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[2006] ZAGPHC 8
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S v Malatjie (A69/06) [2006] ZAGPHC 8 (30 January 2006)
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REPORTABLE
In the matter between:
DATE: 30/1/06Review case no. LR 153\2005\MMS High Court Reference No 3526 Magistrate serial no 41/2001
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,
"
,
THE STATE
And
MATHOKONG KHAALID MALATJIE
ACCUSED
REVIEW JUDGMENT
MAVUNDLA, J
[1]
This matter came on automatic review in terms of section 304 of Act
51 of 1977 after the accused was initially charged with robbery and
was found guilty of assault with intent to do grievous bodily harm and
of theft and was sentenced to three (3) years imprisonment on each
count by the magistrate court of Bolobedi sitting at Ga- Kgapane on
the 25 September 2005. The cumulative sentence is accordingly six
(6) years imprisonment.
[2]
I raised the question with the magistrate as to whether there was no
splitting of charges. The response of the magistrate was that he
concedes that there was a splitting of charges.
[3]
[4]
[5]
2
The office of the Director of Public Prosecutions has also since
responded through M M Sono, senior state advocate who referred me
to S v Grobler 1996 (1) SA 507 (A) (it should be 1966(1) SA 507) and Sv Ntswankele 1982 (1) SA 325 (T), and through Mr B
J Bredenkamp, the Director of Public Prosecutions who referred me
S v Moreane 1962 (4) SA 105 (T) and S v Matjeke 1980 (4)
267 (BH), both of whom their input I found to be valuable.
The facts of the case are briefly that the accused pleaded not guilty to
the charge of robbery that on the 20 November 2004 at Ga
Mokwasele Village in the district of Bolobedu he unlawfully and
intentionally assaulted Thabitha Selina Seepa and did with force "and
violence take and rob a pair of Adidas sandals with the intent to
appropriate same.
The complainant was called to testify. Her evidence was that on the
20/11/2004 she had gotten off a taxi at about 20hOO. She came across
the accused raised both his hands and then throttled her: He
attempted to trip her. She offered a struggle. She was pregnant. The
accused then kicked her once on her navel. She screamed for help.
Some people responded to her scream. One Kleinbooi Masundu and
Tshepo Sekopana attended at the scene. The accused picked up her
per of shoes that had fallen off during the struggle and left therewith.
She managed to identify the accused through the lights of a motor
[6]
[7]
3
vehicle that had shone its headlights on them during the struggle. The
shoes were Adidas sandals of the value of R290.00 and she has not
recovered these. The following week she saw the accused wearing her
pair of sandals.
Nothing much turned on the cross examination of the complainant by
the accused who conducted his own defence.
Mr Kleinbooi Mashale Masundu was called to the witness box. He was
seated in a taxi that was parked at his place. He got out of the taxi and
ran toward the scene upon hearing a scream. He saw the complainant
on the road; The accused was walking away. He was wearing an_
overall with its sleeves tied around his waist. Some boys gave chase
after the accused who fled. He was about three paces away from the
scene when he saw the accused. He proceeded to summon the police.
He identified the accused through the light of the headlamps of the
motor vehicles that were on the road. The accused was a stranger to
him. He was in possession of some shoes. The accused in his cross
examination of the witness denied possessing any overall. He further
put to the witness that the latter had been on one occasion to his
home to buy liquor and the witness conceded to this and pointed out
that this had been at a later stage subsequent to the incident. The
matter was then postponed for further witnesses.
[8]
. [9]
[10]
4
When the matter was later resumed, the prosecutor informed the court
that the witness he had intended to call could not be traced and he
then proceeded to close the case for the State.
Mr.Khaalid Mathokong Malatji, who for convenience I shall henceforth
refer to as the accused, testified in his own defence. He said that he
arrived at home and was informed that the police had been looking for
him. He proceeded to the police station where he was informed that he
had robbed someone of spectacles.
During cross-examination he conceded that on the day in question he
was at Ga- Mokwasele. He knows of nor reason why the two state
witnesses would implicate him. He recognised one of the witnesses. He
says that it is possible that the complainant knew him by sight. To a
question by the prosecutor that the two state witnesses testified that
they identified him, he says that he is not nocturnal.
[11] The magistrate accepted the evidence of the complainant, which he
found to have been corroborated by the two state witnesses. Having
been satisfied that robbery had not been proven he then convicted the
accused of assault with the intent to do grievous bodily harm and of
theft.
5
[12] In S v Ntswakele 1982 (1) SA 325 Margo J, in considering the
question whether or not there has been a splitting of charges stated
that although there is no universal test or criterion which can be
applied to every case to determine whether or not the actions of the
accused amount in substance to one offence, the basic approach is
that of common sense and fairness as prescribed in R v Kuzwayo
tests, namely
(1)
whether the acts alleged in the charge were committed
with a single intent or in the course of a single criminal
transaction; and
(2)
whether the evidence necessary to establish one of the
acts involves proof of the other. He further states that in
those difficult cases which do not yield to the application
of one or other of those tests, the decision must depend
upon a consideration of all the circumstances of the
conduct of the accused, including the following:
(a) the period or periods over which the acts or transactions
were carried out;
(b) the place or places where they were carried out-for
example the ransacking of several rooms in a private
house might amount to one theft, whereas the removal
of articles from several rooms in a hotel would prima
facie amount to several thefts;
[13]
[14]
6
(c) the nature of the actions of the accused, the enquiry
being whether there was one actus reus covering the
whole operation, or several acta rea;
(d) the intention of the accused in carrying out the course of
conduct.
In matter of Ntswakele, supra, Margo J made reference to the
matter of S v Grobler and Another 1966(1) SA 507 (AD), as well
as to the matter of R v Kuzwayo, supra, and various previous
authorities in which the above tests were discussed. Consequently
there is no need to repeat what has been said in those judgments.
It is however important to refer to the matter of S v Matjeke 1980
(4) SA 268 (erstwhile Bophuthatswana High Court) at page
269 C-H where Steenkamp J said that the first question to be
asked is
whether the accused is guilty of robbery. Robbery is
committed in that the complainant is dispossessed of his belongings
through force. The force must have the consequence of dispelling any
possible resistance. He then refers to the matter of S v Marais 1969
(4) SA 532 (NK) at 533 A-B where it is stated that
"By roof het ons te doen met diefstal gepleeg deur middel van geweld, en nie slegs geweld wat toevallig gepaard gaan met diefstal of omgekeerd nie. Waar 'n aanranding gepleeg word en die klaer in die proses van sy besittings verloor wat die aanrander dan gryp
7
aangesien die geleentheid hom onverwags voordoen,en daarmee op loop sit, het ons met twee afsonderlike misdade, van aanranding en van distal, te doen en nie met roof nie. (S v Moerane 19962 (4) SA 105 (T)), So
ook is. grypdiewery geen roof nie. (R v Jacobs 4 HCG
236; Gardniner and Landsdown 6de uitg band 2 te 1707 en sake daar aangehaal). En waar geweld gebruik word na die diefstal om te verhoed dat klaer sy eiendom
[15]
In casu the accused assaulted the complainant who gave some
resistance. In the process of the struggle her shoes got off her feet
and the accused then picked these and left therewith. There was no
evidence to indicate what the intention of the assault was. Therefore
the element of force calculated to influence the complainant to
surrender her shoes to the accused was not proven. The taking of the
shoes was just coincidental to the assault. The magistrate,
notwithstanding his subsequent concession that there was splitting of
charges, was in fact correct in finding the accused guilty of theft and of
assault with the intention to do grievous bodily harm, vide the above
stated authorities.
[16] The accused was sentenced to 3 (three) years imprisonment in respect
of each count. The magistrate did not order that the sentences must
run concurrently. The effect is therefore that the sentence the accused
is to serve is in effect 6 (six) years.
8
[17] The personal circumstances of the accused are that according to the
charge sheet he is 32 years old, whereas according to the accused he
is 29 years old. He is self employed as a shelf- controller and earns an
amount af R250.00 per fortnight. He has four previous convictions
dating as far back as in 1994. Save far one previous conviction of 1995
which is for housebreaking and theft, the rest of the previous
convictions involve violence. On the 29-08-1994 he was convicted of
assault and sentenced to a fine of R 50.00 or 20 days imprisonment;
on the 05-09-1996 assault with intent to do grievous bodily harm and
sentenced to 12 months imprisonment; and on the 14-05-1999 two
counts of rape which were taken as one for purposes of sentenced and
was sentenced to 5 years imprisonment.
[18] Although the complainant was pregnant at the time of the assault and
was kicked once below the navel and throttled there is no medical
evidence as regards nature and the extent of the injuries suffered by
705 (A) a 50 year old appellant who had a previous conviction of
murder and had assaulted the complainant by hitting, kicking and
throttling a female employer was
sentenced to 12 months
imprisonment of which six months was suspended for five years. On a
further appeal, as there was no. medical report produced at the trial
court, the appellate court set aside the sentence and substituted same
9
with a sentence of 12 months imprisonment fully suspended. In S v
Beukes 1990 (2) SACR (C) 323 where the 22 years old accused
had stabbed the complainant six times, on review it was found that
the sentence was too severe and the sentence was reduced by
conditionally suspending six months thereof for five years. I am of the
view that the sentence of three years is too severe and warrants
interference.
[19] The theft relates to a pair of shoes the value of which is estimated at
R290.00 by the complainant. In S v George 1992 (1) SACR 250
(W) a 22 year old accused who had stolen an armoured vehicle
containing R248000-00 in cash was sentenced to six years
imprisonment half of which was suspended, on appeal the sentence
was set aside and replaced with a fine of R5000.00 or two years
imprisonment and an additional three years imprisonment, the latter
suspended for five years. In the matter of S v Witbooi 1990 (1)
SACR 461 (C) the accused who had several previous convictions of
theft and housebreaking committed during 1975 and 1977 and
released on parole was convicted of theft of R60.00 and sentenced to
12 months imprisonment. His sentence was on review altered to 12
months imprisonment conditionally suspended. In casu the sentence of
three years imprisonment in respect of the theft of a pair of shoes
valued at R290.00 is too excessive that it induces a sense of shock.
10
[20] The cumulative effect of six years as the result of the fact the
sentences were not ordered to run concurrently is in my view
shockingly excessive that it induces a sense of shock warranting the
interference of the said sentence.
[21] Taking the totality of what I have stated above I am of the view that
the magistrate misdirected himself in not taking into consideration the
cumulative effect of the sentences which he imposed and in not
ordering the sentences to run concurrently.
[22] In the premises it is hereby ordered that:
(l)The conviction of assault with intent to do grievous bodily
harm and of theft is confirmed;
(2)The sentence of three years on each count imposed upon
the accused by the magistrate of Bolobedu on the 15-09
2005 is set aside;
(3)The following sentence is imposed:
3.1
On the count of assault with intent to do grievous bodily
harm the accused
is sentenced to
12 months
imprisonment, six months of which is suspended for a
period of three years on condition that the accused is
not found guilty of an offence involving violence
committed during the period of suspension.
N M MAVUNDLA
JUDGE OF THE HIGH COURT I agree N J MOTATA JUDGE OF THE HIGH COURT
11
3.2
On the count of theft the accused is sentenced to 12
months imprisonment of which six moths is suspended
for a period of three years on condition that the accused
is not found guilty of an offence involving dishonesty
committed during the period of suspension.
3.3
It is ordered that both sentences shall run concurrently.
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