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[2015] ZAWCHC 51
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Morris and Others v S (No: 04/12) [2015] ZAWCHC 51 (4 May 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Appeal Case No: 04/12
Knysna Case No:
201/11/2007
DATE: 04 MAY 2015
In the matter between:
LIONAL
MORRIS
................................................................................................
FIRST
APPELLANT
NALON
JACOBS
.............................................................................................
SECOND
APPELLANT
KLAAS VAN
WYK
..............................................................................................
THIRD
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram: YEKISO & ROGERS JJ
Heard: 24 APRIL 2015
Delivered: 4 MAY 2015
JUDGMENT
ROGERS J
(YEKISO J concurring):
[1] The appellants, to whom I shall
refer by their surnames (Morris, Jacobs and Van Wyk respectively),
were the first, second and
third accused in the court a quo. They
were tried on a charge of robbery with aggravating circumstances.
They were convicted as
charged. The magistrate found substantial and
compelling circumstances to depart from the minimum sentence of 15
years’ imprisonment.
He sentenced Morris and Jacobs to eight
years’ imprisonment and Van Wyk to 12 years’
imprisonment. All three appellants
were granted leave to appeal
against their convictions. It is unclear from the record whether only
Van Wyk or all three were granted
leave to appeal against their
sentences. Morris and Van Wyk were in custody during the course of
the trial and have remained in
custody since being sentenced. Mr
Odendaal and Mr Vismer respectively represented them in the appeal.
Jacobs, who was granted bail
after his arrest and whose bail was
extended pending the hearing of the appeal, did not file heads of
argument and did not appear
personally or through counsel at the
hearing.
[2] The appellants were separately
represented in the court a quo. Each of them elected to testify.
Morris called one Ricardo Prins
as a witness. It appears that Prins
was at one stage charged as a fourth accused but the charges against
him were withdrawn. Van
Wyk called one Pieter Muller as a witness.
[3] It is not in dispute that at about
04h00 on Thursday 8 November 2007 an armed robbery took place at the
Total service station
in Sedgefield, a town which lies on the N2
between George and Knysna. Because the service station was undergoing
renovation, the
cash office and convenience shop were temporarily
located in a container. Janeigh Thompson, the cashier, and Howard
Wagner, the
petrol pump attendant, were on the night shift. The
public entrance into the container was by way of a door which led to
the service
counter. This door was open. A side door, which was
closed but not locked, led into the area behind the service counter.
Thompson
was seated behind the counter. Wagner was further back,
sitting near the fridge.
[4] Thompson and Wagner testified that
a person, whom they identified as Van Wyk, entered through the side
door and locked it. He
demanded money from Thompson. When she
refused, he began striking her with an axe. Wagner sprang to her
defence and began wrestling
with the assailant. At some stage they
became aware of another person, Morris, who must have entered through
the public entrance
and was standing on the other side of the
counter. Wagner testified that Van Wyk shouted to Morris to help him
and tried to pass
Morris the axe. Wagner was able to keep Van Wyk
away from Morris. In the course of the tussle Wagner managed to
unlock the side
door and told Thompson to run. She fled followed
shortly by Wagner himself. They saw Van Wyk and Morris running after
them. Wagner
said that Van Wyk was carrying the cash box. Thompson
could not recall which of the two had the cash box. The suspects then
turned
in the direction of the Spar.
[5] Thompson ran in the direction of
the Shell garage. She came across two patrolling police vans. One of
these was being driven
by Warrant Officer Pietersen. Constable Payle
was in the other van. Both police officers testified. Thompson told
the police that
she had been attacked by two unknown men and pointed
in the direction they had fled, ie towards Flamingo Street. She got
into Pietersen’s
van. In Flamingo Street they spotted a man who
started running when he saw them. The man jumped over a garden wall.
Pietersen drove
around towards the back of the property in order to
cut off the suspect if he went that way. Payle meanwhile went in
search. She
found Morris in the garden and arrested him.
[6] As Pietersen was driving towards
the back of the property, he came across a white Toyota Tazz without
its lights on. This vehicle
took off in the direction of the N2
towards George when the driver saw the police. Pietersen pulled the
Tazz over and arrested
the driver (Jacobs) and the other occupant
(Prins). Since the police could not re-start the Tazz (the front part
of its ignition
had been removed and there was no key), Pietersen
left his colleague Constable Leneka to guard it while he went back to
the Total
garage with Thompson and the two suspects. At a spot near
where the fleeing suspect had jumped over the wall, Pietersen found
the
cash box stolen from the Total garage. The money had disappeared.
[7] From Pietersen’s evidence it
seems that Lenaka must at some stage have abandoned his watch over
the Tazz because when
Pietersen returned the vehicle had disappeared.
It is common cause that after the arrest of Jacobs and Prince, Van
Wyk gained access
to the Tazz by smashing a back window. He drove the
Tazz back towards George. Later on 8 November 2007 he was arrested in
Great
Brak (which lies between George and Mossel Bay). He was still
in the Tazz (it had broken down) and was in the company of his friend
Muller. The police searched the Tazz and found dagga. Van Wyk and
Muller were arrested. Some days later Van Wyk was charged in
connection with the Sedgefield robbery.
[8] It is not in dispute that the three
accused and Prins arrived in Sedgefield together in the same Tazz in
the early hours of
8 November 2007 and were in the vicinity of the
Total garage at the time of the armed robbery.
[9] It is also common cause that Morris
was in the container at the time of the armed robbery. He says so
himself. The only question
in his case is whether he was there
innocently or was a participant in the robbery.
[10] As between the three accused and
Prins, there was a dispute as to who was involved in the robbery.
Morris’ version was
that while he was innocently at the
container wanting to fill a 5-litre container with petrol for the
Tazz, Van Wyk barged passed
him with an axe, jumped over the counter
and demanded money from Thompson. Morris fled when Van Wyk started
attacking Thompson.
Morris called Prins as a witness. Prins stated
that Morris had left the car to buy petrol and that a short while
later Van Wyk
got out of the car and went in the direction of the
garage with an axe. Prins said that he and Jacobs remained in the car
and were
not aware of any plan to rob the garage. Jacobs’
testimony was broadly in line with that of Morris and Prins, except
that
he claimed not to have seen an axe in Van Wyk’s
possession. Van Wyk said that Morris, Prins and Jacobs had ganged up
to put
the blame on him whereas he was innocent of the robbery. His
version was that Morris and Jacobs had gone to the garage with a
petrol
container. They came back a short while later, saying that the
staff in the container were asleep. Morris, Jacobs and Prins then
returned to the garage, Jacobs armed with an axe and Prins with a
panga. Jacobs asked Van Wyk in the meanwhile to go to the municipal
camp to retrieve some copper which Jacobs had stolen and hidden on a
previous occasion.
[11] In my view, no reliance can be
placed on any of the evidence tendered by the accused and their
witnesses. The accused and Prins
were on their own evidence dishonest
people who had no qualms about engaging in criminal activity. They
regularly bought and used
drugs. In giving their accounts of the
night in question, they attributed to themselves and each other
various criminal acts, while
seeking to avoid responsibility for the
armed robbery. For example, before they left for Sedgefield Prins
stole a cellphone which
they went to sell at Lawaai Camp in George in
exchange for tik. Van Wyk said they sold it at Lawaai Camp because in
Pacaltsdorp
(where they lived) one does not get good value for
phones. At one stage their plan for the evening was allegedly to
steal (‘strip’)
vehicle parts for another Tazz belonging
to a friend of Jacobs’. Van Wyk testified that he loaded tools
into Jacobs’
Tazz for this purpose. Van Wyk’s evidence
was that Jacobs had stolen copper in Sedgefield and that both of them
had gone
to Sedgefield earlier on the night of 7/8 November 2007 in
order to retrieve the copper but had been scared off by Chubb
Security
cars. Jacobs conceded that things like stealing car parts
and copper were not unusual for him and Jacobs. All of them claimed
to
have smoked tik and mandrax on the day of 7 November 2007 and into
the night, including while they were in the car en route to
Sedgefield. A reading of their evidence does not inspire confidence.
There were occasions on which each of them was evasive or unable
to
explain peculiar features of his version. It is unsurprising that
they did not make a good impression on the magistrate.
[12] As noted, Thompson and Wagner
identified Van Wyk as the man who entered the container through the
side door and attacked Thompson
with the axe. An identity parade was
held on 14 November 2007. Both witnesses picked out Van Wyk from a
line-up of seven. Van Wyk’s
attorney objected to the
admissibility of the evidence of the identification parade. The
objection arose from two alleged irregularities,
namely (i) that
Thompson and Wagner supposedly saw Van Wyk in the company of the
investigating officer shortly before the identification
parade; and
(ii) a supposed remark, allegedly heard by Van Wyk over an intercom
system connecting the line-up room and the viewing
room, to the
effect that Van Wyk was the police’s suspect. There was a
trial-within-a-trial in which Thompson, Wagner and
three police
officers testified. The police officer who conducted the parade, Capt
Michelle Lesch, was an officer with 27 years’
experience who
had overseen many identification parades. Van Wyk did not proffer
evidence at the trial-within-a-trial. The State’s
evidence
refuted the supposed irregularities. The magistrate correctly held
that the evidence of the identification parade was
admissible.
[13] The magistrate formed a favourable
view of Thompson and Wagner, which is confirmed by a reading of their
testimony. There were
minor points of difference but not such as to
raise a reasonable doubt as to their honesty and reliability.
Although Wagner described
the light in the container as good whereas
Thompson said it was weak, it is evident that they both regarded the
light as sufficient
to make an identification. They were in no doubt
as to what they had seen. The court must always be alive to the risk
that an honest
witness who is convinced of the correctness of his
identification might nevertheless be mistaken (S v Mthetwa
1972 (3)
SA 766
(A) at 768A-C). Here the risk of honest error was reduced by
the fact that two witnesses independently identified Van Wyk in a
properly conducted identity parade. Moreover, they made this
identification despite the fact that in the intervening period Van
Wyk had shaved his beard. (Something was made of the fact that
Thompson remembered Van Wyk as having had a bushy moustache at the
time of the robbery. It was put to her that he had a full beard. It
was not put to her that he did not also have a moustache, though
Van
Wyk subsequently claimed that he did not have a moustache. Wagner
remembered a beard and a moustache.)
[14] It is plain that the second person
in the container (ie in addition to Morris) must have been one of
Jacobs, Van Wyk or Prins.
While the accused and Prins were not
reliable witnesses, none of them suggested that Prins had ever been
armed with an axe. He
is unlikely to have taken a leading role, given
that he was only 17 at the time whereas Morris was 26, Jacobs 27 and
Van Wyk 40.
Thus the question reduces to this: is it a reasonable
possibility that Thompson and Wagner mistakenly identified the
axe-wielding
assailant as Van Wyk whereas in truth it was Jacobs?
There was no cross-examination of Thompson and Wagner to establish
that Van
Wyk and Jacobs were confusingly similar in appearance.
Jacobs was 27 whereas Van Wyk was 39. There are no photographs in the
record
which enable us to form our own view but the magistrate, who
had the advantage of observing all of the accused, said in his
judgment
that Van Wyk’s appearance was such that only the most
careless observer could have made a mistaken identification, ie he
regarded Van Wyk as having a distinctive face. Thompson and Wagner
both testified that they had not seen Jacobs on the scene.
[15] I have already summarised Van
Wyk’s version and explained that in general the evidence of the
accused and Prins is inherently
unreliable. I shall nevertheless
refer to some weaknesses in Van Wyk’s version. He sought to
explain the mistaken identification
on the basis that he had been at
the container about two hours before the robbery. He said that
earlier in the evening Jacobs had
asked him to accompany him to
Sedgefield to retrieve the stolen copper. They abandoned the
enterprise because of the presence of
the Chubb Security cars. They
stopped at the Total garage. Van Wyk went inside to buy loose
cigarettes. He found the two staff
members asleep and dropped some
coins on the counter to wake them up. Thompson told him that they did
not sell loose cigarettes.
He then left, and they returned to George.
[16] When Van Wyk’s attorney
cross-examined Jacobs, he did not put to him that there had been two
trips to Sedgefield that
night. Of course, to explain how he had come
to be at the container two hours before the robbery, Van Wyk had to
claim that there
had been an earlier trip. It was also not put to
Jacobs that he (Jacobs) had stolen the copper on an earlier occasion
and hidden
it. If there is any truth to the story about the stolen
copper, it seems unlikely that Jacobs would have been willing to make
a
second trip to Sedgefield on the same night, having been scared off
just two hours earlier by the presence of security vehicles.
[17] Furthermore, Thompson and Wagner
denied that Van Wyk had been there earlier in the evening or that
there was an occasion that
night where someone had come asking for
loose cigarettes. On Van Wyk’s version, this earlier visit
would have been well after
midnight. Unsurprisingly, there was
relatively little custom at the garage in the small hours of the
morning. If, about two hours
before the robbery, someone had arrived
at the container, woken them up by dropping some coins on the counter
and asked for loose
cigarettes, they would have remembered this.
[18] In regard to the ‘second’
trip to Sedgefield, Van Wyk denied the evidence of the other accused
that they had stopped
near the Total garage because the petrol
warning light had come on. He did confirm, however, that Morris
(together with Jacobs,
so he claimed) had gone to the garage with a
petrol container. On his version, which may in this respect be true,
the petrol container
was simply a ruse to legitimise their presence
at the garage if they should be challenged. Be that as it may, he
testified that
upon their return they reported that the staff in the
container were asleep and then armed themselves and returned to the
garage
with Prins. Van Wyk conceded that it was obvious that they
intended to rob the garage but he claimed that there was no actual
discussion
to this effect. He testified that Jacobs asked him to go
and retrieve the stolen copper. For several reasons, the strikes me
as
wholly implausible.
[19] Firstly, Van Wyk’s version
was that the reason for going to Sedgefield on the second occasion
was, once again, to fetch
the copper. However, on this version there
was no plausible explanation for the presence of Morris and Prins.
Furthermore, Van
Wyk could not explain why, if their purpose was to
retrieve the copper, Jacobs stopped the car near the Total garage,
some distance
from where the copper was allegedly hidden. He said
that to reach the copper he had to walk a little distance to the N2,
go cross
the highway, and then walk a little further. If the purpose
of the trip was to fetch the copper, one would have expected Jacobs
to take the car to where the copper was hidden. That is what
(according to Van Wyk) they had tried to do earlier in the evening.
The presence of security patrols would be as much risk to Van Wyk on
foot as it would to Jacobs’ Tazz. On Van Wyk’s
version,
he must have set out for the copper without knowing whether it would
be safe to retrieve it. If he was able to retrieve
it, he would been
at considerable risk of apprehension because of the distance he had
to traverse to get the copper back to where
the Tazz was parked. He
would have been able to offer no explanation for his possession of
the stolen copper.
[20] Second, if – as Van Wyk on
his version conceded was obvious – Morris, Jacobs and Prins
were heading back to the
Total garage for a nefarious purpose, it
must have been equally obvious to Van Wyk that his friends would need
to make a quick
getaway after robbing the garage. Van Wyk would not
have wanted to take the risk that Jacobs and the others would take
off before
he got back with the copper. Conversely, though, Jacobs
and the others would not have been willing to wait around for Van Wyk
after
perpetrating an armed robbery.
[21] Third, if Morris, Jacobs and Prins
were the robbers and Van Wyk was not involved, it is surprising that
Thompson and Wagner
did not see a third perpetrator on the scene. It
is also surprising that Jacobs and Prins, but not Morris, were able
to make it
back to the Tazz. (On Van Wyk’s version, one would
have to accept that Jacobs and Prins got back to the car after the
robbery,
because they were arrested while driving the car.) The more
plausible explanation is that the persons at the container were
Morris
and Van Wyk, that Jacobs (who was the owner of the Tazz and
the driver) and Prins (a relative youngster) remained behind, ready
to speed away when Morris and Van Wyk returned, but that in the event
neither Morris nor Van Wyk succeeded in getting back to the
car
before Thompson alerted the patrolling police vans.
[22] Fourth, Van Wyk’s conduct
subsequent to the robbery was not that of a person innocent of
complicity. He broke into the
Tazz belonging to Jacobs and drove off
with it. Instead of going to his home in George, he collected Muller
and then went (on his
version) to Mossel Bay and Great Brak, where he
was arrested. He did not go to bed at all. This is the conduct of a
person seeking
to evade detection. It is far more plausible that,
after fleeing from the robbery but not getting back to the car before
the police
spotted and apprehended the Tazz, Van Wyk remained hidden
until the opportunity presented itself for him to make off with the
car.
[23] I thus consider that the State
proved beyond reasonable doubt that Van Wyk was the axe-wielding
assailant. In reaching this
conclusion, and for reasons I have
explained, I do not attach weight to the evidence of Morris, Jacobs
and Prins, though in the
event their testimony was to this extent
true. Van Wyk was thus correctly convicted.
[24] I turn now to consider Morris’
conviction. As noted, it is his own version that he was present in
the container at the
time of the robbery. The only question is
whether he was there to assist in the robbery or was innocently
wanting to buy petrol
when Van Wyk alone perpetrated the robbery.
[25] Thompson testified that the two
men came in to the container at about the same time. She denied that
she and Wagner were asleep.
She said they were chatting. She was
first aware of Van Wyk’s entry and then noticed Morris. She
could not say that Morris
committed any positive acts in support of
the robbery. Wagner testified that Van Wyk arrived first and that he
only became aware
of Morris’ presence after he started
wrestling with Van Wyk. He testified, further, that Van Wyk called on
Morris to help
him and attempted to pass the axe to Morris. The
latter was trying to clamber over the counter to get to the area
where Wagner
and Van Wyk were engaged in a tussle. Both Thompson and
Wagner testified that they fled the container first, followed by
Morris
and Van Wyk who were running together and in the same
direction. This is also what Thompson immediately told the police.
[26] The evidence of the State
witnesses is thus inconsistent with Morris’ version (supported
in this respect by Prins and
Jacobs) that he had gone off to the
garage several minutes before Van Wyk. The evidence of the State
witnesses indicates that Van
Wyk and Morris arrived at the container
at about the same time, probably simultaneously, though Van Wyk
probably walked in first.
Since Van Wyk was armed with an axe, Morris
must have been aware of his intentions. On Wagner’s evidence,
Van Wyk evidently
saw Morris as his accomplice. Furthermore, the
evidence of the State witnesses is contrary to Morris’
testimony that he fled
once Van Wyk started hitting Thompson with the
axe. They testified that Van Wyk and Morris ran away together, after
Thompson and
Wagner had fled. Van Wyk must have grabbed the cash box
after Wagner let him go, and he and Morris then ran off together.
[27] The version advanced by Morris is
not only inconsistent with that of the State witnesses whom the
magistrate found to be credible;
his exculpatory version is also
inherently implausible. He, Prins and Jacobs claimed that Jacobs (the
driver) had stopped the Tazz
a short distance from the Total garage
because the petrol warning light had gone on. For this reason, so
they claimed, Jacobs had
given Morris a container and asked him to go
to the garage to get petrol. Morris said he had R30 in cash. The
entire story about
the need for petrol has the hallmarks of
fabrication. Morris and the other witnesses could not explain why
Jacobs had not used
Morris’ R30 to put in petrol at Burger King
in George (where they had allegedly stopped for a while before
driving towards
Sedgefield) or at several filling stations along the
way before Sedgefield. Even if the warning light was not showing at
that stage,
Jacobs as the owner and driver must (on their version)
have been aware that petrol would be needed. The police did not find
R30
in cash on Morris when they arrested him.
[28] Morris, Jacobs and Prins also had
difficulty in explaining why they did not drive to the Total garage
to get petrol. One knows
that a car can generally travel some
distance after the petrol warning light goes on. The precise distance
to the garage from the
point where they stopped does not appear from
the evidence but one’s general impression is that it could not
have been more
than a few hundred metres. The worst that could have
happened, if Jacobs had continued driving towards the garage, is that
the
car would have run out of petrol a little closer to the garage
than the place where they actually stopped. There was some suggestion
that they also wanted to smoke some more tik and that Jacobs had to
make a new pipe (or ‘bulbie’, a tik pipe made from
a
light bulb), something they could not do in a public place such as a
garage forecourt. This is not at all convincing. If there
is any
truth to the version that they wanted to smoke more tik, there was no
reason not to fill up at the garage and then find
a secluded spot.
[29] No empty petrol container was
found at the petrol station or in Morris’s possession when he
was arrested. If he had a
petrol container with him when he went to
the garage, I have no doubt that its purpose was to provide some
plausible explanation
for his presence at the garage if he should be
challenged.
[30] There is also the question as to
why Morris, if he was innocent, fled the scene and why he tried to
escape over a garden wall
when he saw the police.
[31] In my opinion, the magistrate was
right to find beyond reasonable doubt that Morris was an accomplice
in the robbery. He made
common cause with Van Wyk by accompanying him
to the garage with knowledge of the plan. In all probability they
entered through
different doors so as to trap the employees in the
container. Mr Odendaal submitted that it does not suffice, for a
conviction
based on common purpose, that the accused was present when
the crime was perpetrated or even that he subjectively approved the
perpetration of the crime. He referred in that regard to S v Khanye &
Others
[2004] 1 All SA 662
(T). That case in turn referred to the
leading authorities on common purpose, namely S v Mgedezi
1989 (1) SA
687
(A) and S v Thebus
[2003] ZACC 12
;
2003 (6) SA 505
(CC). However, Morris’
situation is distinguishable from that of appellants 1 and 3 in
Khanye. Although the fact that those
appellants had arrived at the
crime scene together with the other appellants might have inclined
one to think that they acted in
concert with them, this was not the
only reasonable inference on the facts of the case. Among those facts
was that no immediate
criminal activity took place upon the arrival
of the appellants at the scene. In the present case, by contrast, the
conclusion
is justified beyond reasonable doubt that Morris went to
the container with Van Wyk with the intention of robbing the garage.
In
Khanye the court referred to R v Jackelson
1920 AD 486
where Juta
JA, in dealing with accomplice liability, said that a person could
assist or facilitate a crime ‘if he stands
by ready to assist
although he does no physical act’ (at 491). Put differently,
Morris’ conduct in accompanying Van
Wyk to the container with
the common intention of robbing the occupants and his presence on the
scene, with a view to assisting
Van Wyk if necessary, was conduct by
which he associated himself with the purpose of committing armed
robbery.
[32] Insofar as the convictions are
concerned, this leaves Jacobs. As mentioned at the beginning of this
judgment, no heads of argument
on his behalf were filed and there was
no appearance for him at the appeal. It has been held that where an
appellant does not appear
the court may in its discretion strike the
appeal off the roll, postpone it or decide it (R Mokwena
1954 (1) SA
256
(A)). Since the State has applied to strike the matter from the
roll, this is the course we intend to follow. If we had formed a
clear view on the record that Jacobs’ conviction was unsound we
might in the interests of justice have upheld his appeal
despite his
non-appearance but that is not the position. We do not have Jacobs’
bail conditions before us. There is authority
that where an appeal is
struck from the roll because of non-appearance, bail granted pending
an appeal lapses (S v Govender
1955 (2) SA 130
(N) at 131; S v
Ramakolo 1997 (2) SACR 749 (T) at 751g-752f). However, that will be a
matter for the State to take further.
[33] As noted earlier, it is unclear
from the record whether Morris was granted leave to appeal against
his sentence. Mr Odendaal,
who understood his client only to have
leave to appeal against conviction, made no submissions in regard to
the sentence. On the
assumption that an appeal on sentence is before
us, I am satisfied that there is no basis for interference. The
robbery was obviously
a heinous act which called for a minimum
sentence of 15 years’ imprisonment in the absence of
substantial and compelling
circumstances. This was not Morris’
first brush with the law. He had three prior convictions for
housebreaking and one for
assault. In respect of the most recent
conviction, which was during 2002 for housebreaking, he was sentenced
to 18 months’
imprisonment. The magistrate nevertheless found
there to be substantial and compelling circumstances, namely (i) that
Morris had
spent about four years awaiting trial; (ii) his lesser
role in the robbery; and (iii) substance abuse. I am somewhat dubious
about
the second and third considerations but overall, and
particularly having regard to the period awaiting trial, the
magistrate was
right to depart from the minimum sentence. If
anything, though, the sentence of eight years was on the light side.
[34] Van Wyk, who was sentenced to 12
years’ imprisonment, had a lamentable record. He had 11 prior
convictions for theft,
housebreaking and possession of stolen
property, three for assault (two of which were with intent to cause
grievous bodily harm),
one for attempted rape, and two for robbery.
His most recent conviction was in 2004, for theft and for which he
was sentenced to
six months’ imprisonment. The magistrate found
there to be substantial and compelling circumstances to depart from
the 15-year
sentence, namely (i) the four-year period awaiting trial;
and (ii) substance abuse. Given the aggravating circumstances (the
use
of the axe and Van Wyk’s string of prior convictions), the
magistrate cannot be criticised for not giving Van Wyk full credit
for the four years awaiting trial (see Radebe & Another v S
[2013] ZASCA 31
, where the court rejected a mechanical approach to
the effect of time awaiting trial). Indeed, I regard the sentence in
all the
circumstances is being somewhat lenient.
[35] For these reasons the following
order is made:
(a) The appeal of the second appellant,
Nolan Jacobs, is struck from the roll.
(b) The appeals of the first appellant
(Lionel Morris) and the third appellant (Klaas van Wyk) against their
convictions and sentences
are dismissed.
YEKISO J
ROGERS J
APPEARANCES
For First Appellant MR WA Odendaal
Instructed by Cape Town Justice
Centre
For Third Appellant Mr JL Vismer
Instructed by Cape Town Justice
Centre
For Respondent Mr MZ Seroto
Office of the Director of Public
Prosecutions
Western Cape