South Africa: North Gauteng High Court, Pretoria

IN THE HIGH COURT SOUTH AFRICA

(NORTH GAUTENG HIGH COURT)

CASE NO: A 197/09

In the matter between

JOHANNES CHOWE APPELLANT

And

THE STATE RESPONDENT

JUDGMENT

MAVUNDLA J.,

[1] The appellant was convicted by the Regional Court in Soshanguve on 10 July 2007 on count one: robbery with aggravating circumstances and on count two: unlawful possession of a firearm. The appellant in respect of count one was sentenced to fifteen years imprisonment and in respect of count two three (3) years imprisonment. It was ordered that both sentences are to run concurrently. It was further ordered in terms of section 103 of Act 60 of 2000 that he is not fit to possess a firearm. The appellant was granted leave to appeal aqainst both conviction and sentence.

[2] The appellant was dully represented during the trial. The charges against the appellant were that on 18 October 2006 and at Block K Soshanguve he unlawfully robbed the complainant Mr. David Mahila of his Nokia 6310i cell phone, with aggravating circumstances being present in that a firearm was used, and was unlawfully in possession of a firearm without being a holder of licence for such a firearm. He pleaded not guilty to both counts. The appellant pleaded not guilty to both charges and exercised his right of silence.

[3] The State called the complainant Mr David Mahila as its first witness. The evidence of Mahila is that 18 October 2006 at around 19:00 he was at a church in the company of a friend. He closed the church gates and accompanied his friend. As they were walking they saw two persons ahead of them. As they came nearer to these two unknown persons, these then turned around and produced firearms and pointed them therewith. He further testified that the appellant searched him and took his Nokia 6310i cell phone. He further said the appellant inquired from him where he stays. He informed the appellant that he stays at Block K. The appellant and his socio in crime instructed him to take a different route. The complainant informed his friend that he would no longer accompany him and walked alone. Along the way the appellant then noticed the appellant and his socio in crime walking ahead of him. At that point the appellant saw a police van which he flagged down and informed the police of his ordeal. The police summoned other police who arrived in a police van. He then pointed the direction the appellant and his friend were heading to.

[4] The appellant together with the police went in search of the appellant and his friend and found them in the vicinity of the police station. The appellant was apprehended whilst his friend upon seeing the police van run away. The police searched the appellant and found on his body a firearm.

[5] On further questions by the prosecutor, the appellant explained that when the appellant was searching him, he looked at the appellant in the face. The appellant at that stage then instructed him to look down. He says that his friend was searched but he does not know what was taken from him.

[6] Mahila said that the area was illuminated by street lights, an Apollo light and he was able to see the appellant in the face and could also see his clothes. He says further that the appellant was wearing a blue lumber jacket which had a cream white colour and a white Nike's cap, a trousers and the blue part of the of lumber jacket was in the front and the back part thereof is cream white. He further says that he is certain that the person arrested by the police is the same person who robbed him earlier and is the appellant. He further said that the value of the cell phone is R600.

[7] Mahila was cross examined. He was cross examined on the features upon which he identified the appellant. The version of the appellant was also put to him. The version of the appellant put to Mahila was that the appellant and the complainant had earlier been together at a place where they together with others were gambling with dice. At some stage, so was it put to Mahila, at about 20: 00 Mahila was involved in a fight with Tshepo, with whom the appellant arrived at the dice gambling. After this fight, the appellant left together with Tshepo and walked in the direction of Red Onion Hotel where they proceeded from west to east direction. They were subsequently stopped by police and Tshepo ran away whilst the appellant stopped. One of the police chased after Tshepo and a shot was fired. The appellant was assaulted by the police. Mahila disputed the version of the appellant as put to him, save that the appellant was arrested and instructed to lie down.

[8] It is trite that the State must prove the guilt of the appellant beyond reasonable doubt. Where the version of the appellant is reasonably possibly true, the appellant is entitled to his acquittal.¹

[9] In casu, the complainant is a single witness, in so far as the robbery is concerned. He is also testifying on identity of the appellant being the person who robbed him. Where the identity of the accused person depends on the evidence of a single witness, it is trite that the evidence of that single witness must be approached with caution.² Generally the evidence of a single witness is accepted if such evidence is satisfactory in all material respect or there is corroboration,³ and the witness is truthful.⁴ It is important to look at, inter alia, the opportunity the identifying witness has had to see the identified person, whether the identified person is known to the identifying person, the illumination and the prevailing circumstances. One must also look at whether there is real risk of an error by the identifying witness.⁵ The evidence of the appellant requires an objective assessment.

[10] According to the complainant, he was robbed at about 19:00.⁶ He observed the clothes of the person who robbed him. He gave a description of the clothes of the person who robbed him.⁷ The complainant gave a description of the people who accosted him.⁸ He further stated that the area was illuminated.⁹ The appellant pointed to the police the direction in which the person who accosted him and his friend headed towards.

[12] Kruger says that the complainant gave them the description and the clothes of the persons who robbed him.¹⁰ According to Mariba, they received the complaint about 19:30,¹¹ and they took about ten minutes looking for the culprits. The evidence of the appellant in so far as the description of the clothes of the persons who accosted him is being corroborated by the evidence of Kruger¹² and Mariba.¹³ But besides, the appellant on his own version, he was with the appellant earlier, although he says at a gambling with dice. The question of identity is therefore not really so much in dispute, it is the circumstances at which he would have seen the appellant earlier.

[13] According to the appellant, he was with the appellant at the game of dice between 16:00 and 19:00.¹⁴ The appellant testified that "at about past-seven there erupted a fight and the game was stopped and I left the hostel. I moved along the road that leads to the station. "He then left the game of dice after the fight together with the person who was involved in the fight whose name is unknown to him.¹⁵ This version that he does not know the name of the person involved in the fight does not accord with the version put by his legal representative to the complainant that it was Theo with whom the complainant was involved in the fight.¹⁶ I can only assume that the appellant is lying when he says he does not know the person's name, otherwise the name Tshepo would not have been put to the complainant by his legal representative, Mr. Botha.

[14] The complainant and his friend were accosted by two persons who pointed them with firearms. When the police stopped next to the appellant and his friend, his friend ran away. According to the State witnesses, a firearm was found on the appellant. The appellant says that the police chased after his friend and returned with the firearm and then alleged that it was found on him. The magistrate rejected this version of the appellant on the basis that Kruger had testified that it was dark where the other person, with whom the appellant was, ran into and as the result a search could not be conducted.

[15] It needs mention that in rejecting the evidence of the appellant; the magistrate also had regard to the fact that the appellant had testified that he was assaulted by the police and sprayed with a pepper. The appellant also under cross examination stated that although blinded with the pepper spray he could still see which police assaulted him with a brick. The magistrate found it improbable that the appellant could have seen in that blinded state who assaulted him and that he was assaulted with a brick. Further the magistrate also took into consideration that what was put to some of the witnesses as to be what would be the appellant's version differs as to what was eventually testified to by the appellant.

[16] In my view, the magistrate has not misdirected himself in eventually rejecting the evidence of the appellant as false. I am further of the view that the magistrate has not misdirected himself in rejecting the version of the appellant and accepting the evidence of the State witnesses. Consequently, I am of the view that the appeal on conviction must fail.

[17] The appellant was sentenced to fifteen years in respect of the conviction of robbery with aggravating circumstances. He was sentenced to three years imprisonment in respect of count 2 of unlawful possession of a firearm possession. The sentence of three years imprisonment was ordered to run concurrently with the sentence of 15 years imprisonment. The appellant was also declared unfit to possess a firearm in terms of section 103 of Act 60 of 2000.

[18] The magistrate reminded himself of the fact that the conviction on the count of robbery fell within the ambit of s51 (2) (a) of Act 105 of 1997. The magistrate considered the appellant's personal circumstances, namely that he is 26 years old, single but has a child who is 7 years old and he was employed at SASKO where he was earning an amount of R3000. 00. The magistrate had regard to the fact that the appellant had a previous conviction of housebreaking and theft, but accepted that this previous conviction does not relate to any robbery so as to warrant that he must be treated as second offender for purposes of imposition of the minimum prescribed sentence, but treated him as a first offender.

[20] The magistrate had regard to the decision of State v Malgas¹⁷ wherein it is stated inter alia that firstly, the court has a duty to consider all the circumstances of the case, including the many factors traditionally taken into account by courts when sentencing offenders. Secondly, for circumstances to qualify as substantial and compelling, they do not have to be exceptional in the sense of seldom encountered or rare.

[21] The magistrate also had regard to the fact that the value of the item robbed, namely a Nokia cell phone, was only an amount of

R600. The magistrate found that there were no substantial and compelling Circumstances warranting that he must depart from imposing the cirminimum sentence of 15 years.

[22] In casu, I have been unable to find anywhere indicating that at the commencement of the trial, the accused was warned that the Minimum Sentence Act would be applicable in the event of being found guilty as charged. In my view, the right to a fair trial entails, inter alia, that the accused person must be fully advised of the offence levelled against him and that the Minimum Sentence Act is applicable.

[23] During the sentencing, the magistrate said the following:

"Mr. Chowe during the address on sentence, the public prosecutor as well as Mr. Botha appearing on your behalf, properly argued before me that due to the nature of the offence that I have convicted you of as well as the first count concerned, that offence falls under the part 2 of schedule 2; in that the offence you are convicted of as far as the first court is concerned, it is robbery with aggravating circumstances. That being the case the court has to consider the penal provision contained in section 51(2) (a) of Act 105 of 1977 in coming to an appropriate sentence in this matter."

[24] From the above mentioned magistrate's statement it is clear that the appellant had not been warned at the beginning of the case that the Minimum Sentence is applicable. The fact that the accused was legally represented, in my view does not take away the need to inform the accused that such Minimum Sentencing Act dispensation would be relied upon for sentencing. S35 (3) (a)¹⁸ of the Constitution requires that the accused must be informed of the charge with sufficient detail to answer to it. This entails, in my view, inter alia, the applicability of the Minimum Sentence Act.¹⁹

[25] I am of the view that a perfunctory approach by the lower courts with regard to the Minimum Sentence regime is not to be countenanced. The record must speak for itself, that right at the pleading stage, irrespective whether such an accused person is legally represented or not, he has been informed of the applicability of the Minimum Sentence Act. By so insisting we shall be ensuring that the right to a fair trial is ingrained in our criminal jurisprudence, ensuring that at all times the accused persons make an informed decision in the preparation and the conducting of their defences.

[26] Further in casu, the magistrate quite correctly stated that he must look at the traditional factors in considering what an appropriate sentence would be. The magistrate was referred to S v Rabie In this Rabie case the Appeal Court re-emphasis, inter alia, that punishment must fit the criminal, taking into account the interest of society, as well as the need to blend the sentence with a measure of mercy.²⁰

[27] When considering the presence or otherwise of substantial and compelling circumstances, it requires, in my mind, that the judicial officer must also look at the prospect of rehabilitation, the value of the goods involved in the robbery, the manner in which the offence was committed and whether there was resultant physical harm during the commission of the offence. This must be so having regard to the fact that there is a discretion in deciding whether to or not to impose the Minimum Sentence Act.

[28] In casu, the accused is 26 years old, which makes him a good prospect for rehabilitation. The value of the cell phone robbed is R600. 00. The complainant was not harmed, save to have been pointed with the firearm. All these factors taken together, in my view, require departure from the imposition of the Minimum Sentence. Put differently, the combination of these factors amount to the presence of substantial and compelling circumstances. The imposition of minimum sentence, which is by its very nature, a very long imprisonment, must be reserved for those callous and heinousness offences.

[29] In my view, the magistrate in finding that there are no substantial and compelling circumstances in casu failed to judicially exercise his mind and has therefore misdirected himself, thus warranting the interference by this court. Having regard to the circumstances of this case and the personal circumstance of the accused, including the fact that he is, strictly speaking, not a first offender because he has a previous conviction of housebreaking and theft, and he has been in custody since 28 October 2006 and was sentenced on 4 March 2008²¹ after his bail was withdrawn, I am of the view that the following sentence would be appropriate in this case.

[30] In the result, I recommend that the following order should be made:

1. That the appeal on conviction on both counts one and count two is dismissed.

2. That the appeal on sentence in respect of count two is dismissed and the sentence of 3 (three) years is confirmed.

3. That the appeal on sentence in respect of count one is upheld and substituted with the sentence set out herein below and the magistrate's order is varied to read as follows:

"1. That the accused is convicted on count one and

two as charged; 2. That the accused in respect of count one of robbery

is sentenced to 10 (ten) years imprisonment;

3. That the accused in respect of count two (unlawful possession of a firearm) is sentenced to 3 (three) years imprisonment.

4. That in term of s280 (2) of Act 51 of 1977 it is hereby ordered that the two sentences run concurrently,

5. That in terms of s 103 of Act 60 of 2000 the accused is declared unfit to posses a firearm.

HEARD: 27 JULY 2009

DELIVERED 18 September 2009

N M MAVUNDLA

JUDGE OF THE COURT

IAGREE AND IT IS SO ORDERED

M. F. LEGODI

JUDGE OF THE COURT