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[2009] ZAECGHC 49
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Katangola and Others v S (CA&R94/08) [2009] ZAECGHC 49 (5 August 2009)
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FORM A
FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT
PARTIES:
GUSTAF KATANGOLA FIRST APPELLANT
LAURENCE MAWANDA SECOND APPELLANT
LUVUYO MAGA THIRD APPELLANT
MTUZUMELE KLAAS FOURTH APPELLANT
IMMANUAL KATUNGA FIFTH APPELLANT
AND
THE STATE RESPONDENT
Registrar: CASE NO: CA&R94/08
Magistrate:
High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN
DATE HEARD: 5/8/09
DATE DELIVERED: 5/8/09
JUDGE(S): PLASKET J
LEGAL REPRESENTATIVES –
Appearances:
for the Appellant(s): Mr C. Renuad
Mr N.E. Skepe and Mr J.C. McConnachie
for the Respondent(s): Mr H. Obermeyer
Instructing attorneys:
Appellant(s): Legal Aid Board.
Respondent(s): Director of Public Prosecutions, Grahamstown
CASE INFORMATION -
Nature of proceedings : Criminal Appeal
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE - GRAHAMSTOWN)
CASE NO: CA&R94/08
DATE HEARD: 5/8/09
DATE DELIVERED: 5/8/09
NOT REPORTABLE
In the matter between:
GUSTAF KATANGOLA FIRST APPELLANT
LAURENCE MAWANDA SECOND APPELLANT
LUVUYO MAGA THIRD APPELLANT
MTUZUMELE KLAAS FOURTH APPELLANT
IMMANUAL KATUNGA FIFTH APPELLANT
AND
THE STATE RESPONDENT
JUDGMENT
PLASKET J
[1] Six accused were charged in the Regional Court sitting in Joubertina on charges of robbery with aggravating circumstances, the unlawful possession of a fire arm, the unlawful possession of ammunition, falsely representing to be members of the South African Police Service in contravention of s 68(1) of the South African Police Service Act 68 of 1995 and the unlawful possession of drugs.
[2] Accused number 2 was acquitted on all counts. The remaining accused were acquitted on the charge of the unlawful possession of a firearm and the unlawful possession of ammunition. Accused number 3, the second appellant, was convicted of the offence of falsely representing to be a policeman and of unlawfully possessing drugs. The remaining accused were acquitted of these offences. All five of them were, however, convicted of the offence of robbery with aggravating circumstances. For this offence, they were each sentenced to eight years imprisonment. In addition, the second appellant was sentenced to six months imprisonment on each of the counts of falsely representing to be a policemen and unlawful possession of drugs. These sentences were ordered to run concurrently with the sentence in respect of the robbery with aggravating circumstances.
[3] The appellants were granted leave to appeal against both conviction and sentence when they petitioned the Judge President, leave having been refused by the magistrate who presided in the trial. Subsequent to leave to appeal being granted, however, the first appellant withdrew his appeal and the second appellant died. This judgment is therefore only concerned with the appeals of the third, fourth and fifth appellants who where, respectively, accused number 4, accused number 5 and accused number 6 in the trial.
[4] At about midnight on 26 October 2004 and in Joubertina a group of men entered the house of the complainant, Nomsa Silevu, where she ran a tavern. Two, according to her, were armed with firearms. One was dressed in police uniform. They robbed her of money, alcohol, a cell phone and a watch. That much, if not common cause in the trial, was not seriously in dispute.
[5] Shortly after the complainant was robbed, two motor vehicles carrying the accused were stopped by the police in Port Elizabeth and were found to have articles stolen from the complainant as well as a pellet gun. A pistol was found nearby. The complainant testified that one of the robbers was armed with a ‘long gun’ while another was armed with a hand gun.
[6] The State relied mainly on the evidence of the complainant, supported by that of one of her employees, a friend and two policemen. None of the accused testified but they all made admissions in terms of s 220 of the Criminal Procedure Act 51 of 1977. I shall say more of those admissions in due course.
[7] The complainant was a single witness as far as the identification of the third and fifth appellants were concerned. She testified that both were present in her house when the robbery was committed. She also testified that she had pointed both of them out, as well as accused numbers 1 and 3 at an identification parade. That evidence was not challenged and neither was the propriety of the identification parade. The magistrate approached the complainant’s evidence with the caution required when dealing with a single witness. He found that she was not a particularly good witness but he sought and found corroboration for her version and he took into account the failure of the accused to testify, as he was entitled to.
[8] The complainant’s evidence was that the fourth appellant was not present during the robbery. She knew him and testified that he and his girlfriend had visited her home a short while before the robbery.
[9] It is argued on appeal that the third appellant had, on the State’s case, dissociated himself from the robbery and had attempted to persuade his co-accused to leave the scene. It was argued on behalf of the fourth appellant that the inference that he was party to the robbery was not the only reasonable inference that could be drawn from the circumstantial evidence against him. It was argued on behalf of the fifth appellant that there was simply insufficient evidence upon which to convict him. I shall now deal with the case of each appellant.
[10] The evidence of the complainant was that the third appellant entered her house and participated in the robbery. When money was taken from her person by accused number 3 it was given to the third appellant who left with it but returned to the scene of the robbery. Later when she was taken to the upstairs part of the tavern she saw the third appellant and the fifth appellant there. The third appellant asked her for the keys to the safe. After a discussion among the robbers, it was decided not to bother to open the safe and the third appellant said that they should leave.
[11] They did not leave. Instead, the complainant was bound. An argument between accused number 1 and accused number 3 followed about whether she had been bound tightly enough. Then accused number 1 told accused number 3 to shoot her. He refused to do so. He did, however, search her and in the process indecently assaulted her. The third appellant again suggested that they leave but they did not do so once again. Instead, they decided to steal alcohol from the complainant as well. The third appellant asked her where they could find empty cases. They loaded bottles of alcohol into the cases and left with them.
[12] In addition to this evidence the third appellant made certain admissions. He admitted that he was in a motor vehicle with accused number 1 and accused number 3 when it was stopped by the police. A pellet gun, eight bottles of alcohol and R972.05 was found in the vehicle. He also admitted that accused number 3 was dressed in a policemen’s jacket and wore a police cap.
[13] The evidence of the complainant is the only evidence that the third appellant spoke in favour of leaving the scene of the robbery. This occurred while it was being carried out and despite him suggesting they leave on two occasions he never left before the robbery had been completed: indeed, after he spoke of leaving for the second time, he remained and assisted in stealing the complainant’s alcohol.
[14] Finally, the third appellant never testified. In any event, he never put any of the complainant’s evidence about his conduct during the course of the robbery in dispute. The only aspect that he disputed was when precisely he entered the house initially.
[15] In my view, the evidence of the complainant, which was common cause between her and the third appellant, and his admissions do not establish an act of dissociation on the part of the third appellant. Instead, they establish that he was party to a common purpose to rob the complainant, that he performed certain acts in the furtherance of that common purpose and that he was later found in possession of property stolen from the complainant.
[16] The complainant’s evidence was that the fourth appellant had visited her home a short while before the robbery. She never saw him while the robbery was being carried out. She knew him by sight and had known him for some time. If he had entered her house during the course of the robbery, she would, of course, have recognised him.
[17] Like the other accused the fourth appellant never testified. He did, however, make admissions. He admitted that his motor vehicle was stopped by the police shortly after the robbery. He was in the company of accused number 2 (who was acquitted) and the fifth appellant. He admitted that he was found in possession of R2 281.00 in cash and that 23 bottles of alcohol were in the vehicle.
[18] It cannot be seriously contended that the alcohol was not the property of the complainant. In addition, the complainant’s cell phone was found in the motor vehicle. This evidence given by Sergeant Andries Jacobs of the South African Police Service was not challenged. As the fourth appellant failed to testify, there is no explanation at all as to how the stolen articles came to be in his motor vehicle.
[19] The fourth appellant’s conviction rests on circumstantial evidence. The question that needs to be answered is whether, from the evidence that I have outlined, the only reasonable inference to be drawn is that the fourth appellant was party to the common purpose to rob the complainant.
[20] It is apparent from the evidence as a whole that the robbery was planned with care. Secondly, the robbery occurred at about midnight. Thirdly, the fourth appellant did not reside in Joubertina but in Dispatch, according to the complainant. Fourthly, he was found with the complainant’s property in his motor vehicle. In my view, the only reasonable inference that can be drawn from these facts is that the fourth appellant was indeed a party to the robbery and that his role involved conveying goods stolen during the robbery as well as one of his co-accused from the scene of the robbery. That being so, his association with the robbery had been established.
[21] I turn now to the fifth appellant. The complainant testified that the fifth appellant had entered her home with two of the other robbers and that he was carrying a ‘long gun’ (which later was found to be a pellet gun). When she was taken to the upstairs part of the tavern during the robbery she saw him with the third appellant (who asked her for the keys to the safe). When she was tied up, the fifth appellant brought cellotape with which to tie her up. He also took part in the stealing of her alcohol.
[22] The fifth appellant never testified but he made certain admissions. They were that: he was in a motor vehicle with accused number 2 (who was acquitted) and the fourth appellant when it was stopped by the police shortly after the robbery had occurred; R2 281.00 was found in the possession of the fourth appellant; and 23 bottles of alcohol were found in the vehicle. As I have said above, the evidence of Sergeant Jacobs established that the complainant’s cell phone was also found in the vehicle. On these facts, I am satisfied that the guilt of the fifth appellant has been proved beyond reasonable doubt.
[23] My conclusion is that the appeals of the third, fourth and fifth appellants against their convictions must fail. I turn now to sentence.
[24] The magistrate found that substantial and compelling circumstances existed that justified him departing from the minimum prescribed sentence of 15 years imprisonment for a conviction for robbery with aggravating circumstances. In short, he found that the fact that the appellants had been incarcerated for three years awaiting trial, their personal circumstances and clean records and the fact that the stolen property was recovered all entitled him to impose a sentence less severe then 15 years imprisonment. He settled on eight years imprisonment in respects of each of the appellants.
[25] The robbery of which they were convicted was, in my view, a serious one. A gang of five men planned the robbery with some care. One of them disguised himself as a policeman to facilitate access to the complainant’s premises in the middle of the night. The complainant, although not injured, was indecently assaulted and tied up as were her staff members and one of her children. She was subjected to threats of violence. Two of the robbers were armed, one with a pistol and one with a pellet gun. A significant amount of money was stolen as was alcohol, a cell phone and a wrist watch.
[26] When the seriousness of the offence is balanced with the personal circumstances of the appellants and the interests of society, I am of the view that the sentence imposed can certainly not be categorised as being shockingly inappropriate. Furthermore I can see no misdirection on the part of the magistrate. The appeals of the third, fourth and fifth appellants against their sentences must therefore fail.
[27] In the result the appeals of the third, fourth and fifth appellants against both conviction and sentence are dismissed.
____________________
C. PLASKET
JUDGE OF THE HIGH COURT
I agree.
___________________
F. KROON
JUDGE OF THE HIGH COURT
APPEARANCES
For the third appellant: Mr C. Renuad instructed by the Legal Aid Board.
For the fourth appellant: Mr N.E. Skepe instructed by the Legal Aid Board
For the fifth appellant: Mr J.C. McConnachie instructed by the Legal Aid Board
For the respondent: Mr H. Obermeyer of the office of the Director of Public Prosecutions, Grahamstown