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IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE DIVISION:  GRAHAMSTOWN]

                                                                             CASE NO:  CA & R 269/18

In the matter between

MXOLISI MABELE                                                             Appellant

And

THE STATE                                                                        Respondent

JUDGMENT 

NQUMSE AJ

[1]        The appellant was convicted on 01August 2018 in the Regional Court, held at Port Elizabeth of one count of robbery with aggravating circumstances which attracts the application of the prescribed minimum sentence as provided in section 51 (2) of the Criminal Amendment Act, 105 of 1997.  He was sentenced to 15 years imprisonment.

[2]        Leave to appeal against both conviction and sentence having been refused by the court a quo, the appellant successfully petitioned this court which granted him leave to appeal.

[3]        The appeal is broadly based on whether the court a quo was correct in convicting the appellant on the evidence of Bongani Makana, a single witness whose evidence is attacked for being full of contradictions.  With regard to sentence it is submitted that the court a quo erred in not finding factors constituting substantial and compelling circumstances that should have led the court to deviate from the prescribed minimum sentence.

Background facts

[4]        The appellant (erstwhile accused number 1) and his former co-accused were initially charged with various charges including the crime of robbery with aggravating circumstances.  One of his co-accused was discharged at the end of the state case.  The appellant and his remaining co-accused were acquitted of the other charges but found guilty of robbery with aggravating circumstances.

[5]        The events of 22 March 2013, the day of the incident play themselves out in two scenarios which I shall for the sake of convenience refer to them as Scene 1 and Scene 2.  I shall not deal in detail with scene 1 save where it is necessary to do so.

[6]        On the night of the fateful day above, the complainant was from a tavern with his companions who are Bongani Makana, Asanda Soyeye and Babalwa Mabele.  Whilst on their way they were approached by a group of men one of whom carried a fire-arm.  They were pointed with the fire-arm and whilst money was demanded from them.  Subsequently a gun shot was fired and in fear of his life he fled the scene.  Whilst attempting to escape the ordeal he realised that he was being pursued by two men whom he suspected to have been part of the group that had approached them earlier demanding money from them.  He however could not identify them properly whether they were from the earlier group of men that approached them in scene 1.

[7]        Most significantly to this appeal is what happened after the complainant had fled from scene 1.  He testified that whilst he was running away he tripped and fell when he ran into a certain yard.  The two men caught up with him and they robbed him off his two cell phones.  According to the complainant the appellant took his cell phones whilst he was held at knife point by accused number 3.

[8]        The complainant was confronted with the difference that appears in his statement to the police and his testimony on the role of each of the accused in the second scene where he was robbed.  He said he would not know why the police had taken down his statement in the manner they did.

[9]        In his statement to the police the complainant stated that upon arrival at the address of accused number 3, he pointed him out as the one who had searched him and took his cell phones.  Whereas in court he testified that accused number 3 held him, against the wall of the fence carrying a knife whilst the appellant acting on the instructions of accused number 3 took out his cell phones from his pocket.  When he was further confronted with the statement he made to the police that he was threatened with knives, whereas there was only one knife on the scene according to his evidence in court, he said the only person who carried a knife was accused number 3, meaning there was only one knife.

[10]      The appellant admits that on the night in question he was in the vicinity where the robbery took place.  He further testified that he saw accused number 3 emerging from a certain yard carrying two cell phones and leaving behind a man who was leaning against the fence of that yard.  He also denied giving accused number 3 any cell phones.  On the other hand accused number 3 admitted albeit under cross examination that he was around the vicinity where the robbery of complainant took place.  He further testified that the two cell phones that were later found in his possession were brought to him by the appellant who was in company of a certain Mabhuti and they pawned the phones for six beers.  He denies taking part in the robbery of the complainant.  It is against the evidence above that both appellant and his co-accused were convicted and sentenced of the offence of robbery with aggravating circumstances.

The law

[11]      In the evaluation of the evidence the learned magistrate was alive to the fact that on the second scene the only evidence that was proffered for the state is that of a single witness, the complainant.  He was further astute to the contradiction that was apparent in the evidence of complainant which relates to the various roles played by his assailants.  He took into account that both the appellant and his co-accused were at the vicinity where the complainant was robbed.  The version of complainant that he saw both appellant and accused number 3 as the people who robbed him was corroborated by the appellant who stated that he had seen accused number 3 in the yard where a man was leaning against a fence.  His testimony in this regard is placing appellant in the same spot or vicinity where complainant was robbed.  The net effect thereof is that whilst complainant may be regarded as a single witness, his evidence has been corroborated and effectively strengthened by the appellant’s version.  Any contradiction that may have beset the complainant’s version as to the different roles played by his assailants became immaterial since both the appellant and accused number 3 were present where he was robbed.

[12]      In S v Banana[1] it was stated:

“Where the evidence of a single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined may be overcome and acceptance facilitated. But corroboration is not essential.  Any other feature which increases the confidence of the court in the reliability of a single witness may also overcome the caution”.

[13]      It was illustrated in S v Sauls and others[2],  Diemont JA stated:

“There is no rule of thumb test or formula to apply when it comes to consideration of the credibility of a single witness. The trial judge will weigh his evidence, will consider its merits and demerits, and having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings, or defects or contradictions in the testimony, he is satisfied that the truth has been told”.

It was held in Mofokeng v S[3] that when evaluating or assessing evidence, it is imperative to evaluate all the evidence and not be selective in determining what evidence to consider.

 [14] In S v Van der Meyden[4], Nugent J (as he then was) stated:

“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence.  Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may be simply ignored”.

[15] In S v Bailey [5]the court held that the powers of a court of appeal to interfere with the factual findings of a trial court are strictly limited.  If there had been no misdirection on the facts, there was a presumption that the trial court’s evaluation of the factual evidence was correct.  Bearing in mind the advantage the trial court had in seeing, hearing and appraising a witness, it is only in exceptional cases that the court of appeal would be entitled to interfere with the trial court’s evaluation of oral testimony.  In order to succeed on appeal, the appellant would have to convince the court of appeal that the trial court had been wrong in accepting the evidence of the state witnesses, a reasonable doubt would not suffice to justify interference with the trial court’s findings. (Also see R v Dhlumayo & Another [6].)

[16]      As already alluded to above that the learned magistrate appears to have been astute to the dicta of the above mentioned cases.  He navigated through the evidence carefully and with precision pointing out the merits and demerits in the evidence as a whole.  He effectively found the evidence of the complainant credible and reliable. I am therefore not persuaded that the learned magistrate misdirected himself either in law or on fact. In my view there is no merit in the challenge on the conviction.

[17]      I now turn to deal with the appropriateness of the sentence imposed by the learned magistrate.  

[18]      The imposition of sentence falls squarely within the discretion of the trial court, and a court of appeal, such as this court, can only interfere with the trial court’s discretion when such discretion was not properly exercised, or the sentence imposed is as a result of an irregularity or misdirection, or such sentence is imposed, having regard to the nature and circumstances of the offence, is disturbingly inappropriate or induces a sense of shock (See S v Blank[7]).

The personal circumstances of the appellant were stated thus;

(i)            He is a first offender,

(ii)          He pleaded guilty to the crime,

(iii)         He is unmarried with the responsibility of providing and taking care of his siblings owing to the demise of his parents;

(iv)       He has a minor child and contributes towards his maintenance from earnings he gets out of doing odd jobs. It was further submitted on behalf of the appellant that the court should take into account that the complainant was not injured and his property was recovered.

[19]      Counsel for the state opined that the learned magistrate in imposing sentence may have been influenced by the first scene of crime in which a firearm was used and he consequently misdirected himself in the sentence he has imposed. He further conceded, correctly in my view, that the sentence is disproportionate to the crime. I tend to agree with these observations made by the counsel of the state and I am of the respectful view that the learned magistrate erred in the sentence he has imposed. In light thereof this court is at large to interfere with the sentence imposed. Having regard to the personal circumstances of the appellant, the nature of the offense, the manner in which it was committed, the proportionality of the sentence to the crime, it is my view that these factors cumulatively constitute substantial and compelling circumstances which warrants a deviation from the prescribed minimum sentence.

[20]      In the result, I am of the view that an appropriate sentence would be 10 (ten) years imprisonment.

ORDER

[21]      The following order is thus made:

1.         The appeal against conviction is dismissed;

2.         The appeal against sentence is upheld;

3.         The sentence imposed by the court a quo is set aside and is substituted with the following:

“The accused is sentenced to ten (10) years imprisonment”.

4.         The sentence is antedated to 17 August 2018.

                                                           

V NQUMSE

ACTING JUDGE OF THE HIGH COURT

MALUSI J

I agree and it is so ordered.

                                                                       

T MALUSI

JUDGE OF THE HIGH COURT

Appearances:

For the Appellant:                Mr M T Solani instructed by

                        Grahamstown Justice Centre

                                                69 High Street

GRAHAMSTOWN

For the Respondent:           Mr L W Sinclair instructed by                    

Director of Public Prosecutors

GRAHAMSTOWN

Date Heard:                             29 May 2019

Date Delivered:                    26 June 2019

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