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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NUMBER : A.195/99

DATE:8 May 2000

The Magistrate

Johannesburg

In the matter between :-

NDULINI, JOSEPH..................................................................................................... Appellant

and

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

JUDGMENT

WILLIS, J:

The appellant, a 34-year old male at the time of his conviction, appeals against both his conviction and sentence. The appellant was charged with robbery, and sentenced to 10 years' imprisonment.

It seems clear from the record that an incident took place, shortly after midnight, in Commissioner Street in Johannesburg. It also seems clear that there were in the vicinity two young men, who were known as "glue sniffers", who may have had something to do with the particular incident.

Essentially the learned magistrate was confronted with the fact that there were two conflicting versions as to who robbed whom. That, in fact, was the narrow issue. The complainant, who it so happens had very recently before the incident been released from prison having served an 3 year sentence for robbery, alleges that the accused robbed him. The accused, on the other hand, said that he was attached by a group of people, including the complainant, who wished to rob the accused.

The learned magistrate gave a full and carefully reasoned judgment. The criticisms of the learned magistrate of the evidence of the accused are in my view sound. There are certain discrepancies that do not make sense. Certainly if one reads the evidence of Mr Sebeko, the complainant, it flows well and there are no obvious contradictions in his evidence. Nevertheless, it is significant that the police who effected the arrest, and who could have provided a corroboration for certain important aspects of the evidence, were net called, neither were the "glue sniffers" who clearly were in the vicinity.

There are further difficulties: The amount of money which the complainant says was robbed from him, namely R34,00 consisting of three RI0 notes and two R2 coins, did not tally with the amount that was found by the police upon the accused immediately after his arrest. It also seems most unusual that the appellant, a person who had reached the age of 34 years of age with no previous convictions and who was the owner of a lawfully licensed firearm should, in a state of inebriation, which it certainly seems he was, have sought to rob the complainant at this late hour of night, in the street, for a paltry sum of money.

At the end of the day, although one would agree with the learned magistrate that the accused's evidence can be criticised, one cannot be satisfied beyond reasonable doubt that the appellant was correctly convicted.

For these reasons I would uphold the appeal and would set aside the conviction and sentence imposed by the learned magistrate.

SCHABORT, J.: I agree, the conviction and sentence are set aside.

ON BEHALF OF APPELLANT: ADV C J ZW1EGSLAAR

INSTRUCTED BY;

ON BEHALF OF THE STATE:ADV M A CHAUKE

DATE OF HEARING:8 MAY 2000

DATE OF JUDGMENT:8 MAY 2000

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