---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: A566/16

DATE:      25 April 2017

JOHN MOGODI TSHEBESEBE                                                                              Appellant

V

THE STATE                                                                                                         Respondent

JUDGMENT

MABUSEJ:

[1] This is an appeal against both the conviction and sentence,  leave so to appeal having   been granted on petition by Jansen J and Lebala AJ.

[2] The appellant appeared before a regional court magistrate in Cullinan where he was  charged  

with robbery  with aggravating circumstances  as contemplated    in s 1 of Act 51of 1977 ("the CPA") read with the provisions  of s 51 (2) of the Criminal Law Amendment  Act 105 of   1997 ("the  Minimum  Sentence  Act").   He  was accused of having committed  the  offence on   16 October 2013 at Refilwe when he unlawfully and intentionally assaulted one AA Mename  and there and then with force, when he took certain items, to wit R1500.00 cash, airtime to thev alue of R800.00 and cigarettes to the value of R750.00, the property at the time in the lawful possession  of the said AA Mename by use of a firearm or a dangerous weapon. It is also contended by the State that during the said robbery serious injuries were inflicted on the  said AA Memane.

[3] The appellant, who pleaded not guilty to the charge enjoyed    legal representation during the entire trial.   Despite his plea  of not guilty to the charge he was convicted accordingly and pen conviction, sentenced to 15 years imprisonment.

[4] The offence against the appellant arose from the following  circumstances.   On 16 October 2013 the said Adisa Adam  Adade  Mename  (the complainant)  was in the shop selling  and waiting  for customers  at Refilwe.   He was being assisted  by his brother,  Adamaje  Tamras Gabore ("Gabore") who at the specific stage had gone to the toilet.   It would appear   that the toilet was outside the shop building.   While he was still waiting for his customers, one  walked in.   It was a black man.   He produced  a  R20.00 note, told him that he wanted  a   Vodacom R12.00 airtime and gave him R20.00. He took the R20.00 note and bent down to fetch the airtime.

[5] Immediately when he rose from where he had fetched the airtime and when he was preparing to give such airtime to the first black man two other men walked into the shop.  One   of these men was armed with  a firearm. The man who  had a  firearm pointed it  at him, told him to come out behind the counter and to lie down on the floor. He obliged and lay face down on the floor.  After lying down the first black man firstly stood on his back and thereafter sat on  it. The other two then went behind the counter and took airtime and money and cigarettes.   The first black man who was the accused in the court a quo and now the appellant     in this  appeal stabbed him with a knife once on his left shoulder and asked him where the other money was. He screamed and as he did so they all ran out, the appellant ran into the direction of his brother  and  the  other  two  into  a  different  direction. The  brother  caught  the  appellant. Members  of the  community  came.   The  police  were  called.   The  knife was  found in   his possession.   That is the knife that the appellant  had while he was fleeing.   The    community members took the knife from the appellant and gave it to the police.

[6] The robbers took cash, airtime and cigarettes from the shop to the value of R1550.00.

[7] As a consequence  of being stabbed with a knife on the shoulder he sustained an injury and bled.   He  was detained  for two months,  first  at  a  hospital  in Bronkhorstspruit and later  at Steve Biko Academic Hospital here in Pretoria for medical treatment.

[8] During  cross-examination he  testified  that  the  people  who  came  to rob him  spoke  to the appellant.  The appellant's version was put to him that the appellant gave him a R50.00  note, which  he  denied  and  gave  him  a  wrong  change  and  when  he  queried  the  change  he threatened to stab him with the knife, which he also denied.   Again during  cross-examination the J88 was handed in.  In addition and after further scrutiny of the said document, he testified that he also had sustained a small cut on his hand caused by the knife that the appellant had. It was furthermore put to him that it was not the appellant who stabbed him with the knife.  He was adamant that it was indeed the appellant who stabbed him with the knife.

[9] The appellant testified in his defence.  He admitted that on the date in question he was at  the complainant's shop, having gone there to buy airtime.  He got the airtime plus R8.00  change. He had a fall out with the complainant over the change that the complainant  had given him. He claimed that when he bought  airtime he gave the complainant  R50.00 but instead of the complainant gave him a change of R38.00, he gave him only R8.00.

[10] He denied that he pulled out a knife and stabbed the complainant with it.  He testified that the complainant  approached  him with clenched fists as he went out of the shop.  As he did so some members of the public walked into the shop.  The public walked into the shop when   he and the complainant  started to fight.  The next thing that he saw was members of the   public grabbing him and tying his hands with ropes behind his back. On a question by the court he said that the complainant grabbed him by his clothes and hit him with fists.  He hit back.

[11] The court led the evidence of one July Kleinbooi Maseko ("Maseko").   His evidence related to events that took place after the robbery.  It will therefore not be helpful to this Court.

[12] The court a quo was satisfied that the State had proved its case beyond reasonable doubt. Accordingly it convicted the appellant. The court remarked during its judgment that it was not denied that the knife was recovered from the complainant.   It was further not denied that the appellant was assaulted  by the members  of the community  until he was saved by   Maseko.

Furthermore  it  was  never  denied  that  the  complainant  had  an  injury  at  the  back  of his shoulder.   It  was also not in dispute  that the complainant  was robbed and it  was   common cause that the appellant was assaulted by the community and suffered some injuries.

[13] The court remarked that the evidence of the complainant on the alleged robbery was that of a single witness and of course the court was alert against the dangers inherent in the  evidence of  a single witness.    The  court accordingly  approached  the  evidence with caution. The impression  that the complainant  created to the court was that it  was alarm individual who gave his evidence in a collective manner.  The only contradiction that was inherent was  that he said he forgot about the secondary injury.  It was a slight injury on his right hand top of the finger. The fact that he told the court that he was two months in hospital is not a contradiction because  the State prosecutor's  remark in re-examination was that he was an outpatient   at Steve Biko Hospital.

[14] The court remarked that it could not make a justifiable inference  that the complainant was unreliable  because  of a  single omission  to make  reference  of a  slight injury on his hand.

According  to it there were  no other  inherent  contradictions by the complainant  or external contradictions by any  other  witness  before  the court.   The  court  could  not find  any more default in any of the state witnesses or the court witnesses to falsely implicate the   accused. No one knew the accused before the incident.

[15] The court made no adverse inference about the complainant as a witness nor about his brother. The court was satisfied that the State witness testified satisfactorily in all respects. The court stated that upon a consideration of the totality of the evidence it was satisfied  that the  version· by  the  appellant  could not  be  reasonably  possibly  true  and  that it must  be rejected. On that basis it rejected the appellant's evidence.

[16] Upon conviction the court a quo sentenced the appellant to 15 years imprisonment in terms of the provisions of s 51(2) of the Criminal Law Amendment  Act 105 of 1997.  The court a quo did  not  find  any  substantial  and  compelling  circumstances  to  justify  the  imposition  of a sentence lesser than the prescribed one. Mr. Moeng argued that the sentence imposed  on the appellant by the court a quo should be interfered with and reduced because the  appellant was severely assaulted by the members of   the community.    Such an assault was  unlawful. Taking it into account it would validate the conduct of the community which was unlawful. It will make bad precedents that a suspect can always be assaulted with the hope or  possibility that his sentence before a court of law may be reduced.

[17] In imposing  sentence we are satisfied    that the court a quo took into account all the relevant factors, including the personal circumstances of the appellant and the fact that he had a clean record.  The court a quo supported its findings by reference to decided cases.  In our view the court a quo did not misdirect itself in any manner in imposition of an appropriate sentence.

[18] The following order was made by the court a qua

''ln terms of section 51(2)(a), you are sentenced to 15 years' imprisonment and I state it that 51(2)(a) means in terms of Section 105 of the 1997, you must continue four fifths of your sentence of 15 years, it is 12 years before you have the right to go on parole."

We are of the view that by imposing such a sentence the court a quo attempted to dictate to the  Department  of  Correctional  Services  as to  how  it  should  conduct  its affairs.   It was unnecessary and not appropriate.  This Court is at large to vary the sentence imposed by the court a quo by jettisoning the unnecessary appendages.  No one Department of the State is entitled to dictate  to another  Department of the State how the latter  must    conduct its own affairs.

[19] Accordingly we make the following order:

1.        The appeal against conviction is dismissed.

2.        The appeal against sentence is upheld.

3.        The sentence imposed on the appellant by the court a quo is hereby set aside and in its place is substituted the following:

"3.1 The accused is sentenced to 15 years imprisonment. “

__________________________

P.M. MABUSE

JUDGE OF THE HIGH COURT

I agree

__________________________

S.C. MIA

ACTING JUDGE OF THE HIGH COURT

Appearances:

Counsel for the appellant:                    Mr. SMoeng

Instructed by:                                        Pretoria Justice Centre

Counsel for the respondent:                 Adv. M Molatudi

Instructed by:                                       Director of Public Prosecutions

Date Heard:                                         25  April 2017

Reasons furnished on:                         25 April2017

---