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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: CA 17/13

In the matter between:-

ANDRIES MOGATUSI.............................................................................. Appellant

and

THE STATE..............................................................................................Respondent

CRIMINAL APPEAL

HENDRICKS J et CHWARO AJ

DATE OF HEARING: 22 NOVEMBER 2013

DATE OF JUDGMENT: 28 NOVEMBER 2013

JUDGMENT

CHWARO AJ:

Introduction:-

[1] The Appellant was convicted on two counts, being robbery with aggravating circumstances as contemplated in section 1 of the Criminal Procedure Act 51 of 1977 read with section 51(2) of the Criminal Law Amendment Act 105 of 1997 and housebreaking with intent to steal and theft. Following his conviction by the Regional Court sitting at Lichtenburg, he was sentenced to 10 years imprisonment in respect of the robbery with aggravating circumstances count and 5 years imprisonment for housebreaking with intent to steal and theft. The sentences were ordered to run concurrently with the effective term of imprisonment being 10 years.

[2] This is an appeal against conviction only. Leave to appeal having been granted by the court a quo.

The facts:-

[3] On the 6 May 2010, the Appellant and his accomplice, one Lebogang William Springbok (“Springbok”), met at a tavern known as Temba Tavern within the vicinity of Coligny. After consuming some unspecified quantity of alcohol and having smoked dagga, the Appellant then informed his accomplice that he had access to a certain house in Coligny where they could obtain some money. They then proceeded to the said premises situated at number 3[…] E[…] Street, Coligny. Upon their arrival, the Appellant removed a key which was hidden along the wall of a garage of the premises and opened the burglar door leading into the house.

[4] Once inside the house, an attempt was made to open the door leading into the bedroom of the occupant but it was locked. Thereafter, Springbok grabbed a spade that was lying nearby and force-opened the door. They then gained entrance into the bedroom where they found Maria Magdalene Bester, the complainant, who was 79 years of age at the time. Springbok then hit the complainant with the spade on her head and she fell down. She attempted to stand up and reached underneath a pillow to retrieve a firearm but could not succeed as she was prevented to do so by her assailants. The Appellant delivered some fists blows to her body and kicked her after she had fallen to the ground.

[5] They then ordered the complainant to hand over the keys to the safe which was located in the room adjacent to her bedroom. After having been given the keys, the Appellant opened the safe and took cash in the amount of R8 000-00 from the said safe. They also robbed the complainant of her cellular phone. Thereafter the complainant’s hands and legs were tied with an electric cord and she was locked inside the wardrobe. The assailants left soon after realising that there was a police patrol vehicle passing by along the area of the house in question. They left with the loot as described above and shared the money equally between them.

[6] On the 12 May 2010, some six days after the incident referred to above, the appellant, Springbok and two other accomplices, Flippie and Mokoma, met at Temba Tavern whereat a plan was hatched to go and break into the same house of the complainant at Coligny with the intention to steal. They embarked on such a mission and gained entry into the house through breaking open a window pane and going through the garage. Once inside the garage, Mokoma then broke the passenger window of a red van that was parked inside the garage and removed the fitted vehicle radio. They then went into what is described as a storeroom and began their looting spree consisting of garden tools, a revolver, a pistol and jewellery, all being the property of the complainant. They packed the loot into a suitcase and later proceeded to Tlhabologang location where they looked for buyers of the stolen properties, which were cumulatively valued at R5 342-00. The Appellant handed himself over to the police and was arrested. Some of the stolen items, like battery cables, car jack, battery charger, electric cables and some consumables were later pointed out to constable Moseje by the Appellant.

[7] It is common cause that Springbok was arrested in connection with the two incidents referred to above and pleaded guilty on both counts and was sentenced to an effective 10 years imprisonment. He testified against the Appellant as an accomplice. Besides the statements made by the complainant and one Andries Cornelius Petrus Cronje, which were admitted in terms of section 213 of Act 51 of 1977, his evidence and that of Constable Moseje were used by the trial court to convict the Appellant.

The issues:-

[8] The Appellant then launched this appeal against conviction on both counts on the grounds that the trial court erred in convicting him on the evidence of an accomplice without being alive to the cautionary rule that applies to the evidence of an accomplice and on the pointing out made by him to the police constable Moseje.

[9] In the matter of S v Gentle 2005 (1) SACR 420 (SCA) at page 430j-431a the court stated the following regarding corroboration:

“It must be emphasised immediately that by corroboration is meant other evidence which supports the evidence of the complainant, and which renders the evidence of the accused less probable, on the issues in dispute….”

[10]The complainant did not lead viva voce evidence but her statements, made under oath, were admitted by the trial court in terms of the provisions of section 213 of Act 51 of 1977. There was no objection from such an admission by the Appellant’s legal representative and as such the said statements form part of the record of the proceedings. So much was stated in the matter of S v Boeck 2000 (2) SACR 185 (T) at page 186e-f where the following was said:

“Although the general rule is that evidence must be given viva voce in court in terms of s 160(1) of the Criminal Procedure Act it is clear that evidence other than evidence given viva voce can be accepted by a court of law. See for example s 213 of the Criminal Procedure Act. It is further noteworthy that s 213 does not require such document to be under oath. See s 213(6).”

[11] The relevant part of the complainant’s statement and relating to the issue in dispute, i.e. whether the Appellant was part of the two persons who participated in the offence in count one, is contained in paragraph 1 of the statement made on the 14 May 2010 which contains the following:

“Op Donderdag 2010/05/06 was ek by my woning te E[…] Str 3[…] Coligny. Ek bly alleen daar. Die aand ongeveer 20:00 het ek kamer toe gegaan om te slaap. Ek sluit in die aand my kamerdeur ook toe wanneer ek gaan slaap. Ek het later eers my lig afgesit.Skierlik het ek ‘n snaakse geluid in die huis gehoor. Ek het opgestaan om te gaan kyk wat dit was. Ek het my kamerdeur oopgesluit om uit te gaan. Daar het ek my vasgeloop in 2 swart mans. Hulle het my gegryp en een van hulle het my met iets oor my kop geslaan. Ek het geval. Hulle het toe my hande en voete vasgebind en my in my kamer op die vloer gegooi. Daar het hulle begin om in my goedere te krap.Toe hulle in my kamer klaar was, het hulle my in die kamer toegesluit Ek kon hoor hoe hulle in die huis te kere gaan. Ek het baie gebloei a.g.v die wond aan my kop, en was ook baie deurmekaar”

[12] The version of events as outlined by the complainant above were corroborated in material respects by Springbok during his testimony to the effect that he and the Appellant went to the complainant’s house on the night in question and robbed her of her belongings in a manner as described by the complainant.

[13] In respect of count two, the evidence of the complainant that certain items were stolen from her house was corroborated by Springbok and the evidence of Constable Moseje who retrieved certain stolen items after having been pointed out by the Appellant voluntarily and under circumstances where he was not coerced to do so by anyone.

[14] In its evaluation of the evidence led before it, the trial court was very much alert about the evidence of an accomplice who was already convicted of the same offence and serving a sentence. To that effect, the court referred to a number of court decisions dealing with the cautionary rule as it applies to evidence of an accomplice and a single witness. The court even went to the extent of criticising his evidence in respect of his testimony about the date when the Appellant was arrested. The trial court found, in the end, that his evidence was satisfactory and reliable under the circumstances.

[15] The finding by the trial court on the veracity and reliability of Springbok’s evidence as a former accomplice and a single witness cannot be faulted in any respect. I am of the firm view that the trial court was mindful of the possible dangers inherent in the testimony of an accomplice and a single witness. It applied its mind to the issue at hand and correctly convicted the Appellant in respect of the first count. It must be noted that the evidence of an accomplice does not need to be wholly truthful, consistent or reliable. The court must only concern itself, after its application of the cautionary rule, that the truth has been told.

See: S v Francis 1991 (1) SACR 198 (A)

[16] Similarly, the conviction of the Appellant in respect of the second count cannot be disturbed. The court was mindful that Moseje was a single witness and even evaluated the nature of the pointing out which were eventually admitted as admissions on the basis that the Appellant made those pointing-outs voluntarily and without being coerced into making them.

See: S v Yende 1987 (3) SA 367 (A)

Conclusion:-

[17] In the premises, the trial court was correct to reject the version of the Appellant to the effect that he was not present during and did not participate in the commission of the two offences as not being reasonably possibly true. There could be no suggestion that the trial court merely paid lip service to the cautionary rule as it applies to a single witness and an accomplice. The trial court went at length to evaluate the evidence well aware of the cautions that it had to cushion against a wrong conviction. Consequently, I am of the view that the appeal against conviction should fail.

Order:-

[18] In the result, the following order is made:-

The appeal against conviction is dismissed.

O.K.CHWARO

ACTING JUDGE OF THE HIGH COURT

I agree

R.D.HENDRICKS

JUDGE OF THE HIGH COURT

APPERANCES:

COUNSEL FOR THE APPELLANT: ADV. KHAN

COUNSEL FOR THE RESPONDENT: ADV. DE BEER

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