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Tabata and Another v S (A16/2009) [2009] ZAWCHC 95 (18 June 2009)

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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No: A16/2009

In the matter between:

D TABATA & ONE OTHER Appellant

Versus

THE STATE Respondent

JUDGMENT DELIVERED ON 18 JUNE 2009

Allie, J

[1] On 8 June 2006 three accused were arraigned in Wynberg Regional Court on a charge of robbery with aggravating circumstances and a charge of attempted murder. All the accused had legal representation. For the sake of convenience the appellants will be referred to as in the court a quo. All pleaded not guilty. Accused 1 was acquitted on both counts on 8 May 2008 while accused 2 and 3 were found guilty of robbery with aggravating circumstances and found not guilty on the charge of attempted murder.

[2] On 8 May 2008 accused 2 and 3 were each sentenced to 8 years direct imprisonment. They now appeal both the convictions and sentence imposed.

[3] It is common cause that on the evening of 1 October 2005, in Mandela Park, Hout Bay, Western Cape, the complainant, one Dumisani Arosi, was attacked and severely injured by accused 2 with a sharp object.

[4] What is in dispute is whether the complainant provoked the perpetrators and whether accused 3 was among the attackers. A further issue in dispute is the allegation by the defence that the complainant had a firearm.

[5] This court raised with counsel the issue of a possible mistaken identification between accused 1 and 3 who were twins. The court a quo did not refer directly to this possibility but from the record the following aspects are mentioned. At the identification parade, the complainant stated that accused 1 looks familiar but he confuses him. He then identifies only accused 2.

[6] Mr Sidimba, a person who knows the complainant and accused 2 and 3 testified that on the night in question he was standing outside his sister's house and the light from her house provided some visibility in the street when the complainant came along in an inebriated state alleging that he was being pursued by people who wanted to rob him. He told the complainant that he should go to sleep. The complainant had an empty beer bottle in his hand. He saw four men grab the complainant. Among the four men he identified accused 2 and 3. He also knew their nicknames. They previously visited a common friend called Dandara.

[7] According to Mr Sidimba, the complainant was lying on the ground. Some of the four men kicked and trampled the complainant. When Mr Sidimba tried to stop the attack, accused 3 pointed a firearm at him and chased him away. In response to a question by the defence as to how he saw the person chasing him, Mr Sidimba responded as follows:

"I saw the fight before I ran because I was coming from the fight. When the fight took place that is when I ran around the corner and up."

[8] Mr Sidimba clearly had adequate opportunity to identify accused 3 whose nickname he also knew.

[9] During the cross examination of Mr Sidimba, the defence put it to him that accused 3 denies that he was on the scene with accused 2 and he will say that he was at home that night. When accused 3 testified, he first said that he was at home. Later he said he was out at a party. When accused 1 and 2 took a firearm to the police station that night, they told the police that it was in the possession of another brother when they decided to hand it in.

[10] Dumisani Arosi, the complainant testified that on 1 October 2005 while he was in a shebeen he was called outside by a person who wanted to pay him R6 000 for a motor vehicle that he had sold. He put the money in his pocket while standing on the side of the street. He went back into the shebeen and bought liquor for the people that were sitting with him.

[11] He walked out towards his house when he received a call from his sister-in-law who needed some money at another shebeen. He gave her R50 while standing outside. At the corner of a street, he felt that he was being stabbed at the back. He became dizzy and fell to the ground. As the person approached him to stab him for a second time, he saw his attacker. He recognised the attacker as someone he had seen in the shebeen earlier. He eventually stood up and ran. He remembers that Mr Sidimba shouted at him to go inside. He was eventually stabbed by many people. He ran and fell into an area where there was running water. He was hospitalised for approximately two weeks. He was stabbed in the left back area and the injury caused damage to his lung. His left hand was also injured. Thereafter he experienced respiratory problems and a weakness in his left hand. When he was in hospital, he could not find his money.

[12] After he was discharged from hospital he saw accused No. 2 in a shop. He went to report his identification of accused No. 2 to the police. Later at the identification parade he pointed out accused No. 2. He also said then that he was turned around and robbed but that was not evidence given under oath nor was that evidence tested in court. He denied attacking accused No. 2 first or having a firearm.

[13] The complainant and Mr Sidimba failed to testify pertinently that they saw the accused steal the complainant's money. The theft element of robbery with aggravating circumstances was accordingly not proved by the state.

[14] Dr Lorimer testified that the complainant sustained multiple injuries inflicted by a sharp object and one of the injuries resulted in his lung being punctured. The wounds were inflicted on the head, neck and chest. Some were 7cm long and were indicative of a slicing action with a sharp instrument.

[15] The complainant had an injury to the nerves controlling his left hand and so that injury had to be at least 4 or 5 cm in depth. The nerve cannot be repaired and the complainant will require further operations on the left hand. It has incapacitated him as his employers wish to have him medically boarded. The most serious injury is the posterior one at the back which penetrated the lung into the chest cavity. Most injuries were to the back of the chest and the back of the scalp. The doctor considered the injuries to be consistent with the use of a scythe or sickle.

[16] The police on duty at Hout Bay police station testified that accused 1 and 2 brought a firearm in to them which they claimed they took away from a third brother of theirs who was not at the police station. In subsequent testimony by one of the police officers, Constable Duna, it became evident that accused 1 spoke to him but gave his name as that of accused 2, namely Deon Tabata. Inspector Lippert testified that he sent Constable Duna with accused 1 and 2 to find the third brother who they claimed possessed the firearm. Constable Duna returned saying that he could not find the third brother who was in fact injured and taken to hospital.

[17] The defence handed in a hospital record of injuries and treatment of accused 2. If accused 2 was the third brother injured and taken to hospital, it is not clear whether accused 1 and 2 brought the firearm into the police station that night and whether it was accused 1 that made the statement using the name of accused 2. What is clear is that all three accused are brothers and accused 1 and 3 had similar features.

[18] Accused No. 2 places himself on the scene as the attacker. He however tries to exculpate himself by alleging that the complainant attacked him with a firearm. He testified that he continued to stab the complainant even after the latter no longer had the firearm. There is accordingly no basis laid for defence, necessity or self-defence as a justification for the attack.

[19] Accused 2's involvement as the attacker is supported by both Mr Sidimba and the complainant. To the extent that Mr Sidimba was able to correctly identify accused No. 2 and to the extent that he was pursued by accused No. 3, who he unwaveringly identified, no doubt exists as to his identification of accused No. 3. Accused No. 3's vacillating versions of where he was on the night in question further supports the conclusion that he participated in the brutal attack on the complainant.

[20] To the extent that the State has failed to prove the theft element of robbery, the conviction of robbery with aggravating circumstances should be set aside and replaced with a conviction on the competent verdict of assault with intent to inflict grievous bodily harm.

[21] The attack upon the complainant was extremely brutal and caused permanent injuries from which he may never completely recover. The sentence does not strike us as being startlingly inappropriate or excessive. The court a quo took into account the fact that accused No. 2 who clearly played a leading role in the attack, had spent approximately 214 years in prison since his arrest and that he was not a first offender like accused No. 3. There is accordingly no basis for this court to interfere with the sentence imposed bythe court a quo.

It is ordered that:

The conviction of robbery with aggravating circumstances is set aside and replaced with a conviction of assault with intent to inflict grievous bodily harm.
The sentence of 8 years imprisonment imposed on both accused is confirmed.

ALLIE, J

I agree and it is so ordered

MOTALA, J