REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

(1)	REPORT ABLE: NO
(2)	OF INTEREST TO OTHER JUDGES:NO 
(3)	REVISED: YES

CASE NO: A60/18

In the matter between:

SIBUSISO NKOMO								Appellant

and

THE STATE									Respondent
JUDGMENT

SKIBI AJ
[1]	The appellant before this court together with one Nduduzi Mandaza stood arraigned at Springs Regional Court charged with two charges of robbery with aggravating circumstances read with the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997. On 8 March 2016, he pleaded not guilty to both counts. On 08 March 2017, the appellant was found not guilty and discharged on count 1. However, he was convicted on count 2. He was sentenced to 15 years' imprisonment, of which five years' imprisonment was suspended for five years on condition that he is not convicted of the offence of robbery with aggravating circumstances committed during the period of suspension. The appeal is against both conviction and sentence with the leave of this court granted on petition. The appellant's co-accused is not before this court.
[2]	The appellant's conviction emanates from the incident which took place on 9 January 2015 in Daveyton, Gauteng Province. On the said date just before 00:00 midnight Mr Cawa and Mr Mgudlwa were walking along Cargo street heading to their respective homes at Nxunu street coming from Sasesh place. Whilst they were walking along the street they saw three men who were walking in front of them. When they arrived at the intersection on Tonga and Cargo streets, these three men turned and approached them.
[3]	The appellant produced a firearm and pointed at them, cash and cell phones were demanded. One person known as Unathi searched Mr Cawa whilst accused 2 was busy searching Sibusiso. Mr Cawa's two cell phones were forcefully removed from him whilst Sibusiso's cell phone was taken by accused 2. During the process of taking the cell phones, accused 2 recognised the complainants and told his friends that the cell phones be handed back to them, but the appellant refused and insulted his co-perpetrators. Mr Cawa's cell phones are described as a S2 with an estimation value of R7000.00 and the other was an I-Phone with an estimation value of R11.500.00. Sibusiso's cell phone had an estimated value of R3000.00. The cell phones of both complainants were never recovered.
[4]	After having forcefully removed the cell phones of the complainants the appellant and his friends walked away. Mr Cawa and Sibusiso ran to Sasesh to ask someone known to them to use his vehicle transporting them to go and look for the suspects so that they can get their cell phones back. They were transported to look for the suspects but they could not succeed to get the assailants. Both Mr Cawa and Sibusiso testified that they knew the assailants prior the date of the incident as they lived in the neighbourhood. Mr Cawa reported the incident to the police on 10 January 2015 whilst Sibusiso testified that he reported the incident to the police at about 19 January 2015 reason being that he had to get the serial or IMEI number of his cell phone.
[5]	At the beginning of the trial the appellant gave a plea explanation and testified denying his involvement in the commission of the offence in question. He testified that during the night on 10 January 2015, a group of people came to his shack and knocked at the door. When he opened the door he was told by this group that they were looking for Nduduzi and Barone. He testified that the complainant informed the group that the appellant was one of the assailants who robbed them. The appellant alleged that he was assaulted by the group and ended up in hospital. He testified further that the following day the complainant came to apologise to him and said that it had been Zakele who claimed that (he, the appellant) was the one of the robbers.
[6]	The trial court when assessing the evidence led during the trial reached a conclusion that the respondent succeeded to prove its case beyond a reasonable doubt and rejected the version of the appellant. The presiding magistrate evaluated the evidence on identity of the assailants. Amongst the reasons in his finding was that the legal representatives of the appellant and his then co-accused never placed in dispute the identity of the assailant during the cross-examination. There were no issues regarding how the assailants were clad or description of their faces as it was not dark at the scene.
[7]	The Magistrate further stated, correctly that because the appellant and his co­ accused were known to the complainants prior the date of the incident there was no need for identification parade to be held. The magistrate referred to case law in the analysis of the evidence on identification, the well-knowncase of S v Mthethwa 1972 (3) SA 766 (A) at page 768A-C. The magistrate also dealt with the issue of contradictions which was levelled against state commissioning date of the affidavits. Before I deal with the arguments before us I will highlight the legal limitations of this Court to the interference on the factual findings by the trial court.
[8]	This court is not a trial court and its approach is different from that of the trial court. The case of S v Hadebe 1998 (1) SACR 422 (A) at 426a-b sets out in no uncertain terms the governing principles on appeal against the finding of fact as follows:
"Before considering these submissions it would be as well to recall yet again that there are well established principles governing the hearing of appeals against the finding of fact. In short, in the absence of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong. The reasons why this difference is shown by appellate Court to factual findings of the trial Court are so well known that the restatement is unsatisfactory."

[9]	In Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC) Jafta J said the following:
'[37]	... Ordinarily appeal courts in our law are reluctant to interfere with factual findings made by trial courts, more particularly if the factual findings depended upon the credibility of the witnesses who testified at the trial.
[40_ But even in the appeal, the deference afforded to a trial court's credibility findings must not be overstated. If it emerges from the record that the trial court misdirected itself on the facts or that it came to a wrong conclusion, the appellate court is duty-bound to overrule factual findings of the trial court so as to do justice to the case. In Bernert this Court affirmed:
"What must be stressed here, is the point that has been repeatedly made. The principle that an appellate court will not ordinarily interfere with a factual finding by a trial court is not an inflexible rule. It is a recognition of the advantages that the trial court enjoys which the appellate court does not. These advantages flow from observing and hearing witnesses as opposed to reading 'the cold printed word' . The main advantage being the opportunity to observe the demeanour of the witnesses. But this rule of practice should not be used to 'tie the hands of appellate courts'. It should be used to assist, and not to hamper, an appellate court to do justice to the case before it. Thus, where there is a misdirection on the facts by the trial court, the appellate court is entitled to disregard the findings on facts and come to its own conclusion on the facts as they appear on the record. Similarly, where the appellate court is convinced that the conclusion reached by the trial court is clearly wrong, it reverse it."

[10]	Before us counsel for the appellant argued that the conviction of the appellant cannot be sustained. Mr Marais who appeared on behalf of the appellant contended that the versions of the state witnesses were riddled with material contradictions, improbabilities and is unsatisfactory. His contention was that the magistrate erred in rejecting the appellant's version. He argued that the version of the appellant remained unshaken as per the magistrate's finding. He referred to various authorities. On the other hand Miss Makgwatha, who appeared for the respondent, contended that there is no reason to interfere with the findings of the court a quo in that the guilt of the appellant was proved beyond a reasonable doubt. She also referred to various cases dealing with contradictions. Her argument is that even if one finds that there were contradictions, those were not material.
[11]	I am not persuaded that a proper case has been made to upset the factual findings of the court a quo. The argument by counsel for the appellant that the magistrate made a finding that the appellant's version remained unshaken is misplaced. The magistrate when assessing the evidence against the appellant on count 1, he said the following: "He repeated what he said in his plea explanation and most importantly he was unshaken during cross-examination before pertaining to count 1." (own emphases). The appellant was indeed acquitted on count 1. The magistrate dealt with the criticism levelled on the credibility of the two witnesses on this count.
[12]	The magistrate also dealt with the criticism of late commissioning of the state witnesses' statements and correctly made a finding that no criticism can be placed at the door of the state witnesses in that the work of commissioning the witness' statements is the duty of the South African Police Services. The magistrate made a finding that both witnesses corroborated each other that the appellant was in possession of a firearm and that he pointed them with the said weapon which made them to submit out of fear. I only disagree with the presiding magistrate that the state witnesses had no motive to falsely implicate the appellant. In law the accused does not have to prove or demonstrates a motive why the state witnesses falsely implicate him/her as that amount to shifting the onus of proof from the State to the accused to prove why the state witness falsely implicate him ie reverse onus which was outlawed.
[13]	There is merit in the contention by counsel for the respondent that the magistrate's factual finding cannot be faulted that the respondent succeeded in proving guilt of the appellant beyond reasonable doubt:
[13.1]	The appellant was identified by Mr Cawa and Mr Mgudlwa as one of the robbers on the date of the incident. This identification is not done in vacuum. The witnesses were able to specify the role played by the appellant during the incident. They testified that the appellant was carrying a firearm and he pointed it to them, thus causing them to surrender their phones. The appellant was known to the complainants prior to this incident. The appellant himself conceded that they knew him. Visibility was good where the incident took place thus the complainants were able to see their attackers. Moreover, their evidence is that they were approached from the front and they are well known to the complainants.
[13.2]	Mr Cawa was honest enough to state that he was not searched by the appellant but by Unathi. Both complainants credited accused 2 that he considered giving them their phones back after he recognised them. This honesty is at odds with a conduct of someone who is falsely implicating the other. If that was the case, he would have simply said he pointed them with a firearm and also himself searched them.
[14]	The presiding magistrate correctly rejected the appellant's bare denial of any involvement in the robbery in that it cannot be reasonably possibly true in the face of the evidence of Mr Cawa and Mr Mgudlwa.
[15]	The evidence, when viewed holistically, clearly proved that the appellant was part of the three-member gang that robbed the complainants on the day in question. The appellant's argument in criticising the credibility of state witnesses who testified during the trial is without merit. In R v Dhlumayo & another 1948 (2) SA 677 (A) at page 705 para 4-6 held that "...the appellate court is very reluctant to upset the findings of the trial Judge. The mere fact that the trial judge has not commented on the demeanour of the witnesses can hardly ever place the appeal court in as good a position as he was. Even in drawing inferences the trial Judge may be in a better position than the appellate court, in that he may be able to estimate what is probable or improbable in relation to the particular people he has observed at the trial..."
[16]	I agree with counsel for the respondent that whatever contradictions in the evidence of the state witnesses are peripheral and immaterial and do not warrant a rejection of their evidence. The trial court was alive to the dangers of relying on the evidence of identifying witnesses. It carefully assessed the evidence and sought safeguards for such evidence. The court quo correctly rejected the appellant's version and convicted him of the count of robbery with aggravating circumstances as charged. See S v Hadebe and Others 1998 (1) SACR 422 (SCA); S v Mkhohle 1990 (1) SACR 95 (A) at 98f
[17]	There are various High Court judgments and the Supreme Court of Appeal which developed the approach to adopt in cases where a question of contractions is at issue and the common view is that not all the contradictions suggest that the witness is not honest or mistaken. In S v Oosthuisen 1982 (3) SA 571 (T) at 576 g-h it was held that: "It is not every error made by a witness which affects his credibility. In each case the Trier of fact has to make an evaluation taking into account such matters as the nature of the contradictions, their number and importance and their bearing on other parts of the witness's evidence."
[18]	In light of the above I find no reason whatsoever, to upset the factual findings of the Magistrate on conviction of the appellant as a result the appeal against conviction should be dismissed.
[19]	This takes me to the question of the appeal against sentence. It is also trite law that sentencing is a matter pre-eminently for the discretion of the trial court. The court hearing an appeal should be careful not to erode that discretion and would be justified to interfere only if the trial court's discretion was not judicially and properly exercised which would be the case if the sentence that was imposed is vitiated by the irregularity or misdirection or is disturbingly inappropriate. See S v Rabie 1975(4) SA 855(A) at 857D-F; S v Packeresammy 2004(2) SACR 169(SCA at page 172 b-c
[20]	The trial court did consider both mitigating and aggravating circumstances in determining an appropriate sentence. In sentencing the appellant the presiding magistrate in the court a quo took into consideration the following mitigating factors:
[20.1]	Accused 1 is 26 years old, he is still a young man;
[20.2]	He has a minor child although not clear who is maintaining the child;
[20.3]	He had been in custody for more than two years at the time of sentence;
[20.4]	The court also took in favour of the appellant that no person was injured.

[21]	The appellant was convicted of robbery with aggravating circumstances read with section 51(2) of the Criminal Law Amendment Act 105 of 1997 where in the case of the first offender a prescribed minimum sentence is one of 15 years of imprisonment unless there are substantial and compelling circumstances which justify a deviation.
[22]	Counsel for the appellant contended that the court a quo erred by imposing a similar sentence that it imposed on his co-accused, His argument is two-fold, (i) the appellant was about 10 years younger than his co-accused (ii) the appellant had no previous conviction of robbery whereas his co-accused was the second offender on robbery. In essence, his submission is that the appellant ought to have received a lesser sentence than the one which was imposed on his co-accused. In his argument he relied on the decision of the Western Cape High Court, S v Miller 2018 (1) SACR 75 (WCC) and Du Toit et all: Commentary on the Criminal Procedure Act Service 28-18Z-Y
[23]	In response counsel for the respondent submitted that youthfulness of the appellant does not come to his assistance on the facts of this case. The appellant is the one who was armed. He is the one who was swearing at his co-accused when the latter suggested that they hand back the cell phones to the complainants. It has been contended further that the appellant has a previous conviction, although it is not the one of robbery, but for drugs. It has also been submitted further in line with the case of the SCA, S v Matyityi 2011 (1) SACR 40 (SCA) that the appellant's youthfulness on the facts of this case is not a mitigating factor.
[24]	Having heard the arguments by counsel on this point, in my view, the issue raised by the appellant can be resolved by the applicable legislation and the trite law guiding the powers of the appeal court regarding the interference on sentence as set out above. The prescribed minimum sentence in respect of conviction of robbery with aggravating circumstances (read with the provisions of section 51 (2) of Act 105 of 1997- Minimum Sentencing Act) is one of 15 years' imprisonment for the first offender of the relevant charge, 20 years of imprisonment for the second offender of the said offence and 25 years of imprisonment in respect of the third or subsequent offender.
[25]	The court may deviate from the imposition of the prescribed minimum sentence if it finds the existence of substantial and compelling circumstances. In the instant case, the appellant is a first offender on the conviction of robbery with aggravating circumstances and the applicable minimum sentence is one of 15 years of imprisonment unless the court find the existence of substantial and compelling circumstances.
[26]	The court a quo did find that there are substantial and compelling circumstances which justify the imposition of a lesser sentence than the one prescribed by the Act. The trial court in exercising its discretion decided to impose a sentence of 15 years of imprisonment, suspending 5 years which means that the appellant will serve an effective term of 10 years of imprisonment. In my view, the trial court might have erred to impose a lenient sentence on the appellant's co- accused who had a previous conviction of the relevant charge who qualified to receive much heavier sentence i.e. 20 years of imprisonment. He chose not to appeal, most probably on legal advice based on the risk involved. The starting point of enquiry by the trial court was whether to impose the minimum sentence of 15 years of imprisonment and or/ whether there are substantial and compelling circumstances which justify a deviation from imposition of the prescribed minimum sentence.
[27]	From the sentencing judgment by the trial court the magistrate did not state what are those factors which amount to substantial and compelling circumstances and no recorded reasons for imposing similar sentences to both the appellant and his co-accused. However, the evidence shows the role played by each accused in the commission of the offence in question. I agree with counsel for the respondent that the appellant played a prominent role. He is the one who induced fear into the complainants by pointing a firearm in order for them to surrender, whilst his friends were busy searching the complainants. Holmes JA in the case of S v Giannoulis 1975 (4) SA 867 (A) at 873F-H provides three guiding principles on appeal court in determining whether the appeal court may interfere with the sentence on this issue in particular, the second principle:
"1	In general, sentence is a matter for the discretion of the trial court. Disparity in the sentences imposed on participants in an offence (whether tried together or in separate courts) will not necessarily warrant interference on appeal. Uniformity should not be elevated to a principle, at variance with both a flexible discretion in the trial court and with the acceptable limitation of appellate court interference therewith;
2	Where, however, there is a disturbing disparity in such sentences, and the degrees of participation are more or less equal, and there are not personal factors warranting such disparity, appellate interference with the sentence may, depending on the circumstances, be warranted. The ground of interference would be that the sentence is disturbingly inappropriate.
3	In ameliorating the offending sentence on appeal, the Court does not necessarily equate the sentences: it does what it considers appropriate in the circumstances." (underlined my own emphases)

[28]	In my view the effective sentence of imprisonment to be served by the appellant is neither shockingly severe or disturbingly inappropriate. The argument by the appellant that the court a quo should have imposed a lesser sentence because of his young age as compared to his co-accused who was 38 years old has no merit. He never showed any sign of immaturity during the commission of the offence, in fact he played a commanding role. Whether the firearm was a toy or real does not matter but the complainants surrendered their valuable belongings i.e. cell phones out of fear of the lethal weapon pointed at them. I do not find any reason whatsoever, to interfere with the sentence imposed by the trial court.
[29]	I am of the considered view that the appeal against sentence should also fail.
[30]	In the result I propose the following order:
[30.1]	that the appellant's appeal against both conviction and sentence is dismissed;
[30.2]	that conviction and sentence imposed on the appellant in respect of count 2 are confirmed.

N. SKIBI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA

I AGREE AND IT IS SO ORDERED

CJ VAN DER WESTHUIZEN J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA

Date of hearing:			20 October 2020
Date of Judgment:			23 October 2020

APPEARANCES
For the Appellant:			Adv. JP Marais
Instructed by:			Legal Aid South Africa, Pretoria Office
For the Respondent:		Adv. M.J Makgwatha
Instructed by:			The Director of Public prosecutions, Pretoria