About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2002
>>
[2002] ZAWCHC 75
|
|
S v Klaas and Others (A674/2001) [2002] ZAWCHC 75 (8 March 2002)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A674/2001
DATE
: 8
MARCH 2002
In
the matter of:
THUMEKJLE
KLAAS
1
st
Appellant
PHILLIMON
BHONO
2
nd
Appellant
LUSINDISO
NQHELE
3
rd
Appellant
MONWABISI
PHONGOMILE
4
th
Appellant
JUDGMENT
VAN
HEERDEN, J
:
[1]
The four appellants were charged at the Regional Court held at
Malmesbury with the following four offences:
Armed
robbery
Kidnapping
3.
Possession
of unlicensed firearms
4.
Illegal
possession of ammunition
For
the sake of convenience I will refer to the appellants as the
accused,
[2]
The
accused, all of whom were represented by the same legal
representative during the entire trial, pleaded not guifty and no
plea explanation was tendered on their behaff. On 12 April 2001, all
four accused were convicted on the counts of armed robbery
and were
acquitted on the other two counts. Each was sentenced to a period of
15 years' imprisonment on count 1 and a period
of five years'
imprisonment on count 2, which latter sentence was to run
concurrently with the sentence on count 1. The accused
now appeal
against both the convictions and the sentences imposed upon them by
the Regional Court.
[3]
Very briefly, the complainant Mr M J van Zyl
f
testified that on 21 May 1999 he was approached by three men all
armed with firearms, demanding money. These three men were accused
2,
3
and 4. At that time he was busy inspecting certain houses on a
building site with one of his employees, a certain Amanda Theron.
The complainant was forced at gunpoint to walk in the direction of
and then to get into his vehicle but on the way to the vehicle
he
was assaulted by the armed men and feil to the ground. The three
armed men also got into the bakkie, accused 2 into the driver's
seat
and accused 4 into the front passenger, while accused 3 sat in the
back next to the complainant, pressing the firearm into
his side.
The second accused then drove off to a gravel road.
[4]
As they were on their way the complainant noticed that the accused
were glancing behind them and he assumed that there could
well be a
vehicle following them. Accused 2 stopped the vehicle on the gravel
road in the middle of nowhere and all the accused
climbed out of the
bakkie. At this stage he noticed that another bakkie had stopped
behind them. In the process of being forced
into his own bakkie and
driven off to the gravel road, the complainant was robbed of his
wallet and cash which he had in his
bakkie to pay the wages of the
employees to the amount of R7 500, as well as of his cellphone.
[5]
The accused instructed the complainant to leave the scene in his
bakkie, which he did, while the accused drove away in the
other
bakkie. Shortly thereafter the accused's vehicle was stopped by a
police vehicle and the accused, including now accused
1 who was in
the bakkie following the complainant's bakkie, were ultimately
apprehended and the stolen items recovered.
[6]
The version of the accused was that on the day in question they had
gone to the building site to get money which the complainant
owed to them. Apparently accused number 1, one of the
complainant's contractors who had in turn employed accused 2,
3 and
4, had contacted the complainant telephonically in advance to make
the appointment. The accused were driven to the building
site by
another person in his vehicle, this other person having been
requested to do so by accused 1. Upon their arrival at the
building
site, accused
2,
3
and 4 had approached the complainant, called out to him and informed
him that they had come to fetch their money. Accused number
1 was
not with them at the time because he had stopped on his way to the
complainant to talk to other workers who were known
to him. Accused
2, 3 and 4 then walked with the complainant to his bakkie where the
money apparently was and where he was going
to give it to them.
[7]
The complainant, however, told the accused to get into the bakkie,
whereupon he, the complainant, drove off. Some of the accused
assumed that he was going to the bank, the others did not know where
he was going. The complainant landed up on a gravel road
where he
stopped the vehicle and handed the bank package full of money to the
accused. The accused thought that this money
was simply the money
owed to them by the complainant.
[8]
In the interim, accused number 1 had seen the complainants vehicle
leaving the building site and had followed it in his friend's
vehicle with the friend driving. At a later stage he came upon the
three accused standing alongside the gravel road and they
told him
what had happened. Thereafter, a police vehicle arrived on the scene
and the accused were all arrested.
[9]
As pointed out by Ms
Mabandlela
,
who appeared for the respondent in this matter, the complainant's
evidence was corroborated in all material respects by that
of Amanda
Theron, as also by that of another employee one Alan Simons, who was
present at the building site when the incidents
occurred. Although
Mr
Simon
,
who appeared for the accused before this Court, pointed out
differences between the evidence of the State witnesses, I agree
with the regional magistrate who in her judgment indicated that none
of these difference was at all material.
[10]
However, having perused the record in its entirety, I am quite
satisfied that all the four accused were correctly convicted
of
armed robbery and kidnapping, accused number 1 by correct
application of the doctrine of common purpose.
[11]
As regards the sentences imposed on the accused, the regional
magistrate correctly pointed out that in respect of both the
relevant offences, the
Criminal Law Amendment Act 105 of 1997
applies. Armed robbery is one of the offences listed in
Part II
of
Schedule 2 to the Act, while kidnapping in this case fell under
Part
IV
of Schedule 2. As all four accused were first offenders, the
regional magistrate, acting in terms of
section 51(2)(a)(i)
and
section 51(2)(c)(i)
of Act 105 of 1997, had to impose a period of
imprisonment of not less than 15 years on the robbery charge and of
not less than
five years on the kidnapping charge unless she was
satisfied that there were substantial and compelling circumstances
justifying
the imposition of a lesser sentence than the prescribed
sentences (see section 51(3)(a).)
[12]
In her judgment on sentence the regional magistrate indicated that
she had taken the accuseds' personal circumstances into
account,
including the important fact that they were all first offenders.
However, pointing out that the
Criminal Law Amendment Act 105
of 1997
prescribed these sentences for first offenders and taking
into account the seriousness of the offences and the interests of
the
community, she came to the conclusion that there were no
substantial and compelling circumstances justifying a departure from
the prescribed sentences. She did, however, order that the sentence
of five years' imprisonment imposed in respect of the kidnapping,
run concurrently with the sentence of 15 years imposed in respect of
the armed robbery. There would appear to be nothing in the
relevant
provisions of Act 105 of 1997 and in particular section 51 thereof
that would prevent this order from being made.
[13]
Although Mr
Simon
argued that the regional magistrate had left the personal
circumstances of the accused out of consideration in imposing
sentence
and that there were substantial and compelling
circumstances justifying a departure from the minimum prescribed
sentences, he
did not provide us with any further information in
this regard. With reference to the principles laid down by the
Supreme Court
of Appeal in
S
v Malgas
2001 (1} SACR 469
at para 25, as also in
S
v Fatvi
2001 (1) SACR 485
at para 5, I am of the view that there is no
reason whatsoever to interfere with the sentences imposed by the
regional magistrate.
[14]
In the circumstances I would recommend that the appeal of each of
the appellants against both conviction and sentence be
dismissed and
that the convictions and sentences be confirmed.
VAN
HEERDEN, J
CONRADIE,
J
:
I agree. The appeal against the convictions and sentences is
dismissed.
CONRADIE,
J