---

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No.: A264/2017

In the appeal between:

SELLO MLANGENI                                                                                           1^st Appellant

FEZILE DAVID SOKOYO                                                                                 2^nd Appellant

and

THE STATE                                                                                                         Respondent

CORAM:                       REINDERS, Jet  MATHEBULA, J

JUDGMENT BY:          REINDERS, J et MATHEBULA, J

HEARD ON:                 16 OCTOBER 2017

DELIVERED ON:         07 DECEMBER 2017

[1] The first appellant was found guilty on four counts of robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act 51 of 1977 ("the CPA") and effectively sentenced to 30 years imprisonment. The second appellant was also found guilty on two counts of robbery as alluded to above and effectively sentenced to 30 years imprisonment.

[2] Leave to appeal against both conviction and sentence on all counts was refused by the learned magistrate. The matter is before us with leave to appeal granted by members of this court. Pertinently, the first appellant was granted leave to appeal against his conviction in respect of count 2 and sentences imposed in respect of counts 1, 2, 4 and 5. The second appellant was granted leave to appeal against his conviction in respect of count 2 and sentences imposed on counts 1 and 2.

[3] Heads of argument on behalf of appellants was prepared by Mr Van der Merwe. On the papers it was contended that the court a quo erred in finding that the complainants were credible witnesses who properly identified the appellants and in not accepting the evidence of the appellants. Mr Van der Merwe in oral submission before us however conceded that the conviction by the court a qua of the appellants on count 2 was warranted. We are not bound by this concession.

[4] In the heads of argument prepared by Ms Nameka, the State supported both the conviction on the assault charge and the sentences on all four charges.

[5] In proving its case against the appellant the State led the evidence of Cornelia Johanna Alletta Herbst ("Mrs Herbst"), Moses Vonda ("Mr Vonda") and Warrant Officer Charles Leonard Barnard ("Warrant Officer Barnard").

[6] On 22 January 2011 Johanna Herbst, the manageress of Oranje Liquor Traders situated at 324 Stateway, Welkom was on duty with co-employees Vonda and one Melanie. It was a quiet Saturday afternoon and not a busy day for trade. An unknown person who looked suspicious entered their business premises three times between 13H30 to just after 16H00. On the last occasion, he was joined by a second person who entered and stood next to the shelf stocked with expensive liquor. The latter needed some assistance and they had a brief conversation. A third person also entered the shop while she was attending to the second person. The latter two persons were  later identified  by her as the appellants.

[7] In a flash the second appellant pressed a revolver on her head and the first appellant broke a bottle and held it against the neck of Melanie. They both demanded money and she told the second appellant to open the cash register. The assailants threw  the other two colleagues on the floor and later she was made to join them there. Vonda was frogmarched to open the safe and later she was also summoned to assist to open it. While the business premises were being ransacked, they were all locked in the safe so that they could not go out. The three assailants later made off with the money, liquor bottles, cards, keys and cell phones.

[8] Cross examination revealed that the investigating officer showed Mrs Herbst the photos of the appellants and she positively identified them. Those were photos of the appellants taken at some  social  event  prior  to  the  robbery.   The  appellants were unknown to her and the entire episode lasted for approximately seven minutes. During the robbery she was extremely frightened and closely followed the orders barked out by her assailants.

[9] She was able to identify the first appellant with his haircut and nose. She conceded that she did not identify any special features. The investigating officer showed her the photos six days after the robbery and she immediately recognised her assailants.

[10] The evidence of Vonda corroborated that of Johanna Herbst only  in so far as the occurrence of the robbery on  that  day.  He testified that he was frightened to the extent that he was unable to identify any of the assailants and further that he was ordered to lie on the floor. He saw them when they removed money from the safe.

[11] Warrant Officer Barnard testified that he has been employed by the South African Police Service for sixteen years of which nine years have been spent attached to the Local Criminal Record Centre as a finger print expert. He had received both theoretical and practical training encompassing comparison and identification of finger and palm prints.

[12] On 22 January 2011 at approximately 17H10, he proceeded to Oranje Liquor Traders situated at 324 Stateway Welkom where there had been a robbery. In the presence of Mrs Herbst he was able to lift finger prints on a Johnie Walker Red Label which was on the counter. On 23 February 2011 he received a document with a set of finger prints from the Investigating Officer purportings to be those of the first appellant. He compared the two and was able to determine seven similarities between them. He confirmed that no two people can have the same finger and palm prints and this showed  convincingly  that the two  sets  of  finger  and palm prints belonged to the first appellant.

[13] The first appellant testified that he was not at Oranje Liquor Traders in Welkom on 22 January 2011 particularly at the time of the robbery. According to him he was a customer of the business and regularly bought items there. The explanation proffered why his fingerprints were found on the liquor bottle is that he went to the premises to buy liquor on the day in question. He had already removed the bottle from the shelf when he realised he had insufficient funds. He requested the shop assistant to return it to its place. The second appellant did not testify and closed his case.

[14] The main issue to be determined in the appeal is whether the court a quo erred in finding that the State proved its case beyond reasonable doubt on count number 2. In evaluating the correctness of the conclusions reached by the court a quo, it will be appropriate to examine the reasons thereof.

[15] In this matter for some inexplicable reason, an identification parade was not held. The court a quo made reference to it as better method instead of the one used by the Investigating Officer. We are of the view that the court a quo erred in finding that the evidence of Mrs Herbst on identity was corroborated by that of the finger prints expert namely Warrant Officer Bernard.

[16] In cases involving identification, the possibility of an error looms large. It is always necessary that the court approach such evidence with caution. The guidelines of what the court should consider were articulated in S v Mthethwa 1972  (3) SA 766 (A)  at 768 (A). The court also emphasised that the list is not exhaustive. The confidence and sincerity of the witness are not sufficient as stated in S v Mehlape 1963 (2) SA 29 (A) at  32 F.  The same caution is required regarding the honesty of the  witness as held in S v Ndika and others 2002 (1) SACR 250 (SCA) at 256 F-G. The evidence of identification must be scrutinized closely to test whether the witness had a proper recollection of the person concerned.

[17] It is not only undesirable but also unreliable to identify a person  by being shown a photograph. No evidence was led  of  any special features of any of the appellants. Mrs Herbst could only testify about generic features which does not advance the state case. Pertinently she referred to the nose and the haircut of the first appellant. The second appellant was described as tall and thin. Mrs Herbst admitted that she was terrified by the incident and did not have adequate time to identify her assailants because she was made to lie on the floor facing it. The incident took place for approximately seven minutes under very trying circumstances.

[18] In this matter the evidence relating to the fingerprints is fraught with improbabilities. The court a quo concluded that the finger prints were uplifted from a bottle that was broken by one of the robbers and used to intimidate Melanie.   According to Mrs Herbst she was confused and could not remember whether the  bottle was handed to a detective from Hennenman who took it with him or not and whether they were able to uplift the finger prints whilst on the premises. The other compelling issue is that the exact location of where the bottle was found is uncertain between Mrs Herbst and Warrant Officer Bernard. It appears that it may have been removed from another place. In this regard the version of the first appellant could have been reasonably possibly true.  It  is

possible that he was a customer at the store and had indeed entered it at some stage for legitimate reasons. It was held S v V 2000 (1) SACR 453 (SCA) at 455 a-c that the test is ultimately whether the evidence of the accused is reasonably possibly true. It is not whether one believes the accused or not.  In our view the

court adopted the wrong approach and misdirected itself by rejecting the evidence of first appellant without cogent reasons.

[19] It is settled law that the state must prove its case beyond reasonable doubt in order to convince the court to convict an accused person. The accused person does not bear any onus.  The approach of the court a quo seems to be flying contrary to this principle. The learned magistrate erred in finding that it is fatal that it was never put to Mrs Herbst that she knew any of the appellants and more specifically the first appellant.

[20] The court a quo did not state on what basis the second appellant was found guilty on count 2. It appears that it is on the basis of the photos that were shown to Mrs Herbst. We have already  discussed the requirements of the law on this aspect. If it is because the second appellant elected not to testify, then that  was also an error on the part of the court a quo. An accused person  has the right to remain silent and not testify during the criminal proceedings. This is provided for in section 35 (1) (a)  of Constitution of the Republic of South Africa 108 of 1996. In S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC) at 923 E-F the court analysed the failure to rebut evidence tendered by the state in the following manner:-

"If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude  that  the  evidence  is  sufficient  in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence".

[21] In this matter, the state has not met this threshold and conviction is not warranted by the evidence placed before the court. This is the high premium that is placed on the presumption of an accused person's innocence in our law. For those reasons the convictions on count 2 ought to be set aside together with the resultant sentences.

[22] The next enquiry is whether or not the sentences imposed in respect of the appellants are just, regard being had to the cumulative impact of mitigating and aggravating factors.

[23] When it comes to interfering with the sentence imposed by the Court a quo, it is trite law that the powers of the Court of Appeal are limited, as was stated in S v Matlala 2003 (1) SACR 80  (SCA) at 83e-f. Interference is only warranted if the sentence imposed by the trial court is shockingly and disturbingly inappropriate and/or vitiated by irregularity.

[24] The essential question to be determined remains whether the trial court could reasonably have imposed the sentence it did.

See: S v Pieters 1987 (3) SA 717 (A) at 734C-H.

[25] In handing down sentence the court a quo alluded to the fact that the crimes of which the appellants had been found guilty, were of a very serious nature. Indeed, all of the crimes related to the appellants robbing businesses of cash and other valuables, robbing the complainants of their personal belongings and threatening them with a fire arm. The appellants seemed to have gone out on a rampage and the robberies occurred in short succession and mostly on the same day. It would seem that the magistrate was alive to the guidelines enunciated in S v Malgas 2001 (1) SACR 469 (A) in respect of the imposition of a prescribed minimum sentence for the crimes of robbery with aggravating circumstances of which he had convicted the appellants.

The learned magistrate states as follow:

"Lank reeds het die wetgewer ingegryp weens al hierdie oproepe en dwing ook aan die howe minimum strawwe van 'n baie lang termyn gevangenisstraf op vir 'n misdaad van hierdie aard."

He proceeds to deal with the interest that the community has in that the courts should impose hefty sentences for serious crimes and the impact on the victims in being traumatised. He deals with the personal circumstances of the appellants and their previous convictions. Finally he concludes that:

"Beskuldigdes was wel 'n tydperk in hegtenis hangende die afhandeling van hierdie saak van sowat twee jaar, maar daar is weliswaar geen ander redes werklik wat bevind kan word waarom afgewyk moet word van die minimum strawwe nie."

The court a qua dealt extensively with the previous convictions of both appellants in the following way:

"Nie een van beskuldigdes is eerste oortreders nie. Dit is ironies dat hoewel daar nou vorige veroordelings teen almal bewys is aan beskuldigde 1, wie skuldig bevind is op die meeste van hierdie aanklagte, ‘n minder indrukwekkende lys van vorige veroordelings het as sy twee medebeskuldigdes.

Sy oortredings le almal n ietwat meer in die verlede. Hy was aan aanranding met die opset om ernstig te beseer skuldig bevind. Hy het ‘n totale opgeskorte vonnis gekry en is hy skuldig bevind waar hy beboet is en die vonnis opgeskort is en weer aan diestal waar 'n deel van sy vonnis opgeskort was. Dit blyk dat hy dan so twee jaar op parool was of twee jaar nadat hy vrygelaat is nog onder parool was. Hy het dan nou daarna hierdie misdryf gepleeg.

In die geval van beskuldigde 2 lyk dit ietwat slegter. Hy  is  aan moord skuldig bevind, tot sewentien  jaar  gevangenisstraf gevonnis; aan poging tot moord; ‘n verdere  vyf  jaar weens roof  of tot 'n poging  tot roof  vyf  jaar  gevangenisstraf; en dan ook   die besit van 'n vuurwapen en ammunisie waar hy korter termyne van gevangenisstraf opgele is. Al hierdie misdrywe is dus relevant tot dit waarvoor beskuldigde gestraf moet word."

[26] The  prescribed  minimum  sentence  in  respect   of  robbery with aggravating circumstances as envisaged in Section 51 (2) of the Criminal Law Amendment Act 105 of 1997 read with Part 2 of Schedule 2 in the case of a first offender, is imprisonment for a period of not less than  15 years, a second offender for incarceration period of not less than 20 years and a third or subsequent offender of not less than 25 years imprisonment. From the imposition of the 15 years imprisonments in respect of counts  1, 4 and 5 it would seem that the trial court deemed the first appellant to be a first offender and did not deviate from the prescribed minimum sentence of 15 years. In respect of the  second appellant the finding by the trial court that all the offences are relevant to the imposition of sentences, creates the impression that the trial court did not deem the second appellant to be a first offender. This would have implied that a sentence of at least not less than 20 years imprisonment would have been applicable. However, the magistrate   imposed  a   sentence of 15 years imprisonment in respect of counts 1 and 2, indicative thereof that he did in fact find reason to deviate from the prescribed minimum sentences.

[27] As far as first appellant is concerned the conviction and resultant sentence as to count 2 stands to be set aside. The remainder of the sentences  imposed on appellant  1  were  imprisonment  of 15 years on count 1, 15 years count 4 and 15 years on count 5. As far as these individual sentences are concerned we have not been persuaded at all that the magistrate erred and accordingly the appeal in this regard stands to be dismissed. The learned magistrate did consider the cumulative effect of the sentence and applied the provisions of section 280 of the CPA. However, the sentence on count 2 now falls away. It would be appropriate to consider the cumulative effect of sentence afresh. We are of the view that the sentences should be so served that first appellant should serve 20 years effectively.

[28] The second appellant received 15 years sentence on count 1. The sentence on count 2 falls away. We are satisfied that there is no reason to interfere with the sentence imposed on count 1.

[29] Accordingly the following order is made:

1.   The appeal of appellants 1 and 2 in respect of conviction on count 2 is upheld and the convictions and sentences are set aside.

2.   The appeal against the sentences imposed on first appellant in respect of count 1, 4 and 5 partially succeeds. The sentences imposed are set aside and substituted with the following and the imposed sentences are amended to read as follows:

"Count 1: 15 (fifteen) years imprisonment

Count 4: 15  (fifteen) years imprisonment

Count 5: 15 (fifteen) years imprisonment

In terms of Section 280 of the Criminal Procedure Act 51 of 1977 it is ordered that the sentences on counts 4 and 5 will run concurrently. It is further ordered that 1O (ten) years of the 15 (fifteen) years sentence on count 1 will run concurrently with the effective sentence on count 4 and 5. The accused will serve an effective sentence of 20 (twenty) years imprisonment.

3.   The sentence is antedated to 4 December 2013.

4.   The appeal against the sentence imposed on second appellant in respect of count 1 is dismissed.

___________________

C. REINDERS, J

 

___________________

M.A. MATHEBULA, J

On behalf of the Appellant:              Mr P. L. van der Merwe

                                                            Instructed by:

                                                            Legal Aid SA

                                                            BLOEMFONTEIN

On behalf of the Respondent:         Adv. C.Z. Nameka

                                                            Instructed by:

                                                            Director of Public Prosecutions

                                                            BLOEMFONTEIN

---