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