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[2018] ZASCA 111
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Jiyane v S (943/2017) [2018] ZASCA 111 (13 September 2018)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 943/2017
In
the matter between:
ISHMAEL
JIYANE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Jiyane
v The State
(943/2017)
[2018] ZASCA 111
(13 September 2018)
Coram:
Seriti,
Saldulker, Mbha and Molemela JJA and Mokgohloa AJA
Heard:
18
August 2018
Delivered:
13
September 2018
Summary:
Criminal
law and procedure - appellant incorrectly convicted on a charge of
robbery and sentenced to three years’ imprisonment
- appeal
against sentence and conviction upheld and set aside - appellant
found guilty of assault with intent to do grievous bodily
harm -
sentenced to three years imprisonment wholly suspended for five years
on certain condition.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Basson and Teffo JJ sitting as
court of appeal):
1 The appeal against
both conviction and sentence succeeds.
2 The accused’s
conviction and sentence are set aside and replaced with the
following:
‘
(a)
The accused is guilty of assault with intent to do grievous bodily
harm.
(b) The accused is
sentenced to three years imprisonment wholly suspended for five years
on condition he is not convicted during
the period of suspension of
any offence involving violence.’
JUDGMENT
Seriti
JA (Saldulker, Mbha and Molemela JJA and Mokgohloa AJA):
[1]
The appellant was arraigned on 20 April 2015 in the Magistrates
Court, Daveyton on a charge of robbery, read with the provisions
of s
51 of the
Criminal Law Amendment Act 105 of 1997
. The allegations
levelled against him were that on 24 August 2014 he unlawfully and
intentionally assaulted Mr John Malinga, the
complainant, and with
force took a cellular phone and an amount of R1000.00 from him. He
was convicted as charged and sentenced
to three years’
imprisonment. He was also declared unfit to possess a firearm in
terms of
s 103
of the
Firearms Control Act 60 of 2000
.
[2]
The appellant was granted leave to appeal against both his conviction
and sentence which appeal was dismissed by the Gauteng
Division, of
the High Court Pretoria (per Basson and Teffo JJ). The appellant with
special leave of this Court, now appeals against
his conviction and
sentence.
[3]
The background facts are as follows. The complainant testified that
on the day in question, at approximately 05h00, he went
to the
premises of the appellant’s tenant, one Thembe. When he arrived
at the premises of the appellant the gate was locked.
Whilst still
waiting at the gate a young child came and opened the gate. The child
was apparently going to the shop.
[4]
The complainant entered the premises and knocked on Thembe’s
room door, as he was supposed to give her R500. The appellant
emerged
from the main house and said that it was still morning and the
complainant was causing a disturbance. When the complainant
asked the
appellant if he could see Thembe, the appellant re-entered his house,
and he returned with a sjambok in his hand. The
appellant ran towards
him, and realising that the appellant was going to hurt him and he
ran away to another street. The appellant
continued to chase after
him and eventually got hold of the complainant and began hitting him
with the sjambok several times until
he fell to the ground. Whilst
the complainant lay on the ground the appellant continued his assault
upon him, although he apologized
the appellant continued to hit him
with the sjambok. The appellant then began to search him and took his
cellular phone and R1000.00.
After taking his money and cellular
phone, the appellant went back to his residence.
[5]
The complainant stood up and when he looked around he saw the
appellant coming towards him, carrying a knobkierie. He once again
ran away and the appellant chased him, caught up with him and hit him
again several times with the knobkerrie. The complainant
sustained
serious injuries namely a fractured left wrist, a fractured right leg
and bruises to the face and the back of his head.
The South African
Police officers arrived at the scene and an ambulance was summoned
which transported him to hospital. He was
hospitalised for
approximately 10 weeks. At the hospital he had to undergo an
operation, amongst other medical treatments and procedures,
which
necessitated the application of plaster of paris to his arm and leg.
[6]
In his evidence-in-chief, the complainant testified that during the
first episode of assault, the appellant searched him and
took his
cellular phone and money. He further said ‘when I stood up, I
realized that he took my cell phone and I did not
have money anymore.
I saw that he did take the phone and when I searched myself, I did
not have money anymore’.
[7]
During cross-examination of the complainant, the defence attorney put
it to the complainant that on the day in question nobody
opened the
gate for the complainant and he might have jumped over the fence or
the gate. He was knocking hard on the door and the
appellant chased
him out of the yard. The appellant blew a whistle to notify the
community that there was an intruder in his yard.
As the appellant
was blowing the whistle, the complainant charged at him and assaulted
him. Members of the community thereafter
arrived and assaulted the
complainant. It was also put to him that the appellant will testify
that he did not take the complainant’s
cellular phone and
money.
[8] The appellant in
his evidence-in-chief only confirmed the correctness of the version
put by his legal representative to the
complainant. In
cross-examination, the appellant stated that on the day in question
he heard somebody knocking hard at the door
and windows. He further
said, that the knocking started at 04h00 and persisted until 05h00
and that the complainant was severely
intoxicated. The appellant
admitted that he beat the complainant but did not know if he
sustained any injuries nor the extent thereof.
During the cross-
examination of the complainant it was never put to him that he
knocked hard on the windows nor that he knocked
from 04h00 until
05h00 or that he was very drunk. In
S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR
633
(SCA) at 647C this court held:
‘
.
. . [I]t is clear law that a cross-examiner should put his defence on
each and every aspect which he wishes to place in
issue,
explicitly and unambiguously, to the witness implicating his client.’
With
this in mind, it is clear that the appellant’s counsel did not
put these assertions to the complainant and this to me
appears to be
an afterthought on the part of the appellant.
[9]
In the heads of argument and during oral submissions the appellant’s
counsel submitted that the appellant did not receive
a fair trial as
the Magistrate constantly descended into the arena, and his conduct
constituted a substantial deviation from the
standard of conduct and
impartiality required from a presiding officer. The appellant’s
counsel further submitted that the
magistrate’s line of
questioning amounted to a cross-examination of the appellant and were
posed in an intimidating manner.
I have scrutinised the questions put
to the appellant by the magistrate. In my view, although the
questions were extensive, I am
unable to find any indication that the
magistrate’s conduct constituted a substantial deviation from
the standard of conduct
and impartiality required of him. There is no
indication that the magistrate descended into the arena nor that he
was cross-examining
the appellant. These submissions are therefore
without merit.
[10]
The appellant’s counsel further submitted that the trial court
erred in accepting the evidence of the complainant who
was a single
witness. The trial court approached the evidence of the complainant
with caution. After analysing all the evidence,
the trial court came
to the conclusion that the complainant was a credible witness. A
court of appeal is not at liberty to depart
from the trial court’s
finding of fact and credibility unless they are vitiated by
irregularity or unless an examination
of the record of evidence
reveals that those findings were patently wrong. In
S
v Pistorius
2014 (2) SACR 314
(SCA) para 30 this court held as follows:
‘
It
is a time-honoured principle that once a trial court has made
credibility findings an appeal court should be deferential and
slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial was clearly wrong (
R
v
Dhlumayo
& another
1948 (2) SA 677
(A) at 706;
S
v Kebana
[2010] 1 All SA 310
(SCA) para 12.’
I
cannot find any reason to interfere with the factual and credibility
findings of the trial court. (See also
S
v Francis
1991 (1) SACR 198
(A) at 198J-199 (A) and
S
v Hadebe & others
1997 (2) SACR 641
(SCA) at 645E-F.)
[11]
The appellant’s counsel submitted that even if the evidence was
correctly accepted, the appellant was convicted of the
wrong offence
by the trial court. He further submitted that the appellant should,
in the circumstances of this case, have been
convicted of common
assault or assault with intent to do grievous bodily harm.
[12]
In terms of
s 260
of the
Criminal Procedure Act 51 of 1977
, an
accused facing a charge of robbery may be convicted of assault with
intent to do grievous bodily harm or the offence of common
assault
which are competent verdicts on a charge of robbery, if such offences
are proved.
[13]
Robbery consists of the theft of property by unlawfully and
intentionally using violence to take the property of another person
or the threat of violence to induce the possessor of the property to
submit to the taking of the property. In this matter, there
is no
evidence which suggests that the appellant assaulted the complainant
with the intention of taking any of his property. The
assault was not
aimed at getting the complainant to submit to the taking of his
property. Further that the complainant did not
seem to recall how he
lost his cellular phone and money. In his evidence the complainant
said that the appellant took his cellular
phone and money and
thereafter the appellant returned to his house. He stood up and he
realised that the appellant took his cellular
phone and money. On the
totality of the evidence it was not proved beyond reasonable doubt
that the appellant used violence against
the complainant with the
intent of depriving the complainant of his belongings.
[14]
My view is that the trial court erred in convicting the appellant on
the robbery charge. The evidence led is sufficient to
sustain a
conviction on the competent verdict of assault with intent to do
grievous bodily harm, as the injuries sustained by the
complainant
are serious injuries and further a conviction on this basis is
supported by the evidence led before the trial court.
[15]
I now turn to the issue of sentence. In mitigation of sentence the
appellant’s counsel advised the court that the appellant
was 32
years old at the time of his sentencing by the trial court. He has
one minor child aged four years, the child and the mother
of the
child are dependent on him for support and maintenance and the
appellant was a first offender.
[16]
The trial court imposed the sentence it did on the basis of a
conviction of robbery and in the light of that fact my view is
that
the conviction has no factual basis, the sentence imposed by the
trial court should be set aside and substituted with an appropriate
sentence. The facts of this case demand the imposition of a wholly
suspended sentence; the appellant is not a candidate for a custodial
sentence. In my view a sentence of three years wholly suspended will
be appropriate in this case.
[17] In the
circumstances I make the following order:
1 The appeal against
both conviction and sentence succeeds.
2 The accused’s
conviction and sentence are set aside and replaced with the
following:
‘
(a)
The accused is guilty of assault with intent to do grievous bodily
harm.
(b) The accused is
sentenced to three years imprisonment wholly suspended for five years
on condition he is not convicted during
the period of suspension of
any offence involving violence.’
__________________
LW SERITI
JUDGE OF APPEAL
APPEARANCES
For
Appellant: A Gissing
Instructed
by: Strauss De Waal Attorneys, Johannesburg
Symington
De Kok, Bloemfontein
For
Respondent: S Scheepers
Instructed
by: The Director of Public Prosecutions, Johannesburg
The
Director of Public Prosecutions, Bloemfontein