• •
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
OCTAVIUS STRYDOM
and
THE STATE
CORAM: WILLE, Jet PARKER, AJ
Date of Hearing:
Date of Judgment:
PARKER ,AJ:
Introduction Appeal Case No: A236/24
Lower Court Case Number OSH113/16
31 January 2025
11 February 2025
JUDGMENT Appellant
Respondent
[1] The Appellant and his co-accused stood arraigned in the Oudtshoorn Regional
Court in terms of Section of Act 51 of 1977, where he was convicted of one count of
robbery with aggravating circumstances in that the Appellant and his co-accused had on
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the 27'&' March 2016, unlawfully and intentionally assaulted the complainant and did
then with force take an amount of R500 and a cap. The Appellant was arrested on the
2nd of March 2016 and pleaded not guilty. He was legally represented. He was convicted
by the Regional Court Magistrate Mr. Van Wyngaard , on 24 August 2016 and sentenced
to 15 years direct imprisonment.
[2] On 26th October 2016, the Appellant applied for leave to appeal against the
conviction and sentence, which was dismissed resulting in a petition being granted on
the 25th of March 2024.
Conviction
[3] The state called two witnesses, an off-duty police officer, Divaan Esau and the
complainant. The Appellant testified, and he called a witness, Geneve Mc Quinton.
[4] The appellant raised several grounds as to why the conviction was not
sustainable. After reading the record, I do not agree that the learned magistrate had
heavily relied on the witness's evidence even though it is alleged that there were
discrepancies , contradictions and improbabilit ies as listed in its heads of argument. The
Appellant opined that due to the discrepancies, not much weight can be attached to the
evidence of the witnesses , suffice to say the learned Magistrate failed to give sufficient
weight to these contradiction s. Accordingly , it was argued that the evidence taken as a
whole did not establish beyond reasonable doubt that the Appellant is guilty.
[5] It was argued that the evidence of the state failed to prove beyond reasonable
doubt that the Appellant had robbed the complainant. I do not agree as the testimony on
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the evidence is clear, by Mr Esau. His evidence on what he saw was solid; he said he
saw the cap being removed as he stood five meters away from the accused and the
complainant, and he saw the Appellant armed with a knife. Furthermore, he saw the
Appellant's hands in the pockets of the complainant and he heard "jy moet march of ek
steek jou." The complainant however, testified that he did not see the knife, and it is
noteworthy that he did exaggerate what he saw.
[6] Furthermore, it was argued that the learned Magistrate did not properly consider
whether the Appellant's version was reasonably possibly true and failed to evaluate the
probabilities of the version appropriately. I am satisfied that the court's findings of the
evidence of the state witness were satisfactory , which led to the conviction of the
Appellant, despite contradictions in the evidence. This aspect was raised by the
learned Magistrate that there are differences in the evidence led by the complainant and
that of Mr Esau. However, he found their evidence as a whole acceptable as the
inconsistencies were not material.
[7] The appellant was accused number three. The complainant was known to both
accused number one and two, as he lived with accused one and stayed close to
accused two and attended the same school. The versions of the three accused differed
and the learned Magistrate found that it did not make sense and found that their
versions were conspired.
[8] The witnesses for the state confirmed the versions of events and testified about
how it unfolded. Importantly the evidence was such that the complainant was
approached by the Appellant, then taken to two other males where he was threatened
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with a knife, then robbed of his belongings. It was conceded that the Appellant was on
the scene when the complainant was robbed. In this regard, I agree with the
respondent's submissions that it is not correct that the state failed to discharge its onus
of proof. Further, the finding that the version of the Appellant was not reasonably
possible true was indeed accurate.
(9] The state bears the onus in a criminal trial to prove the guilt of an accused
beyond reasonable doubt1.
[1 O] It is trite that the state must prove its case beyond reasonable doubt, and when
evaluating the evidence and deciding whether the state has done so, the court must
consider the evidence as a whole2. A court is not entitled to convict unless it is satisfied
not only that the explanation given is improbable but that beyond any reasonable doubt
it is false. In such determination, one will look at the probabilities of the case to
determine whether the version of the accused is reasonably possibly true and whether
one subjectively believes him is not the test, as pointed out in many judgments. The
test is whether there is a reasonable possibility that the accused's evidence may be
true3.
[11] In evaluating the evidence, the principle was laid out in State v Van Aswegen4.
"The conclusion which it arrives at must account for all the evidence... The proper
test is that an accused is bound to be convicted if the evidence establishes his guilt
beyond reasonable doubt, and the logical corollary is that he must be acquitted ff it
is reasonably possible that he might be innocent"
1 State v Western Asian and another 2020 (1) SCR 561 (SCA) at paragraph 13
2 State v Chabalala 2003(1} SACR134 (SCA) at para 139
3 State v V1991 (1) SACR 198 (A)
4 State v Van Aswegen 2001 (2) SACR 97 (SCA) at 101 para 8
s
[121 The approach of an appeal court to findings of fact by a trial court was
summarized in State v Francis5. That the powers of the Court of Appeal to interfere with
the findings of fact of a trial court are limited and whether there was a misdirection at the
trial court's conclusion, including the acceptance of a witness's evidence, interference
will only be in exceptional circumstances;
"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 and a reasonable doubt will not suffice to justify interference with its
findings. Bearing in mind the advantage which a trial court has of seeing, 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"
[13] Even if there were inconsistencies and contradictions in the evidence of the State,
a witness is not expected from an honest but imperfect recollection, observation and
reconstruction of the evidence to remember precise detail.6 The complainant's
recollection might not have been perfect; however, the evidence was such that it led to
the conviction. Mr Esau's evidence cannot be faulted. He stated what he saw and he
did not appear dramatic in his testimony. In the result there are no reasons for this court
to interfere in the conviction of the Appellant.
Sentence
5 State v Francis 1991 (1) SACR 198 (A)
6 Jacob Notsi v The State (2022) ZAFSHC 120
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[14] It was argued that the court a quo was incorrect in finding that no substantial and
compelling circumstances existed. Therefore, its appeal concerns a justified deviation
from the minimum sentencing regime.
[15] When considering what constitutes an appropriate sentence, regard has to be
had to the well-known triad of sentencing , 7 the offender (the personal circumstances of
the accused), the interests of society and the seriousness of the offence. A sentence
must be individualised and each matter must be dealt with on its own particular facts,
tempered with mercy, and punishment must ultimately fit the true seriousness of the
crime. The interests of society are never well served by too harsh or too lenient a
sentence calling for a balance to be struck. 8
[16) The perusal of the transcript of proceedings revealed that the Appellant's
personal circumstances were considered by the learned Magistrate when dealing with
the issue of substantial and compelling circumstances.
[17) The contention by the Appellant's, that no weapon was used on the complainant
and that he was not injured should weigh in Appellant's favour, the court a quo reflected
on the Appellant's previous convictions and stated that "they specialized in dishonesty ".
The court reasoned that the fact that no one was injured and the value taken from the
complainant being low does not downplay the veracity of the offence. For these
reasons the learned Magistrate did not consider those factors as exceptional or
compelling reasons to depart from the minimum sentence being imposed.
7 State v Zinn 1969(2) SA 537 (A) at 540 G
8 Samuels v State 2011 SACR 9 (SCA) at 13 at para 9
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Discussion
[18] ft was conceded by the Respondent that direct imprisonment is indeed warranted.
However, the period of direct imprisonment imposed was not commensurate with the
extent of crimes of a similar nature of severity. Counsel for the Respondent also agreed
that there are degrees of aggravation in robbery, and this particular circumstances fell
on the lower end of the scale.
[19] f n examining what is an appropriate sentence, it is trite that sentencing is pre
eminently within the discretion of the trial court9.
(20] A Court of Appeal will interfere where the difference in the sentence to be
imposed. If the inference can be made that the trial court acted unreasonably and
therefore improperly, then in that event, the court will alter the sentence. 10
[21] The applicable principles on sentencing were dealt with in S v Ma/gas 11• affinned
in S v Dodo 12;
'if the sentencing court on consideration of the circumstances of the particular case is
satisfied that they render the prescribed sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of society, so that an injustice
would be done by imposing that sentence, it is entitled to impose a lesser sentence'.
[22] In Ganief Fortune v S;13
9 State v Gule 2019 JDR 0173 (ECB)
10 State v Anderson 1961(A)
11 S v Malgas 2001{2) SA 1222 (SCA) para 25
12 S v Dodo 2001 (3) 282 (CC) par.a 40.
13 S v Fortune 2014 (2) SACR 178 (WCC)
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'What appear to be incommensurate sentence, are in many cases explicable by
the realities that no one case is exactly like another, and the applicable principles,
although they contain a recognUion that the legislation enjoins standardized
rigour and severity, nevertheless emphasise that the statutory provisions do not
derogate from the duty on sentencing court in prescribed sentence matters to
have appropriate regard to the indMdua/ characteristics of each case. Indeed, it
is the latitude allowed to courts by the legislation to depart from the prescribed
minimum sentence in appropriate cases that resulted in it passing constitutional
muster."
[23] Insofar as minimum sentences are concerned, a court no longer has a clean
slate to inscribe whatever sentence he/she thought frt for the specified crime as
parliament had enacted the minimum sentencing legislation.14 Courts are thus bound to
impose the prescribed minimum sentences unless there are truly convincing reasons for
departing from them. In the current case, the evidence was such that a knife was seen,
there was no physical injury to the complainant, and RS00,00 and a cap was stolen
which cannot be ignored for the purposes of evaluating what a suitable sentence is.
[24] In applying the balancing of the interests of the community, the personal
circumstances of the accused and the crime, the sentence of 15 years on the evidence
presented on the facts in this case is harsh and induces a sense of shock.
[25] In assessing what would be a suitable sentence one has to be mindful that
setting it too low sends out the incorrect message to communities who are at the brunt
of crimes and who battle with the prevalence of such crimes in their communities.
t4 State v Matyityi (695/09) ZASCA 127 (30 September 2010) at para 11
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Setting it too high does not serve a purpose either and does not act as a deterrent. In
evaluating all these circumstances, a suitable sentence of direct imprisonment for a
period of 8 years is appropriate , given the degree of robbery concerned, the value taken,
in line with the
Ganief judgment. In the Ganief Fortune v The State, Binns-Ward J who considered an
appeal against sentence in very similar circumstances; there was no physical injury, and
R800,00 in cash was taken from the complainant. The appropriate sentence imposed
was reduced from 15 years to 8 years imprisonment.
[26] In the result, in this matter, the awaiting trial period of 2nd March 2016 to 24th
August 2016 is also to be taken into account for the purposes of sentencing.
[27] In the result, the following order is proposed:
1. The appeal against the conviction is refused.
2. The appeal against the sentence is upheld.
3. The sentence of 15 (fifteen) years' imprisonment imposed upon the Appellant
by the trial court is set aside.
4. A substituted sentence of eight (8) years imprisonment is imposed on the
Appellant.
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5. The substituted sentence of eight (8) years imprisonment is antedated to 24th
August 2016 in terms of s 282 of the Criminal Procedure Act 51 of 1977.
I agree, and it is so ordered
Appearances
Appellant's Legal Representative:
Counsel for the Respondent: PARKER,AJ
Acting Judge of the High Court
WILLE, J
Judge of the High Court
Mrs N Abdurahman
Legal Aid South Africa: St Georges Mall
Adv K Uys
Office of the OPP: W Cape