---

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT, PRETORIA)

CASE NO: A897/2011

DATE:04/06/2012

In the matter between

THOMAS LUCAS SELEPE...........................................................................................Appellant

and

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

JUDGMENT

MATOJANE J

[1] The appellant was convicted on count 1, attempted robbery and count 2, contravention of section 51(1) of Act 51 of 1977 (Escaping from lawful custody) in the Regional Division of Mpumalanga held at Piet Retief, having been charged with robbery with aggravating circumstances in terms of section 51(2) of the Criminal Law Amendment Act, 105, of 1997. The aggravating circumstances were alleged to be that the complainant had suffered serious injuries during the robbery.

[2] The appellant pleaded not guilty to the charges. On 13 July 2011 the appellant was sentenced to 3 years imprisonment in respect of count 1 and 1 year imprisonment in respect of count 2. Leave to appeal against both conviction and sentence was granted on petition. The appeal before us is against both conviction and sentence.

[3] Briefly,.the facts, which gave rise to the charges, are the following: The complainant was in the company of the appellant and a certain Sabelo at about 18:30 and they were on their way to a tavern. They all worked for the same employer and had received their salaries that day. Appellant informed them that he had to meet somebody and disappeared into the bush only to emerge later undressed. Appellant tripped the complainant and proceeded to throttle him. The appellant held his one hand over the mouth of the complainant while using the other hand to throttle him. The complainant suffered an epileptic attack and bit off a portion of the thumb of the appellant in the process. The appellant thereafter fled into the bush.

[4] Contrary to what is alleged in the charge sheet, the complainant himself testified that no property of his was robbed from him, neither his cell phone nor any money. He further testified that appellant had not made any demands of money from him as he was busy attacking him. The complainant thought that the reason appellant attacked him might have been because appellant received very little money from his employer that day.

[5] No evidence was presented to prove what type of injury the complainant had sustained after the appellant throttled him. In my view, the evidence presented by the state has failed to prove the charge of attempted robbery. At most the evidence proves the offence of common assault which in terms of section 260 of the Criminal Procedure Act, Act 51 of 1977, is a competent verdict on a charge of robbery.

[6] The state further alleged that the appellant had escaped from lawful custody while being processed in the charge office at the police station. Constable Kesha testified that he arrested the appellant and upon arrival at the police station, appellant attempted to escape from the police station before he could be booked into the criminal register. Appellant was apprehended inside the police station just outside of the charge office. Constable Kesha did not find it necessary to open a docket for escaping from lawful custody.

The appellant for his part testified that the police officers were injuring his injured thumb and that is the reason why he moved away from them.

[7] In my view, the single evidence of Constable Kesha has merely proved an attempt by the appellant to escape. It therefore follows that the magistrate misdirected himself in considering and evaluating the evidence presented before him. The misdirection entitles this court to intervene.

[8] In the result, the following order is proposed:

(a) The appeal against both conviction and sentence is upheld.

(b) The conviction and sentence imposed by the court a quo are set aside.

(c) The accused is convicted of common assault in respect of count 1 and attempted escape in respect of count 2.

(d) Both counts are taken together for purpose of sentencing and the accused is cautioned and discharged.

KE MATOJANE

JUDGE OF THE HIGH COURT

I agree

MW MSIMEKI

JUDGE OF THE HIGH COURT

---