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IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Appeal number: A87/2020

In the matter between:

MOLEFI KEKANA                                                                              Appellant

and

THE STATE                                                                                    Respondent

 

CORAM:                      MATHEBULA, J et OPPERMAN, J

HEARD ON:                2 NOVEMBER 2020

JUDGMENT BY:        MATHEBULA, J 

DELIVERED ON:       5 NOVEMBER 2020

 

[1] The appeal emanates from the regional court sitting at Wesselsbron.  On 24 February 2020 the appellant stood trial on a charge of robbery with aggravating circumstances as intended in section 1 of Act 51 of 1977 read with provisions of section 51(2) of Act 105 of 1997.  Despite his plea of not guilty, he was convicted on the aforementioned charge and sentenced to twelve (12) years imprisonment.  He was also declared unfit to possess a firearm. Aggrieved with the outcome, he is appealing both conviction and sentence, with leave granted by members of this court.

[2] The events giving rise to the appeal occurred on 24 August 2019 at Monyakeng around 22H00. The evidence of the complainant is that he was armed with a firearm and had gone to the tavern called Black Mountain to watch football. On his return he met his brother in law and two unknown males who were breaking bottles and throwing debris on the tarmac. An altercation ensued but he decided to continue walking. Without any notice he was hit with a blunt object (suspected to be a knobkierrie) on the back of the head. He fell and they continued kicking him on his body and face, took his belongings and ran away. He sustained injuries that required medical attention. He could not identify his assailants.

[3] The evidence of Motha Simon Mpolinyane is that he left the tavern in the company of the appellant and one Kgotso. He had consumed two to three 750 millilitres of alcoholic beverages. On the road he stopped to relieve himself and his crew continued walking. When he turned he saw them “busy with the complainant”. At some stage the complainant was on the ground and when he approached closer they ran away. He did not observe how the fight / attack took place. He then accompanied the complainant to lay a charge at the police station.

[4] The appellant denied any robbery perpetrated by him or his companion against the complainant. According to him he was assaulted and pointed with a firearm by him after he had confronted them following a disagreement which escalated into a fight. He did not fight back because he was inebriated. At no stage did he commit the offenses he was charged with.

[5] Largely on the perceived strength of the evidence of Mpolinyane the learned magistrate found it to be consistent with and corroborating the version narrated by the complainant. The version of the appellant was found to be false and rejected. Relying on S v Thabalala[1] pertaining to the proper approach to evaluate evidence, the learned magistrate concluded that the balance weighed heavily in favour of the state.

[6] In the heads of argument (and oral submissions) counsel for the appellant made a broad challenge on the correctness of the evaluation of the evidence by the learned magistrate. The conviction and resultant sentence is supported by the state. I deem it unnecessary to deal with each and every point for or against conviction.

[7] It is settled law that a court sitting in an appellate mode is not at liberty to depart from the trial court’s factual and credibility findings unless they are vitiated by irregularity or unless an examination of the record of evidence reveals that those findings are patently wrong[2]. The presumption is that the trial court’s conclusion on the facts is correct. However the higher court has repeatedly warned that the right to an appeal should not be rendered illusionary. It is incumbent on the appeal court to ascertain the correctness of the findings and if there has been a mistake made that renders the conviction untenable then to interfere[3].

[8] It is trite that the State has to prove its case beyond reasonable doubt. In order to assess this the trial court must consider inherent strength, weaknesses, probabilities and improbabilities. This is the approach laid in S v Chabalala supra.

[9] At the outset, I am not convinced that on the strength of the evidence on record the state has succeeded in proving its case on a charge of robbery against the appellant beyond reasonable doubt. Equally I am of the view that the learned magistrate erred in rejecting the version of the appellant which only had to be reasonably possibly true. It need not have to be believed.

[10] The first issue is whether the complainant was assaulted or robbed and who did it. The learned magistrate convicted the accused on the evidence of the second state witness. This witness stopped to relieve himself and on his version the appellant, his companion as well as the complainant continued walking. According to him at some stage he probably overheard them having the argument. It stands to reason that as they were walking they were moving further and further away from him. He did not observe with particularity any person robbing the complainant. There is no evidence on record that he was in a position to make proper observation of the events. The circumstances that led to the complainant landing on the ground are unknown to him. It must be borne in mind that this is the evidence of the person who admitted to have been moderately drunk.

[11] The next issue is whether the complainant was robbed of his firearm on the day in question. There is no direct evidence that the appellant did rob him of his firearm. Neither the complainant or Mpolinyane can testify to that effect. Even after his assailants left him, the fact that he was relieved of his firearm was not disclosed to Mpolinyane. There is of course contradictions like whether they walked together to the police station to lay a complaint or Mpolinyane found him there.

[12] It is trite law that the version of the accused must be reasonably possibly true to be entitled to an acquittal. The court does not even have to believe him. Clearly in this matter the version of the appellant is not without blemishes. There are aspects where it overlaps with the mosaic of evidence on record. I am referring to the breaking of bottles and argument that could have arisen that night. I find it strange that the state only charged him to the exclusion of his companion that night.

[13] There is sufficient evidence that the appellant participated in the assault of the complainant. His counsel correctly conceded this aspect. There is no evidence on record that the appellant (and his companion) conspired to rob the complainant. It has never been the case on behalf of the state that they acted in concert in furtherance of any common purpose. Equally, there is no evidence that the accused forcibly took any firearm or cell phone from the complainant. Turning to the conspectus of evidence, the inescapable conclusion is that the state has not met the threshold to secure a conviction on a charge of robbery with aggravating circumstances. The conclusion is that the appellant has made himself guilty of assault with intent to do grievous bodily harm.

[14] It will be an injustice to remit this matter to the court a quo for sentencing solely because of the delay that is most likely to ensue. After all there is enough evidence on record to pass the appropriate sentence. I will proceed to do so. The appellant is a 33 year old married father of two (2) minor children. He was a farmworker earning R500.00 per week. At the time he was convicted on this matter, he had previous convictions on charges of stock theft. On that occasion he was sentenced to six (6) months imprisonment and twelve (12) months imprisonment, half suspended for four years on condition that he is not convicted of an offence in terms of Act 57 of 1959 during the period of suspension. These sentences were imposed on 12 June 2017.  It appears that these offences arose out of the same set of facts.

[15] Applying the principles of the well-known triad in sentencing, the court has to consider the crime, the offender and interest of society.[4]  The crime committed is prevalent in our society and efforts must be garnered to uproot it. The complainant was hit on the sensitive part of his body which could have resulted in serious health repercussions. The accused on the other hand is not a person who can be classified as having a propensity for violence. This convinces me that he can be rehabilitated. The society expects a sentence that will balance all these aspects. Certainly retribution is not the only aspect to be considered. In this matter it is clear that consumption of alcohol took center stage. Therefore, the sentence that I intend imposing will reflect the purpose which is geared towards granting the appellant an opportunity to reform.

[16] I make the following order:-

16.1. The appeal is upheld.

16.2. The conviction on a charge of robbery with aggravating circumstances and sentence of twelve (12) years imprisonment are set aside and replaced with the following:-

“The appellant is found guilty on assault with intent to do grievous bodily harm.

The appellant is sentenced to three (3) years imprisonment wholly suspended for a period of five (5) years on condition that the appellant is not found guilty of assault or assault with the intent to do grievous bodily harm and which was committed within the period of suspension.”

 

 

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MA MATHEBULA, J

 

 

I concur.

 

 

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M. OPPERMAN, J

 

 

On behalf of appellant: Mr. P. Vd Merwe

Instructed by: Justice Centre

Bloemfontein

On behalf of respondent: Adv. S. Giorgi

Instructed by: Director of Public Prosecutions

Bloemfontein

 

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