that although when she had attended the first
identification parade she had pointed out only the 1
st
accused. She had in fact recognized the 4
th
accused on that identification parade as the first armed assailant
who had threatened to shoot her and had actually pulled her
out of
her car. When she had seen him at the identification parade she
had detected some frightening menace in his gaze and
had been too
intimidated to point him out. In the courtroom she felt bolder
and identified him to the Magistrate as one of
the robbers.
The
Magistrate was not prepared to reject this dock identification as
carrying no weight, however he approached it with due caution.
He considered that it was not sufficient on its own without some
corroborative evidence to convict accused 4 on counts 10 and 11.
At
the trial Dr Montalbano testified that he had been to the Boksburg
Police Station on four occasions to attend an identification
parade
and that on each occasion no identification parade had been held.
On the fifth occasion when an identification parade
had indeed been
held he had been detained in the operating theatre and had been
unable to attend.
He
identified the 1
st
accused as a robber who had first come up to him on the 26
th
of July 1999 and had pushed a gun up against his stomach. He
also identified the 5
th
accused as a robber who had put another gun to his left temple.
Finally he identified the 4
th
accused as a robber who had pointed a gun at his wife. Whilst
he was completely certain of his identifications of the 1
st
and 4
th
accused he conceded at the outset that he could not say that he was
100% sure of his identification of the 5
th
accused.
The
Magistrate characterized Dr Montalbano as an excellent and careful
witness. He was impressed by the candor with which
Dr
Montalbano admitted a small measure of doubt about the 5
th
accused. He considered that this entitled him to rely with
greater certainty on Dr Montalbano’s statement that there
could
be no room for error in his identification of the 1
st
and 4
th
accused even though it was an identification of them in the
compromising situation of the accused persons in the dock. I
find no fault with the Magistrate’s approach to the evaluation
of Dr Montalbano’s evidence.
The 1
st
accused testified
in his own defense. He denied all knowledge of any of the
robberies. He denied being the occupant
of the outside room
behind his father’s house of which he was said to be the
occupant and in which a number of articles stolen
respectively from
Ms Peteresen, the BMW keys, Mr Scruby the time watch were found.
He failed badly in cross-examination.
The Magistrate concluded
that his evidence could not reasonably possibly be true and he
rejected so much of it it was inconsistent
with the acceptable
evidence of the prosecution witnesses.
The
2
nd
accused also testified in his own defense. He too denied all
knowledge of the robberies and other crimes with which he was
charged. Denying that he have hidden from the police he claimed to
have owned two houses for some time, one at 13539 Seakwane Street,
Kwatema to which Dr Montalbano’s Mazda MX5 had been traced on
the 26
th
of July and the other at 972 Squareview Street Geluksdal. He claimed
to live in both houses. He denied that only the Kwatema house
was
furnished for living in and denied the police’s evidence that
the Geluksdal house where he was found was barely furnished.
He
too failed badly in cross-examination. The Magistrate rejected
his evidence as not reasonably possibly true where it conflicted
with
the acceptable evidence of the prosecution witnesses.
The
4
th
accused chose not to testify. The 5
th
accused also chose not to testify. His version as to how he
came to be wounded in a shooting incident on the 12
th
of August 1999 at about the time when the robber who shot and wounded
Mr Bell was himself shot and wounded by Mr Fourie was before
the
court in the form of his police statement EXHIBIT S. I have
already dealt with Sergeant Cloete’s attempt to verify
the
alibi set out in that exhibit.
To
sum up the evidence before the trial court provided the following
connections between the four accused and the various incidents
and
charges. 26 July 1999 counts 1, 2 and 3 a gang of four robbers
were seen to execute the robbery. The 1
st
accused was positively identified in the dock by Dr Montalbano at the
trial and seen to hold an point a gun at the scene of the
crime.
Shortly after the robbery Ms Montalbano made up an identikit that
helped in tracing accused 1. Ms Montalbano
failed to point out
accused 1 at the identification parade on the 2
nd
of June 2000 and gave the explanation that she, that he had altered
his appearance by cutting his hair close to the scalp.
Mr
Montalbano nevertheless identified accused 1 in the dock at the
trial.
2
nd
Accused owned the house and garage in which the Mazda MX5 stolen from
Dr Montalbano was found by Inspector van Wyngaardt very shortly
after
the robbery. The 2
nd
accused’s fingerprints were found in the Mazda. The 2
nd
accused’s explanation of how this had occurred was rightly
rejected and not reasonably possibly true. The inference
that
the 2
nd
accused was one of the robbers is irresistible, however there is no
evidence that the 2
nd
accused was in possession of a gun as alleged in count 2. There
was no justification for his conviction on count 2.
The
4
th
accused was positively identified by Ms Montalbano at the
identification parade on the 2
nd
of June 2000 and again at the trial. He was also identified in
the dock by Dr Montalbano. Both witnesses testified
that he had
pointed a gun at Ms Montalbano.
The
5
th
accused has pointed a gun at Dr Montalbano’s left temple and
was seen by Dr Montalbano face to face at a distance of about
40cm in
good light. Dr Montalbano identified him in the dock at the
trial and conceded that he was no 100% sure.
On
this occasion one of the articles stolen from Dr Montalbano was the
browning pistol. That pistol was proved to have been
used to
shoot Mr Bell on the 15
th
of August 1999. Mr Bell who identified the person who had shot
him as the 5
th
accused. Mr Bell’s identification was made both at the
identification parade held on the 11
th
of January 2000 and at the trial.
Dr
Montalbano’s pistol was retrieved on the 28
th
of September 1999 after it had been thrown from the 4
th
accused’s white Volkswagen Golf in which the 1
st
,
2
nd
,
4
th
and 5
th
accused were travelling together. That the 1
st
,
2
nd
,
4
th
and 5
th
accused were good friends was established by the photograph showing
them together found in the 1
st
accused’s room on the 3
rd
of November.
In
the absence of evidence to the contrary that might reasonably
possibly be true the Magistrate was in my view correct to conclude
that on all the evidence relevant to counts 1, 2 and 3 all four
accused were guilty as charged with a single exception. There
was no evidence to justify the conviction of accused 2 on count 2.
12
th
of August 1999 counts 4, 5, 6 and 7 the robbery and attempted murder
of Mr Bell. A gang of four robbers were seen to execute
this
crime. Accused 5 was positively identified at the
identification parade held on the 11
th
of January 2000 by Mr Bell as the robbery who had shot him on the
12
th
of August 1999. Mr Bell described the highly unusual grip that
accused 5 used to hold and point the gun.
A robber who held and pointed the gun
with exactly the same [indistinct] grip was described by Mr DG Pike
who was robbed on the
6
th
of December 1999. At the
identification parade a month later Mr Pike identified accused 5 as
the robber who had held the
gun in that strange way. There was no
other direct evidence to link any of the other accused with this
crime. The Magistrate considered
the other evidence that showed that
the four accused were friendly and on occasion operated as a gang of
robbers were sufficient
to justify the inference that beyond
reasonable doubt they did so on the 12
th
of August 1999.
This approach was defended by Mr
Schutte in argument today. There is certainly some logic in the
Magistrate’s conclusion
however in my judgment it cannot be
said to establish beyond reasonable doubt that accused 1, accused 2
and accused 4 were all
implicated in counts 4, 5, 6 and 7. I
consider that the appeals of accused 1, 2 and 4 against the
convictions on these counts
must be upheld.
27
th
of August 1999 counts
8 and 9 the robbery of Mr and Ms Scruby. Three robbers were
seen to participate in this robbery.
Owing to bad light neither
Mr nor Ms Scruby considered themselves able to identify any of the
robbers however at the trial Ms Scruby
seeing all four accused in the
dock had a sudden insight and believed that she was now able to
recognize accused 2 after all.
The Magistrate very correctly
declined to attach any weight to this identification.
On the 3
rd
of November 1999
some of the articles stolen on the robbery came to light. Mr
Scruby’s time watch was found beside
the 1
st
accused’s bed, Mr Scruby’s briefcase containing one of
his pay slips and his digital camera containing pictures of
his
family was found in the 2
nd
accused’s house.
In addition while the 2
nd
accused was cooperating with the
accused up to a point he informed Sergeant Cloete that Mr Scruby’s
Volkswagen Jetta had
been recovered by the police at Vryheid.
This showed that the 2
nd
accused had some knowledge about
the stolen vehicle.
In the absence of explanations by the
1
st
and 2
nd
accused that might reasonably
possibly be true the question arises whether the inference that the
1
st
and 2
nd
accused were two of the robbers or
were the two robbers was correctly drawn by the Magistrate.
Indeed the Magistrate went
even further, he speculated that there
must also have been a fourth robber driving a getaway car and because
of the close association
of the 4
th
accused and the fact
that they had on other occasions committed robberies as a gang of
four he concluded that all four had taken
part in this particular
robbery.
In my judgment despite a measure of
logic in the Magistrate’s propositions these inferences cannot
be said to be the only
reasonable inferences consistent with the
proved facts. Mr Myburgh argued on behalf of the 1
st
accused and Mr Tukwane also argued on behalf of the 2
nd
accused that the so called doctrine of recent possession could not
properly be applied in the circumstances of this case.
Mr
Scruby was robbed of his time watch, digital camera and briefcase on
the 16
th
of August 1999. Two months and a few days
elapsed before these items were found in the possession of the 1
st
and 2
nd
accused respectively. These are movable
articles that are bought and sold regularly and can change hands
rapidly.
Neither the 1
st
nor the 2
nd
accused gave truthful evidence. Nevertheless it seems to me
that there is room for a doubt that is indeed a reasonable doubt
as
to whether the 1
st
or 2
nd
accused were
participants in the robbery of Mr Scruby. There was no evidence
to link accused 4 or accused 5 with the robbery
in any way.
Therefore in my judgment the convictions of all four accused on
counts 8 and 9 must be set aside.
1
st
of November 1999 counts
10 and 11 the robbery of Ms P Petersen. Three robbers were seen
to take part in this robbery.
Two days of the robbery the keys
of Ms Petersen’s BMW are found beside the 1
st
accused’s bed. The BMW itself was found in the premises
of the house across the road. The evidence showed that
work was
under way to disguise Ms Petersen’s BMW as a similar BMW on the
1
st
accused’s premises the engine of which was
giving trouble.
Ms Petersen who is trained as an
artist and is observant of facial features prepared identikits of the
three robbers. These
have been lost. At the
identification parade held on the 11
th
of January 2000 Ms
Petersen positively identified the 1
st
accused. She
also saw the 4
th
accused but felt too intimidated to point
him out. She identified them both in the dock at the trial and
testified that each
had pointed a gun at her. She said that the
third robber was neither on the identification parade nor an accused
in court.
The Magistrate convicted the 1
st
and 4
th
accused on counts 10 and 11 as charged. In
my judgment no grounds to interfere with that verdict have been
established.
6 December 1999 counts 12 and 13, the
robbery of Mr DG Pike. Two robbers were seen to participate in
this robbery. The
day after the robbery accused 4 was
arrested. He was found in possession of the gold wedding ring
and other personal possessions
that had been robbed from Mr Pike the
previous day.
Accused 4 at no time gave any
explanation of his possession of these stolen items. They could
reasonably possibly point to
his innocence of the robbery itself.
He pointed out the Toyota Prado that had been robbed from Mr Pike to
the police.
He also pointed out accused 5 to them and accused 5
was arrested.
At the identification parade on the
11
th
of January 2000 Mr Pike pointed out both accused 4
and accused 5. He also identified them at court as the robbers
each of
whom had pointed a gun at him.
The Magistrate convicted each of
accused 4 and accused 5 on counts 12 and 13. There is no reason
to interfere with this verdict.
In as much as some of the convictions
and sentences of each of the four accused ought to be set aside this
court must reconsider
the sentences that were [indistinct] and in
particular must consider whether the remaining sentences should be
made to run concurrently
to any extent.
As something of an afterthought Mr
Myburgh drew attention to the provisions of Section 51(4) of Act 105
of 1997. It reads
as follows,
“
51(4) Any
sentence contemplated in this section shall be calculated from the
date of sentence. “
The Afrikaans term used for the word
calculated is
bereken
. Mr Myburgh submitted that what
this meant was that each of the sentences of 15 years imposed by the
Magistrate as the minimum
sentences for, on the counts of robbery
with aggravating circumstances had to start being served on the day
on which the sentence
was pronounced. This was a submission
that Mr Schutte had had no notice to prepare to meet and he was
unable to deal with
the argument. It is a submission that on
the face of it, it seems unlikely to have been the intention of the
Legislator in
any event it gives rise to a further difficult and
puzzling question which may be posed as follows. After
committing the
robbery with aggravating circumstances on the 26
th
of July 1999 at the Montalbano’s residence for which minimum
sentences had to be impose did each of the four accused remain
first
offenders for the purposes of Section 51(2) of Act 105 of 1997 or
when accused 5 went on to commit a second robbery with
aggravating
circumstances on the 12
th
of August 1999 at the residence
of Mr Bell had he then become a second offender for the purposes of
Section 51(2) liable to be
sentences to a minimum sentence of 20
years imprisonment?
And
when accused 5 committed a third robbery with aggravating
circumstances on the 6
th
of December 1999 was he then a third offender for the purposes of
Section 51(2) liable to be sentenced to a minimum sentence of
25
years?
These
questions have not been fully inquired into or argued and I do not
propose to attempt to resolve them. It seems to me
that Section
51(4) may very well mean no more than this when a court contemplates
a sentence of imprisonment of for example 10
years it very often
takes account of the period during which the accused has been an
awaiting trial prisoner. If for example
the accused has been
awaiting trial for 18 months the court intending that he should be
punished with a sentence of 10 years will
then impose a sentence of
eight and a half years that will run from the date of the sentence.
It
seems to me that what the Legislator was doing in Section 51(4) may
well be simply to indicate that this minimum sentencing provision
does not admit of any such adjustment, the minimum sentence must be
calculated from the date of the imposition of the sentence.
The
verb calculated has that significance. Mr Myburgh’s
argument seems to attribute to it some other meaning such as
that the
sentence must be served from the date in question.
Without
attempting finally to resolve these questions I proceed on the same
basis as the Magistrate did namely that the sentences
are liable to
be served consecutively safe in so far as the court may have ordered
that they should run concurrently.
In
this regard I consider that after the erroneous convictions have been
set aside the sentences imposed by the Magistrate in respect
of the
remaining convictions and the extent to which the Magistrate ordered
that they should run concurrently were and that they
still remain
appropriate. In these circumstances I consider that the following
orders should be made.
ORDER
The
convictions of the 1
st
accused on counts 4, 5, 6, 7, 8 and 9 are set aside and a verdict of
not guilty is entered.
The
1
st
accused existing sentences on count 1, 15 years count 2, 3 years,
count 3, 15 years count 10, 15 years count 11, 3 years totaling
51
years imprisonment are confirmed.
The
1
st
accused’s sentences on counts 2 and 3 totaling 18 years are to
run concurrently with the sentence on count 1, 15 years.
The
1
st
accused’s sentences on count 11, 3 years is to run
concurrently with the sentence on count 10, 15 years.
The
effective sentence to be served by the 1
st
accused is therefore 33 years imprisonment.
The
convictions of the 2
nd
accused on counts 2, 4, 5, 6, 7, 8 and 9 are set aside and a verdict
of not guilty is entered.
The 2
nd
accused’s
existing sentences on counts 1, 15 years and 3, 15 years totaling 30
years are confirmed.
The
2
nd
accused’s sentence on count 1, 15 years is to run concurrently
with his sentence on count 3, 15 years leaving the 2
nd
accused with an affective sentence of 15 years imprisonment.
The
convictions of the 4
th
accused on counts 4, 5, 6, 7, 8 and 9 are set aside and a verdict of
not guilty is entered.
The
4
th
accused’s existing sentences on counts 1, 15 years 2, 13 years
3, 15 years 10, 15 years 11, 3 years 12, 15 years 13, 3
years
totaling 69 years imprisonment are confirmed.
The
4
th
accused’s sentence on count 1, 15 years is to run concurrently
with this sentences on counts 2 and 3 totaling 18 years.
The 4
th
accused’s
sentence on count 11, 3 years is to run concurrently with his
sentence on count 10, 15 years.
The
4
th
accused’s sentence on count 13, 3 years is to run concurrently
with this sentence on count 12, 15 years.
The 4
th
accused effective
sentence is therefore one of 48 years imprisonment.
The convictions of the 5
th
accused on the counts 8 and 9 are to be set aside and verdicts of
not guilty are to be entered on those counts.
The 5
th
accused’s
existing sentences on counts 1, 15 years 2, 3 years 3, 15 years 4,
15 years 5, 15 years 6, 3 years 7, 1 year
12, 15 years 13, 3 years
totaling 85 years imprisonment are confirmed.
The 5
th
accused’s
sentence on count 1, 15 years is to run concurrently with this
sentences on counts 2 and 3 totaling 18 years.
The 5
th
accused’s
sentences on counts 6 and 7 together 4 years are to run concurrently
with the sentence on count 4, 15 years.
The
5
th
accused’s sentence on count 13, 3 years is to run concurrently
with this sentence on count 12, 15 years.
The 5
th
accused’s
effective sentence is therefore one of 63 years imprisonment.
It
is so ordered.