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[2018] ZASCA 8
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Maphana and Another v S (174/2017) [2018] ZASCA 8 (1 March 2018)
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 174/2017
In
the matter between:
TSHAMUHAU
MAPHAHA
FIRST
APPELLANT
THABO
MOLEFE
SECOND
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Maphaha
v The State
(174/2017)
[2018] ZASCA 08
(1 March 2018)
Coram:
Leach,
Mbha and Mocumie JJA and Plasket and Mothle AJJA
Heard:
21
February 2018
Delivered:
1 March
2018
Summary:
Appeal
against refusal of petition for leave to appeal against conviction
and sentence for robbery with aggravating circumstances
– no
reasonable prospects of success concerning conviction –
concerning sentence, trial court appeared not to have
taken into
account period of about three and a half years spent by appellants
awaiting trial – reasonable prospects of success
on appeal
against sentence.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Johannesburg (Mokgwatleng J and Seboko AJ
sitting as court of appeal):
(a)
The appeal succeeds to the extent set out below.
(b)
The order of the court below is set aside and replaced with the
following order.
‘
The
appellants are granted leave to appeal against sentence to the
Gauteng Local Division of the High Court, Johannesburg.’
JUDGMENT
Plasket
AJA (Leach, Mbha, Mocumie JJA and Mothle AJA concurring)
[1]
This is an appeal against the refusal of a petition for leave to
appeal, special leave having been granted by this court. The
appellants were charged with and convicted of robbery with
aggravating circumstances. They were accused 3 and accused 4 of ten
accused in the trial. They were both sentenced to 15 years
imprisonment.
[2]
This appeal does not concern the merits of the matter directly. They
are relevant only insofar as they relate to whether the
appellants
have reasonable prospects of success for purposes of the appeal
against the refusal of their petition.
[1]
In
S v
Smith
[2]
this court set out what that entails:
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal.’
[3]
In respect of the convictions, two broad issues were raised. The
first was whether the trial court erred in accepting the evidence
of
the State witnesses and, at least by implication, in rejecting the
evidence of the two appellants. The second was whether the
fundamental right of the appellants to a fair trial was violated. As
far as sentence was concerned, it was argued that the magistrate
misdirected himself by not considering and taking into account the
lengthy period spent by the appellants in custody awaiting trial
when
he was required to decide whether substantial and compelling
circumstances were present to justify a deviation from the prescribed
sentence of 15 years imprisonment.
The
facts
[4]
It was common cause that on the night of 13 April 2008 in Wynberg,
Johannesburg, a robbery with aggravating circumstances was
committed
by a group of men at the premises of an automotive components
factory, CRH Continental. It was also common cause that
two of the
persons involved were the appellants, who I shall refer to in the
narration of the facts as accused 3 and accused 4.
They were dressed
in South African Police Service uniforms and were armed with
firearms.
[5]
The curious facts as to how the robbery was committed forms the
backdrop of this appeal. In what follows I shall set out the
evidence
that the trial court accepted and then detail the versions of accused
3 and accused 4.
[6]
Accused 3 and accused 4 were student constables stationed at the
Alexandra police station. They, along with a third trainee,
Ms Nomsa
Kgomo, were instructed by their superior, Captain Ramahotswa,
who was accused 7 in the trial, to accompany two off-duty
policemen
to the scene of a robbery then supposedly in progress. They were told
that a group of detectives from another police
station would join
them to foil the robbery and that their function was to provide
support to these detectives.
[7]
Sergeant Munyai (accused 1), Constable Matsaung (accused 5), accused
3, accused 4 and Kgomo sallied forth from the Alexandra
police
station in a double cab vehicle clearly marked as a police vehicle.
They appeared to proceed without any great sense of
haste, contrary
to what one would expect in the circumstances. Eventually, they met a
group of men – the ‘detectives’
– who climbed
into the back of the vehicle. They proceeded to the scene of the
crime that was about to be committed.
[8]
As accused 1 and accused 5 were not officially on duty, they were
dressed in civilian clothes, as were the ‘detectives’.
It
would appear that the only people in the group who were armed were
accused 3 and accused 4, as well as Kgomo who remained in
the vehicle
throughout.
[9]
Accused 1, on arrival at the premises of CRH Continental, approached
a security guard who was on duty inside the premises but
behind a
closed gate. Accused 1 informed the security guard that a robbery was
in progress inside the factory. When the security
guard asked accused
1 how he knew this, accused 1 told him that one of the owners of the
factory had telephoned the police. The
security guard, on the
strength of this statement, opened the gate and was immediately
overpowered and handcuffed by accused 1.
Accused 5, the ‘detectives’,
accused 3 and accused 4 entered the premises.
[10]
Mr Marcel Christofoli, a partner in CRH Continental, walked out of
the factory to see two policemen inside the premises. This
must have
been accused 3 and accused 4. He saw that the security guard was
surrounded by a group of five or six men dressed in
civilian clothes.
[11]
One of the men in uniform, identified by Christofoli as accused 4,
ran towards him, threw him against a wall, put a firearm
to his head
and dispossessed him of his wallet, watch, cigarettes and cellphone.
Accused 4 then dragged him by the hair into an
area of the factory
referred to in the evidence as the tool room. He was ordered by
accused 4 to lie on the floor. Other people
who worked at CRH
Continental were already lying on the floor. The intruders demanded
the key to the safe. When Christofoli said
that there was no safe on
the property, he was kicked repeatedly.
[12]
While accused 3 and accused 4 remained in the tool room guarding the
people lying on the floor, the other men ransacked the
factory,
taking computers, tools and, as one of the witnesses put it,
‘whatever they could find’. They stacked their
loot at
the front door of the tool room.
[13]
At one stage, one of the men suggested killing one of the prisoners
to force the others to divulge the whereabouts of the key
to the
safe. Accused 4 told Christofoli to stand and when he did so, accused
4 pointed his firearm at him. Christofoli explained
the position
again and was told that he could lie down again. The men then turned
their attention to Mr Harold Keitchel, a partner
of Christofoli. They
took him upstairs and assaulted him.
[14]
After this, the men loaded their loot into the police vehicle, took
the gate of the premises off its rail, because they had
no other
means of opening it, and left the premises. An argument developed
between accused 1 and accused 5 as to whether they should
proceed to
an informal settlement in Alexandra or to the police station. At some
stage, however, accused 1 stopped the vehicle
and the ‘detectives’
alighted with the loot and left. Accused 1, accused 3, accused 4,
Kgomo and accused 5 then proceeded
to the police station.
[15]
By this stage, the robbery had been reported to the Bramley police
station. The vehicle used had been identified by the call
sign
painted on it as a vehicle that came from the Alexandra police
station. The next day the accused were arrested. Some of the
stolen
property was recovered thereafter.
[16]
Accused 3 and accused 4 testified that they had been instructed by
accused 7 to perform support duties for a group of detectives
who
would be foiling an armed robbery then in progress. When they arrived
at the premises of CRH Continental and the security guard
was
overpowered and handcuffed, they thought that he was one of the
robbers. They thought that Christofoli, Keitchel and the others
who
were overpowered, made to lie on the floor and guarded by them were
robbers too. They were puzzled by the fact that the ‘detectives’
ransacked the factory and stole property that they found there. They
were also puzzled by the fact that when they left the factory,
the
people who they thought were robbers were left behind. They claimed
that their inability to realise that they were taking part
in a
robbery, and not foiling one, arose from the fact that they were mere
trainees and had not been provided yet with sufficient
training to
distinguish between the two activities.
The
issues: conviction
[17]
The first issue was a factual one: the magistrate believed the State
witnesses and disbelieved accused 3 and accused 4. The
test for
permissible interference by a court of appeal with a trial court’s
factual findings imposes a high threshold. In
S
v Francis
[3]
Smalberger JA explained it as follows:
‘
This
Court’s powers to interfere on appeal with the findings of fact
of a trial Court are limited. Accused No 5’s complaint
is that
the trial Court failed to evaluate D’s evidence properly. It is
not suggested that the Court misdirected itself in
any respect. In
the absence of any misdirection the trial Court’s conclusion,
including its acceptance of D’s evidence,
is presumed to be
correct. In order to succeed on appeal accused No 5 must therefore
convince us on adequate grounds that the trial
Court was wrong in
accepting D’s evidence – 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 this Court
will be entitled to interfere with a trial Court’s evaluation
of oral testimony.’
[18]
The magistrate found that all of the State witnesses, including
Kgomo, who was a so-called s 204 witness, were good witnesses.
After
applying the appropriate cautionary rule where necessary, he accepted
their evidence. His conclusion is fully borne out by
the record, and
I can see no misdirection on his part as to his assessment of the
evidence and his factual findings.
[19]
The version of accused 3 and accused 4 is improbable, even if it is
accepted that initially they were ordered by accused 7
to take part
in preventing a fictitious robbery: as soon as the action started
with the overpowering of the security guard, who
would not have
opened the gate to policemen if he had been part of a gang of
robbers, they could have been in no doubt that their
police
colleagues and the ‘detectives’ were the villains and
that they were in fact taking part in a robbery, not preventing
one.
[20]
Even if the magistrate did not say so expressly, he rejected the
versions of accused 3 and accused 4 as false beyond reasonable
doubt.
In so doing, and given the improbability of the version, he cannot be
faulted. An acceptance of the State witnesses’
evidence and a
rejection of the versions of accused 3 and accused 4, leads to the
conclusion that both were active participants
in the robbery. In
these circumstances, the defence that was raised, that they were
following a lawful order, has no bearing. The
facts found proved by
the magistrate renders that defence irrelevant.
[21]
In the face of the overwhelming evidence against accused 3 and
accused 4, Mr Masako who appeared for them, conceded –
and
correctly so – that there were no reasonable prospects of
successfully appealing against conviction. He also, once again
correctly, in my view, conceded the second issue – the argument
that accused 3 and accused 4 had not had a fair trial because
of the
way in which the magistrate had treated their counsel.
[22]
All that the magistrate did in the portions of the record highlighted
in the heads of argument was to clarify for himself what
the
cross-examiner wanted to ask or to put to witnesses, and from time to
time – and with good reason – query the relevance
of a
line of questioning. Even if, at times, the magistrate was robust,
that does not equate to an unfair trial. Litigation, and
particularly
litigation in the criminal courts, is not for the faint-hearted.
[23]
In the result, I am unable to find that reasonable prospects exist of
a court of appeal interfering with the conviction of
accused 3 and
accused 4.
Sentence
[24]
When sentencing accused 3 and accused 4, the magistrate imposed the
sentence prescribed by the
Criminal Law Amendment Act 105 of 1997
for
a first offender who committed the offence of robbery with
aggravating circumstances. He accordingly found no substantial and
compelling circumstances to justify a deviation from the prescribed
sentence.
[25]
In imposing sentence, the magistrate took into account the personal
circumstances of accused 3 and accused 4, but he also considered
their crime to be particularly serious. He was justified in doing so:
the spectre of policemen in uniform and armed with firearms
assaulting citizens and robbing them of their possessions before
loading their plunder into a police vehicle is, to put it at its
lowest, cause for grave disquiet.
[26]
That said, however, the magistrate does not appear to have taken into
account the fact that both accused 3 and accused 4 spent
about three
and a half years in custody prior to their conviction. The correct
approach to sentencing when an accused has spent
a lengthy period in
detention awaiting trial was dealt with by Lewis JA in
S
v Radebe
[4]
in which she held:
‘
A
better approach, in my view, is that the period of detention
pre-sentencing is but one of the factors that should be taken into
account in determining whether the effective period of imprisonment
to be imposed is justified: whether it is proportionate to
the crime
committed. Such an approach would take into account the conditions
affecting the accused in detention and the reason
for a prolonged
period of detention. And accordingly, in determining, in respect of
the charge of robbery with aggravating circumstances,
whether
substantial and compelling circumstances warrant a lesser sentence
than that prescribed by the Criminal Law Amendment Act
105 of 1997
(15 years’ imprisonment for robbery), the test is not whether
on its own that period of detention constitutes
a substantial and
compelling circumstance, but whether the effective sentence proposed
is proportionate to the crime or crimes
committed: whether the
sentence in all the circumstances, including the period spent in
detention prior to conviction and sentencing,
is a just one.’
[27]
As this exercise appears not to have been done, and if it had been
done, it may have had a bearing on the sentences imposed
by the
magistrate, I am of the view that there are reasonable prospects of
success on appeal against sentence.
The
order
[28]
I conclude that there are no reasonable prospects of a successful
appeal against conviction, but there are reasonable prospects
of
success on appeal against sentence.
[29]
I accordingly make the order set out below.
(a)
The appeal succeeds to the extent set out below.
(b)
The order of the court below is set aside and replaced with the
following order.
‘
The
appellants are granted leave to appeal against sentence to the
Gauteng Local Division of the High Court, Johannesburg.’
____________________
C
Plasket
Acting
Judge of Appeal
Appearances:
For
the Appellants:
I D Masako
Instructed
by:
Johan Schaefer Attorney, Johannesburg
Symington & De Kok,
Bloemfontein
For
the Respondent:
E H F Le Roux
Instructed
by:
Director of Public Prosecutions, Johannesburg
Director of Public
Prosecutions, Bloemfontein
[1]
Matshona v S
[2008]
4 All SA 69
(SCA) para 5.
[2]
S v Smith
2012
(1) SACR 567
(SCA) para 7. (References omitted.)
[3]
S v Francis
1991
(1) SACR 198
(A) at 204c-e. (References omitted.) See too
R
v Dhlumayo & another
1948 (2) SA 677
(A) at 705-706;
S
v Hadebe & others
1998
(1) SACR 422
(SCA) at 426a-c.
[4]
S v Radebe
2013
(2) SACR 165
(SCA) para 14.