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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 2529/2003

DATE: 25/04/2005

UNREPORTABLE

IN THE MATTER BETWEEN:

CLIFFORD JAPIE MOKOTEDI 1^ST APPELLANT

GEORGE MODISE KGAMPE 2^ND APPELLANT

AND

THE STATE RESPONDENT

JUDGMENT

RANCHOD, AJ

The appellants were charged in the regional court held at Potchefstroom on the following counts:

count 1: robbery with aggravating circumstances in terms of section 1(b) of Act 51 of 1977;

count 2: contravention of section 2 of Act 75 of 1969 (unlawful possession of a firearm);

count 3: contravention of section 36 of Act 75 of 1969 (unlawful possession of ammunition); and

count 4: assault.

0n 16 July 2002 the first appellant was found guilty on counts 1, 2 and 3 and the second appellant was found guilty on count 1. 0n the same day the appellants were convicted as follows:

1. both appellants were sentenced to fifteen years imprisonment for count 1;

2. the first appellant was sentenced to three years imprisonment for the unlawful possession of a firearm and sentenced to six months imprisonment for the unlawful possession of ammunition. The court, in terms of section 280 of Act 51 of 1977 ordered that the sentences in respect of counts 2 and 3 are to run concurrently with the sentence imposed in respect of count 1; and

3. both appellants were declared unfit to possess a firearm in terms of section 12 of Act 75 of 1969.

Both the appellants were legally represented at the trial in the court a quo. They now come on appeal against both the conviction and sentence. Bail pending the appeal had been refused.

The charges involved:

(1) robbery with aggravating circumstances by the use of a firearm on 6 August 2000 at Ikageng when the complainant Dick Motshabi was robbed of his cell phone and a 9mm pistol with serial no C48011Z;

(2) the unlawful possession of a 9mm pistol with the aforementioned serial number on 21 August 2000 at Ikageng;

(3) the unlawful possession of 6x9mm rounds of ammunition on 21 August 2000 at Ikageng; and

(4) assault of Willy Mpolokeng on 6 August 2000 at Ikageng by assaulting him with a weapon and/or throwing a bottle at him.

Both the appellants had pleaded not guilty and both had elected not to furnish any plea-explanation. The complainant with regard to count 1 was a traffic inspector from Hammanskraal, namely, Dick Motshabi (Dick Sedikso Mothawe). The complainant testified that he did not know the appellants before the incident occurred on 6 August 2000 at approximately 3:45 when he and his friends Willy Isak Motudi and one Sammy had left a tavern in Lekele Street, Ikageng. Their vehicle had been parked at a nearby filling station and as they were going to the vehicle they noticed a group of people fighting in the street. They also noticed another motor vehicle, a Kombi leaving the filling station and the group pursued the Kombi and threw empty beer bottles at it. The complainant and his friends then climbed into his vehicle and as he was about to switch on the ignition the group of approximately ten men approached them, said something that they did not understand and the group then threw bottles at them. The complainant got out of the vehicle and ran away while his friend Willy was assaulted with bottles near the vehicle. Willy then ran away and hid underneath a nearby motor vehicle. The complainant was approximately fifteen to eighteen metres away and was watching the happenings and when the group of men left the scene he went back to his motor vehicle when he noticed that the ignition key had been broken. He removed the key from the ignition and saw his other friend Sammy in the dark. The complainant then saw two men coming in his direction and he then threw his motor vehicle keys to Sammy. The complainant at that stage was in possession of his official firearm and also a cell phone.

The complainant alleged that the first appellant pointed a firearm at him and demanded the complainant's firearm and then removed the firearm out of the complainant's holster. The firearm at that stage had eleven rounds of live ammunition. The second appellant grabbed the complainant's cell phone and the first appellant then asked for the keys to the vehicle whereupon the complainant says he told the first appellant that "u kan maar my doodmaak" and the first appellant then fired a shot in the air.

The complainant could not say whether the appellants were involved in the assault upon his friend Willy. Approximately six months after the incident he identified his firearm and got it back. At that stage there were only three live rounds of ammunition in the magazine of the firearm.

The complainant testified that the day after the incident he had heard that there was one Japie Mokotedi who was involved in the incident. Japie Mokotedi's uncle or brother (the complainant was not sure who it was) had, said the complainant, undertaken to return the firearm to the complainant provided the complainant did not pursue the case any further. For reasons he could not explain, Japie Mokotedi's name appeared in his statement that he had given to the police the previous day even though he only got to know of him the following day. The complainant also testified that he did not have any strong drinks during the night when the incident occurred but had only drunk Coke. He further testified that he did not agree with his friend Sammy's evidence that he had taken his firearm out from underneath the seat of his vehicle and had it in his hand when he moved into the darkness nearby. He said he saw the two appellants for the first time when they robbed him of his firearm and cell phone. He further testified that he also got his cell phone back and had recognised it from the serial numbers.

The appellants' version which was put to the complainant regarding the incident was that they were outside the Fair View pub or tavern when some fighting was taking place between two groups of people. The second appellant was then assaulted by an unknown person who had injured him with a bottle. The second appellant and one Tholiso then chased after the men when another man came between the second appellant and the person who was running away. This man had pointed a firearm at the second appellant and the second appellant then stood still. The first appellant then came on the scene and grabbed this person with the firearm around his neck whereafter the second appellant took the man's firearm away and the first appellant then dropped the man and the man ran away. Both appellants could not identify the person concerned. The complainant denied knowledge of these allegations but admitted that more than ten people were involved in the fighting.

The following formal admissions were made by the defence:

1. that the first appellant was in possession of the complainant's 9mm pistol and the ammunition referred to in the charge-sheet;

2. that he gave the firearm to his mother on 21 August 2000 and that the police then confiscated it; and

3. that the second appellant had been in possession of the complainant's cell phone and this had also been handed over to the police on 21 August 2000.

From the evidence led, it is clear that both appellants placed themselves at the scene where the complainant was robbed of his firearm and cell phone.

The complainant's friend Willy (Mosimao Pule William Polokeng) testified that he was with the complainant at the tavern where he had drunk beers while the complainant did not drink but merely sat there. They had left the tavern at approximately 03:45 and were walking to the filling station where their vehicle was parked and he noticed the fighting going on in the area of the filling station. While he was waiting for the complainant to open the vehicle a group of young men approached and one of them pointed a firearm at him. He could not identify the person who pointed the firearm at him and he also did not know the appellants. He was assaulted on the top of his left eye and also with bottles. He managed to run away and hide under a motor vehicle. He only came out from under the vehicle after the police arrived on the scene and he also testified that he did hear a gun shot. He also testified that he could not say whether the appellants were on the scene or not but that a certain person had told the police that one Japie had been involved in the incident and this person had also furnished the said Japie's address to the police.

The complainant's other friend Samuel Setlaono confirmed Willy's evidence to the effect that they had indeed visited the tavern and had left at the stated time and also had noticed a fight going on near the filling station. However, he testified that the group of men involved in the fighting had thrown stones at the Kombi which had left the filling station and had also broken one of the complainant's vehicle's windows. He then also testified that Willy was hit on the head and they had run away. He could not identify the persons who had assaulted Willy as, he said, the incident happened during the night and there were many attackers. He also said that Willy had at one stage joined him and the complainant where they were hiding. This is in contrast to what Willy himself said and that is, that after he (Willy) was assaulted he ran and hid under a motor vehicle. Samuel further said that the attackers had pointed a firearm at the complainant and at that stage the complainant had had his firearm in his own hand. He could not say who of the group of attackers had pointed a firearm at the complainant. What he did say is that one of the attackers had grabbed the complainant's firearm while another attacker had taken the complainant's cell phone. A shot was fired with the complainant's firearm in the air. The attackers had then run away and the police had arrived on the scene thereafter.

Under cross-examination Sammy testified that the complainant was attacked by two people and that these two persons had run away after the incident. He further said under cross-examination that the place where he and the complainant had stood when they ran away from the attack was not completely in the dark but was lit up by the lights from the filling station. He further said that after the incident he was informed that it was the two appellants who had in their possession the complainant's firearm and cell phone. He further said that a third person had apparently been arrested by the police and he had been with the two attackers but had not participated in the robbery. However, he could not identify that third person.

The first appellant testified that he and the second appellant are related to each other. At about 03:00 in the morning of the incident the first appellant left the "pub" where he had been drinking and saw some people involved in a fight near the filling station. He also noticed the second appellant and one Tholiso quarrelling with an unknown man. This unknown man was in possession of a firearm. The first appellant says he then grabbed the man whereafter the second appellant took the firearm from that man. He said that the second appellant had told him that he had been injured on his right leg with an empty bottle and the unknown man had pointed a firearm at him. The second appellant was afraid to take the firearm that he had just taken away from the unknown man to the police and the first appellant said he then took the firearm with the intention of giving it to his uncle for the purpose of taking it to the police station. He said that his uncle told him the following day that the owner of the firearm had already been at the police station and that the police will come and collect the firearm from him (the uncle). The firearm was then locked in his uncle's safe. About two weeks later the first appellant was arrested while he was attending court with regard to another case. He then pointed out the second appellant to the police.

The first appellant could not identify the unknown man because, he said, it was dark. He further denied that he had robbed the complainant of his firearm. He further testified under cross-examination that the unknown man had pointed the firearm at the second appellant and at that stage Tholiso had been hiding behind the second appellant. He said he did not see Tholiso again after the incident and he also did not see the unknown man again after the incident. He further said that the unknown man did not chase them. He did not take the firearm immediately to the police as he was afraid and also that he did not see the complainant's cell phone. He had been under the influence of alcohol at the time, he did not see the Kombi but only some people who were throwing each other with bottles and that he did not hear any shooting.

The second appellant broadly confirmed the first appellant's testimony. He said he had been assaulted with an empty bottle by an unknown man and he then hit the man with a beer bottle and a fight ensued. At that stage another fight had also been going on nearby. He said Tholiso had come to his (the second appellant's) assistance and they had overpowered the man when he ran away and they gave chase. An unknown man suddenly came forward and grabbed the second appellant and asked him where he was going. The second appellant said that they were chasing his attacker.

He testified that unknown man then pointed a firearm at him. He noticed the first appellant behind the man who was pointing a firearm at him and the first appellant had put his arm around the neck of this person. He (second appellant) then took the firearm from this person. This person then ran away. He denied taking the cell phone from the person and testified that he had picked it up from the ground and then kept it. He further testified that Tholiso had been chasing his attacker and after he (second appellant) had taken the cell phone and the firearm from the unknown man he encountered Tholiso who was on his way back and heard him screaming and calling out his (second appellant's) name. He could not tell with certainty how far Tholiso was when the unknown man had arrived on the scene. He could not say whether the first appellant had seen Tholiso at the time when the unknown man had pointed a firearm at him. He said that the person nearby at the time was the complainant's friend and Tholiso was not there at the time.

After the state and the defence presented arguments before judgment the magistrate decided to call Tholiso as a witness. Tholiso testified that he knew both the appellants and that on the day of the incident he had left the tavern to look for the second appellant. He saw both first and second appellant standing near the filling station and the first appellant had a firearm in his possession while the second appellant had a cell phone. He said that he questioned the second appellant about the cell phone when the second appellant told him "laat dit daar, moet nie inmeng nie, dit is nie jou saak nie". Tholiso denied that he was chasing anyone on that day and nor did he hear any gunshot. After the incident in question he had been taken to the police station. Under cross-examination the following emerged:

1. that he and the second appellant had at one stage left the tavern together but this was after he had found the appellants in possession of the firearm and cell phone at an earlier stage;

2. there were no other people with the appellants when he had seen them standing near the filling station;

3. that after the police had arrested him he had informed the police that he knew both the first and second appellant and was prepared to point them out;

4. that he had told the police about the firearm and the cell phone;

5. he denied some parts of his statement made to the police and said that the statement had never been read out to him;

6. he did not see anyone throw empty bottles at the second appellant nor did he see anyone pointing a firearm at the second appellant;

7. he had no knowledge of any other fight going on between a large group of people; and

8. he had seen the complainant for the first time in court.

It is common cause that the complainant was robbed of his firearm and cell phone by two people on the particular day of the incident; and that the first appellant had been found in possession of the complainant's firearm while the second appellant was found in possession of the complainant's cell phone. Both the appellants placed themselves on the scene and the complainant had identified the appellants as his attackers. It is also common cause that Willy had been assaulted by unknown persons. Although the question of identity was raised by first appellant's counsel in his heads of argument, this was not pursued further by either counsel for the two appellants.

The complainant had testified that there were eleven rounds of ammunition in the magazine of the firearm and had only got three rounds back. This evidence was never challenged. There is therefore no explanation as to what happened to eight rounds of ammunition although the first appellant admitted that he had been in possession of six rounds of ammunition. The evidence led indicates that at least one shot was fired at the scene. First appellant had testified that he had given the firearm to his uncle for the purpose of handing over the firearm to the police and his uncle had locked the arm in his safe. However, later the first appellant said that he had handed over the firearm to his mother. The distinct impression one gets is that the firearm had never been locked in his uncle's safe. Furthermore, the first appellant's uncle was never called to testify.

It was never put to the complainant or his friend Sammy that the complainant's cell phone had fallen down and it was then that the second appellant had picked it up from the ground. Both the complainant and Sammy had testified that the cell phone was taken from the complainant. The first appellant had not mentioned a cell phone at all and the second appellant's allegation that he thought that the cell phone could possibly belong to the first appellant sounds improbable given that he had ample opportunity to ask the first appellant about this. It was submitted by counsel for the state, Ms Bukau, that a negative inference should be drawn from the fact that the defence failed or chose not to call the first appellant's uncle to testify. I agree. Tholiso, who was called by the court, did not support either of the appellants' versions of the events of that day. To my mind the circumstances under which the first appellant allegedly overpowered the person who pointed a firearm at the second appellant seems highly improbable. The attacker could easily have fired a shot at the second appellant when the first appellant allegedly put his arm around the attacker's neck. Although there were certain contradictions between the evidence of the complainant and Sammy the essential point was that the complainant had been robbed by two people. Both the appellants placed themselves on the scene and testified that a person had his firearm removed from him as well as his cell phone.

In all the circumstances, I am of the view that the appellants' versions cannot be reasonably possibly true and that the state has proved its case beyond reasonable doubt.

I turn then to the appeal against sentence.

The first appellant is presently about 25 years old and was about 21 years old at the time of the offences. He lived with his uncle and had been in detention since 21 August 2000 until he was convicted on 16 July 2002 ie for almost two years. He reached grade 10 in school and was in a live in relationship with a woman and has a child approximately five years of age. He was about 21 years old when the offences were committed. He has two previous convictions (in 1996 and 1997 respectively) for assault. During 2001 he had also been sentenced to five years imprisonment for housebreaking and theft. It appears that his incarceration pending the trial for which this appeal is before me was partly due to the other case in which he was charged.

The second appellant is presently about 26 years old and was living with his mother. He matriculated and was studying computer programming when he was arrested. He has no dependents and is not married. He also has no income. He is a first offender. He was about 22 years old when the offence for which he has come on appeal was committed. He had been on bail shortly after his arrest until his conviction.

In terms of part 2 of schedule 2 of Act 105 of 1997 read with section 51(2) of the Act, robbery with aggravating circumstances merits a minimum sentence of fifteen years imprisonment in the absence of substantial and compelling circumstances. No reference is made to Act 105 of 1997 ("the Act") on the charge-sheet in respect of count one. However, reference is made to the Act in respect of count two but the Act is not applicable to count two. In addition, the appellants were legally represented during the trial. In S v Ndlovu 2003(1) SACR 331 (SCA) at 9, MPATI, JA said:

"... there is no indication whatsoever in the record that the appellant or his legal representative had the slightest idea, prior to sentence, that the appellant was facing the prospects of imprisonment of fifteen years in terms of the minimum sentencing provisions of the act ... The magistrate does not appear to have advised the appellant at any stage of the consequence of this finding ..."

It was submitted by counsel for the state that in the circumstances, the accused were aware of the minimum sentence provisions of the Act in respect of count 1 even though reference to the Act is made (erroneously) in count 2. Neither of the counsel for the two appellants argued this point. In Ndlovu's case (supra) at 11 the learned judge says:

"... the facts the state intends to prove to increase sentencing jurisdiction under [the act] should be clearly set out in the charge-sheet."

(My emphasis.)

In this case count 1 in the charge-sheet states: "Robbery with aggravating circumstances ..." (roof met verswarende omstandighede). Section 51(2) of Act 105 of 1997 reads as follows in so far as it is relevant:

"Notwithstanding any other law but subject to ss (3) and (6), a regional court or a high court shall-

(a) if it has convicted a person of an offence referred to in Part 11 of Schedule 2, sentence the person, in the case of-

(i) a first offender, to imprisonment for a period not less than 15 years."

The relevant portion of Part 11 of Schedule 2 reads as follows:

"Robbery-

(a) where there are aggravating circumstances; ..."

In my view, the facts the state intended to prove were clearly set out in count 1 viz robbery with aggravating circumstances. In the case of S v Legoa 2003(1) SACR 13 (SCA) the accused had pleaded guilty to a charge of dealing in dagga, admitting to having dealt with 216,3 kg of dagga but not admitting to its value. After conviction, despite the defence's objection, the state led evidence of the value of the dagga and the magistrate then invoked the provisions of the minimum sentence act. The Supreme Court of Appeal held at 27:

"... The appellant was not warned [prior to conviction] that the minimum sentence legislation might be invoked. In fact, the charge-sheet misled him as to the applicable penalty by referring only to the 1992 Act [which prescribed a much lesser sentence] ..."

In the Ndlovu case (supra) the magistrate, after convicting the appellant, and only during sentencing determined that the firearm used in the commission of the offence was a semi-automatic weapon and this brought the offence within the ambit of the minimum sentence act. At par 9 "... there is no indication whatsoever in the record that the appellant or his legal representative had the slightest idea, prior to sentence, that the appellant was facing the prospects of imprisonment of 15 years in terms of the minimum sentencing provisions of the Act ... the magistrate does not appear to have advised the appellant at any stage of the consequences of his finding, if made." None of these considerations are applicable here. The facts of the charge for which the appellants were found guilty were clearly set out in the charge-sheet. In the recent decision of BORCHERS, J in S v Mvelase 2004(2) SACR 531 (WLD) it was held, at 535f g:

"There was indeed no reference to the provisions of the ['minimum sentence'] Act in the three charges of rape, but the fact that all three charges were framed in identical terms can lead a legal representative to no other conclusion than that the accused is facing charges defined in Part I of Schedule 2 of the Act and that, if convicted, the accused faces the possibility of imprisonment for life. While there might well be a failure to state this fact specifically, there can be no question of the accused or his legal representative being misled by the charge-sheets in regard to the nature of the sentence which the accused faced."

That, in my view, is the situation here. At 536c:

"The question whether, when the state intends statutory provisions increasing penalty jurisdictions to apply, it should expressly state this fact in the charge-sheet, has been considered in several matters. These include R v Zonele and 0thers 1959 3 SA 319 (A) and S v Seleke en Andere 1976 1 SA 675 (T). Both cases held that it was desirable that the charge-sheet should refer to the particular statute but both refrained from holding that the provisions of the statute could not be employed if the state failed to make such reference."

The question was left open in the Legoa matter but "in para [21] the Supreme Court of Appeal held that the question of whether or not the trial had been fair when there was no such reference made to increased penalty provisions was one which would have to be decided on the facts of each individual case". In my view, in the present matter, the proceedings were not substantively unfair to the appellants.

I turn then to the question whether substantial and compelling circumstances were present justifying the imposition of a lesser sentence in respect of count 1. All the traditional factors are to be considered in determining this issue. [S v Malgas 2001(1) SACR 469 (SCA).]

The first appellant was about 21 years old when the offences were committed and is presently about 25 years of age. He lives with his uncle and is the father of a child of about five years of age. He progressed as far as standard 8 (grade 10) in school and was involved in a "live in" relationship with a woman. He has two previous convictions for assault committed during 1996 and 1997 respectively, ie four and three years prior to the conviction in this appeal. He was also convicted and sentenced in 2001 for housebreaking and theft. From the magistrate's comments it appears that that offence was committed after the ones which are the subject of this appeal.

Appellant no 2 is presently 26 years old and lives with his mother. He matriculated and was studying for a computer-programming qualification at a college at the time of his arrest. He is not married and has no dependents. He is a first offender and was about 22 years old when the offence was committed.

Second appellant had been released on bail shortly after his arrest while first appellant had been in custody for approximately two years while awaiting trial and partly due also to the other criminal case against him, referred to earlier. The robbery does not appear to have been premeditated. The appellants, the complainant's friends and others had been drinking alcohol, apparently until the early hours of the morning. It appears they committed the robbery during an emotionally charged situation when several fights with beer bottles were taking place and the appellants took the opportunity to rob the complainant of his firearm and cell phone. Although the complainant was assaulted, he did not sustain serious injuries. Both the firearm and the cell phone were recovered. 0n the other hand one cannot lose sight of the fact that where a firearm is used in the robbery it is an aggravating factor. See S v Mofokeng 2004(1) SACR 349 (W) at par 6:

"In s 1(b) of the Criminal Procedure Act 51 of 1977 'aggravating circumstances' in relation to robbery or attempted robbery means, inter alia, 'the wielding of a firearm or any other dangerous weapon ... by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence ..."

The learned magistrate, in coming to the conclusion that no substantial and compelling circumstances existed, said:

"In sover dit die gemeenskapsbelang aangaan is dit ook so dat die gemeenskap vereis waar 'n persoon dan skuldig bevind aan so 'n ernstige misdaad dat die howe na behore sal vonnis.

Geweldsmisdade en dan spesifiek ook roof met verswarende omstandighede waar 'n vuurwapen gebruik word het 'n hoë voorkomsyfer en dit is baie keer spesifiek die jonger manne wat hulle daaraan skuldig maak.

Beskuldigde was 18 jaar oud maar nie meer 'n ouderdom wat 'n mens kan sê dat hulle nie werklik insae het of voorsien wat die gevolge van so 'n handeling sal wees nie.

'n Vuurwapen word ook geroof tydens hierdie aanval.

Die hof is tevrede ten opsigte van aanklag 1 dat daar nie dwingende omstandighede bestaan wat 'n ligter vonnis verg nie."

The learned magistrate failed to take account of other factors and the sentences for count 1 are disturbingly inappropriate. The magistrate correctly refers to the relative frequency with which this type of offence takes place. There is no doubt that these type of cases must be dealt with firmly and a salutary sentence for both accused is required which will act as a deterrence to others. "Nevertheless, an offender must not be sacrificed on the altar of deterrence ..." [S v Holiday 2004(2) SACR 576 (ECD) at 577c.]

In my view, the relative youth of the appellants and that the offence was not premeditated and, in the case of appellant no 2, he has a clean previous record and the other factors mentioned above are substantial and compelling circumstances justifying the imposition of a lesser sentence, in respect of count 1, than the prescribed minimum of fifteen years imprisonment which is far too severe and a sentence of twelve years imprisonment for appellant 1 and eight years for appellant 2 would be justified.

I accordingly propose the following order:

1. The appeal of both appellants against their convictions is dismissed.

2. The appeal of both appellants against their sentences on count 1 are upheld.

3. The sentences imposed on both accused in respect of count 1 are set aside and are substituted by the following:

Appellant no 1 is sentenced to imprisonment for twelve years.

Appellant no 2 is sentenced to imprisonment for eight years.

4. In terms of section 282 of Act 51 of 1977 the sentences imposed in terms of paragraph 3 are backdated to 16 July 2002.

5. The appeal of appellant 1 against his sentence on counts 2 and 3 is dismissed.

N RANCHOD

ACTING JUDGE OF THE HIGH COURT

I agree

I W B DE VILLIERS

JUDGE OF THE HIGH COURT

2529-2003

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