SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: A73/2024
District Case No: GSH 100/2019
In the matter between:
DONOVAN KAMFER Appellant
And
THE STATE Respondent
Coram: Kusevitsky, J et Katz, AJ
Heard: 10 MAY 2024
Delivered: 13 MAY 2024
Judgment
KATZ, AJ
1 After pleading not guilty, the appellant, who was legally represented at his
trial, was convicted on 30 September 2020 by the Regional Court, George
with four counts of housebreaking with intent to steal and theft.
2 On 1 October 2021 he was sentenced to 5 years direct imprisonment in
respect of each of the four counts. He accordingly received an effective
twenty-year sentence.
3 The appellant’s application for leave to appeal was refused by the
Regional Court. On petition he was granted leave to appeal against the
convictions and sentence.
4 The four counts consisted of a person or persons breaking into four
separate residential premises in an upmarket area in the Wilderness, near
Plettenberg Bay. Iphones and other electronic equipment was stolen from
each house on 25 December 2018.
5 Whether the crimes were committed is not a n issue in this appeal. The
evidence concerning the four brea k ins and the fact that items were stolen
from each of them was not challenged by the appellant at his trial.
6 The only issue is whether the appellant was involved in any or all the four
housebreakings.
7 There were no eyewitnesses to the housebreakings and thefts.
8 Evidence by the owners (two by way of oral evidence, and the other two
by way affidavits admitted 1 by agreement with the appellant) of the
residences broken into and the items stolen from those homes effectively
proved the commission of the four housebreakings and the thefts.
1 In terms of section 220 of the Criminal Procedure Act 51 of 1977.
9 The appellant testified on his own behalf.
10 The state witnesses linking the appellant to four housebreakings were
Brandon Koopman and Salimino Kifaro.
11 Both Koopman and Kifaro were w hat is commonly known as “204
witnesses.”2 A 204 witness is often party to the offence about which he or
she testifies.
12 If the trial court is of the opinion that the 204 witness has answered all the
questions put to him or her frankly and honestly the witness shall be
discharged from prosecution for the offence so specified by the prosecutor
and for any offence in respect of which a verdict of guilty would be
competent upon a charge relating to the offence so specified.
13 The court a quo formed the opinion that Koopman answered the questions
frankly and honestly and accordingly discharged him for the offences in
issue.
14 Not so with Kifaro. The court a quo formed the opinion that Kifaro had not
answered all the questions honestly and frankly.
15 In forming these opinions the court a quo exercised a discretion applying
its mind to the facts. It is only in rare circumstances that an appeal court
may interfere with the trial court’s exercise of discretion concerning factual
findings.
16 Also, the court a quo in his judgment said he approached the evidence of
Koopman with caution as his evidence was that of an accomplice.
2 Section 204 of the Criminal Procedure Act 51 of 1977 provides witnesses who are called by the
State to be provided with indemnity in answering questions which may incriminate such witness.
17 Koopman testified that the appellant came to his home at 4 [...] V[...] Street
requesting him to do a job “Hy het gevra om saam te gaan werk. Ek het
toe ingestem.” Koopman accompanied the appellant to the home of Kifaro
but was requested to wait at a distance. The appellant and Koopman went
to the Wilderness.
18 The appellant and Koopman smoked tik, dagga and mandrax while sitting
under a bridge. The appellant left, walking in the direction of the house s
broken into. After a while he returned with a black backpack. Koopman did
not see the contents of the bag. They continued smoking. The appellant
left again and later returned with another bag (blue bag).
19 The appellant phoned one Cliff to pick them up. The appellant and
Koopman walked in direction of the road and came across a male person
who was interested in buying a cell phone. At that moment, Cliff phoned
the appellant, informing him to wait at the road leading to Knysna.
20 Koopman continued to walk to Cliff’s white Opel Cadet.
21 Koopman, Cliff and his wife drove to the Caltex garage where Cliff and his
wife alighted from the vehicle. The same person who was looking for a cell
phone, accompanied by another male approached Koopman. An
altercation ensued resulting in Koopman’s arrest.
22 Kifaro stated that o n the day in question, he was driving back from the
beach when he came across the appellant and gave him a lift to Crags.
23 The appellant produced a bag consisting of four iPhones, a small Lenovo
iPad, Bose earphones and a Diesel watch. He wanted to sell the items for
R4000. Kafiro was not able to buy the items for R4000. He noticed the
appellant was desperate and gave him R1000 with the ‘understanding’ that
he would fetch the items the following day and pay R1200.
24 The following day, Detective Kibido enquired regarding the appellant and a
photograph was shown to him to identify.
25 Kifaro informed the detective that the appellant left a bag with items with
him. Detective Kibido’s response was that the items were stolen.
26 Kifaro testified further that the appellant phoned him while he was having a
conversation with the detective, but he did not mention anything to the
detective. He denied having any knowledge of the stolen items.
27 Formal admissions were made in terms of section 220 of Act 51 of 1977
regarding the items recovered by the investigating officer, Detective
Sergeant Thando Kibodo, from the home of Kifaro on 26 December 2018.
28 The court a quo found that Koopman was an impressive and truthful
witness and concluded that his evidence was satisfactory and reliable in all
material respects.
29 It can hardly be suggested that were Koopman’s evidence concern ing the
appellant to be accepted the State had not proved their case against the
appellant beyond a reasonable doubt.
30 The appellant argues in this Court on appeal that Koopman’s evidence
lacked detail and that he failed to answer questions put to him frankly and
honestly.
31 It is further argued by the appellant that the court a quo misdirected itself
by disregarding any possibility of Koopman having a motive to fals ely
implicate the appellant as the mastermind behind the alleged
housebreakings in the Wilderness area. And the court a quo disregarded
the fact that Koopman was serving a sentence of imprisonment and that
he was arrested on the alleged counts possibly facing another conviction.
32 Koopman’s evidence should have been approached with caution for a
variety of reasons.
The cautionary rule to be applied to accomplices was described in these
terms by Holmes JA in S v Hlapezula & others 1965 (4) SA 439 (A) at
440D–H:
“It is well settled that the testimony of an accomplice requires particular
scrutiny because of the cumulative effect of the following factors:
1) First, he is a self-confessed criminal;
2) Various considerations may lead him falsely to implicate the
accused, for example, a desire to shield a culprit or, particularly
where he has not been sentenced, the hope of clemency;
3) By reason of his inside knowledge, he has a deceptive facility for
convincing description, his only fiction being th e substitution of
the accused for the culprit.”
33 The court a quo failed to exercise caution when evaluating the evidence of
Mr. Koopman in that;
(a) it failed to recognise the foregoing dangers (1 – 3 above) in accepting
Koopman’s version as reliable,
(b) failed to safeguard and reduce the risk of a wrong conviction, and
(c) ignored t he lack of corroboration considering the objective facts
tendered during trial.
34 But the court a quo in terms recognized that Koopman was an accomplice
and did approach his evidence with caution.
35 The court a quo concluded that Koopman gave detailed evidence without
any contradictions or shortcomings and his evidence was well
corroborated. It was found that Koopman’s evidence was truthful and was
reasonably poss ibly true. Koopman gave clear evidence on how the
housebreakings occurred and his involvement as a watchdog. His
evidence was corroborated by time, date and place as well as the items
seized from Kifaro. As a result, the court a quo concluded that the
appellant did not falsely implicate the appellant.
36 The court a quo rejected the appellant’s version. It found the version had
inherent improbabilities, taking into account the appellants connection with
Koopman and Kifaro. He confirmed his “drug smoking” relationship with
Koopman. The court a quo found it highly improbable that the appellants
whereabouts were a mystery to him on the day in question.
37 Turning to the role of this Court sitting as court of appeal, bearing in mind
the only issues arising are factual in nature.
38 The Court's powers to interfere on appeal with the findings of fact of a trial
court are limited. (R v Dhlumayo and Another 1948(2) SA 677 (A)).
39 In Masango v S (A175/2021) [2024] ZAGPPHC 64 (5 February 2024) the
following was stated:
“The approach to be taken on appeal
[3] Well-established principles govern the hearing of
appeals against findings of fact. An appeal court’s
powers to interfere with the findings of fact by the
court a quo is limited. In the absence of demonstrable
and material misdirection by the trial court, its findings
of facts are presumed to be correct. Such findings will
only be disreg arded if the record shows them to be
clearly wrong:
‘In the absence of any misdirection, the trial
Court’s conclusion, including its acceptance of a
witness’s evidence, is presumed to be correct. In
order to succeed on appeal, the appellant must
therefore convince the Court of appeal on
adequate grounds that the trial Court was wrong in
accepting the witness’ evidence - a reasonable
doubt will not suffice to justify interference with its
findings. Bearing in mind the advantage which a
trial Court has of se eing, hearing and appraising a
witness, it is only in exceptional cases that the
Court of appeal will be entitled to interfere with a
trial Court’s evaluation of oral testimony.’
40 I am of the view that this is not an exceptional case in which it can be sai d
that the court a quo wrongly accepted the evidence of Koopman.
41 In the result I am of the view that the appeal against the convictions cannot
succeed.
42 Turning to the sentences I can appreciate why it may be suggested that
the sentences imposed as a whole are somewhat harsh. But that is not
the test. The inquiry is whether the sentence imposed by the trial court was
shockingly inappropriate.
43 There have been different formulations of when a sentence is considered
to be “disproportionate” or “shocking.”
44 All these formulations are aimed at determining whether the court could
reasonably have imposed the sentence that it did (see, S v Sadler 2000
(1) SACR 331 (SCA) at para [8]).
45 The essential inquiry in an appeal against sentence is not whether the
sentence was right or wrong but whether the court, when imposing the
sentence, exercised its discretion properly and judicially.
46 In S v Pillay 1977 (4) SA 531 (A) at 535E - F, Trollip JA stated that “a mere
misdirection is not by itself sufficient to entitle the Appeal Court to interfere
with the sentence; it must be of such a nature, degree, or seriousness that
it shows, directly or inferentially, that the court did not exercise its
discretion at all or exercised it improperly or unreasonably”.
47 The State correctly argues that the appellant has an extensive list of
previous convictions. It argued that he has made a career out of breaking
into the property of others and stealing th eir possessions. The offences for
which appellant was convicted were well planned and executed with a
particular degree of accuracy concerning their timing.
48 He had previously been sentenced to direct imprisonment and was on
parole for the same offences at the time of his arrest.
49 The appellant’s personal circumstances are he is currently 34 years of
age, having been born on 17 August 1989; he is not married; he has a
twelve-year-old child with whom he has no contact. He was was born and
raised in Plettenberg Bay. He stayed with his father prior to his arrest. His
father receives a disability grant every month. The Appellant attained
grade 10 at school. He was unemployed at the time of his arrest.
50 The appellant argues that he was about 11 years old at the time of his first
conviction and that his previous brushes with the law could be ascribed to
factors, such as poorly defined life goals and a lack of positive role
models.
51 It is argued that the court a quo misdirected itself and disregarded any
potential for ”complete rehabilitation” and that the circumstances
surrounding the commission of the offences “appear to be opportunistic in
nature.”
52 I disagree. The court a quo carefully weighed up all the mitigating and
aggravating factors and properly exercised its sentencing discretion.
53 In the result I am of the view that the appeal against the appellant’s
sentence should be dismissed.
____________
Katz, AJ
I agree, and it is so ordered.
__________
Kusevitsky, J