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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

NOT REPORTABLE DELIVERED: 3 SEPTEMBER 2007

CASE NUMBER: A 989/04

In the matter between:'

SIKHUMBUZO SHONGWE

First Appellant

PRINCE THABO TEFFO

Second Appellant

and

THE STATE

JUDGMENT

1. The Appellants were charged with four counts in the Regional Court held

at Benoni. Counts 1 and 2 are in respect of robbery with aggravating

circumstances because of the use of a firearm whereas counts 3 and 4

relate to the unlawful possession of the firearm and ammunition. The

incidents giving rise to the charges preferred against the Appellants

occurred on 6 September 2002.

2. The Appellants' who were legally represented, pleaded not guilty on 12

November 2002 to all four counts, but were convicted on 11 February

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2003 of attempted robbery on count 1, convicted as charged on counts 2 and 3 and acquitted on count 4. The Regional Magistrate considered Section 12 (1) of Act 75 of 1969 to remain applicable to the Appellants who are all minors.

3. On 4 April 2003 the Appellants were sentenced to 10 years imprisonment on count 1, 15 years imprisonment on count 2 and three years imprisonment on count 3 by the Regional Magistrate who ordered that five years of the sentence imposed on count 2 and the sentence imposed on count 3 run concurrently with the sentence imposed on count 1, Le. all three Appellants were sentenced to an effective 20 years imprisonment.

4. The Appellants lodged their notices of appeal in person from prison which was done out of time and also simultaneously lodged applications for condonation for the late lodging thereof. When the matter was heard before us the Appellants as well as the Respondent were represented. The applications for condonation were not opposed on behalf of the Respondent and was in fact not referred to by any of the legal representatives and hence not dealt with. To the extent that it may be necessary the condonation sought is granted ex post facto. The grounds of appeal raised in the notices of appeal regarding the merits are general in their terms and do not refer to any specific instances of

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misdirections by the regional magistrate regarding the evidence adduced. The appeal was, however, approached on the basis that, firstly, the identity of the Appellants as assailants was not proved beyond a reasonable doubt and, secondly, that the evidence did not justify a finding of either common purpose or joint possession regarding the robbery and firearm.

5. Count 1 is based on an incident which occurred at approximately 07h30 on 6 September 2002. Ms Kabini, the complainant, saw the three Appellants approaching her from the front while she was en route to work. The Third Appellant pointed a firearm (the subject of count 3) at her abdomen demanding money. The First Appellant took her bag and searched it. The Second Appellant accused her of being a prostitute and hit her on the chest with his fist. They let her go when bystanders approached.

6. Count 2 is based on an incident which apparently occurred very soon after the previous incident when Mr Mahlangu, the complainant, was en route to work. The three Appellants also approached him from the front. The Third Appellant pointed a firearm (the subject of count 3) at his forehead, while the First and the Second Appellants were searching him, robbing him of R120. The police station was approximately 100 metres away and the members of the community responded swiftly. Mr

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Mahlangu identified all three after they had been arrested, following actions taken and pointings out by members of the community. The First Appellant was arrested inside a hut, the Second Appellant in an open veld and the Third Appellant was taken into custody in an outside toilet.

7. The Appellants denied any knowledge of the charges preferred against them and the incidents which gave rise thereto. According to their evidence the First Appellant was arrested while walking to work, the Second Appellant was arrested while en route to buy eggs and the Third Appellant was arrested in the toilet after requesting permission to use it. They also stated that they did not know one another.

8. Regarding the identity of the assailants who committed the crimes it was argued on behalf of the Appellants that on the complainants' own versions, the incidents occurred at about 07h30 and were quickly over, the assailants disappeared from the complainants' view after the incidents whereafter they were arrested and that to complicate matters further, none of the complainants could describe the clothing, faces or even a singular identification aspect of their assailants. It was further argued on their behalf that the fact that both the complainants identified the Appellants as their assailants, without more, was insufficient to establish identification beyond a reasonable doubt and that ultimately the Respondent's case on identity was based on the evidence of two single

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witnesses, regarding two incidents which had to be approached with caution.

9. The Regional Magistrate was aware that he had to approach the evidence of Ms Kabini and Mr Mahlangu with caution regard being had to the totality of the evidence and the probabilities and the safeguards which could be extracted therefrom guaranteeing the reliability of the complainants' observations. Regarding identity, he concluded, a conclusion I agree with, that the Appellants were in fact the assailants of both complainants. In this regard he not only considered the two complainants to be honest witnesses, but accepted the reliability of their observations. They did not contradict themselves and these were no improbabilities in their evidence. The incidents occurred at approximately 07h30 on 6 September 2002 during daylight. Both complainants had ample opportunity to observe the Appellants' faces who approached them from the front. It was common cause that Mr Mahlangu identified the three Appellants as the persons who had robbed him probably soon after they accosted Ms Kabini. Ms Kabini identified the Appellants' in Court as her assailants. She noticed that the Second Appellant walked behind the First and Third Appellants and that he continuously rolled or pulled up the leg of his trousers. The Appellants were in close proximity to her for at least three to four minutes during which she conversed with them. The First Appellant took her bag while

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standing in front of her, the Third Appellant initially pointed the firearm at her abdomen and thereafter at her shoulder also while standing in front of her and the Second Appellant hit her on her chest with his fist while standing in front of her. She watched their faces throughout. The Third Appellant also asked her where she was going and when she answered that she was going to work he wanted to take her work keys in response to which she asked him why he wanted to do so. The reliability of their evidence that the Third Appellant was in possession of a firearm is fortified by the fact that a firearm was found in the toilet in which the Third Appellant was arrested. In all the circumstances the complainants had ample opportunity to observe the Appellants and it has been established beyond a reasonable doubt that their identification was reliable and that there was no possibility of wrong identification.

10. Ms Mofokeng testified that the firearm was found by her in the toilet in which the Third Appellant was arrested. She summoned the police and a police officer recovered the firearm from the toilet. The Regional Magistrate, in my view, quite correctly accepted her evidence regarding this aspect (which was contradicted by Sergeant Wheeler who testified that the firearm was handed to him by a woman who had found it in tall grass outside the toilet). In any event, Ms Mofokeng's evidence that she found the firearm in the toilet was not contradicted by the Appellants. The Regional Magistrate also found that although there was no evidence

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that the firearm was in working condition (Sergeant Wheeler testified that a .22 Astra pistol had been handed to him), the object which was found in the toilet complied with the definition of an arm in Act 75 of 1969 because a barrel also according to that definition, qualified as a firearm for purposes of that Act. I also agree with this finding. Furthermore, it was common cause that the Third Appellant was arrested in the toilet. Both complainants testified that the Third Appellant was the assailant who handled the firearm. The Regional Magistrate's finding that the Third Appellant was in possession of a firearm is in my view correct.

11. Regarding the question of common purpose it is in my view clear that the three Appellants had the common purpose to rob the complainants. The only inference that can be drawn from the proven facts is that the First and Second Appellants were aware of the fact that the Third Appellant was in possession of the firearm and would in any event have become so aware after attempting to rob Ms Kabini. It can in my view be properly inferred from the established facts that the First and Second Appellants had the intention to exercise possession of the firearm through the Third Appellant and that the Third Appellant had the intention to hold the firearm on behalf of all of them and that they were therefore jointly in possession of the firearm.

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12. In the premises I am of the view that the Appellants were correctly convicted.

13. Regarding the sentences imposed it was argued on behalf of the Appellants that the following aspects, viewed cumulatively, constitute substantial and compelling circumstances to justify this Court to impose a substantially lesser sentence namely: no one was threatened with injury or death; no one was injured; only cash was taken, not jewellery or clothing; the amount involved is not a major sum of money; the complainants were not accosted or injured; the First Appellant is the breadwinner for his 8 months old child; two Appellants were not armed; this was not one of the most severe robberies and the legislature could not have intended that a robbery where a lot of cash or goods were taken, shots fired, property damaged and bystanders injured, be viewed with the same degree of seriousness as the facts of the present matter; all three Appellants are young and first offenders; and in the case of the Third Appellant who was under 18 but over 16 years of age when the crimes were committed, this Court was free to depart from minimum sentence provisions.

14. Although no serious injury was inflicted or death occurred it is so that Ms Kabini was hit with a fist on the chest and that both she and Mr Mahlangu were threatened by using a firearm which constituted a threat

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of injury or death. Whether only cash was taken or that it did not involve a major sum of money, that two of the Appellants were not armed and that it was not one of the most severe robberies, does not detract from the fact that the crimes of which the Appellants were convicted are serious crimes which are viewed as such by the legislature. The fact that the Appellants, in particular the Third Appellant, are young and first offenders as well as their other personal circumstances were properly taken into account by the Regional Magistrate. I agree with the Regional Magistrate that according to the probation officer's report the Third Appellant has a history of delinquent behaviour and that he does not accept discipline and authority of elders and has apparently chosen to view himself as an adult. He brandished the firearm and was in possession thereof when they committed the crimes in concert and there accordingly exists no reason why the minimum sentence should not apply to the Third Appellant and the three Appellants be treated equally. All other factors regarding the imposition of an appropriate sentence has, in my view, been taken into account by the Regional Magistrate.

15. It was also argued on behalf of the Appellants that the attempted robbery and robbery as well as the possession of the firearm should be viewed as simultaneous occurrences and that because of that close link between the offences the concurrence of sentence was appropriate. The attempted robbery of Ms Kabini and robbery of Mr Mahlangu were

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two entirely separate occurrences. In fact on the probabilities it appears that the Appellants on the morning in question set out to indiscriminately rob people who were on their way to work and would probably not have been apprehended had it not been for the swift action of the community. Although the attempted robbery and the robbery occurred in close succession I am of the view that it would be wrong to order that all the sentences should run concurrently.

16. I am accordingly of the view that the sentences imposed by the Regional Magistrate and the order that they partially run concurrently are in all respects appropriate. The orders that the three Appellants are declared unfit to possess a firearm and that the Third Appellant serve his sentence in the youth facility until he attains the prescribed age, remain.

17. The Appellants' appeals against their convictions and sentences are accordingly dismissed.

Acting Judge of the High Court

I agree.

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M A BADEN HORST

Acting judge of the High Court

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