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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

	Case No.: CA&R 220/2011
	Date heard: 15 August 2012
	Date delivered: 18 October 2012
In the matter between:
XOLANI TOYISE	Appellant
and
THE STATE	Respondent

J U D G M E N T

DAMBUZA, J:

1. The appellant appeared before the Magistrate Port Elizabeth on a charge of robbery and was convicted accordingly on 28 October 2011. He was then sentenced to 15 years imprisonment. He now appeals, leave having been granted on petition, against the conviction and sentence.

2. The facts on which the appellant was convicted are that the complainant was driving his motor vehicle described as a “Rover”, along Parliament Street, in the Central suburb of Port Elizabeth when the appellant opened the passenger door of the vehicle and jumped on to the passenger seat. He then ordered the complainant to drive the vehicle, at the same time spraying him with pepper spray in the eyes and removing him from the driver’s seat of the vehicle. The appellant then drove the vehicle to some location, still in Central, where another person, seemingly known to him boarded the vehicle. The appellant and his companion then started assaulting the complainant. At some stage they took him to a flat, still in Central. During the course of the incident the appellant and his companion took the complainant’s watch, his gold necklace, his “USB flash stick”, his cellphone and his wallet which contained his bankcards, a driver’s licence and some money. They forced the complainant to give them his credit card PIN. The appellant’s friend then left the complainant and the appellant at the flat whilst he went to withdraw money from the complainant’s credit card. He was unsuccessful. The appellant also went to try. He was also unsuccessful. The appellant and his friend then took the complainant along with them to withdraw the money himself. They drove in the complainant’s vehicle; it is at this stage that the complainant managed to escape; he ran into a shop at the filling station where his two assailants had stopped for him to withdraw the cash. The complainant then sought help from the shop attendants; indeed the police were called and later on arrived. However, by the time the police arrived at the filling station the appellant and his friend had driven away in the complainant’s vehicle.

3. The complainant then reported the robbery to the police and the police escorted him to the flat where he had been kept captive by the appellant and his friend. On their arrival at the flat one of the two police officers, Sgt Vlooh accompanied the complainant into the flat whilst the other, Const Cola kept guard outside the flat. Whilst Const Cola was standing outside, he observed someone throw something out of one of the windows. This later turned out to be the keys of the complainant’s vehicle. When Sgt Vlooh came out of the flat together with the appellant and the complainant Const Cola recognised the appellant as the person who had thrown the keys out of the window.

4. Inside the flat Sgt Vlooh and the complainant found the appellant wearing the complainant’s gold necklace. The complainant’s other items; the cellphone, the watch, the wallet and the “USB flash stick” were, however, never recovered.

5. In convicting the appellant, the magistrate found the complainant, Const Cola and Sgt Vlooh to have been credible witnesses whose version had a ring of truth. He found support for the complainant’s evidence in the undisputed evidence that, firstly, the complainant reported the incident, i.e. the robbery, at the first opportunity; further, that on their arrival at the flat the police found the appellant wearing the complainant’s gold necklace; and also, that the keys to the complainant’s vehicle were found beneath the window of the flat in which the appellant was.

6. On the other hand the magistrate found the appellant’s version of the incident to be a lie. The appellant’s version was that the complainant was his lover. However this relationship was kept secret as the complainant did not want the public to know that he was in a homosexual relationship. He (the complainant) was driven to lay a false report about the appellant with the police because of jealousy, as a sex worker had arrived at the appellant’s flat whilst the complainant was visiting.

7. It was submitted to us that on appeal the magistrate misdirected himself in ignoring the contradictions in the complainant’s version. Particular criticism was levelled at the complainant’s evidence that he parked his vehicle in one of the two parking bays in front of a shop, when the evidence of Const Cola was that the complainant had told him that the appellant had jumped into his vehicle whilst the complainant was driving along Parliament Street. Firstly, I do not agree that there is a contradiction as submitted on behalf of the appellant. The following appears in the record as the complainant’s evidence in chief:

“This shop has got two parking areas. I entered Parliament Street thinking i was going to park at the parking area at Parliament Street.

Yes? --- As I was to decide to turn to the left hand side and park in a parking bay I then saw this gentleman that is sitting there. He went around to the passenger side. He entered in the motor vehicle quickly.”

8. Whilst it is true that Const Cola’s evidence was that the complainant had told him that:

“...he was driving up Parliament Street. By the robots the accused jumped into his vehicle and wanted money and stuff from him. Accused then took him and took him to the Handle Bar,”

I cannot find that there is, necessarily, a contradiction in the complainant’s evidence on how the robbery occurred and how he had related it to the police. The fact that the complainant may not have stated in his evidence that the appellant demanded “money and stuff” from him is immaterial, as the evidence proves that the complainant was robbed of a number of items and that the appellant and his companion were intent on withdrawing money from his credit card.

9. In my view the magistrate gave a detailed, well reasoned judgement. In rejecting the version tendered by the appellant he found it improbable that the complainant, who, according to the appellant, did not want to go public about his relationship with the appellant, would go and pick the appellant up at a busy part of town, in full view of members of the public, and later park his vehicle about a kilometre from the appellant’s flat so that he would have to walk that distance together with the appellant, in full view of the public to the appellant’s flat. The magistrate also found it improbable, for the same reason, that the complainant would be the first to open the door when a stranger (the sex worker) knocked. It was also improbable that the complainant would throw a fit, as the appellant alleged, when there was no indication that the sex worker was specifically visiting the appellant. The evidence was that there were three other people in the flat, two ladies and the appellant’s companion.

10. I also do agree with the reasoning by the magistrate that there was no reason for the complainant to throw the key to his vehicle out of the window of the flat when the police came.

11. It does not appear from the record that the appellant gave any explanation for wearing the complainant’s gold necklace, or the whereabouts of the complainant’s other items or why the car keys were thrown out of the window of the flat.

12. It also seems to me that the fact that some of the items taken from the complainant were never recovered supports the complainant’s version that the appellant had a co-perpetrator when committing the robbery. The companion was no longer at the flat when the police arrived and it would seem, had disappeared into thin air with the complainant’s cellphone, his “USB flash stick” and his wallet.

13. I am therefore of the view that the magistrate was correct in finding that the state had proved the charges against the appellant beyond reasonable doubt. The appeal against conviction must fail.

14. Regarding sentence, it was common cause before the trial court that the provisions of the section 51 (2) of the Criminal Law Amendment Act 105 of 1997, as amended, were applicable in respect of the sentence. The magistrate did not agree that the factors advanced by Ms Baatjies who appeared on behalf of the accused, constituted substantial and compelling circumstances. Ms Baatjies had submitted that the age of the accused, the fact that he had been employed at the time of his arrest, that he had spent 11 months in custody, awaiting his trial and that the complainant’s vehicle had been returned to him, cumulatively constituted substantial and compelling circumstances.

15. The appellant was 22 years old when he was sentenced; he was not married and had no children. He had left school in standard 8 and was at the time of the robbery, employed at an Engen Garage.

16. I cannot find that the magistrate was wrong in finding that the factors referred to did not constitute substantial and compelling circumstances. He did consider the effects of long term imprisonment on first offenders, particularly young offenders. But he considered the gravity of the offence to be more weighty; particularly that the complainant was not merely robbed of his vehicle, but was taken hostage by the robbers after being assaulted with a pepper spray. As the magistrate remarked, robbery of motor vehicles is one of the most serious and prevalent offences in this country. The arrogant manner in which the appellant committed this robbery indicates that he has no respect for his fellow citizens and the laws that protect them. He was not discouraged by the difficulties he and his companion experienced when attempting to withdraw the complainant’s money from the cash machine; to the extent that he took the complainant to the machine to withdraw the money. Further, and again, as the magistrate found, he did not, at any stage prior to being convicted, show remorse. There is no indication that he has any insight to the traumatic experience that the complainant had endured in his hands. I find no basis on which one can conclude that he is a good candidate for rehabilitation.

17. It is trite that sentencing is a matter pre-eminently within the discretion of the trial court and that a court of appeal can only interfere therewith if there is an irregularity, a misdirection or where the sentence imposed is one which no reasonable court could have imposed or where there is a striking disparity between the sentence imposed by the trial court and that which the appeal court would have imposed.¹

18. I do accept that the remark by the magistrate, that the appellant should have been sentenced to life imprisonment was a misdirection. The appellant had been charged and convicted in terms of section 51 (2) of the Minimum sentences Act and he could only be sentenced accordingly. It is my view, however, that this misdirection is of no consequence and did not affect the propriety of the sentence ultimately imposed by the magistrate.

19. For these reasons I find no merit in the appeal against the sentence imposed.

20. I would therefore dismiss the appeal and confirm both the conviction and the sentence.

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N. DAMBUZA

JUDGE OF THE HIGH COURT

SANDI J

I agree. It is so ordered.

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B. SANDI

JUDGE OF THE HIGH COURT

Appearances:

For the appellant:

Mr A de Jager

Instructed by

the Justice Centre, Grahamstown

For the respondent:

Mr D Els

Instructed by

the National Director of Public Prosecutions, Port Elizabeth

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