IN THE HIHG COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]

Date: 30/05/2008
Case No: A1098/07

UNREPORTABLE

In the matter between:

KHOZA SIBUSISO JOEL					APPELLANT

And

THE STATE							RESPONDENT

JUDGEMENT

MAKGOKA AJ

[1]	The Appellant was convicted in the regional court, Springs, on a charge of robbery with aggravation circumstances. He was sentenced to 15 years imprisonment. With leave of this court on petition, the Appellant approaches us on appeal against both conviction and sentence. The appellant enjoyed legal representation throughout his trial.

[2]	The State called two witnesses in the trial court, namely the complainant, Ms Busisiwe Maureen Dladla and Mr Zohle Gladstone Mathetha.  In short Ms Dladla testified that on 27 August 2004 in Kwa‑Thema, Springs, at about 06:15 in the morning, she was on her way to work. She noticed an unknown male following her. She was hit with an object from behind, which caused her to fall down. She noticed the face of the male person when he was removing her handbag whilst she was on the ground. The said person was wearing a blue lumber jacket, a woollen hat and his face was not covered.  Later she identified the Appellant as the person who took her handbag, when the Appellant was brought to her with the handbag. The Appellant was not wearing the lumber jacket or the hat when he was later brought to her, but she identified him as the person who earlier robbed her.

[3]	Mr Zohle Gladstone Mathetha testified that on the day of the incident he heard a female person screaming on the street and when he looked he saw a lady lying on the street and next to her was a male person having a handbag under his armpit. The man then turned and ran away. He gave chase and some members of the community joined in until they found the Appellant hiding in a room of a certain yard and upon further search a bag was found among the scrap metals, which later the complainant identified as hers. He knew the Appellant before the incident, but up to the time of his apprehension, did not notice that it was him. When he was found in the room with scrap metals, the Appellant was wearing a lumber jacket, grey or blue in colour, and a woollen hat. The Appellant then took off these items and gave them to a certain young man. They then took the Appellant back to the complainant.  The Appellant escaped on the way but he was re-captured. That concluded the State's case.

[4]	The Appellant testified in his own defence, and did not call any further witnesses. His version is briefly that he heard someone screaming, and saw a male person running from the direction where the screaming emanated from.  He then gave chase to the said person but he could not catch up with him.  When he returned he met up with the second State witness, who started assaulting and accusing him of having robbed someone.  

[5]	Not surprisingly, the Appellant's version events was rejected by the regional magistrate. Both State witnesses testified that the Appellant was wearing a lumber jacket and a woollen hat.  There is therefore clear corroboration on the identity of the Appellant. The evidence of Mr Mathetha that the Appellant was found hiding in a room, where also the complainant's handbag was found, was correctly accepted by the regional magistrate. On the probabilities, there is no reason to believe that the Appellant's version could reasonably be possibly true. His version was rejected by the regional magistrate as a fabrication. I agree.

[6]	As regards sentence, it was submitted on behalf of the Appellant that there were substantial and compelling circumstances justifying the imposition of a sentence less than the statutorily prescribed minimum of 15 years' imprisonment. The regional magistrate considered, as an aggravating factor, the fact that a brick was used to subdue the complainant. The complainant lost consciousness momentarily. The only factor in the Appellant's favour is that his is a first offender. I am therefore unable to find any substantial and compelling circumstances. The appeal against sentence should similarly fail.

[7]	There is an aspect that needs mentioning in this appeal. From the reading of the record, it appears the regional magistrate was impatient, sarcastic and rude towards the public prosecutor. While one appreciates the conditions that presiding officers in the lower courts have to endure, it is still important to maintain a proper and dignified decorum.

[8]	In the end result I am of the view that the appeal against both conviction and sentence should fail, as a result of which I propose the following order:

[8.1]	The Appellant's appeal against both conviction and sentence is dismissed.

T M MAKGOKA
ACTING JUDGE OF THE HIGH COURT

I agree

D A BASSON
JUDGE OF THE HIGH COURT