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[2003] ZAWCHC 82
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Makeleni v S (A1246/2002) [2003] ZAWCHC 82 (5 September 2003)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A1246/2002
DATE
: 5
SEPTEMBER 2003
In
the matter between:
VUSIMUZI
MAKELENI
Appellant
and
THE
STATE
Respondent
JUDGMENT
COMRIE,
J
:
[1]
The appellant was convicted by a Regional Court of:
Count
2 - unlawful possession of a firearm in contravention of Act 75 of
1969
Count
3 - unlawful possession of ammunition in contravention of the same
statute
Count
4 - armed robbery of and at Soland Bank, Strand, on 16 April 1998
Count
5 - armed robbery of Mr Bernardi at the same bank on the same day
Count
7 - attempted murder of Inspector Stofberg of the South African
Police Service on the same day.
The
appellant was sentenced as follows:
Count
2 - nine months' imprisonment
Count
3 - nine months' imprisonment
Count
4-15 years imprisonment
Count
5 - eight years' imprisonment
Count
7 - seven years' imprisonment
None
of the sentences was ordered to run concurrently. The total or
aggregate period of imprisonment therefore came to 31
years
imprisonment. The appellant appeals against the convictions
and the sentences.
[2]
The notice of appeal is a strange document. The appellant appeals in
respect of some charges of which he was not convicted
and against
some, but not ail of the charges, of which he was convicted Because
the case largely turns on identity and identification,
1 propose to
took at the position overall.
[3]
Ad
the
convictions. The evidence reveals that on the morning of 16 April
1998 an armed robbery took place at Boland Bank in the Strand.
The
robbers took over R150 000 of which over R100 000 was recovered.
During the robbery a customer of the bank, Mr Bernardi,
entered the
premises intending to make a deposit. He was robbed of over R7 000
in cash and a deposit book. The latter plus a
small amount of cash
was recovered. Bank officials managed to alert the police while the
robberies were in progress. The police
hastened to the scene.
[4]
Near to the bank they saw what appeared to be the tail-end of a
"hijack" of a red commercial bakkie belonging to
Messrs
Alofix. A report to that effect was made by the driver of the
bakkie. The police set off in hot pursuit of the red bakkie.
There
were four men in and on the bakkie, two inside the cab and two on
the open rear portion. The chase proceeded at high speed
from the
Strand past the Somerset West shopping maEI and on to the N2 towards
Cape Town.
[5]
At the Baden Powell exit the bakkie took the road towards
Strandfontein and then drove into an area of Khayelitsha containing
squatter housing. The police followed. On the way from the Strand to
Khayelitsha, gunshots were exchanged between the police
and the men
on the back of the bakkie. One of those men appears to have been
injured. He took to loading firearms which he handed
to the other
man, who then started shooting with firearms in both hands Prior to
that these two men had let down the rear flap
or tailgate of the
bakkie and turfed the equipment into the road thereby presenting
obstacles to the pursuing police vehicles.
Those vehicles were not
damaged by the shooting, nor were the policemen injured.
[6] At
Khayelitsha the uninjured gunman jumped off the bakkie carrying a
grey or greyish sports bag or tog-bag and a firearm.
He was pursued
by Inspector Stofberg who saw him disappear into a hut with only one
door. Stofberg heard the loud voices of a
man and a woman inside the
hut. He commanded the gunman to come out. The door was opened and,
according to Stofberg, the appellant
emerged, crawling on his
stomach or his hands and knees.
[7] Inside
the hut Stofberg found the grey bag with a substantial sum of money
in it plus a gun which had recently been used.
The serial number of
the gun had been filed off. Also inside the hut was a woman.
Stofberg and another police witness referred
to the jersey or top
which the appellant was wearing. I shall deal with this later.
[8] The
appellant's defence was one of mistaken identity. He claimed to have
been relieving himself at a public toilet made of
cement. When he
emerged from this structure he was arrested without cause. He did
not see the grey bag. He had nothing to do
with the robberies or the
other events which I have summarised.
[9]
The magistrate, in a comprehensive judgment, disbelieved the
appellant. She accepted the substance of the prosecution case
and,
in particular, the police evidence identifying or tending to
identify the appellant. At trial none of the witnesses could
identify the appellant as one of the robbers at the bank. The bank
and police witnesses referred to a grey bag which was used
by the
robbers, recovered by Stofberg and eventually handed later that day
to the bank with money in it. At the trial some two
and a half years
later, the police witnesses could no longer identify the appellant
as one of the men on the back of the bakkie,
or as the man whom
Stofberg eventually arrested. It was not disputed, however, that the
appellant was the arrestee.
[10]
I
am
satisfied that the proper inference to be drawn from the evidence is
that the men who commandeered the red bakkie were the
seff-same men
who had just robbed the bank and Mr Bernardi. It was this bakkie
with those men aboard which was chased by the
police all the way
from the Strand to Khayelitsha. The man who jumped off the bakkie
at Khayelitsha carrying the grey bag and
a firearm was undoubtedly
one of the robbers. The question then is whether inspector Stofberg
arrested the right man, i.e. the
man with the grey bag.
[11]
A bank witness, a Mrs van Breda, stated that one of the robbers was
wearing a dark blue top "met rooi strepe op die
mou". In
cross-examination she said there was definitely something red on the
sleeve but not all over the garment. Stofberg
described the suspect
whom he arrested as wearing "n trui met rooi, blou en groen
kleur kolle". The distance between
the bakkie and Stofberg's
vehicle, driven by Sergeant van der Wag, varied from 100 to 200
metres until they reached Khayelitsha
when it shortened to 50
metres. The arrestee was in Stofberg's sight throughout the chase on
foot.
[12]
In cross-examination it was suggested that appellant at the time of
his arrest was wearing a top with blue, green and red
diamond shapes
on it. Stofberg testified that he is very fit and almost caught up
with the suspect when chasing him on foot.
He got to within eight
metres.
[13]
Sergeant van der Wag who drove the vehicle in which Stofberg was
the passenger, also described the arrestee's
top as having
"rooi, groen en blou kolJe vooropWhile Van der Wag could not
identify the appellant in court, he stated that
when Stofberg
brought the appellant back to the police vehicles in Khayelitsha he
recognised the appellant.
[14]
The appellant in his evidence described his jersey as having
"dobbelstene op, die kleure was groen en rooi". The
descriptions of the jersey or top are less than definitive. I think
the significance is that Stofberg was able to concentrate
on the
suspect who ultimately did most of the firing and whom he chased
through the squatter housing. The appellant's jersey
on arrest
corresponded in general terms with the aforegoing colour scheme. The
grey tog-bag is a cogent link with the robbery
at the bank.
[15]
We need to remember that in an appeal on fact, the trial Court's
findings of fact and credibility are presumed to be correct
in the
absence of material misdirection or unless those findings are
clearly wrong. On the question of identity I am unable to
fault the
magistrate's judgment in either respect.
[16]
Counsel for the appellant, Mr
Hutton
,
has pointed to a number of shortcomings in the prosecution case and
some of his criticisms have merit. On the evidence as a
whole,
however, I can find no reason to disturb the trial Court's
conclusion that appellant was one of the robbers of the bank
and
that he was one of the men on the back of the bakkie who exchanged
gunfire with Inspector Stofberg.
[17]
Appellant's guilt on count 4, the bank robbery, was, in my opinion,
clearly proven. I am also of the opinion that appellants
guilt on
count 7, the attempted murder, was established. In this regard \
note that the shooting continued once the Van der Wag/Stofberg
vehicle was within fairly close range of the bakkie. At least
dolus
eventualis
was
proven by inference.
[18]
With regard to count 5, the robbery of Mr Bernardi, I am satisfied
that there was not a duplication of convictions. A separate
intention to rob him was required. There was a separate implied
threat of violence and a separate
contrectatfo.
Additional
evidence was required to prove this crime. On the main tests and as
a matter of judicial common sense it seems to me
that the robbery of
Mr Bernardi constituted the commission of an offence
different to the robbery of the Boland Bank,
even though they
happened at the same time.
[19]
The evidence does not establish that it was the appellant who
physically carried out the robbery of Mr Bernardi. Indeed,
there is
some slight indication to the contrary. The appellant's guilt
accordingly depends on the ambit of the common purpose
of the
robbers. It may be accepted that such purpose was at least to rob
the bank and its officials and that that was the primary
purpose.
While there was no evidence that other customers besides Mr Bernardi
were robbed, the
prima
facie
inference,
in my view, is that the robbers resolved, expressly or by
implication, to rob whomever they found inside the building
according to opportunity. By the nature of the defence, no evidence
in rebuttal of that inference was forthcoming. I would conclude
that
the robbery of a customer such as Mr Bernardi was within the common
purpose of the robbers.
[20]
No argument was addressed to us with regard to the firearm and
ammunition convictions (counts 2 and 3) save those arising
from the
appellant's identity.
[21]
For the aforegoing reasons I would confirm the several convictions.
[22]
Ad
sentence.
As I mentioned at the outset of this judgment, the aggregate
sentence imposed on the appellant amounted to 31% years
Counsel for
the appellant urged that this was far too severe. I do not agree. If
one has regard not only to what happened at
the bank, but also to
the appellant's conduct thereafter, it is apparent that he is a
menace to society Apart from the money
which was taken, a number of
bank officials were threatened by the robbers, as was Mr Bernardi,
the unsuspecting customer who
walked into the robbery in progress.
During the robbery of Mr Bernardi a shot went off, it would seem by
accident, demonstrating
the dangers inherent to all the victims.
[23]
In giving chase, the conduct of Stofberg and Van der Wag and other
police officers was nothing less than heroic. They are
to be
commended for their dedication to duty.
[24]
The magistrate, in the exercise of her sentencing discretion,
differentiated between the various offences. She specifically
had
regard to the cumulative effect of the sentences. The appellant is
still a young man and his personal circumstances are not
unusual.
They were taken into account and there is no reason to think that
they were under-valued. The appellant has previous
convictions for
robbery, theft and housebreaking dating back to 1992 and 1994, when
he was still a youth. But these were not
over-emphasised in the
judgment on sentence. As the magistrate correctly pointed out, there
was no indication of remorse.
[25]
In short, I can find no material misdirection in the judgment on
sentence. The aggregate sentence, although a long one, does
not
shock me when account is taken of everything which the appellant did
that day I would therefore confirm the sentences.
[26]
The appeal is dismissed. The convictions and sentences are
confirmed.
COMIE,
J
LE
ROUX, AJ
:
I agree.
LE
ROUX, AJ