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[2013] ZAWCHC 199
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Gaji v S (A49/2013) [2013] ZAWCHC 199 (16 April 2013)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT)
Case
No: A49/2013
In the matter
between:
MZAMO
GAJI
Appellant
and
THE
STATE
Respondent
JUDGMENT delivered 16 April
2013
BOQWANA AJ
Introduction
[1]
On 16 July 2012 the appellant was
convicted of one count of robbery with aggravating circumstances as
defined in Section 1 of the
Criminal Procedure Act
[1]
by the Bellville Regional Court, for which he was sentenced to 15
years direct imprisonment on 6 September 2012. On 6 December
2012 he
was granted leave to appeal against both against conviction and
sentence by the trial court.
[2]
At the commencement of the trial, the
appellant was legally represented and his attorney withdrew from the
proceedings during the
examination in chief of the state’s
first witness. The appellant elected to conduct his own defence for
the remainder of
the trial.
Brief facts
[3]
The appellant’s conviction
emanates from an incident of robbery with aggravating circumstances
that occurred on 09 November
2011, near Boston in B […] at
approximately 19h30, where A.D.S. (‘the complainant’) was
attacked and stabbed
with a knife several times and his vehicle, a
Toyota Corolla with registration number C […..] unlawfully
removed.
[4]
During the incident the complainant
could hardly see his attacker but did notice that he was dark in
complexion. At approximately
20h15, whilst patrolling along the R 300
highway, Constable Grobbelaar (‘Grobbelaar’) and his
colleagues received information
about robbery of the vehicle that had
occurred earlier in the B […] area. A few minutes later, they
noticed a white Toyota
vehicle with the same registration numbers as
the one reported to be stolen, driving towards the direction of
Mitchells Plain.
They called for backup and received assistance
from Warrant Officer Simon and Sergeant De Jager ('De Jager’).
The group
of policemen pulled the vehicle over on the N2 before
Borcherds Quarry in the direction of Cape Town. The driver of the
vehicle
stopped the vehicle abruptly and he was found standing next
to the vehicle. Before the vehicle was pulled over, the appellant was
identified by both Grobbelaar and De Jager as the driver of the
vehicle. A knife was also found lying on the passenger seat of
the
vehicle. When asked about the vehicle found in his possession, the
appellant told the police officers that the vehicle was
not his but
that he was sent by one, Zikesa or Botsotso from Nyanga taxi rank to
fetch the vehicle. Upon reaching Nyanga taxi rank
the appellant
pointed at someone who turned out to be an innocent man.
[5]
The appellant denied that he was the
driver of the vehicle. He testified that he was walking along the N2
Highway when a few speeding
vehicles stopped in front of him. Police
officers got out of the vehicles and assaulted him, asking him where
his friend was. He
testified that he had no option but to lie about
an innocent man to relieve himself from the pain caused by the
assault.
[6]
He testified that he is a traditional
healer and was coming from Stikland that evening where he had gone to
pick up his herbs. It
was unfortunate that he was found on the road
at that time.
The findings of the Magistrate
[7]
When evaluating the evidence the
magistrate found that the state witnesses corroborated each other in
that both De Jager and Grobbelaar
testified that they saw the
appellant inside the complainant’s vehicle shortly before he
was stopped.
[8]
He further found that the two witnesses
were good and honest, and there was no reason to find that they were
not credible and reliable.
No contradictions were found in both their
testimonies. The magistrate also found the complainant to be a
credible and honest witness
and his testimony that the person who
attacked him was a black or a coloured person corroborated that of
other witnesses. Furthermore,
the appellant was found fifteen to
thirty minutes after the robbery with the complainant’s vehicle
and a knife found inside
the vehicle.
[9]
On the other hand, the appellant’s
version was found not to be reasonably possibly true because he could
not provide a reason
why he falsely incriminated an innocent person
in the Nyanga taxi rank. He also could not explain why he was walking
on the highway
at that time of the night. The medicine he allegedly
went to dig up in Stikland which was never shown to the police.
Further, the
appellant did not admit even seeing a white motor
vehicle. Because of this he denied ever seeing a knife inside the
vehicle. He
however confirmed that the police had shown the knife to
him at the police station. The court rejected the appellant’s
version
finding that the state had proven its case beyond reasonable
doubt.
[10]
When imposing sentence the magistrate
analysed case law and factors the court should take into account when
sentencing. She took
into account the appellant’s previous
convictions and found that the appellant was a second offender for
the same charge
of robbery with aggravating circumstances committed
in 2005 and the appellant had shown no remorse for his actions. The
appellant
had been released on parole during 2010 and violated his
parole conditions during October 2011. She also took into account the
aggravating circumstances, which were that the complainant was […]
years old, frail and was brutally stabbed all over his
body in his
own home. She then considered the appellant’s personal
circumstances finding that the appellant was still very
young, had
minor children and appeared to be trying to maintain his family.
Accordingly, there were substantial and compelling
circumstances to
deviate from the prescribed minimum sentence of 20 years. For this
reason the magistrate imposed a sentence of
15 years direct
imprisonment.
The appellant’s grounds for appeal
[11]
On the conviction aspect, the appellant
submits that the magistrate erred by placing greater emphasis on the
state’s version
as opposed to his and by finding that there
were no improbabilities on the state’s version. Furthermore,
the magistrate failed
to have due regard to the fact that the state
witnesses could have made a mistake as to the identification of the
driver and should
thus have treated the evidence on identification
with caution.
[12]
As regards sentence, the appellant
submits that the magistrate did not evaluate all the factors before
her and did not place enough
weight on the rehabilitation of the
appellant and in so doing imposed a sentence which was shocking in
the circumstances.
Discussion
[13] There is no direct
evidence linking the appellant to the commission of the offence. The
state’s
case therefore rested on circumstantial evidence. The
correct approach in how to deal with this kind of evidence has been
stated
in the seminal case of R v Blom
[2]
where the court stated as follows:
'(1) The inference sought to be drawn must be
consistent with all the proved facts. If it is not, the inference
cannot be drawn.
(2)
The proved facts should be such that they
exclude every reasonable inference from them save the one sought to
be drawn. If they
do not exclude other reasonable inferences, then
there must be a doubt whether the inference sought to be drawn is
correct.’
[14]
In principle the court which has to deal with circumstantial evidence
must not only
look at the evidence of the state or of the accused in
isolation but it must consider the cumulative effect of the
circumstantial
evidence in the case.
[3]
[15]
In
this case the question is whether an inference can be drawn that the
appellant had assaulted and robbed the complainant of his
motor
vehicle on the night of 09 October 2011.
[16]
The
facts presented by the state that robbery with aggravating
circumstances was committed at approximately 19h30 in the Bellville
area wherein the complainant was stabbed with a knife several times,
and robbed of his white Toyota vehicle with registration number,
C
[…] and that motor vehicle was spotted some fifteen to thirty
minutes later at a highway within the proximity of Bellville,
driven
by the appellant, who was the only one found standing next to the
vehicle after being pulled over and a knife found inside
the vehicle
all point towards the appellant’s guilt.
[17]
Ms Levendall who appeared for the
appellant could not go beyond the state’s version. She had to
concede that the appellant’s
version was highly improbable. The
appellant could not explain why he was walking on the highway at that
time of the night. His
explanation that he had come from digging
herbs in Stikland was unconvincing. These herbs were not even shown
to the police.
[18]
Furthermore, the fact that the appellant
was the only one found in close proximity with the vehicle that was
robbed rules out any
possibility that someone else was the driver of
the vehicle. The appellant lied to the police, when caught by
implicating an innocent
man in Nyanga taxi rank as the person that
sent him to fetch the vehicle. His excuse of assault is not supported
by any evidence
and is unconvincing.
[19]
It is highly improbable that the police
would call back-up and focus all their attention on someone who was
just walking along the
highway.
[20]
I am satisfied that the trial court was
correct in finding that the only reasonable conclusion that could be
drawn from the prevailing
circumstances was that the appellant had
committed the crime of robbery with aggravating circumstances on the
day in question.
There was accordingly no misdirection on the part of
the magistrate in this regard.
[21]
Turning to sentence. The trial court
delivered a well reasoned judgment in that respect also. As already
indicated the appellant
was a second offender for the same offence of
robbery with aggravating circumstances which he committed in 2005.
For a second offence,
section 51 (2) (a) (ii) of the Criminal Law
Amendment Act
[4]
prescribes imprisonment for a period of not less than 20 years as a
minimum sentence. Furthermore, he had been released on parole.
He
contravened parole conditions.
[22]
Section 51 (3) (a) of the Criminal Law Amendment Act empowers any
court to impose a lesser
sentence if it is satisfied that substantial
and compelling circumstances existed to do so. The magistrate
took a balanced
approach in considering the appellant’s
previous convictions, the aggravating, factors coupled with his
personal circumstances
and found that substantial and compelling
circumstances existed and imposed a 15 year direct imprisonment
sentence. There is no
misdirection inducing a sense of shock and
outrage with this sentence. In fact, the trial court’s approach
showed a level
of mercy and lenience towards the appellant.
[23]
Counsel
for the appellant was rightly constrained to concede that the
effective sentence was appropriate. There is therefore no
reason to
interfere with the discretion of the trial court in sentencing the
appellant.
[24]
In the
circumstances the appeal on both conviction and sentence must fail.
[25]
I
therefore propose an order in the following terms:
1.
The appeal on both conviction and
sentence is dismissed.
2.
Conviction and sentence imposed by the
Regional Court against the appellant are both confirmed.
N P BOQWANA
Acting Judge of the High Court
I agree, and it is so ordered
BM
GRIESEL Judge of the
High
Court
[1]
Act No. 51 of 1977
[2]
1939 AD 188
at 202 - 203
[3]
See Nxumalo v 5
[2009} JOL 24273
(SCA).
[4]
Act No. 105 of 1997