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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CA and R 839/2002

In the matter between:

ZOLISEKILE BUSAKWE APPELLANT

and

THE STATE RESPONDENT

____________________________________________________________________________________JUDGMENT______________________________

PLASKET AJ:

[1] The appellant, together with a co-accused, were convicted in the Regional Court, Port Elizabeth, on a charge of robbery. In addition, the appellant was convicted on a charge of unlawfully possessing a firearm and ammunition. His co-accused was convicted on a charge of possessing an object that looks similar to a firearm and would be taken for a firearm, in contravention of s2 of the Dangerous Weapons Act 71 of 1968.

[2] The appellant was sentenced to 25 years imprisonment on the count of robbery. (His co-accused was sentenced to 15 years imprisonment on this count.) The appellant was also sentenced to three years imprisonment on the charges of unlawful possession of the firearm and the ammunition. These sentences were ordered to run concurrently with the sentence in respect of the robbery charge.

[3] The appellant appeals against both his conviction and his sentence. There is no merit in the appeal against conviction. The appellant and his co-accused robbed the Linton Grange Post Office of some R46 000.00. Their descriptions were given to the police by an employee of the post office. Two members of the police apprehended the two near the post office soon after being alerted. They were found in possession of a bag. In the bag they found money and a firearm. The bag and the firearm matched the descriptions of the corresponding items used by the robbers and the robbers were identified by the first witness called by the State, Ms Amanda Dlepu. The appellant and his co-accused both chose not to give evidence. The evidence against the appellant was overwhelming and he was correctly convicted by the magistrate.

[4] The magistrate imposed a sentence of 25 years imprisonment on the appellant because he was of the view that, in the absence of substantial and compelling circumstances, he was obliged to. He relied on s51(2)(a) of the Criminal Law Amendment Act 107 of 1997 which provides that, if a person has three previous convictions for an offence listed in Part II of Schedule 2, the minimum sentence is 25 years imprisonment. Two forms of robbery are listed. They are robbery ‘when there are aggravating circumstances’ and robbery ‘involving the taking of a motor vehicle’. The magistrate held that the appellant had three previous convictions for robbery with aggravating circumstances. His reasoning emerges from the following quote from his judgment: ‘Hier in 1985 het u u skuldig gemaak aan ‘n reeks van ernstige misdaad, onder andere ‘n aanklag van motordiefstal, ‘n hele paar, en dan ook in 1985 drie aanklagte van roof, duidelik met verswarende omstandighede want vuurwapens was betrokke’.¹

[5] The only evidence on this aspect is the SAP 69 of the appellant. It states that in 1985 the appellant was convicted on three charges described in each instance as ‘Roof, vuurwapen en mes, gedreig om aan te rand’ followed by the amount of money that was stolen in each instance.²

[6] The term ‘aggravating circumstances’ in relation to the offence of robbery is defined in s1(1)(b) of the Criminal Procedure Act 51 of 1977 as a robbery in which a firearm or other dangerous weapon is wielded, grievous bodily harm is inflicted or grievous bodily harm is threatened. Potentially, the robberies for which the appellant was convicted in 1985 could have been robberies with aggravating circumstances but he does not appear from the SAP 69 to have been convicted of this special and more serious form of robbery: the SAP 69 says no more than that he was convicted for robbery and, in the most cryptic of terms, it records that the appellant was in possession of a firearm and a knife at the time and that he made threats of assault.

[7] In order for the sentencing provisions of s51(2)(a) of the Criminal Law Amendment Act to come into operation, the least one would expect is that there is clear and acceptable evidence that the appellant had been convicted for robbery with aggravating circumstances on those three occasions: it cannot be expected that a court should draw inferences against the appellant from a vague and ambiguous SAP 69 when the consequences that could be visited upon the appellant were so serious.

[8] There is another reason why the minimum sentence of 25 years imprisonment cannot stand: in order for robbery with aggravating circumstances to be established because of the use of a firearm or other dangerous weapon, that firearm or weapon must have been wielded. In S v Mbele³ it was held that mere possession of a firearm or dangerous weapon during a robbery was insufficient to convert that robbery into one with aggravating circumstances. Similarly, the type of threat that converts a robbery into one with aggravating circumstances is a threat ‘to inflict grievous bodily harm’, not a mere threat ‘om aan te rand’.⁴

[9] It follows from what I have said above that the magistrate erred in imposing the minimum sentence of 25 years imprisonment on the appellant. His sentence must on that account be set aside and reconsidered by this court.

[10] As the appellant must be taken to have been convicted for the first time for robbery with aggravating circumstances, a minimum sentence of 15 years applies in terms of s51(2) of the Criminal Law Amendment Act, read with Part II of Schedule 2. There are, in my view, no substantial and compelling circumstances that justify a sentence of less than 15 years. There are, however, a number of factors that satisfy me that a sentence in excess of the minimum sentence is appropriate.

[11] These factors are the following: first, even though the appellant’s previous convictions are rather dated, the magistrate was correct when he stated that the appellant had a ‘baie lelike kriminele record wat oor baie jare strek’.⁵ Having, I presume, spent a fairly lengthy time in prison, it is clear that the appellant has not turned his back on criminal conduct.⁶ He has experienced the consequences of his criminal conduct and has nonetheless proceeded to commit a serious robbery once again. This must be reflected in the sentence; secondly, even though the appellant and his co-accused did not inflict any physical injuries on anyone, they terrorised and traumatised the post office employees who they robbed. So severe was that trauma for Ms Dlepu that the effects were still present when she testified some two years after the robbery;⁷ thirdly, the appellant was armed with a firearm and not, as his co-accused was, with a toy that looked like a firearm. He was thus able to cause much more harm than his co-accused. The magistrate observed in this regard that the ‘potensiaal van skade afkomstig van beskuldigde 1 se wapen was derhalwe baie groter en dit kan nie heeltemaal geïgnoreer word nie’⁸; fourthly, it appears from the record that the appellant was the leader, a fact that is not necessarily surprising, given his previous experience of committing robberies.

[12] When these factors are weighed in the scales with the appellant’s personal circumstances, and the gravity of the offence and the needs of society are taken into account, I am of the view that an appropriate sentence to impose on the appellant is 18 years imprisonment.

[13] The following order is made:

1. the appellant’s appeal against conviction on counts 1, 2 and 3 is dismissed and his conviction on these counts is confirmed;

2. the appellant’s appeal against the sentence imposed upon him in respect of counts 2 and 3 is dismissed and the sentences in respect of these counts are confirmed;

3. the appellant’s appeal against the sentence of 25 years imprisonment imposed upon him in respect of count 1 is upheld. That sentence is set aside and replaced with a sentence of 18 years imprisonment, backdated to the date on which the appellant was sentenced in the court below, namely 12 October 2000;

4. the sentences in respect of counts 2 and 3 shall run concurrently with the sentence in respect of count 1.

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C Plasket

Acting Judge

I agree

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J Pickering

Judge

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