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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: A1166/04

DATE:2006-03-27

In the matter between

GIFT NYEMBEZI...................................................................................................First Appellant

LUNGISI MNGUNI.......................................................................................... Second Appellant

and

THE STATE............................................................................................................. Respondent

JUDGMENT

WILLIS, J: The appellants were arraigned in the Regional Court, Soweto on charges of robbery with aggravating circumstances as intended in section 1 of Act 51 of 1977 and contravention of section 2 of the Arms and Ammunition Act No. 75 of 1969. The charge reads as follows:-

"That the accused are guilty of the crime of robbery with aggravating circumstances in that on or about the 8th day of April 2002, and at or near Mofolo in the Regional Division of

Southern Transvaal, the accused did unlawfully and intentionally assault Joseph Ndlovu and did then and with force take the following items, to wit R25,00in, cards, shoes, belt being his property or in his lawful possession from him." The charge relating to the possession of a firearm related to the unlawful possession of a .22 revolver.

The record which we have before us lists the counts in count 1 as "attempted robbery with aggravating circumstances". It would appear that this is a typographical error in the record as it is common cause that the actual charge sheet with which the appellant were charged and that was given to them set out a charge of robbery with aggravating circumstances. Furthermore, as one reads the record as a whole, it is quite clear that the appellants knew throughout that they were being charged with robbery and were convicted accordingly. It therefore seems to me that nothing turns on the fact that the transcript as typed out before us contains what is clearly a typographical error. The appellants were advised in the charge that they were liable to receive the compulsory minimum sentence in terms of the Criminal Law Amendment Act in the event that they were convicted.

The appellants had the benefit of legal representation during their trial. The appellants pleaded not guilty to the above charge. The first appellant denied the allegations against him. The second appellant gave an explanation which later changed during the course of his evidence.

Both the appellants were convicted on 10 September 2002 of robbery with aggravating circumstances. The first appellant was convicted on the charge of contravening section 2 of the Arms and Ammunition Act and the second appellant was acquitted on this charge. The first appellant was sentenced to 15 years' imprisonment on count 1 and to 3 years' imprisonment on the second count. The second appellant received a sentence of 15 years on the first count.

The appellants noted an appeal against both their convictions and sentence.

There is no dispute that the complainant was indeed robbed of R25,00 in cash, cards, shoes and his belt. He testified that he had been going innocently about his business at approximately 21:30 in the evening in Mofolo when he was confronted by the two appellants. Appellant 1 had the firearm and appellant 2 searched him and slapped him. A body search was conducted on the appellant and various items listed in the charge sheet were removed from his person.

The issue essentially in this case is the question of identity. It is true that the complainant was a single witness relating to this incident and that this incident happened at night. Nevertheless, the area at which it occurred was well lit by streetlights. The key aspect in terms of corroborating the complainant's version is that soon after he had been robbed he met up with police officers who were patrolling in the area. They drove round in a marked vehicle and the complainant then pointed out the appellants who were wearing the same clothes as they had been when they attacked him. When the appellants noticed the police vehicle stopping they then fled. A chase ensued and the first appellant was arrested by Inspector Frans

Machete and was found in possession of the revolver. The second appellant told the complainant to talk to the police so that they can let them go and that the things that had been taken would be returned. The complainant heard the appellant saying at the time of the arrest that they did not know one another.

The first appellant testified in his own defence and called his mother, Mmawetu Nyembezi as a witness. The first appellant's major difficulty is that he denies having been in possession of a firearm. Nevertheless, all the State witnesses were adamant that he had indeed been in possession of a firearm. It is, in my view, most unlikely that all three of these witnesses would have conspired with one another on this explanation. And furthermore, the fact that the first appellant was in possession of a firearm is, in my view, damning corroboration of the complainant's identification. It is also interesting that the second appellant indicated in his plea explanation that it had been the first appellant who was in possession of a firearm at the time of the arrest. This version later changed.

The second appellant testified in his own defence and called Zolani Kubheka to testify in support of his version. As I have noted, in his plea explanation he indicated that he saw the firearm in the possession of the first appellant at the time of their arrest. During cross-examination by the State the second appellant denied seeing the firearm in the possession of the first defendant and when confronted on this issue during cross-examination he indicated that is legal representative had misunderstood him. The second defendant also altered his version during cross-examination when he realised that his version at the relevant time frames do not correspond with that of the first appellant's. The second appellant's version is essentially this: that he was at home, and was asleep when Zolani Kubheka then came and woke him up and told him that appellant 1 was looking for him. He had a plastic bag. The second appellant did not see the contents of this bag. Zolani merely said that he had received a gift of shoes from appellant 1. He then went to see appellant 1. They sat in his shack and he called Zolani to go and buy two beers for him and then he was requested to accompany him to go and see his girlfriend and on their way back the police arrested them. He testified that he did not know anything about the actual robbery.

The learned magistrate, in my opinion, correct found that the complainant was honest and made a reliable identification. The most important aspect corroborating his version is that the two appellants were arrested shortly after the robbery. In my opinion the learned magistrate correctly rejected the evidence of the appellants as false. Accordingly, I am of the view that the convictions in this matter were correctly made.

The sentence in respect of the firearm on which count the first appellant was found guilty is an unexceptional one and is the standard type of sentence meted out for this kind of offence. In fact on an almost daily basis when one sits in these kind of appeals one finds this kind of sentence being imposed. If I understood counsel for the first defendant correctly, so serious challenge was mounted in regard to this sentence.

With regard to the sentence of robbery with aggravating circumstances, both appellants received the statutory minimum sentence. As was said in the case of S v Malgas unless there are truly convincing reasons to impose a lesser sentence, the sentence should be a standard, severe and consistent one in order to give effect to the intention of the Legislature. Nothing was put before the court a quo to indicate that it should be a lesser sentence which should have been imposed.

There has been an application to lead further evidence and it has been submitted that the matter should be referred back to the learned magistrate for him to consider this aspect afresh. i think that this would create a most unfortunate precedent. When people are found guilty of offences which may attract the statutory minimum sentence, the obligation is on them to put before the court the factors that in their opinion would justify a lesser sentence. Of course, they are entitled in addition to any evidence which they may lead to rely on the overall facts and circumstances of the case.

Counsel in particular for the second appellant, has submitted that one should have regard to the fact that the value of the items was not considerable and that this may justify a lesser sentence. In my view the intention of the Legislature is clear and that is that the poor are as entitled, if not more entitled, to protection than are middle class residents are entitled when facing the scourge of this kind of crime. The poor cannot afford private security. Here a poor individual was innocently going about his business and was attacked. That the value of the goods was not much, was purely fortuitous. It had nothing to do with the design or the intention of the attack. Furthermore, the complainant was subjected to the indignity of a bodily search. He was slapped by the second appellant and a firearm was used. The degree of violence in this case was hardly minor Accordingly, in my view, there is no basis whatsoever to find that the learned magistrate erred in not finding substantial and compelling circumstances which would justify a lesser sentence. I propose the following order be made:

The appeal against conviction and sentence in respect of both appellants is dismissed.

MAKHANYA. J: I agree

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