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[2019] ZASCA 126
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Livanje v S (378/2018) [2019] ZASCA 126; 2020 (2) SACR 451 (SCA) (27 September 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 378/2018
In
the matter between:
BERNARD ANTONY
LIVANJE APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Livanje v The State
(378/2018)
[2019] ZASCA 126
(27 September 2019)
Coram:
Maya P, Molemela, Dlodlo and Mbatha JJA and Hughes AJA
Heard:
21 August 2019
Delivered:
27 September 2019
Summary:
Criminal Law and Procedure – appellant erroneously
convicted of housebreaking with intent to rob instead of
housebreaking
with intent to commit a crime unknown to the State –
appellant sentenced in terms section 51(2) of the Criminal Law
Amendment
Act 105 of 1977 without warning of its applicability –
irregularities not of vitiating nature – conviction and
sentence
accordingly amended.
ORDER
On
appeal from:
Free State Division of the High Court, Bloemfontein
(Rampai J and Daniso AJ sitting as court of appeal):
1
The appeal succeeds.
2
The orders of the court a quo are set aside and replaced with the
following: ‘2.1 The appeal succeeds.
2.2
Accused No 3 is found guilty of housebreaking with intent to commit
an offence unknown to the State.
2.3
Accused No 3 is sentenced to five years imprisonment, antedated to 17
July 2015.’
JUDGMENT
Mbatha
JA (Maya P, Molemela and Dlodlo JJA and Hughes AJA concurring):
[1]
The
appellant, Bernard Antony Livanje, was arraigned in the Regional
Court, Hoopstad, Free State Province. He tendered a plea of
guilty to
the charge of contravening the provisions of
s 49(1)
of the
Immigration Act 13 of 2002
[1]
and was duly convicted as charged and sentenced to two months
imprisonment. He tendered a plea of not guilty to the charge that
he
unlawfully and intentionally broke open and entered the house and/or
property in the lawful custody of the complainant, with
intention to
commit a crime unknown to the State, read with the provisions of
s
262(2)
of the
Criminal Procedure Act 51 of 1977
, as amended (CPA).
The appellant was subsequently convicted of housebreaking with intent
to rob. The trial court found no substantial
and compelling
circumstances that warranted the imposition of a sentence less than
the one prescribed in the Criminal Law Amendment
Act 105 of 1997 (the
Minimum Sentences Act). He was accordingly sentenced to ten years
imprisonment. His appeal to the High Court,
Bloemfontein, against
both conviction and sentence failed. With special leave of this
Court, the appeal against both conviction
and sentence is before this
Court.
[2]
In the early hours of 9 October 2014, Mr Ettienne Le Roux (the
complainant), of Witpan Farm, about 12 km from the town of Hoopstad,
was woken up from his sleep by the ringing of the alarm security
system. By looking at the sensor lights on the alarm keypad he
noted
that the alarm had been triggered by a movement in the dining room.
He woke up to investigate, but did not find anything
amiss. He
returned to bed. An hour later he was woken up by the sound of a
breaking window in his bedroom. This was followed by
the sound of a
breaking window in his mother’s bedroom. He jumped out of bed,
armed himself with a firearm and rushed to
his mother’s
bedroom. He found his mother and sister, Yvonne Venter, already at
the bedroom door. At this stage he observed
that the window pane was
broken.
[3]
Whilst looking at the window he observed that the curtain moved,
which alerted him to the presence of a human silhouette behind
it. It
appeared as if the person behind the curtain was pushing it so as to
gain entry through the window. He reacted by firing
two shots at the
silhouette. Surprisingly, no sound followed after the shooting.
Thereafter he called for assistance from the neighbours
and police.
Upon examination of the window he discovered that a side window had
been unlatched and opened although the windows
had been closed before
his sister and mother retired to bed. He testified that upon the
arrival of Kobus Le Roux, a neighbour,
and the police, they found
that three windows were broken and a spade which was generally kept
in a storeroom lay outside on the
grass. At a distance of about 20
metres from the house they found four different types of shoeprints.
The complainant and the police
followed the shoeprint tracks, which
led to a thick bush. The bush was set alight, which flushed out the
erstwhile co-accused (co-accused)
of the appellant. They were
arrested upon their failure to explain their presence on that farm.
The complainant’s evidence
was corroborated by that of his
sister and police officers who testified in the trial.
[4]
Warrant Officer Anton Mynhardt testified that upon his arrival at the
farm he observed four different types of shoeprints near
the house
and the shed. He uplifted several plaster castings thereof for
forensic examination. These plaster castings were later
on compared
to the sneakers confiscated from the appellant and his co- accused.
The result was that they matched. Mynhardt testified
that whilst on
the farm he was directed by a farm worker to the appellant who was
found bleeding under a tree within the precincts
of the farm. The
appellant was then arrested.
[5]
After the testimony of Mynhardt, the State called Detective Makgoane
who testified that pursuant to further investigation, they
recovered
an abandoned Nissan N200 bakkie on the street in Tikwana suburb,
Hoopstad. The bakkie in question was placed in police
custody and
later identified as the property of the appellant.
[6]
The appellant was the only one who testified in his defence. He
placed himself at the scene of the crime but denied committing
any
offence. He testified that he and his co-accused travelled from
Gauteng to Hoopstad to purchase gold from a person known to
one of
his co-accused. Upon their arrival, a contact person in Hoopstad
drove them to an unknown place which later turned out to
be Witpan
farm. At the precincts of the farm, they met the seller. The testing
of the authenticity of the gold which was in the
form of a Kruger
rand was done. The negotiations for the purchase thereof were
concluded for a negotiated amount of R14 000. The
appellant testified
that he had been in possession of R15 000.
[7]
However, as soon as the seller left, the appellant suspected that he
was being ripped off. He tested the gold coin again and
found that a
fake coin was swapped for the genuine gold coin. He and his
co-accused got out of the motor vehicle in pursuit of
the seller, who
took the direction towards the farmhouse. The seller, who having
realised that he was being pursued by the appellant
and his
co-accused fled, ran past a building which looked like a garage and
disappeared into thin air. They all ended up near that
garage where
they argued about the deal that went wrong. His co-accused left and
he followed them. As soon as he started moving,
he heard a shot being
fired, ran away up to the point where he felt powerless and fell
down. It was then that he realised that
he had been shot and could
not move any further. He was found later under the tree. He was
arrested and subsequently charged with
the offences which he faced
before the trial court.
[8]
In
criminal proceedings, the State bears the onus to prove the accused’s
guilt beyond a reasonable doubt. The accused’s
version cannot
be rejected only on the basis that it is improbable, but only once
the trial court has found on credible evidence,
that the explanation
is false beyond a reasonable doubt.
[2]
The corollary is that, if the accused’s version is reasonably
possibly true, the accused is entitled to an acquittal. It
is trite
that the appellant’s conviction can only be sustained after
consideration of all the evidence, and his version of
the events if
found to be false.
[9]
In considering whether the appellant’s version was reasonably
possibly true, I have taken into account that the appellant
placed
himself at the farm in the early hours of the morning on 9 October
2014 to conclude a gold deal, coincidentally on the same
date and
time the housebreaking occurred at the house occupied by the
complainant and his family members. The appellant failed
to explain
why a gold transaction had to be conducted between 1 and 2 am at the
precincts of the remote farm as they arrived in
Hoopstad at 17h30 and
had been waiting for the seller since then. He could also not explain
how it came about that he had the exact
amount of R15 000 demanded by
the dealer when the deal had not been discussed before they left
Gauteng for Hoopstad. These are
all the aspects which have a bearing
on probabilities.
[10]
Furthermore, the appellant could not explain the presence of his
shoeprints which were found in close proximity to the main
house. On
his version, he was at a distance of about five hundred metres from
the house. It can be accepted that no one else was
at the window save
the appellant, as he was the only person who sustained a gun-shot
wound. The trial court also took judicial
notice that Hoopstad was
not a mining town for the appellant to have travelled from Gauteng to
conclude a gold transaction. I am
in agreement with the conclusion
reached by the trial court that the version given by the appellant
was not reasonably possibly
true.
[11]
It is clear that the appellant and his co-accused were on a mission
to commit a crime in Witpan Farm. Such an inference can
be drawn from
the following objective facts: the motor vehicle driven by the
appellant to Hoopstad was left unattended on the street
in a
township, a 12 km distance away from the farm; the person who drove
them to the farm and the dealer were complete strangers
to the
appellant; and were nowhere to be found near the scene of the crime.
The presence of the dealer and the man who drove them
to the farm
cannot be supported by evidence. I find it improbable that a deal
involving such a huge amount of money could have
been conducted in
such an isolated place, under cover of darkness, more so with people
unknown to the appellant.
[12]
Given
the many improbabilities in the appellant’s account, coupled
with contradictions in his own evidence and the objective
facts, the
only irresistible inference to be drawn is that this was a planned
excursion. I also accept the evaluation of the evidence
by the trial
court and its approach to the credibility findings of the State
witnesses’ evidence and cannot, therefore, interfere
with the
trial court’s findings.
[3]
[13]
I now turn to the questions of law raised on appeal: first, whether
the evidence established beyond a reasonable doubt that
the appellant
intended to commit a crime of robbery; secondly, whether the
appellant was informed of the applicability of the Minimum
Sentences
Act and lastly, if the failure to do so led to an unfair trial.
[14]
The
appellant was charged with the crime of housebreaking with intent to
commit a crime unknown to the State, read with the provisions
of s
262(2) of the CPA. Housebreaking is not a crime
eo
nomine
;
it must be accompanied by the intent to commit another offence on the
premises entered.
[4]
It is clear
from the evidence that the crime of housebreaking was committed by
the appellant. It is trite that an additional intention
is required
for the substantive offence of committing a crime unknown to the
State. Therefore, the main issue for consideration
is whether the
intent to rob was proved by the State in line with the provisions of
s 262(2) of the CPA which provides:
‘
if
the evidence on a charge of housebreaking with intent to commit an
offence to the prosecutor unknown, whether the charge is brought
under the statute or the common law, does not prove the offence of
housebreaking with intent to commit an offence to the prosecutor
unknown, but the offence of housebreaking with intent to commit a
specific offence, or the offence of malicious injury to property,
the
accused may be found guilty of the offence so proved.’
[15]
The
aforementioned objective facts constituted sufficient evidence to
conclude that housebreaking had been committed with intent
to commit
a crime, in line with the principles set out in
S
v Hlongwane.
[5]
There, the essential elements of the offence of housebreaking were
defined as follows:
‘
(a)
the ‘breaking’ of premises in the legal sense by the
displacement of obstruction to entry of a structure which forms
part
of the premises;
(b)
the entry of the premises by means of any part of the person or an
instrument;
(c)
the unlawfulness of the conduct complained of; and
(d)
the intention to commit an offence.’
[16]
There are two uncontroverted pieces of evidence which showed that the
intention of the appellant was to commit a crime unknown
to the
prosecutor. First, it is clear from the evidence that an offence of
housebreaking with intent to commit the crime was committed
because
according to the complainant when the curtain moved that was the time
when he saw the silhouette. It was also his evidence
that the window
where he saw the silhouette was the type that one could easily climb
into and gain entry. Secondly, the finding
of the spade near one of
the broken windows, conclusively proved that it was used to break the
window, as a result that either
a hand or an object was inserted
through the broken window to open the window next to it.
[17]
It is clear from these objective facts that the unauthorised entry
was gained by none other than the appellant, as it so happened
that
it was the appellant who sustained a gunshot wound. The complainant’s
undisputed evidence was that all the doors and
windows were locked
before they retired to bed, and the window latch could only be
unsecured by inserting a hand or object though
the broken window. The
trial court correctly concluded that this constituted sufficient
entry in terms of the law. The intention
to commit the crime unknown
to the prosecutor could be drawn from these objective facts, as it is
the only reasonable inference
to be drawn. The breaking of the
windows in three parts of the house showed the persistence and
determination on the part of the
appellant to break into the house at
all costs after the alarm had been triggered and switched off,
indicating the presence of
people in the house.
[18]
In
general, a court of appeal would not be inclined to reject the
factual findings of the trial court. In
S
v Hadebe
&
Others,
[6]
the Court stated that‘. . . in the absence of demonstrable and
material misdirection by the trial court, its findings of
fact were
presumed to be correct, and would only be disregarded if the recorded
evidence showed them to be clearly wrong’.
[19]
The question is therefore whether on the conspectus of the evidence,
the second intention to commit robbery was proved beyond
a reasonable
doubt by the State. I am of the view that although the trial court
correctly concluded that there was an additional
intent of committing
another offence, it misdirected itself when it concluded that the
intention was to commit the offence of robbery.
This is so because
that was not the only inference that could be drawn in the
circumstances of the case and there was no circumstantial
or direct
evidence to support that conclusion. Therefore, the conviction on the
second part of the offence should be set aside
and replaced with the
conviction on the crime of housebreaking with intent to commit an
offence unknown to the State, which is
the very offence the appellant
was charged with.
[20]
With
regard to sentence, it is trite that an appeal court will interfere
only if the trial court misdirected itself materially,
as expressed
in
S
v Malgas
[7]
where it stated as follows:
‘
The
mental process in which courts engage when considering questions of
sentence depends upon the task at hand. Subject of course
to any
limitations imposed by legislation or binding judicial precedent, a
trial court will consider the particular circumstances
of the case in
the light of the well-known triad of factors relevant to sentence and
impose what it considers to be a just and
appropriate sentence. A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court,
approach the question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because
it prefers it. To do so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial
court vitiates its exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh.
In doing so, it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance.
As it is said, an appellate Court is at
large. However, even in the absence of material misdirection, an
appellate court may yet
be justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence
of the trial court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that
it can properly be described as 'shocking', 'startling' or
'disturbingly inappropriate'. It must be emphasised that in the
latter
situation the appellate court is not at large in the sense in
which it is at large in the former. In the latter situation it may
not substitute the sentence which it thinks appropriate merely
because it does not accord with the sentence imposed by the trial
court or because it prefers it to that sentence. It may do so only
where the difference is so substantial that it attracts epithets
of
the kind I have mentioned. No such limitation exists in the former
situation.’
[21]
The
appellant was sentenced to ten years imprisonment in terms of s 51(2)
of the Minimum Sentences Act read together with Part IV
of Schedule 2
thereto. The charge sheet did not make reference to the application
thereof. Furthermore, no address was made to
the court either by the
prosecutor or defence as to the application of the Minimum Sentence
Act nor did the court invite them to
address it in respect thereof.
This Court in
S
v Legoa
[8]
held that for the Minimum Sentences Act to apply the conviction must
encompass all the elements of the offence set out in the Schedule.
[22]
In
Ndlovu
v The State
,
[9]
the appellant had been sentenced to life imprisonment in terms of s
51(1) instead of 15 years in line with the charges preferred
against
him in terms of s 51(2) of the Minimum Sentences Act. The
Constitutional Court had to decide whether the imposition of
a
harsher sentence than that envisaged in the indictment infringed
Ndlovu’s right to a fair trial. It held that when the
Regional
Court found him guilty as charged, it was aware that he was charged
in terms of s 51(2) and not s 51(1) of the Minimum
Sentences Act and
that in imposing a sentence of life imprisonment, the Regional Court
exceeded its jurisdiction.
[23]
In
giving judgment in this case, the trial court reiterated the charges
that were put to the appellant but sentenced him to a prescribed
minimum sentence in terms of the Minimum Sentences Act in
circumstances where he had not been warned about the applicability
thereof.
This was a material misdirection on the part of the trial
court which calls for a fresh consideration of the appellant’s
sentence. I align myself with the views expressed by the
Constitutional Court in
Ndlovu
[10]
where it said:
‘
.
. . . Courts are expressly empowered in terms of
section 86
of the
Criminal Procedure Act to
order that a charge be amended. Upon
realising that the charge did not accurately reflect the evidence
led, it was open to the
Court
at any time before judgment
to
invite the State to apply to amend the charge and Mr Ndlovu to make
submissions on whether any prejudice would be occasioned
by the
amendment.’
The
Constitutional Court also affirmed that s 35(3) of the Constitution
guarantees the right to a fair trial, including the right
to be
informed of the charge with sufficient detail to answer it.
[24]
In
terms of s 322(1)(
a
)
of the CPA, an appeal court may allow an appeal if satisfied, on any
ground, there was a failure of justice. A conviction may
be set aside
or altered by reason of an irregularity in the proceedings if it
results in a failure of justice. It is my view that
an irregularity
only occurred at the sentencing stage, which cannot be said to be so
gross an irregularity to have resulted in
the failure of justice. The
test is whether the appeal court on the evidence and on the
credibility findings (if any), unaffected
by the irregularity,
considers that there is proof of guilt beyond a reasonable doubt.
[11]
Therefore, this Court has to reconsider the sentence afresh.
[25]
In
considering the sentence afresh, I have taken into account that
sentencing is pre-eminently within the discretion of the trial
court
and that the court of appeal will not lightly interfere with the
exercise of such a discretion.
[12]
A correct synopsis of the law in this regard was set out in
S
v Hewitt
[13]
where this Court held:
‘
It
is a trite principle of our law that the imposition of sentence is
the prerogative of the trial court. An appellate court may
not
interfere with this discretion merely because it would have imposed a
different sentence. In other words, it is not enough
to conclude that
its own choice of penalty would have been an appropriate penalty.
Something more is required; it must conclude
that its own choice of
penalty is the appropriate penalty and that the penalty chosen by the
trial court is not. Thus, the appellate
court must be satisfied that
the trial court committed a misdirection of such a nature, degree and
seriousness that shows that
it did not exercise its sentencing
discretion at all or exercised it improperly or unreasonably when
imposing it. So, interference
is justified only where there exists a
‘striking’ or ‘startling’ or ‘disturbing’
disparity
between the trial court’s sentence and that which the
appellate court would have imposed. And in such instances the trial
court’s discretion is regarded as having been unreasonably
exercised.’
[26]
The appellant, a Mozambican national, was 39 years old at the time of
sentencing. He was employed as a part time carpenter
earning about R2
000 per month and had a girlfriend and children of the ages of 14 and
18 years. He had two previous convictions
for theft and assault in
1998 and 2005, respectively. I accept the conclusions reached by the
trial court regarding the seriousness
of the offence, that the
offence was planned and persisted with even though the appellant was
aware of the presence of the occupants
of the house, the prevalence
of such an offence and that the appellant was not a first offender.
[27]
As a
final string on the bow, the appellant asked this Court to take into
account the time he spent in custody awaiting finalisation
of the
trial. We were referred to various authorities in which this Court
held that the trial court did not exercise its sentencing
discretion
judiciously in failing to take into account the time spent in
custody.
[14]
The views
expressed by this Court in
Radebe
& another v S
,
[15]
where it held that ‘. . . the test is not whether on its own
that period of detention constitutes a substantial or compelling
circumstance, but whether the effective sentence proposed is
proportionate to the crime. . . .’ are relevant to this matter.
[28]
The appellant was arrested on 9 October 2014 and was hospitalised
before his first appearance in the Regional Court on 24 February
2015. The trial proceedings commenced on 21 April 2015 and were
concluded on 17 July 2015. He was convicted and sentenced on 17
July
2015. Therefore the time spent in custody by the appellant was not
inordinately long. It is a factor which has been taken
into account
by this Court in reconsidering his sentence.
[29]
The
appellant’s sentence has been considered in line with the
principles set out in
S
v Zinn
.
[16]
This Court has taken into account that the sentence imposed should be
sufficient to dissuade the appellant from re-offending and
to
discourage potential offenders. It is only necessary for this Court
to interfere with the sentence, on the premise that a wrong
sentencing law was applied by the trial court. However, I find
nothing that suggests that the misdirection as to sentence was that
envisaged in
S
v Pillay
,
[17]
in that it is not ‘. . . 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.’
[30]
Accordingly, the following order is made: 1 The appeal succeeds.
2
The orders of the court a quo are set aside and replaced with the
following:
‘
2.1
The appeal succeeds.
2.2
Accused No 3 is found guilty of housebreaking with intent to commit
an offence unknown to the State.
2.3
Accused No 3 is sentenced to five years imprisonment, antedated to 17
July 2015.’
____________________
YT Mbatha
Judge
of Appeal
APPEARANCES
For
the Appellant: P Peyper
Instructed
by:
Peyper
Austen Inc. Attorneys, Bloemfontein
For
the Respondent: Adv S Giorgi
Instructed
by:
The
Director of Public Prosecution, Bloemfontein
[1]
In that on 09 October 2014 at or near Witpan farm in the district of
Hoopstad, in the Regional Division of the Free State, the
accused
(appellant) intentionally and unlawfully entered/or remained in the
Republic of South Africa. By so doing the accused
contravened the
provisions of s 49(1) read with
ss 1
and
9
of the
Immigration Act 13
of 2002
and further read with
s 250
of the
Criminal Procedure Act 51
of 1977
. The appellant did not appeal against this conviction and
sentence.
[2]
S v V
2000 (1) SACR 453
(SCA) at 455B.
[3]
Pistorius v S
[2014] ZASCA 47
;
2014 (2) SACR 314
(SCA).
[4]
A Kruger Hiemstra’s Criminal Procedure (Electronic version,
2019) at 26-18(1).
[5]
S v Hlongwane 1992 (2) SACR 484 (N).
[6]
S v Hadebe & others
1998 (1) SACR 422
(SCA) at 426A-B.
[7]
S v Malgas
2001 (1) SACR 469
(SCA) para 12.
[8]
S v Legoa
2003 (1) SACR 13
(SCA) para 11.
[9]
Ndlovu v S [2017] ZACC 19; 2017 (2) SACR 305 (CC).
[10]
Ndlovu v S
[2017] ZACC 19
;
2017 (2) SACR 305
(CC) para 56.
[11]
S v Yusuf
1968 (2) SA 52
(A) at 57C-F.
[12]
R v Maphumulo & others 1920 (AD) 56.
[13]
S v Hewitt
[2016] ZASCA 100
;
2017 (1) SACR 309
(SCA) para 8.
[14]
Maake v Director of Public Prosecutions
[2010] ZASCA 51
;
2011 (1)
SACR 263
(SCA) and Mathebula & another v S [2011] ZASCA 165;
2012 (1) SACR 374 (SCA).
[15]
Radebe & another v S
[2013] ZASCA 31
;
2013 (2) SACR 165
(SCA)
para 14.
[16]
S v Zinn 1969 (2) SA 537 (A).
[17]
S v Pillay
1977 (4) SA 531
(A) at 535E-F.