---

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION : GRAHAMSTOWN

CASE NO. CA & R 119/2013

In the matter between:

ZANOXOLO KAYO BUWA ............................................................Appellant

and

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

APPEAL JUDGMENT

GRIFFITHS, J.:

[1] The appellant in this matter was convicted in the regional court, Port Elizabeth, on one count of robbery with aggravating circumstances, one count of unlawful possession of a firearm and one count of unlawful possession of ammunition. Although the learned magistrate did not express this in so many words, it is clear from his judgment that all three counts were taken together for the purposes of sentence. The appellant was sentenced to 15 years imprisonment. He was granted leave to appeal to this court against both the convictions and sentence.

[2] The State relied on the evidence of, in effect, three eyewitnesses and the evidence of two policemen who had effected the arrest of the appellant and two other persons who had accompanied him at the time of arrest. One of these persons had died before the trial and the other stood trial with the appellant. The appellant gave evidence in his own defence.

[3] The case for the State was that on 4 May 2007, the appellant, and two others, had arrived at the premises of H H Imports, Cape Road, Mill Park, in a bluish green Nissan bakkie and had asked for one Bibi. They thereafter threatened the employees of the firm with both a firearm and a knife and robbed them certain items including money, jewellery and cell phones. During the course of the robbery the said employees were made to lie down on the floor of the warehouse and received injuries in the form of bruising from the force exerted on them, and from the fact that the appellant and his colleagues had kicked them whilst walking over, or around, them.

[4] The appellant and his colleagues apparently loaded their vehicle with the stolen items which were, in the main, placed under a sale in the bakkie. After they had left, the complainants and other employees managed to escape from the premises through a window whereafter the police were summonsed. Two policemen who were on patrol at the time were notified of the incident and were provided with the necessary information relating thereto. In the result, they identified the bakkie in which the robbers had escaped and set off after it. Despite the fact that they had their siren and flashing blue lights switched on, the bakkie had not immediately stopped but had proceeded. They were thus forced to pass and intercept it.

[5] The policemen searched both the occupants of the vehicle and the vehicle itself and found various items such as cell phones, cash and jewellery. In addition, they found some sets of binoculars, battery-operated toy vehicles, game sets and braai kits. Near to the bakkie and in some bushes situated close to the road, they found a firearm. This all occurred relatively shortly after the robbery had taken place.

[6] The appellant was identified by the employees/complainants. In addition, an entirely independent witness, one Finnis, who was at the time waiting outside the premises of the business, had noticed this bakkie drawing up at the curb outside the business and had observed the appellant together with another leaving it and entering the premises. He had later seen the appellant leaving the premises carrying a bag which he loaded onto the bakkie. He had thereafter re-entered the premises. The appellant had again left the premises together with the deceased carrying two boxes and two bags, one of which was smaller than the other. The appellant together with his colleagues had thereafter departed in the bakkie. This witness clearly identified the appellant.

[7] As against this evidence, the appellant maintained that he had merely been in the vicinity by chance as he was seeking employment at the time. When he had arrived at the business premises concerned, he had been told by a tallish man of dark complexion that he was to assist in loading certain things onto the bakkie, which he had proceeded to do. He had thereafter been told to accompany the occupants of the bakkie and that he would be paid later. At no stage had he noticed any weapons such as a knife or a firearm and he had not entertained any suspicion whatsoever that these persons were in the process of perpetrating a robbery.

[8] It is unfortunate that the court a quo did not give a fully reasoned judgment. Furthermore, the State appears to have failed somewhat in its duty to place all the evidence before the court. In this regard, no evidence was led to positively connect the items found by the police on the bakkie with those that were actually stolen from the complainants. However, in my view, it is clear that the evidence against the appellant was nonetheless overwhelming. Indeed, the appellant himself conceded that he was present at the premises so that there could not have been any mistake with regard to identification. Furthermore, on his evidence he had indeed assisted in removing certain items from the complainants’ premises and thus it can be accepted beyond doubt that the items found by the police on the very same bakkie a short while later were indeed the same items which had been stolen.

[9] In my view, the only question to be asked in this matter is as to whether or not the appellant's version that he was, as it were, an innocent bystander can be accepted as being reasonably possibly true. In this regard, the evidence of the complainants was to the effect that he was involved in the robbery. Furthermore, it is improbable in the extreme that during the course of conveying the goods from the business premises to the bakkie he would not have noticed that the persons whom he was assisting were in the process of committing a robbery. Not only were these persons possessed of weapons in the form of a knife and a firearm which they were using to control the employees present in the business and to prevent them from interfering with the robbery, but those very persons were apparently lying in the way and were clearly in a state of submission. Indeed, the evidence was that they had to be "stepped over" during the course of which at least one of them was kicked by the robbers as they were entering and egressing the building. The evidence of the appellant to the effect that he was simply carrying out the duties assigned to him and had not noticed such obvious and unlawful activities occurring right under his nose is, under the circumstances, manifestly untruthful.

[10] Accordingly, despite the lack of reasoning in this regard by the court a quo, I am satisfied that its conclusion that it should reject the appellant's version as being false was the correct one. In my view, there can be no doubt but that the appellant was involved in this robbery. Furthermore, there was ample evidence to the effect that a firearm was involved. A firearm was found lying very close to the bakkie after it had been intercepted by the police. There was ample time for the occupants of the vehicle, which included the appellant, to throw the firearm out of the vehicle whilst the police were following them and in the process of intercepting them. In my view therefore the appellant was correctly convicted of being in possession of an unlicensed firearm on the basis of common purpose and there being no evidence that either he, or any of the other robbers, had been licensed to possess it.

[11] As regards the conviction relating to possession of ammunition, in my view there was a dearth of evidence in this regard and the appellant ought to have been acquitted on this charge. Mr. Els, who appeared on behalf of the State, candidly conceded this.

[12] With regard to the question of sentence, by virtue of the fact that there were aggravating circumstances present the court a quo was obliged to sentence the appellant to 15 years imprisonment unless substantial and compelling circumstances were found to exist which justified a lesser sentence pursuant to the provisions of section 51 of the General Law Amendment Act, No.105 of 1997. The appellant is 40 years of age and has two children of eight and 19 years of age respectively. He is unemployed and has a standard 6 level of education. As against this, he has two relevant previous convictions, one for theft and one for robbery. This case involved a serious violation of the rights of the complainants and was clearly premeditated. Weapons, in the form of a firearm and a knife, were employed to suppress any resistance from them. In the circumstances, Ms. Mtini, who appeared in this matter for the appellant, was, not surprisingly, somewhat hard pushed to submit that substantial and compelling circumstances exist in this matter. The fact that, as alluded to earlier, I am of the view that the appeal with regard to possession of ammunition should succeed, does not in my view make any difference whatsoever in this regard.

[13] Accordingly, I am of the view that the appeal should succeed only to the extent that the conviction on count 4 (possession of ammunition) should be set aside but that the sentence of 15 years imprisonment imposed by the court a quo should not be interfered with.

I would accordingly propose the following order:

1. The appeal with regard to count 4 succeeds and the conviction in this regard is set aside;

2. In all other respects the appeal is dismissed.

JUDGE OF THE HIGH COURT

CHETTY, J. : I agree and it is so ordered

JUDGE OF THE HIGH COURT

HEARD ON : 31 JULY 2013

DELIVERED ON : 15 AUGUST 2013

---