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ENOCH SIBEKO Appellant and
THE STATE Respondent

Case No.: 33/86

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

ENOCH SIBEKO Appellant
and
THE STATE Respondent

CORAM: HOEXTER, JACOBS JJA et BOSHOFF, AJA

HEARD: 7 November 1986 DELIVERED: 18 November 1986

JUDGMENT

HOEXTER, JA

2.

HOEXTER, JA,

In the regional court at Hillbrow, Johannesburg, the appellant was found guilty of theft and sentenced to three years imprisonment. He appealed unsuccessfully to the Witwatersrand Local Division. With leave of this Court he appeals against both his conviction and sentence.

The facts are shortly these. On the evening of 13 April 1984, and at the Rand Easter Show, the complainant, Miss Vanessa Lane, was used by the police as a decoy to entrap pickpockets. Over her right shoulder the complainant wore a sling-bag within which there was a purse containing R30. The sling-bag had a zip fastening device and the zip had been left partly open. As she walked about the Showgrounds the complainant was kept under observation by Warrant-Officer Allen and Sergeants Erasmus and Davis, all of the South African Police. In due course, but unbeknown to the complainant, a light-fingered rogue removed the purse

from

3. from the sling-bag whereupon the three policeman arrested three young black men, one of whom was the appellant.

The three young men thus arrested were jointly charged with robbery in the trial court and each was convicted of theft. At the trial the appellant was accused no 2. The witnesses for the prosecution were the complainant and W/O Allen. The complainant did not herself witness the theft and the State case therefore hinged on the testimony of W/O Allen. In his evidence-in-chief W/0 Allen gave the following account of the events immediately preceding the arrest of the three accused -

"We had just left the amusement park and we were walking up Victoria Avenue, in a southerly direction, when I observed the three accused before Court, walking down in the opposite direction. I could see that the three of them were together, as they were talking to each other, and they were walking right next to each other. They were looking around, every time a woman walked past, they kept looking around, and looking at the handbags. As Miss Lane passed them, accused no 3 saw the handbag and I saw him speak to his two companions and they all

three

4.

three immediately turned around, and they walked up behind her. They closed right in behind her, with accused no 1 walking in the middle. They got right behind her and I saw accused no 1 with his left hand, Your Worship, take hold of this sling-bag and with his right hand, pull the zip open. Miss Lane had carried on walking, she could not feel what was going on, he then removed the wallet that was in the bag and they all three immediately turned around to walk away. At that stage, Sergeant Davis, Sergeant Erasmus and myself, we approached them and arrested them. As accused no 1 was grabbed by Sergeant Davis, I saw him drop the wallet to the ground. I picked up the wallet and it was handed back to Miss Lane and she was very surprised that this wallet had been taken out of her handbag, and she checked the contents and the R30 was still in the handbag.

Did the accused have anything to say about this?

All that the accused said, was that they

were scholars and they had been walking around the show."

At the trial none of the three co-accused had legal representation but the mother of the appellant (the latter being 17 years old at the time) was present at the proceedings. Both the appellant and his mother were allowed to cross-examine the State witnesses and to argue on the

evidence

5.

evidence adduced. At the close of the State case each of the three accused testified in his own defence, and in turn each asserted his own innocence. According to accused no 1 the other two accused had been unknown to him at the time; and he said that he had not even seen the complainant. The appellant said in his evidence that he was related to accused no 3. They were scholars who had visited the Rand Easter Show and while they were on their way to the exit they were arrested by the police f or no reason whatever. Accused no 3 affirmed the truth of the appellant's version. Having examined the rival versions of the prosecution and the defence, the trial Court accepted the testimony of W/O Allen and rejected the evidence of each of the three co-accused as false. In the original notice of appeal, dated 7 August 1984, the sole ground of appeal against the conviction was that the evidence did not sustain, as the only reasonable inference, that the appellant had "participated in the commission of the offence". By notice dated 15 January 1985

the

6.

the grounds of appeal were augmented by the addition of a ground that the trial Court had erred in convicting the appellant.-

" in the absence of evidence that his"

(the appellant's) "conduct facilitated the commission of the offence."

In the Court below the appeal was heard by DE VILLIERS and STEGMANN, JJ, the judgment of the Court being delivered by the latter. Both in the Court below and before us the appeal was argued for the appellant by Mr Beaton, concerning whose submissions to the Court below STEGMANN, J remarked in his judgment -

"He does not argue that the evidence given by the appellant could reasonably possibly be true. He accepts the factual findings of the Magistrate, and argues a law point."

For the sake of completeness I should mention that despite the

narrow
7.
narrow grounds upon which Mr Beaton sought to attack the
conviction in the Court below, this Court caused notice in
advance to be given to both counsel for the appellant and
counsel for the State that at the hearing of the appeal
argument would also be required as to the adequacy of the
evidence identifying the appellant as one of the trio who had
closed in on the complainant. To this end counsel were
invited to file additional heads and the regional magistrate
was requested to file supplementary reasons in regard to the
issue of identification. We would express our appreciation
to both counsel and to the regional magistrate for the

helpful response received from each of them. Suffice it to say that in the light of the supplementary heads of argument and the additional reasons for judgment, and having heard argument on this particular issue, I am entirely satisfied -despite Mr Beaton's submissions to the contrary - that on all the facts of the present case any reasonable possibility of mistaken identification of the appellant may safely be

excluded.

In

8.

In the Court below counsel for the appellant argued tbat on the facts found by the regional court the evidence fell short of establishing that the appellant had done anything at all to facilitate the commission of the theft. In rejecting that contention STEGMANN, J said the following -

"The contrectatio was proved against Accused No. 1. What was proved against the appellant was that he stood by ready to assist if necessary (e g by distracting the complainant's attention from her bag or by receiving the stolen purse from Accused No. 1), although in the event his intervention did not become necessary."

Mr Beaton urged upon us that the Court a quo erred in so concluding. Counsel for the appellant candidly conceded, as I think he was bound to concede, that already at the stage when they were first noticed by Warrant-Officer Allen the three accused shared a common purpose to steal from any woman carrying a bag who appeared to the trio to be an easy victim. Counsel went on to argue, however, that there

existed
9. existed a reasonable possibility that by the time of the actual contrectatio by accused no 1 the appellant might have abandoned his earlier intention to steal; the appellant's presence at the very scene of the crime and his close proximity to the thief being explicable, so it was suggested, on the basis that having started of f in the company of accused nos 1 and 3 the appellant simply remained with them. The hypothesis that despite the anterior common purpose to steal the appellant kept company with his two companions while the complainant was stalked and thereafter actually pick-pocketed simply for the pleasure and comfort to be derived from the society of accused nos 1 and 3, seems to me to be utterly implausible. From the moment when the trio spotted the complainant and the gaping bag which she was carrying there took place a concerted and co-ordinated exercise. Not only did the threesome proceed at once in pursuit of their quarry but before the theft was actually committed they closed ranks immediately behind her. It is clear,

I

10. I think, that this last-mentioned manoeuvre was executed in order to reduce the risk of detection of the contemplated theft by shielding the complainant's bag so far as possible from the view of potential witnesses to the rear of the complainant. The inference that the appellant's whole conduct as witnessed by Allen was in furtherance of the common purpose to steal is irresistible. Such conduct included, as the Court below correctly found, the appellant's physical act of standing by, ready to assist if need be, at the time of the actual contrectatio. Such conduct included, no less, the closing in on the complainant from the rear before the contrectatio was effected, In my view the appellant was rightly convicted.

I turn to the appeal against the sentence. Despite his youth the appellant has a bad criminal record. In July 1981 he was convicted of theft of R30 and sentenced to a whipping with a light cane. In September 1982 he was

found

11.

found guilty of attempted robbery involving threats with a knife and sentenced to a whipping with a light cane. In November 1983 the appellant was convicted on three separate counts of robbery each,of which involved threats with a knife and the theft of a fairly substantial cash amount. The first two counts were taken together for purposes of sentence and in respect thereof the appellant was sentenced to two years imprisonment conditionally suspended for five years. In respect of the third count the appellant was sentenced to a whipping with a light cane. In the light of the appellant's past record Mr Beaton was constrained to concede that for his present crime a sentence of actual imprisonment was entirely fitting. The only submission made was that the period of imprisonment imposed (three years) was so long as to be disturbingly inappropriate, and that a portion of it should have been conditionally suspended. I am unable to agree. The sentence imposed is a stiff one, but in all the circumstances it cannot be said, so I

consider
12. consider, that lt is disproportionately severe.

In the result the appeal is dismissed.

G G HOEXTER, JA

JACOBS, JA ) BOSHOFF, AJA ) Concur

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