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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)       NOT REPORTABLE

(2)       NOT OF INTEREST TO OTHER JUDGES

(3)       REVISED.

 

CASE NUMBER: A19/2017

A19/2017

 

In the matter between:

 

MHLANGA LUNGILE                                                                                                Appellant

 

and

 

THE STATE                                                                                                                  Respondent

JUDGMENT

NAIR AJ

[1]        This is an appeal against the conviction and sentence imposed by the Regional Court sitting at Benoni. The appellant was charged with one count of robbery with aggravating circumstances as intended in section 1 of Act 51 of 1977 and section 51(2) of the Criminal Law Amendment Act 105 of 1997 to which he pleaded not guilty. He was convicted and sentenced to 15 years imprisonment. Leave to appeal was refused by the trial court and the appellant successfully petitioned the Judge-President.

[2]        The background facts giving rise to the charge are the following: The complainant was on his way to work on the morning in question. He was accosted by 4 men in close proximity to his home. He identified the appellant among the assailants because he knew him as his neighbour.

[3]        The men demanded money and his cell phone but he refused to surrender to them. He was beaten with fists and struck with the back of the knife by one of them. The appellant did not assault him. One of the men was carrying a beer bottle and another had a knife. The appellant blocked his way when he tried to run. He told the appellant during the incident that he knew him and this drew the response "so what are you going to do about it." He was robbed of R400, 00 and a cell phone. He fled after which they threw stones at him. During cross examination he stated that they were all drunk.

[4]        The accused's version is that he was walking alone and he joined the other 3 men. They then turned around after the complainant and held him. He did not think that they were robbing the complainant. He did not do anything to the complainant. The appellant denied knowing the complainant before the incident but conceded knowing the complainant' s sister. He admitted that he knew two of the other accuseds but that he told his attorney that he only knew one. He argued that there was a misunderstanding with the attorney.

[5]        The conviction is assailed on the ground that the state case rests on the evidence of a single witness and that the circumstantial evidence does not warrant a conviction. It was also argued that the appellant's conduct in remaining and waiting for the police later that day, is an indication of his innocence. The learned magistrate's reliance on common purpose was also a ground of appeal.

[6]        In S v Monyane and Others 2008 (1) SACR 543 (SCA) at para [15] Ponnan JA said the following with regard to the Court's power on appeal:

"This court's powers to interfere on appeal with the findings of fact of a trial court a e limited. It has not been suggested that the trial court misdirected itself in any respect. 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 (S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e - f). This, in my view, is certainly not a case in which a thorough reading of the record leaves me in any doubt as to the correctness of the trial court's factual findings. Bearing in mind the advantage that a trial court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this court will be entitled to interfere with a trial court's evaluation of oral testimony (S v Francis 1991 (1) SACR 198 (A) at 204e)."

 

[7]        I cannot agree with the appellant's submissions regarding the conviction for the following reasons: the complainant, as the trial court correctly found, was a good witness. He spoke frankly and did not contradict himself. Despite being a single witness his evidence was satisfactory in all material respects and is corroborated by the appellant's version in that the appellant admits the robbery but distances himself from it. The appellant's version is highly improbable and it is strange that he joined the men but when they decided to rob the complainant they did not tell him of the plan. Instead they summarily and abruptly turned around and attacked the complainant. Equally improbable is the appellant's version, that although he saw the men holding the complainant, he did not think they were robbing him.

[8]        The fact that a suspect does not flee when confronted is not always an indication of innocence. It may well be that the suspect is prepared to concede his involvement. The evidence does not show a prior agreement among the assailants to commit the robbery but the appellant actively participated by blocking the complainant's path of escape and challenging him in the face of being told that his identity was known to the complainant. I am satisfied that there does not appear to be any demonstrable or material misdirection on the part of the learned magistrate as regards the conviction.

[9]        In the result the appeal against conviction falls to be dismissed.

[10]      The trial court found that there were no substantial and compelling circumstances to depart from the prescribed minimum sentence.

[11]       In State v Malgas 2001 (1) SACR 469 (SCA), the locus classicus on the Act and the interpretation of substantial and compelling circumstances highlighted three important aspects to be considered when making a determination in this regard. Firstly the legislature, in enacting Act 105 of 1997 aimed at ensuring a "severe, standardised and consistent response from the courts". Secondly the emphasis in sentencing has shifted "to the objective gravity of the type of crime". Thirdly substantial and compelling circumstances must be "truly convincing reasons". There must not be marginal differences in personal circumstances or degrees of involvement. At the end of the day "the ultimate cumulative impact of the circumstances must be such as to justify a departure".

[12]      In not considering the appellant's role as compared to the other perpetrators and his cumulative personal circumstances I find that the trial court had misdirected itself. The appellant was very young being 22 years old, a first offender and had already spent 7 months awaiting trial. He is a father of a minor child who is 6 years old. The appellant did point out one of the other co-accused to the police. I also have regard to the fact that the appellant's role in the comm1ss10n of the robbery was a minor one compared to the other co­ perpetrators who robbed the complainant. I find that all these factors cumulatively amount to substantial and compelling circumstances.

[13]       In GK v S, 2013 (2) SACR 505 (WCC) (24), Rogers J states:

' The test on appeal in regard to a trial court's finding concerning the presence or absence of substantial and compelling circumstances was left open in S v Malgas 2001 (2) SA 1222 (SCA)- see at para 33 where Marais JA in a footnote referred to the decision in S v Homareda 1999 (2) SACR 319 (W) at 326c-d. In the latter case Cloete J (as he then was), with whom Robinson AJ concurred, said that the decision whether or not substantial and compelling circumstances are present involves the exercise of a value judgment but that a court on appeal is entitled to substitute its own judgment on the issue if it is of the view that the lower court erred in its conclusion.'

[14]        In not considering the appellant' s role as compared to the others and the personal circumstances mentioned above I find that the trial court had erred in its conclusion.

[15]        In the result the appeal against sentence succeeds.

[16]        ORDER

[16.1]   The appeal against convictions is dismissed.

[16.2]   The appeal against sentence is upheld and the sentence imposed by the trial court is set aside and replaced with the following sentence:

The appellant is sentenced to 10 years imprisonment half of which is suspended for 5 years on condition that he is not convicted of robbery or assault or any attempt thereto committed during the period of suspension.

 

 

D NAIR

Acting Justice High Court

Gauteng Division, Pretoria

 

 

I agree and it is so ordered

 

 

N DAVIS

Judge of the High Court

Gauteng Division, Pretoria

 

 

Date of Hearing: 28 May 2018

Judgment delivered: 01 June 2018

 

 

APPEARANCES:

For the Appellants:                               Mr M Botha

Attorney for Appellants:                      Pretoria Justice Centre, Legal Aid,

Pretoria

 

For the Respondent:                             Adv. M. J Nethononda

Attorney for Respondent:                     Director Public Prosecution, Pretoria

 

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