IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION – MAKHANDA]
CASE NO.: CA&R130/2022
In the matter between: -
JONATHAN WHITEBOOI 1ST APPELLANT
ELROY CAMPBELL 2ND APPELLANT
and
THE STATE RESPONDENT
APPEAL JUDGMENT
ROBERSON J:
[1] The appellants in this matter were both convicted in the Regional Court,
Gqeberha, of robbery with aggravating circumstances and were each
sentenced to twelve years’ imprisonment. The first appellant was also
convicted of murder and was sentenced to twelve years’ imprisonment.
Seven years of the murder sentence w ere to run concurrently with the robbery
sentence, resulting in an effective se ntence of seventeen years’
imprisonment. The court a quo granted leave to appeal against sentence. A
petition to the Judge President of this court for leave to appeal against the
convictions was refused. In the result, this is an appeal against sentence
only.
[2] The victim in both offences was Mr Ricardo Peres, a twenty -eight year old
man (the deceased). He was on his way to work on the morning of 17 May
2017 in the Central area of Gqebe rha, while it was still dark, when he was
accosted by the two appe llants and a Ms Candice Davids, the girlfriend of the
first appellant. Ms Davids was a State witness at the trial, having pleaded
guilty in a separate trial to robbery of the deceased . She testified about how
the robbery took place. The first appellant suggested that they should rob the
deceased . The first appellant grabbed the deceased and the second
appellant took the deceased’s cellphone, thereafter running away. While the
first appellant was holding the deceased, Ms Davids took the deceased’s
wallet, a packet of cigarettes and a cigarette lighter. There was R250.00 in
the wallet and the deceased handed over a further R70.00. Ms Davids and
the first appellant then ran off, as did the deceased.
[3] Ms Davids observed the deceased asking for help fr om a security officer .
When confronted by the security officer, Ms Davids sprayed him with pepper
spray. She then saw the first appellant and the deceased wrestling and heard
the deceased say “Oh Jesus”. He was holding his chest. The first appellant
was holding an okapi knife. Ms Davids and the first appellant then returned
home.
[4] The security officer involved, Mr Thembikhaya Koko, testified that he initially
saw three people wrestling and realised that one of them (the deceased) was
being robbed. (This must have been after the second appellant ran away.)
The deceased was resisting the robbery. As Mr Koko approached, the other
two people ran away. The deceased was angry and chased after the two
people. After Mr Koko gave him a baton, the decease d continued to chase
after the two people. Mr Koko also gave chase. One of the two people had a
knife in his hand. The deceased beat him, asking for the return of his laptop
which was in a bag. The person with the knife threatened to stab the
deceased. Mr Koko chose to chase after the other person , who m he found to
be a woman. When he returned to the scene of the altercation involving the
knife , the deceased was lying on the ground.
[5] The deceased was admitted to hospital and died on 4 June 2017. The doctor
who performed the post mortem examination on the deceased, Dr Celeste
Herbst, recorded in the J88 medico -legal form that the cause of death was a
stab wound to the chest and the consequences the reof. Dr Herbst testified
that the stab wound entered the chest cavity , and the terminal part of the
wound was the left part of the heart. The consequences were pneumonia and
a hypoxic brain injury. The brain injury was caused by the loss of blood from
the stab wound which resulted in less oxygenated blood going to the brain.
Dr Herbst said that if the deceased had not been stabbed, he would not have
died.
[6] When this matter was called, we were informed by Mr Geldenhuys of Legal
Aid South Africa, who appeared for the first appellant, that the second
appellant had not provided instructions for the appeal, and apparently was
content not to proceed with the appea l.
[7] The first point to raise in this judgment is the correctness or otherwise of the
convictions for robbery with aggravating circumstances. Mr Geldenhuys dealt
with this in the first appellant’s heads of argument. Aggravating
circumstances are defi ned in s 1 of the Criminal Procedure Act 51 of 1977 as
follows:
“(1) In this Act, unless the context otherwise indicates -
'aggravating circumstances' , in relation to -
(a) ......
(b) robbery or attempted robbery, means -
(i) the wielding of a fire -arm or any other dangerous weapon;
(ii) the infliction of grievous bodily harm; or
(iii) a threat to inflict grievous bodily harm,
by the offender or an accomplice on the occasion when the offence is
committed, whe ther before or during or after the commission of the
offence .”
[8] It was alleged in the charge sheet that the aggravating circumstances were
that a knife was used to threaten the victim. There was no such evidence.
The evidence of Ms Davids and Mr Koko did not demonstrate that aggravating
circumstances, as defined, were present. In view of the fact that no leave to
appeal was granted against convictions, this court may exercise its inherent
review jurisdiction and set aside the convictions for robbery with aggravating
circumstances and substitute them with convictions for robbery simpliciter .
[9] A first conviction for robbery with aggravating circumstances attracts a
prescribed minimum sentence of fifteen years’ imprisonment (Section 51 (2) of
the Crim inal Law Amendment Act 105 of 1997 read with Part II of Schedule 2).
Although the magistrate found no substantial and compelling circumstances to
be present, he imposed a lesser sentence on the ground that the appellants
had spent three years in custody a waiting trial. A conviction of robbery
simpliciter involves a different approach to sentencing because there is no
prescribed minimum sentence.
[10] The prescribed minimum sentence for the murder was similarly fifteen years’
imprisonment (s 51 (2) of Act 105 of 1997 read with Part II of Schedule 2).
The magistrate imposed a lesser sentence for the same reasons as he did for
the robbery.
[11] The social worker who was requested to compile a pre -sentence report for the
first appellant was unable to do s o because when she interviewed him he
denied that Jonathan Whitebooi was his real name and declined to furnish
any personal information. The first appellant was treated as a first offender.
He disputed the list of previous convictions reflected in the SA P69 record, and
the State , for reasons unknown, did not prove them. At the time of the trial he
was forty years old . He had four minor children who lived with his
grandmother and who received child support grants. He left school in Grade
4 following the death of his mother. Prior to his arrest he performed
occasional work as a painter, a glaz ier and a car guard, and his earnings were
used to support his children.
[12] A pre -sentence report was obtained for the second appellant. It reflected that
he w as thirty one years old at the time of the trial and had one child who
resided with his mother. The second appellant grew up in a stable home. He
left school during Grade 8. Prior to his arrest he assisted his father in a panel
beating business and was also self -employed as a panel beater and
mechanic. According to his father, the second appellant assisted the family
financially. The second appellant had two previous convictions : in May 2007
he was convicted of culpable homicide for which he was sente nced to seven
years’ imprisonment, and in September 2007 he was convicted of assault, for
which he was sentenced to four years’ imprisonment .
[13] The robbery of the deceased was a cowardly one. Although the violence was
not excessive, he was at the mercy of three people who took whatever they
could from him. He bravely tried to resist, to no avail. Violence of any sort is
a violation of a person’s bodily and emotional integrity and should be
accorded the seriousness it deserves. People should feel free and safe to
walk in public places without fear, whatever the time of day or night.
[14] The murder of the deceased was indeed vicious. The deceased had only a
baton while the first appellant had a knife. The deceased was trying to
recover his property. The first appellant could easily have run away, but not
only did he threaten to stab the deceased, he carried out this threat and
stabbed him in a most vulnerable part of his body. The image of the
deceased holding his chest and saying “Oh Jesus” is most profound and
tragic. This was the beginning of the end of his young life.
[15] A state ment from the deceased’s mother, Mrs Elsa Brandao, was admitted. In
it she recounted her anguish at the news of the attack on her son . She was in
the United Kingdom at the time and had to make travel arrangements. She
was shocked when she saw her son in hospital, connected as he was to a
ventilator and other devices . She was told by the doctors that he would not
survive and that it was just a matter of time before he died. She endured this
situation for almost four weeks until the deceased’s death. When someone is
murdered, the families of the victim are also victims. They have to deal with
lasting loss and grief.
[16] I did not understand Mr Geldenhuys seriously to suggest that the sentence for
murder should be interfered with. Rather he submitted that a lesser sentence
should be imposed for robbery and that such sentence should run wholly
concurrently with the murder sentence. Mr Mgenge for the State fairly made
the same submission . I am of the view that there are no grounds for
interference with the twelve years’ imprisonment imposed for murder. It was
less than the prescribed minimum of fifteen years imprisonment and any
further reduction would not have done justice to the seriousness of the
offence.
[17] The sentence of twelve years’ imprisonm ent for robbery clearly needs to be
reconsidered, following the exercise of our review powers in the alteration of
the convictions to robbery simpliciter . A sentence of imprisonment is the only
appropriate sentence in the circumstances. The first appella nt was clearly the
ringleader while the second appellant played a lesser role in that he did not
inflict the violence on the deceased and ran away after taking the cellphone.
However, he had a previous conviction for assault, a crime of violence. (It is
not known if the culpable homicide conviction involved negligence or an
assault leading to death.) It would be appropriate to sentence them to the
same period of imprisonment. The three years awaiting trial in custody is a
substantial period and ought to be taken into account. I consider a sentence
of seven years’ imprisonment to be a suitable sentence. In the case of the
first appellant it should run concurrently with the sentence of twelve years ’
imprisonment imposed for murder.
[18] The following order will issue:
First appellant Jonathan Whitebooi
1. The sentence of twelve years’ imprisonment for murder is confirmed.
2. The conviction for robbery with aggravating circumstances is set aside and
substituted with a conviction for robbery simplici ter.
3. The sentence of twelve years’ imprisonment for robbery with aggravating
circumstances is set aside and substituted with a sentence of seven years’
imprisonment for robbery simpliciter .
4. The sentence of seven years’ imprisonment for robbery simpliciter is to run
concurrently with the sentence of twelve years’ imprisonment imposed for
murder.
5. The sentences are ante -dated to 8 December 2021.
Second appellant Elroy Campbell
1. The conviction for robbery with aggravating circumstances is set aside and
substituted with a conviction for robbery simpliciter .
2. The sentence of twelve years’ imprisonment imposed for robbery with
aggravating circumstances is set aside and substituted wit h a sentence of
seven years’ imprisonment for robbery simpliciter .
3. The sentence is antedated to 8 December 2021.
___________________________
J M ROBERSON
JUDGE OF THE HIGH COURT
I agree
____________________________
J G A LAING
JUDGE OF THE HIGH COURT
APPEARANCES:
For the APPELLANT : ADV GELDENH UYS
Instructed by : LEGAL AID SA
MAKHANDA
For the RESPONDENT : MR MGENGE
DIRECTOR OF PUBLIC PROSECUTIONS
MAKHANDA
Matter heard on : 29 January 2025
Judgment deliver ed on : 06 February 2025