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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN     

CASE NO.  CA&R 328/2015

In the matter between:

RALPH KRIEL                                                                                                       Appellant

and

THE STATE                                                                                                       Respondent

APPEAL JUDGMENT

Bloem J.

[1] The appellant and a co-accused were charged in the regional court at Port Elizabeth with housebreaking with intent to rob and robbery with aggravating circumstances.  They pleaded not guilty.  At the conclusion of the hearing they were acquitted of housebreaking with intent to rob and convicted of robbery with aggravating circumstances.  The appellant was sentenced to fifteen years’ imprisonment while his co-accused was sentenced to eight years’ imprisonment of which five years were suspended for five years on condition that he not be convicted of robbery with aggravating circumstances committed during the period of suspension.  On 30 May 2014 and on review Chetty J confirmed the conviction and sentence imposed on the appellant’s co-accused.  With the leave of the magistrate the appellant now appeals against both conviction and sentence.

[2] The state’s case was that between 21h30 and 22h00 on 16 January 2013 the appellant, his co-accused and another male person robbed the complainant, a shopkeeper of foreign origin, of R3 000.00 cash, cartons of cigarettes and approximately R700.00 worth of airtime.  The appellant’s defence was an alibi.  His case was that he did not and could not have robbed the complainant because he was at another part of Port Elizabeth where he was building a shack at the time when the complainant was robbed.  The magistrate convicted the appellant because he found the complainant to be a reliable witness and rejected the appellant’s alibi as not being reasonably possibly true.

[3] The complainant testified that after he had counted the day’s takings, he was about to close his shop when he was confronted by the appellant, his co-accused and a third male person.   He did not know the third person.  He knew the appellant by name before the incident because he used to go to his shop from time to time to purchase items.  He also knew the co-accused, who was living next to the shop, by name.  He testified that he was closing a security gate when the co-accused pushed him into the shop and entered.  The appellant was armed with a firearm with which he hit him in the face while the co-accused had a knife which he did not use.  The co-accused and the third person collected the money, cigarettes and airtime from the shop whereafter all three of them ran away.

[4] The appellant testified that after he had woken up on the day in question, his girlfriend arrived at his house and requested him to build a shack in her parents’ premises for her (his girlfriend’s) brother and his wife who had been evicted.  He built the shack with the assistance of others until about 23h00 on that same day.  To support his alibi the appellant called his girlfriend’s mother, Rebecca Meyer.  She testified that she requested the appellant to build a shack in her backyard.  He did so until 23h00. 

[5] The issue in this appeal is whether or not the complainant correctly identified the appellant as one of his assailants.  The complainant was a single witness in respect of the robbery.  The magistrate found that he was a completely satisfactory witness who gave a clear version of what happened to him that evening.  Despite the fact that the complainant was a single witness, the magistrate was satisfied that his evidence was reliable.  In my view the magistrate’s finding that the complainant was a reliable witness cannot be faulted.  The record speaks of a witness who answered questions directly and satisfactorily.  However, because the appellant’s identity was placed in issue, the magistrate had to nevertheless treat the complainant’s evidence with caution.  In S v Mthethwa[1] Holmes JA dealt with reason why evidence of identification should be approached by the courts with some caution.  The learned judge had the following to say:

“Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution.  It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested.  This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused’s face, voice, build, gait, and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused.  The list is not exhaustive.  These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities …”.

[6] Mr Geldenhuys, counsel for the appellant, submitted that the complainant might have been mistaken when he identified the appellant as one of his assailants because, so the submission went, he must have been shocked as a result of the confrontation and that he was hit in the face with a firearm by one of his assailants, that the ordeal was prolonged and the complainant did not have sufficient time to look at his assailants.  The judgment reflects that the magistrate took most of the factors referred to in S v Mthethwa into account when he considered the appellant’s alibi.  For instance, the magistrate found that the complainant had sufficient opportunity to observe his assailants inside his shop.  That is so because the light inside the shop was on.  The complainant had known the appellant before the incident because of his visits to the shop where he saw him.  The magistrate also took into account that the appellant was with his co-accused.  The appellant testified that he and the co-accused were and still are friends.  It is not a coincidence that the complainant testified that the appellant and his co-accused were together when they robbed him.  Throughout the ordeal the appellant was in close proximity of the complainant.  After the magistrate had treated the complainant’s identification of the appellant with caution, he found that the complainant’s evidence in that regard was reliable.  Mr Geldenhuys’ criticism of the magistrate’s finding in that regard is accordingly unwarranted. 

[7] The magistrate did not deal with the evidence given by Mrs Meyer.  The record shows that she must have been requested to inform the court that the appellant was building a shack in her backyard until approximately 23h00 on the day in question.  However when she was confronted on the detail of what allegedly happened at her house on that day she contradicted the appellant and herself.  For example, the appellant testified that when his girlfriend approached him to build the shack in her mother’s yard, she, according to the appellant, told him that the shack was to be built for her (his girlfriend’s) brother and his wife.  However Mrs Meyer testified that the shack was built for her brother (Mrs Meyer’s brother).   Furthermore, the appellant testified that the night before the incident he slept at home which means that he woke up at home.  That was not Mrs Meyer’s evidence.  She testified that the appellant slept at her house, that she woke him up at approximately 08h00, made breakfast for him whereafter he started building the shack.  Lastly, when Mrs Meyer was requested to explain why she can remember that the appellant built the shack on 16 January 2013, she gave as a reason therefor the fact that it was one of her children’s birthday.  Not long thereafter she contradicted herself by testifying that it was one of her grandchildren’s birthday.  Mrs Meyer was so obsessed with the shack having been built on 16 January 2013 that, at one stage, she testified that she saw the appellant having been arrested on the evening of 16 January 2013.  That evidence was false because the appellant was arrested only on 29 April 2013.  The magistrate should have dealt with and rejected Mrs Meyer’s evidence for the above reasons.

[8] Save for the complainant’s evidence, the main reason for the magistrate’s rejection of the appellant’s alibi is the fact that he raised it only when his version was put to the complainant during cross-examination.  After the appellant’s arrest he made a formal application for bail.  He did not disclose his alibi during the bail proceedings.  He also did not disclose his alibi as a basis for his defence.  The appellant was of course under no obligation to disclose his alibi when he was arrested, during the bail proceedings or when he pleaded.  That is so because of his constitutional right to remain silent.  In S v Thebus and another[2] Moseneke J had the following to say about the late disclosure of an alibi:

“[67] First, the late disclosure of an alibi is one of the factors to be taken into account in evaluating the evidence of the alibi.  Standing alone it does not justify an inference of guilt.  Secondly, it is a factor which is only taken into consideration in determining the weight to be placed on the evidence of the alibi.  The absence of a prior warning is, in my view, a matter which goes to the weight to be placed upon the late disclosure of an alibi.  Where a prior warning that the late disclosure of an alibi may be taken into consideration is given, this may well justify greater weight being placed on the alibi than would be the case where there was no prior warning.  In all the circumstances, and in particular, having regard to the limited use to which the late disclosure of the alibi is put, I am satisfied that the rule is justifiable under s 36(1).

[68] The failure to disclose an alibi timeously is therefore not a neutral factor.  It may have consequences and can legitimately be taken into account in evaluating the evidence as a whole.  In deciding what, if any, those consequences are, it is relevant to have regard to the evidence of the accused, taken together with any explanation offered by her or him for failing to disclose the alibi timeously within the factual context of the evidence as a whole.”

[9] It is apparent from the judgment that the magistrate placed no value on the evidence adduced by the appellant and Mrs Meyer regarding the former’s alibi because of its late disclosure.  In my view there is no cause to criticize the magistrate in that regard.  He correctly rejected the appellant’s alibi.  That being the case and against the background of the acceptance of the complainant’s evidence as being reliable, the magistrate correctly found that the state proved beyond reasonable doubt that the appellant committed robbery with aggravating circumstances.  His appeal against conviction should accordingly be dismissed. 

[10] The appellant has previous convictions.  In 1998 he was convicted of assault and sentenced to a fine of R100.00 or twenty five days’ imprisonment, wholly suspended for one year on condition that he not be convicted of assault committed during the period of suspension.  In that same year he was convicted of theft and sentenced to a fine of R400.00 or fifty days’ imprisonment suspended for three years on conditions that he not be convicted of theft or attempted theft committed during the period of suspension.  In 1999, October 2002 and December 2002 he was convicted of housebreaking with intent to steal and theft.  For the first offence he was sentenced to six months’ imprisonment wholly suspended for three years on condition that he not be convicted of housebreaking with intent to steal and theft or an attempt of that offence committed during the period of suspension.  For the second offence he was sentenced to nine months’ imprisonment and for the third offence he was sentenced to six months’ imprisonment.  In 2007 he was convicted of robbery and sentenced to ten years’ imprisonment of which two years were suspended for five years on condition that he not be convicted of any offence of which dishonesty was an element committed during the period of suspension.  When the appellant was sentenced during May 2014 he was 33 years of age.  He left school after completing grade 8.  He is the father of a girl who was two years old when he was sentenced by the magistrate.  He was brought up by his mother.  He is unaware of the whereabouts of his father.  Before his arrest he was self-employed earning a salary of approximately R6 000.00 per month.  His girlfriend, the mother of his minor child, was unemployed at the time of his arrest.

[11] The magistrate took into account that the appellant was convicted of a serious offence.  The complainant was robbed not only of the fruits of his labour but also cigarettes and airtime.  That was after he had been assaulted by the appellant.  That assault subdued the complainant to enable the appellant’s co-accused and the third person to take the money, cigarettes and airtime.  The legislature has acknowledged the seriousness of the offence of robbery with aggravating circumstances.  It responded by ordaining a sentencing regime in terms whereof a person who has been convicted of robbery with aggravating circumstances shall, in the case of a first offender, be sentenced to imprisonment for a period of not less than fifteen years’ imprisonment; a second offender to imprisonment for a period not less than twenty years’ imprisonment; and a third or subsequent offender to imprisonment for a period not less than twenty five years’ imprisonment.  The court may deviate from such sentence if it is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the prescribed minimum sentence.  Because the appellant is a first offender for robbery with aggravating circumstances, the prescribed minimum sentence is imprisonment for a period not less than fifteen years.   Mr Geldenhuys submitted that the appellant’s employment and his fatherhood cumulatively constitute substantial and compelling circumstances which would justify the imposition of a sentence less than imprisonment for a period of fifteen years. 

[12] Mr Els, counsel for the state, made two submissions in this regard.  Firstly, he submitted that the power of an appeal court to interfere with sentences imposed by a lower court is circumscribed.  An appeal court can interfere only where there has been an irregularity that results in a failure of justice, the court below misdirected itself to such an extent that its decision on sentence is vitiated or the sentence is so disproportionate or shocking that no reasonable court could have imposed it.[3]   He summited that in this case the magistrate did not commit an irregularity, did not misdirect himself at all, or to such an extent that his decision on sentence has been vitiated by such misdirection nor is the sentence disproportionate to the offence, the appellant or the interest of society. 

[13] Secondly, he submitted that the appellant placed no substantial and compelling circumstances before the court to enable it to deviate from the prescribed minimum sentence.  A court should not deviate from the prescribed minimum sentence for flimsy reasons.[4] 

[14] The fact that the appellant was employed at the time of the commission of the offence in question and that he is the father of a minor child do not, in my view, individually or cumulatively, constitute substantial and compelling circumstances justifying the imposition of a lesser sentence, if regard is had firstly, to the circumstances under which the complainant was robbed.  He sustained injuries during the robbery.  The appellant was armed with a firearm while his co-accused had a knife.  Secondly, in 2007 the appellant was sentenced to an effective term of eight years’ imprisonment for robbery.  In the present case he graduated to robbery with aggravating circumstances, six years after he was convicted of robbery.  Regard being had to his other previous convictions it is obvious that the appellant does not have respect for other persons’ property.  Members of society must be protected against people like the appellant.  A sentence of eight years’ imprisonment did not deter the appellant from committing robbery with aggravating circumstances soon after his release from prison.  In my view the circumstances of this case called for a sentence longer than ten years’ imprisonment.

[15] Although I might not have imposed fifteen years’ imprisonment as a court of first instance, the fact that this court may regard such a sentence as severe is not in itself a sufficient ground for altering it.[5]  I do not believe that the sentence imposed by the magistrate is shocking or disproportionate to the circumstances under which the appellant (and the two other assailants) committed the robbery on the complainant, the appellant’s personal circumstances and the interest of society.  The magistrate’s decision on sentence is not vitiated by irregularity or misdirection nor can it be said that the imposed sentence could not reasonably have been arrived at.  In the circumstances, the appeal against sentence should also be dismissed.

[16] In the result, the appeal against conviction and sentence is dismissed.

_________________________

G H BLOEM

Judge of the High Court

 

 

MAKAULA, J

 

 

I agree.

 

 

_________________________

M MAKAULA

Judge of the High Court

For the appellant:                                 Adv D P Geldenhuys of Grahamstown Justice Centre, Grahamstown.

 

For the state:                                         Adv D Els of the Office of the Director of Public Prosecutions, Grahamstown.

 

Date of hearing:                                     14 March 2018.

 

Date of delivery of the judgment:           27 March 2018.

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