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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

 

CASE NO: A401/2018

 

In the matter between:

 

FANA FANI FANELO                                                                                          Appellant

 

and

 

THE STATE                                                                                                          Respondent

 

Summary

An appeal against conviction and a sentence of six years imprisonment imposed by the District Court Oberholzer for the offences theft, defeating the ends of justice and resisting arrest. No portion of the sentence imposed by the court a quo, was ordered to be served concurrently.

 

Order

1.        The appeal against conviction is dismissed.

2.        The appeal against sentence is upheld.

3.        The sentence of the court a quo is substituted with the following sentence:

3.1     The sentence imposed in respect of count 4 is to be served simultaneously with that of count 3.

3.2     The appellant is effectively sentenced to four years imprisonment

3.3     The sentences are antedated to 29 May 2018.

JUDGMENT

COLLIS J (KHUMALO J concurring)

[1]          The appellant, Mr Fana Fani Fanelo appeared in the Oberholzer District Court on the following charges:

1.1        Count 1: Assault;

1.2        Count 2: Theft

1.3        Count 3: Defeating the Administration of Justice and

1.4        Count 4: Resisting arrest.

 

[2]          The appellant, who was legally represented on 23 May 2018 pleaded not guilty to all the counts and on 29 May 2018 he was subsequently acquitted on count 1 and convicted on the remainder of the counts.

[3]          On the same day he was sentenced as follows:

3.1         Count 2:         One (1) year imprisonment.

3.2         Count 3:         Three (3) years imprisonment.

3.3.      Count 4:         Two (2) years imprisonment

 

The sentences were not ordered to run concurrently resulting in the appellant having to serve a period of six (6) years of incarceration. The appellant was also declared unfit to possess a firearm in terms of section 103 (1) of Act 60 of 2000.

 

[4]          On 04 June 2018, the court a quo refused the appellant leave to appeal both his conviction and sentence.

[5]          This Court on petition subsequently granted the appellant leave to appeal both his conviction and sentence.[1]

[6]          At the hearing of the appeal, the appellant was also granted condonation for the late filing of his Heads of Argument.

[7]          Succinctly the appellant appeals his conviction on the following grounds:

7.1         that the State failed to prove the guilt of the appellant beyond a reasonable doubt;

7.2         that the court a quo erred in finding, that there are no improbabilities in the State's version;

7.3         that the evidence of the State witnesses can be criticized on matters of detail only, whereas the court a quo should have found that the evidence was contradictory in material respects;

7.4         that the court erred in failing to properly evaluate the evidence of the state witnesses;

7.5         that the court erred in failing to properly consider the improbabilities inherent in the state's version.

7.6.      Furthermore, the court a quo erred in considering the evidence of the second state witness, whereas cross examination of this witness was incomplete.

 

[8]          The genesis of the convictions and the sentences arose from events which occurred on 22 October 2017. On this day, Constable Bongomusa Tango testified that he was doing patrols in a police van with a colleague when they observed a Toyota Tazz vehicle making a U-tum at an unauthorized area on the road. They then proceeded to stop the driver and requested the driver to alight from his vehicle. Upon questioning the driver, they realized that the driver was under the influence. Whilst questioning the driver, the passengers inside his vehicle had alighted and started to interfere with the police executing their duties. They then placed the driver under arrest for driving under the influence and proceeded to put him at the back of their patrol van. The appellant was one of the passengers who were interfering with the police. As they were about to drive off, Tango noticed through his rear view mirror that the appellant was behind the police van, more specifically at the door and that he had opened the van's door. As a result, the suspect earlier arrested for driving under the influence by then had managed to escape. It was then that Tango arrested the appellant for having assisted the driver to escape. The appellant, however, resisted arrest. A security guard in the vicinity confirmed to Constable Tango, that the appellant was the person who had opened the back of the police van. The appellant slapped Tango several times in his face. Tango took out his pepper spray and sprayed the appellant with it in order to subdue him. The appellant, however, managed to grab the pepper spray from Tango and ran away. At this point Tango then called for assistance from his colleagues. Upon their arrival, a search ensued for the appellant in the area and eventually the security guard directed him to where the appellant was hiding. He was then finally arrested .

[9]          During cross-examination Tango reiterated that after the suspect jumped out of the back of the police van, the van was brought to a standstill. Further that upon alighting the van with his crew, he found the appellant standing at the back of the police van. He also once again confirmed that he personally observed the appellant open the back of the police van and that the security guard merely confirmed to him what he had observed in this regard. When Tango was asked as to the clothing that the appellant was wearing on the day he was adamant that appellant was wearing a long sleeve maroon or red t-shirt. Constable Tango further denied the version of the appellant that he was not the person who opened the back of the police van assisting the suspect to escape and that on the night in question that he was drinking inside the night club. Tango was unyielding that he arrested the suspect outside the night club. He further denied that when he arrested the appellant, he was found outside the nightclub merely having a cigarette. It was his testimony that the appellant was just standing outside the nightclub in a passage situated close to the nightclub.

[10]      Constable Gift Tshabadila was the next witness to testify for the State. She testified that on the day in question she was the crew on duty with Constable Tango. Upon their arrival at Chesa by Night and as they were patrolling they noticed a Toyota Tazz motor vehicle executing a U-turn in an area where it was not supposed to. They proceeded to stop this vehicle and as they were arresting the driver for driving under the influence the appellant then approached them and tried to persuade them not to arrest the driver pleading that he was innocent and that he had not done anything wrong. The officers proceeded to apprehend the driver using force and put him inside the back of the police van. Just as she was about to enter her passenger side of the van to drive off, the appellant then approached her on her side and almost prevented her from closing her door. There were streetlights in the area and as such she could clearly see the appellant. She managed to close her door and as they were about to leave, Constable Tango had noticed that someone was at the back of the van attempting to open its door. Their vehicle was stopped and when they both alighted and went to the back of the van, they noticed that the door was open and that the arrested person was no longer inside. The appellant was standing not far from where the police van was parked and when Constable Tango approached him and asked him who opened the door of the police van he responded that it was not him. A security guard working at Chesa by Night nightclub then approached them and informed them that the appellant is the person who opened the back of the police van. He was then approached by Constable Tango and informed that he is arresting him for interfering with the duties of police officers. The appellant however resisted his arrest; assaulted Constable Tango and even tried to grab his firearm and eventually managed to grab his pepper spray. He also managed to run away.

[11]       During cross-examination, she confirmed her testimony in chief that neither her nor Constable Tango had observed who it was that had opened the back of the police van as they were about to drive off the first time. She further reiterated that it was the security guard who came to confirm to them, that it was the appellant who had opened the back of the police van and allowed his friend to escape. Her evidence in cross-examination differs from her evidence in chief that the appellant was arrested by Constable Tango before the security guard reported to them that the appellant was the one who had opened the back of the van. During examination in chief on that point she testified that Constable Tango first asked the appellant whether it was him who opened the back of the van before the security guard came closer and confirmed that it was him, whereafter he was placed under arrest. During cross-examination, Constable Tshabadila was further unable to explain why her statement made no mention of the appellant preventing her from closing her door as they were about to drive off after having had arrested his friend, whereas in evidence- in-chief she testified to this effect. She was further unable to explain where she obtained a description of the clothing set out in her statement which was worn by the appellant on the day of the incident. In her statement she stated that the appellant was wearing a checked long sleeve shirt on the day.

[12]       The cross-examination and any re-examination of Constable Tshabadila was not completed. The record reflects that the proceedings were adjourned on 23 May 2018 until the 28 May 2018, and on this day the prosecution elected to call another witness, albeit that the appellants' attorney at the time had placed on record that he had not completed his cross-examination.[2] This point was raised in the Heads of Argument by Mr. Alberts appearing on behalf of the appellant, however, counsel appearing on behalf of the appellant during the trial had agreed that they wish to proceed notwithstanding that cross­ examination of Constable Tshabadila was incomplete.[3]

[13]       Mr. Pedro Nyathi was the last witness called for the prosecution. It was the evidence of Mr. Nyathi that on the day in question he was a security guard at the Chesa by Night nightclub. On the evening in question a police van together with its crew arrived outside the night club and whilst in the process of arresting an intoxicated driver of a motor vehicle the appellant who was a friend of the driver interfered with the police carrying out their duties. Upon the police managing to place the driver at the back of their police van, the appellant just as the van was about to drive-off ran after it and in the process managed to open the back of the police van. This resulted in the arrested person escaping. The police van was then brought to a standstill and it was then that the appellant had run away, changed his clothes and went and hid against a wall in an adjacent street. During cross-examination he denied the version of the appellant contending that he did not participate in assaulting the police as he at all material times was a patron inside the Chesa by Night nightclub. He also reiterated his testimony in chief that it was the appellant who opened the back of the police van and thereby allowing the earlier arrested intoxicated driver to escape. This he pointed out to the police when they had brought their police van to a standstill. During cross-examination he also confirmed that upon the back-up police officers arriving, he pointed out the appellant to the police officers after he had run away to hide in an adjacent street. The witness was unable to give any description of the appellant identifying him on the day in question.

[14]      The appellant testified in his own defence. His evidence was that on the evening in question he was a patron at the Chesa by Night nightclub. At some point during the evening, he left the inside of the nightclub to go outside to go and buy a cigarette at one of the stalls situated outside. As he was in the process to light a cigarette, he was then confronted by a police officer who grabbed him by his t-shirt and accused him of thinking that the officer was a stupid. An altercation then ensued. He was then hit on his head with a firearm by the officer and placed inside the back of a police van. He described the clothing he was wearing on that evening as a jean, vest and a Puma cap. During cross-examination the appellant made the following clarifications:

14.1      that the first time that he saw Constable Tshabadila on the evening of the incident was at the police station when she came to ask him for his name and not outside the nightclub;

14.2      further that the only time that he fought with Constable Tango was in the adjacent street in the passage when he was arrested by Constable Tango; he denied having fought with him at the back of the police van;

14.3      further that when he was first approached by Constable Tango and pulled by his vests that they first had a conversation whereby he was even pulled aside by Constable Tango before he was eventually assaulted by Constable Tango;

14.4      he further clarified that when he was confronted by Constable Tango that he was alone and that he had no other police officers present next to him; and

14.5      lastly, that on the specific evening there were a number of patrons outside the nightclub and that he was surprised as to why the police would confront him and no other patron on the night in question.

 

[15]      The appellant during cross-examination further conceded that on the evening in question, the only business that brought the police officers on the scene, was in fact the drunken driver which they ended up arresting. He further denied that he interfered with the police executing their duties.

[16]       The powers of a court of appeal to interfere with the findings of fact of a trial court are limited. In the absence of any misdirection the trial court's conclusion, including its acceptance of a witness' evidence is presumed to be correct. In order to succeed on appeal, the appellant must therefore convince the court of appeal on adequate grounds that the trial court was wrong in accepting the witness' evidence - a reasonable doubt will not suffice to justify interference with its findings. Bearing in mind the advantage which a trial court has of seeing, hearing and appraising a witness, it is only in exceptional circumstances that the court of appeal will be entitled to interfere with a trial courts' evaluation of oral testimony.[4]

[17]       The trial court in its judgment had found that the state witnesses had corroborated each other on material aspects. Mr Wolmarans appearing on behalf of the respondent had submitted that even if the trial court excluded the evidence of the police officials and on the evidence of the security guard (Mr Nyathi) alone, the state would have been able to secure a conviction. I agree with this submission made on behalf of the respondent.

[18]       Mr. Alberts appearing on behalf of the appellant had argued that the failure by Mr. Nyathi to identify the clothing which the appellant was wearing on the day, is indicative of mistaken identity. In this regard Mr Alberts had relied on the decision of S v Mthetwa 1972 (3) SA 766 (A) AT 768 A-C, where it was held as follows:

"Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, build, gait and dress; the result of identification parades, if any, and of course the evidence by or on behalf of the accused. The list is not exhaustive. These factors or such of them as are applicable in a particular case, are not individually decisive, but must be weight one against the other, in light of the totality of the evidence, and the probabilities, see cases such as R v Masemang, 1950 (2) SA 488 (AD); R v Dladla and Others 1962 (1) SA 307 (AD) at p 310C; S v Mehlape 1963 (2) SA 29 (AD).'

 

[19]       In the present matter, the court a quo carefully evaluated the evidence of witnesses for the state and could reach no other conclusion but that the appellant was the person who had committed the offences which he was charged with. As for the evidence of the police officers the court a quo had found corroboration in the evidence of Mr. Nyathi who was an independent witness and who had no interest in the arrest of the appellant. The failure by Mr. Nyathi to recall the clothing that the appellant was wearing on the evening in question the learned magistrate had remarked that Mr Nyathi instead of fabricating a description of the clothing of the appellant, was honest enough to say that he was unable to recall a description of the clothing of the appellant. This failure to recall the clothing the trial court considered as fair.

[20]       The discrepancy in the testimony of Constable Ntshabadila regarding where the appellant was finally arrested is not of material effect as Thuso and Nyathi's testimony that appellant was found outside in the passage around the Chesa club is confirmed by the appellant that he was outside the club when he was finally arrested.

[21]       Given the totality of the evidence presented, I could find no misdirection with the evaluation of the evidence by the court a quo. The judgment was properly motivated given the totality of the evidence presented on behalf of the State. Accordingly, the appeal on the conviction must fail.

[22]       On sentencing counsel for the appellant in his heads of argument and during the hearing of the appeal argued that the court a quo failed to properly apply the triad principles in respect of sentencing and that the effective sentence of six years imprisonment is excessively severe.

[23]       Furthermore, as the offences were all closely related in time and space, the court a quo should have considered the cumulative effect of the sentences. For the purposes of mitigation of sentence, the following personal circumstances of the appellant appear to have been placed on record:

23.1      the appellant was 22 years old and single at the time when he was sentenced;

23.2      he has no dependents;

23.3      he attended school and only reached Grade 9;

23.4      he was recently employed;

23.5      the appellant has one previous conviction for assault with the intent to do grievous bodily harm.

 

[24]       Albeit, that sentencing is inherently within the discretion of the sentencing court, the powers of an appeal court to interfere with the sentencing courts' discretion in imposing sentence are limited unless the sentencing courts' discretion was exercised improperly. The essential inquiry in an appeal against sentence is not whether the sentence was right or wrong, but whether the sentencing court exercised its discretion properly and judicially. If the discretion was exercised improperly, the appeal court will interfere with the sentenced imposed.[5]

[25]       This court having considered the court a quo's judgment on sentence, concluded that the sentencing courts' discretion was not exercised properly and judicially. The sentencing court seems to have over-emphasised the seriousness of the offences over the personal circumstances of the appellant albeit that the court a quo's judgment on sentence did not specifically mention the triad principles. The court a quo further had regard to the object of punishment, namely; retribution, rehabilitation and deterrence and that a balance ought to be found when imposing an appropriate sentence. In this regard the court a quo remarked that the sentence which the trial court imposes had to send a message to the people that law enforcement agencies should be respected. I agree with this sentiment expressed by the learned magistrate albeit that the sentence imposed by the learned magistrate could not be said was exercised properly and judicially.

[26]      On sentence and on behalf of the appellant it was further submitted that the court a quo should have ordered the sentences to run concurrently. The offences which the appellant was convicted of, are three distinct offences by definition, although they were closely connected in time and space. An aggravating factor present is that the offences were committed with bravado and showing utter disregard to our police officials.

[27]       In aggravation further, it is not the appellant's first brush with the law and although still fairly young of age he already entered his adult life. Having regard to his previous conviction, the courts had already given him an opportunity to rehabilitate himself outside the perimeters of prison, but less than three years thereafter he finds himself before the courts again. Given his age and circumstances one would expect greater respect for authority and restraint on his part.

[28]       In view of the fact that the offences committed were closely connected in time and space, I must agree that the learned magistrate should have ordered the sentences to be served concurrently as they were all committed flowing from one specific incident. It therefore follows that the sentencing court should have given this some consideration which was clearly not the case. The appeal on sentence must as a result succeed.

[29]       In the result and consequently the following order is made:

29.1      The appeal against conviction is dismissed.

29.2      The appeal against sentence is upheld.

29.3      The sentences imposed in respect of count 4 is ordered to run concurrently with the sentence imposed on count 3.

29.4      The effective sentence to be served is therefore 4 years direct imprisonment.

29.5      The sentences are all antedated to 29 May 2018.

 

 

 

J. COLLIS

JUDGE OF THE HIGH COURT

 

 

I agree

 

 

 

N.V. KHUMALO

JUDGE OF THE HIGH COURT

 

 

 

 

IT IS SO ORDERED.

Appearances:

For the Appellant:               Adv. H. L. Alberts

Instructed by:                      Pretoria Justice Centre

Legal Aid SA

 

For the Respondent:           Adv. C. Wolmarans

Instructed by:                     Director of Public Prosecutions

Pretoria

 

Date of Hearing:                 28 November 2019

Date of Judgment:               24 April 2020

 

Judgment electronically transmitted.

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