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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 HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

                                                                                                CASE NO: CA&R255/2015

In the matter between:

LANCE Mc CARTHY                                                                                                   Appellant

v

THE STATE                                                                                                                Respondent

JUDGMENT

MBENENGE J:

[1] The appellant (in the court a quo arraigned as accused 1), together with two others who were found not guilty and discharged at the conclusion of the relevant trial by the Regional Magistrate, Port Elizabeth,[1] faced two counts of robbery with aggravating circumstances, two counts of kidnapping, and two counts of assault with intent to do grievous bodily harm.

[2] It was alleged that the appellant and the erstwhile accused had, on 9 March 2012, at or near Gelvendale, unlawfully and intentionally assaulted Lunga Qaba (Lunga) and did then and with force take from him his property or property in his lawful possession to wit, a Jetta sedan motor vehicle with registration letters and number [C.....] (the Jetta), a wallet and an LG cellphone, aggravating circumstances having been the fact that Lunga had been assaulted and threatened with a firearm (count 1).  Phumeza Malangabi (Phumeza) who was allegedly unlawfully, intentionally and by force divested of cash amounting to about R40.00, a blackberry cellphone, a watch, a leather jacket and “tackies”, on the same date and place was the complainant in count 2, aggravating circumstances even in her instance having been the fact that she was assaulted and threatened with a firearm (count 2).

[3] Counts 3 and 4 concerned the kidnapping of Lunga and Phumeza (the complainants).  It was alleged that the appellant and his co-robbers had unlawfully and intentionally deprived the complainants of their freedom of movement by forcing them into the Jetta whilst being driven around and by thereafter abandoning them in an open space whilst being tied up.

[4] The assault GBH counts, comprising counts 5 and 6, concerned the alleged unlawful and intentional assault of the complainants by the appellants and the erstwhile accused who are said to have hit the complainants with fists and open hands, and kicked them with booted feet, at the same place and on the same date mentioned in the other counts.

[5] As earlier pointed out, the erstwhile accused, about whom less will be said hereafter, and the appellant pleaded not guilty to all the charges.  It was further stated, at the commencement of the trial, that the appellant’s “defence [was] … a bare denial” and that the appellant “[didn’t] know any of the persons that are complainants and no items …were found in [his] possession.” 

[6] The appellant was found guilty on all counts and thereupon sentenced to undergo 15 years imprisonment, with all the counts treated as one for purpose of the sentence.

[7] The evidence of the complainants before the court a quo established the following.  They (the complainants) had been part of a group of about five co-employees of Spar, Eastern Cape, Perseverance, who, upon knocking off duty on the fateful afternoon (on 9 March 2012), made their way to a club house in Bluenote, Gelvandale where they had a few drinks.  At some stage, the complainants left the club house and drove in the Jetta to a service station to buy themselves some food.  Soon thereafter, they returned to the club and parked outside. Whilst they sat in the car, four men emerged in the scene.  One of those men carried a firearm, and ordered the complainants to hand over all valuables in their possession.  Both front doors of the Jetta were opened, and the captors immediately conducted a search in the car.  Lunga handed over his cellphone (valued at R2000), a wallet containing some money (between R100 and R200) and his driving licence. The one captor who carried a firearm fled the scene taking with himself the stuff surrendered by Lunga, and leaving behind the three other co-conspirators.  None of the captors covered his face during this encounter, and their faces were recognizable.  The appellant and another of the captors did most of the talking.  He (the appellant) wore a tracksuit and a hooded top.

[8] According to Lunga, the remaining captors, including the appellant, “drove …the car” whilst they “were still in it, around Gelvandale, but in between, while they were driving, they kept assaulting [them] with their fists and also [slapped Phumeza].”  He further said “[t]hey continued to ask for more valuables, whereby [he] pointed to things that [he] could remember that were in the car, of value.”  Phumeza testified that whilst in the Jetta she was given a few punches with clenched fists and slapped with open hands “because [she] was asking lots of questions.”

[9] All the while the appellant sat on the rear seat of the Jetta with the complainants, whilst one of the three captors drove the Jetta. When they reached a bushy area in the outskirts of Gelvandale, the Jetta was brought to a stationery position.  Phumeza tried alighting from the Jetta.   She was kicked at on her stomach and on her face.  She also tried fighting back one of the captors. In the course of that she scratched the captor on his back with her earring. Phumeza thereupon handed over her cellphone and her earring to the captors. Some other stuff, including bags left in the Jetta by the co-workers that had been in the complainants’ company much earlier on, was removed from the Jetta. They (the captors) also threw away stuff they considered not valuable. The complainants were ultimately caused to alight, subjected to further assaults whilst a search for further valuables was being conducted in the Jetta. The Jetta keys must have gone missing thereafter, for the captors started demanding the keys, which were ultimately recovered by one of them (described as “the tall guy”).  Thereafter, they tied up the hands of the complainants, and made their getaway in the Jetta, leaving the complainants in the bushes, still tied up.

[10] The complainants managed to walk to nearby houses, and with the aid of residents, police were summoned to the scene.  The complainants sustained injuries.  Lunga’s right ear was torn.  His head was swollen, and his left eye shut completely.  Phumeza sustained an extremely swollen face.  She had bruises and her body was sore. She was booked off sick from work for about a month and also attended counselling sessions with a psychologist. The Jetta was never recovered.

[11] At the behest of the police, an identification parade during which the complainants identified the appellant as having been one of the assailants at whose hands they suffered on the night in question, was subsequently held.

[12] The police who attended upon the scene, including Warrant Officer Smith, picked up thereat a blood stained court indemnity form relating to another court case that bore the appellant’s names.  During investigations that were subsequently conducted, the police questioned the appellant about his knowledge of and the whereabouts of the form.  He said he had forgotten the form in his jacket.  When the police showed him the form he became nervous.

[13] During his testimony in chief, the appellant initially disavowed knowledge of the identity form.  When further questioned, he stated that the indemnity form had been found in the inner pocket of the jacket he wore when being questioned by the police.  Under cross examination the appellant was hard put to explain why the version of the prosecution in relation to how the police got to be in possession of the indemnity form was not challenged.  He also could not explain how it came about that the indemnity form was found at the scene, if all the while it had been in his jacket.

[14] The appellant bore a scratch mark on his back.  According to him he had sustained the scratch during a scuffle he had with his girlfriend earlier the same evening, which flew in the face of Phumeza’s testimony.  He also could not explain why the testimony of him having been pointed out at an identification parade was not challenged when the relevant witnesses testified.

[15] The court a quo found that the complainants had been credible and reliable witnesses who identified the appellant as having been one of the assailants and that the complainants’ testimony had received sufficient corroboration. In conclusion, the court a quo held:

“All these factors pointed to one aspect, that accused 1 cannot be telling the truth when he says, when he was arrested by the Police, his indemnity from was in his pocket.  And he cannot be telling the truth when he says that he, it is his girlfriend that inflicted the injury on his back, before this incident.  When looking closely at the version of the accused, as to his whereabouts on the 9^th of March and the fact that he initially, during examination of these witnesses claimed that he was pointed during the ID parade, and later when he testified, changed his version, to say he was actually pointed out, when looking at this factors, and the evidence in its totality, they impact negatively to his credibility in so far as his contention that he did not rob the two complainants on the day in question.  Accused 1 claims that on the day of the incident, or at the time of this incident, he was at home, and he was drunk.  And he did not leave home since seven o’clock on that evening.  This is the defence of an ilibi and the accused bears no onus to prove his defence to be true.  The State still bears the onus to prove his alibi defence to be false.  Now the Court must look closely at the evidence in its totality to consider whether the accused version could be probably true, in that there is probability that he may have been at his home, at the time of the commission of the offence.  What is clear is that the evidence of the witness who claimed that he was part of those that robbed him, and that he says he was at his home on the day in question, cannot both be true.  The evidence is overwhelming that accused 1 was positively identified by both Mr Qaba and Ms Malangabi during the incident, and that there is no probability that he may have been somewhere else at the time of their robbery.  The evidence is clear that he took part, and that he is one of those that attacked them on the day in question.  The evidence discharges beyond reasonable doubt that his alibi defence is false.”

[16] Mr Geldenhuys, who appeared for the appellant, quite correctly so, did not persist in the contention that the appellant had not been proven with the requisite degree to have been involved in the commission of the relevant offences, as indeed there is overwhelming evidence of the appellant having been one of the complainants’ captors on the night in question.  In my view, the court a quo’s finding that the appellant was one of the co-conspirators on the night in question is unassailable.

[17] Mr Geldenhuys instead submitted that there had been a duplication of convictions.  The conviction on the two counts of assault GBH as well as the two counts of kidnapping, he argued, constituted a duplication of convictions, in as much as the violence inherent in those offences was directed at facilitating the theft and therefore formed part of the robbery; the actions which were held to constitute the assault and kidnapping were so closely connected to the theft of the motor vehicle and the other items removed from the complainants that the whole incident in fact constituted one single course of action namely, robbery.

[18] It was further contended, on behalf of the appellant, that the trial court misdirected itself by finding that the prescribed sentence was one of 20 years, whereas the applicable prescribed minimum sentence was one of 15 years imprisonment, in light thereof that the appellant is a first offender of robbery with aggravating circumstances.

[19] The grounds of the appeal that were vigorously persisted in are dealt with seriatim.

[20] The contention that there was a duplication of convictions requires scrutiny.   It is so that section 83 of the Criminal Procedure Act 51 of 1977 provides that where it is doubtful as to which of several offences is constituted by the facts of a case, an accused may be charged with the commission of all or any such offences and such counts may be tried together.

[21] However, it is impermissible for an accused to be convicted of all charges if more than one charge or conviction results from the same criminal act.  The reason for this is not far to seek; it exposes an accused person to being convicted twice in the same case for the same offence and he could be sentenced more than once for the same offence.[2]  The prejudice is evidently more serious in cases where compulsory minimum sentences apply.[3]  In the Dlamini case[4] Cachalia JA said of the test applicable in deciding whether duplication has occurred:

“[19] Our courts have applied different tests to decide whether duplication has occurred.  In S v Maneli[5] Stricher JA explained:

‘One such test is to ask whether two or more acts were done with single intent and constitute one continuous criminal transaction.  Another is to ask whether the evidence necessary to establish one crime involves proving another crime.’

[20]      There is, however, no all-embracing formula.  The various tests are more guidelines they are not rules of law, nor are they exhaustive.  Their application may yield a clear result, but, if not, a court must apply its common sense, wisdom, experience and sense of fairness to make this determination.”[6]

[22] At first blush one may jump to the conclusion that the single common intent of the appellant and his co-robbers involved the threat to take property from the complainants and the taking of other property in one continuous transaction was accomplished through a single threat of violence directed at the complainants simultaneously and that, therefore, only one offence was committed.[7]  Indeed, the complainants were subjected to continuous assaults with their captors pressing to divest them of more items, even whilst they were deprived of their freedom of movement and being confined to and driven in the Jetta, all of which  point to a single intent and one continuous transaction from the moment the complainants were approached by their captors to the time the captors escaped the scene, justifying the conclusion that the appellant was guilty of and liable to be sentence for one count of robbery with aggravating circumstances.

[23] The difficulty with the thesis set out above, however, is that it eschews the principle enunciated in the majority judgment in the Dlamini case, wherein Majiedt JA[8] remarked:

“One might ask rhetorically.  If the three women had been raped by the appellant, can it ever be argued that there was only one offence of rape?.  Reverting to robbery:  If violent act are performed on a number of persons, but properly in taken from only of them then there is only one robbery, and several assaults, as was the case in Maneli.  If violence is directed at only one person, but property is taken from several persons, including the one against whom violence was directed, then there is one robbery and several thefts.  But where violence or threats are perpetrated against three persons and property taken from all three as a result of such violence of threats, there are three robberies.  The point can be made by simply – asking who was robbed by the appellant?  If it was only one robbery, the inevitable consequence must be that only one of the women was robbed of all of the property, despite the fact that it was taken from the possession of the others.  The next logical question would be-who is the woman that was robbed?  The difficulty in answering these questions does not rise when they are posed in respect of Maneli.  There Mr Maske, the complainant, was robbed of all of the property, as it was in his possession or under his control.  The presence of others, against whom violence was directed in the course of robbery, was merely incidental to the robbery of the complainant, although the accused in Maneli could legitimately have been charged with the assault of the other persons.  In the present matter, however, property was taken from the possession and control of each of the women separately, through the use of threats of violence.”

[24] In my view, the facts of this matter similarly point to separate intent by each of the complainants’ captors to rob each of the complainants.  Here, as in the Dlamini case, property was taken from the possession and control of each of the complainants separately, through the use of threats of violence.

[25] That disposes of the issue of whether the appellant was properly convicted of two counts of robbery, leaving the court having to decide whether on the facts of this matter the kidnapping and assault conviction did not constitute duplication.  This issue was not, from a reading of the record, raised, the pertinent issue having been confined to whether or not the appellant had been proven to have been one of the co-conspirators on the night in question.  In this regard, the magistrate said:

“…when looking at the evidence, the evidence is overwhelmingly clear that accused 1 participated when the two witnesses were robbed.  He is found guilty as charged on all six counts.”

[26] The rule has always been that “where a man commits two acts of which each, standing alone, would be criminal, but does so with a single intent, then it seems to me that he ought only to be indicted for one offence, because the two acts constitute one criminal transaction.”[9]

[27] In my view, the facts of this matter make it probable that the confinement of the complainant in the Jetta whilst their captors were demanding more items from them up to the time they were left tied up in the bushy veld was to subjugate them to the taking of more items that might still not have been surrendered.  The further assaults meted out to the complainants were committed with the object of divesting the complainants of further items.  That objective was fulfilled when Phumeza surrendered her cellphone and her earing, and further items removed from the Jetta, before the captors got away.  Leaving the complainants in the veld with their hands tied up cannot on its own constitute a separate offence.  It was merely to ensure that the co-conspirators were able to escape from the scene without hindrance.  The facts do not point to the appellant and his co-conspirators as having formed a separate intent to kidnap and to assault the complainants.[10]  It seems clear that in order to effectively rob the complainants their captors had to kidnap and assault them in the process.

[28] In these circumstances, the kidnapping and assault charges constituted an improper duplication of convictions.  The court a quo committed a misdirection in also convicting the appellant of kidnapping and assault GBH.  The convictions on counts 3, 4, 5 and 6, therefore, fall to be set aside.

[29] The question of sentence remains to be considered.

[30] At the hearing of the appeal the parties’ legal representatives were ad idem that the court a quo misdirected itself by finding that the applicable prescribed minimum sentence is one of 20 years imprisonment, whereas the applicable one is that of 15 years imprisonment, regard being had to the fact that the appellant is a first offender of robbery with aggravating circumstances.

[31] This court is at large to consider the matter of sentence afresh.

[32] The setting aside of the kidnapping and assault GBH charges does not detract from the seriousness and gruesomeness of the unlawful conduct meted out to the complainants.

[33] The complainants were subjected to a sustained assault.  Lunga had not completely healed when he testified.  Phumeza was hospitalised and received psychological counselling.  The appellant’s robbery previous conviction is not without relevance.  It points to him as having a propensity to rob others.

[34] I find no substantial and compelling circumstances justifying a deviation from the prescribed minimum sentence of 15 years imprisonment.  15 years imprisonment, running concurrently on each count, is an appropriate sentence for each of the counts of robbery with aggravating circumstances.

[35] I therefore grant the following order:

1.         The appeal succeeds to the extent that the convictions on counts 3, 4, 5 and 6 are set aside.

2.         The convictions on counts 1 and 2 are hereby confirmed.

3.         The appeal against sentence is hereby dismissed.

____________________________

S M MBENENGE

JUDGE OF THE HIGH COURT

I agree

___________________________

C T S COSSIE

ACTING JUDGE OF THE HIGH COURT

 

For the appellant                              :           Mr DP Geldenhuys

Instructed by                                    :           Justice Centre

                                                                           GRAHAMSTOWN

For the respondent                           :           Mr P Zantsi

Instructed by                                    :           The DPP’s Office

                                                                            GRAHAMSTOWN

 

Date heard                                         :           09 March 2016

Judgment delivered                           :           19 April 2016

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