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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CC 77\1998

In the matter between:

PETER TSELANNGWE APPLELLANT

and

THE STATE RESPONDENT

JUDGMENT

MOKGOATLHENG AJ:

INTRODUCTION:

[1] This is an application for leave to appeal against conviction and sentence in terms of section 315 of the Criminal Procedure Act No 51 of 1977.

[2] The Appellant was charged together with three others with one count of murder and one count of robbery with aggravating circumstances. The Appellant was acquitted of murder but was convicted of robbery and sentenced to sixteen (16) years imprisonment.

[3] The application for leave to appeal on conviction is premised on the following grounds that;

1. the evidence implicating the Appellant in the commission of the crimes is of two accomplices. It is submitted that the trial court did not properly apply cautionary rules and sufficiently warn itself in considering such evidence, that the corroboration purportedly proffered by such accomplice evidence was unreliable, untruthful and unsatisfactory,

2. the evidence of the accomplice relating to the commission of the offence was uncorroborated, and the trial court misdirected itself in finding that the Appellant participated in the robbery,

3. the trial court erred in rejecting the Appellant’s alibi as false and finding that the State had proved its case beyond a reasonable doubt.

[4] The appeal on sentence is founded on the following grounds that;

1. the trial court erred in not finding that the Appellant played a substantially lesser role than the other accused in the planning and execution of the robbery,

2. the trial court erred in equating the Appellant’s blameworthiness with that of the other accused, and thereby failed to individualise the Appellant’s sentence,

3. the sentence imposed on the Appellant is shockingly inappropriate.

[4] Before considering the submissions herein it is apposite to restate the well established principles applicable in such an application. In Rex v Dhlumayo and Another SA 1948 (2) 677 it was held that;

[i] the trial judge has advantages – which the appellate court cannot have – in seeing and hearing the witnesses and in being steeped in the atmosphere of the trial ………..

[ii] consequently the appellate court is very reluctant to upset the findings of the trial,

[iii] even in drawing inferences the trial judge may be in a better position than the appellate court, in that he may be more able to estimate what is probable or improbable in relating to the particular people whom he observed.

[iv] where there has been no misdirection or fact by the trial judge, the presumption is that the conclusion is correct, the appellate court will only reverse it where it is convinced that it is wrong,

[v] an appellate court should not seek anxiously to discover reasons adverse to the conclusion of the trial judge. No judgment can ever be perfect and all embracing, and it does not necessarily follow that, because something has not been mentioned, therefore it has not been considered.

[5] It is contended that there is a number of inconsistencies between the evidence of Mokemane and Accused No 1 regarding the role of the Appellant in the commission of the robbery, that because of these inconsistencies the evidence of Accused No 1 cannot serve as corroboration for the evidence of Mokemane in implicating the Appellant in the commission of the robbery.

[6] The trial judge did consider the inconsistencies between the evidence of Accused No 1 and Mokemane and made a finding that Mokemane struck him as being by far the more intelligent witness than Accused No 1 that where there were inconsistencies he preffered the evidence of Mokemane bearing in mind the dangers of accepting accomplice evidence and the evidence of a single witness.

[7] The trial judge made a finding that the differences relating to the evidence of Accused No 1 when compared to Mokemane’s are due to the fact that Accused No 1 is less intelligent, was slow in giving evidence and had difficulty in understanding questions.

[8] It is trite that a Court may convict on the evidence of an accomplice – having regard to the caution which the law enjoins – if the Court is satisfied that the evidence in its essential features is satisfactory.

[9] It is trite that the evidence of an accomplice need not necessarily be satisfactory in all material respects. The trial judge did not reject the evidence of Accused No 1, and did not make a finding that Accused No 1’s evidence was unreliable or untruthful.

[10] It is contended that there is no assurance that the evidence of Mokemane is reliable. The trial judge found Mokemane’s evidence to be reliable. The trial court found that it was improbable that Accused No 1 a total stranger to the Appellant and Mokemane a person of only slight acquaintance to the Appellant and both living in Johannesburg would have any reason to falsely implicate the Appellant in the commission of the offence.

[11] The trial judge rejected Appellant’s explanation that Accused No 1 and Mokemane were falsely implicating him because Appellant is known as a resident of Mabeskraal. The trial judge rejected Applicant’s explanation which was inconsistent with the assertion that Mokemane implicated him because he wanted to absolve himself and shift the blame to Appellant, yet Appellant states that the same Mokemane offered to pay bail on his behalf in order to protect him.

[12] The trial judge rejected the alibi of the Appellant and rejected the evidence of Appellant’s witness. The Court in rejecting the alibi of the Appellant made credibility findings. The Court in rejecting Isabella Sekonyella’s evidence also made a credibility finding, and rejected both their evidence as not reasonably possibly true and as false. In evaluating the evidence, I concur with the trial judge.

[13] The Appellant contends it was impermissible for the trial judge to draw an adverse inference from his failure to disclose his alibi defence prior to his trial as this constitutes an infringement of his right to silence as contained in section 35 (1) (a) of the Constitution. It is submitted that the trial judge improperly held the fact that the Appellant had failed to disclose his alibi to the police at the time of his arrest. In my view the trial judge clearly appreciated that the Accused has a constitutional right to silence, in terms of section 35 (1) (a) of the Constitution of the Republic of South Africa Act No 108 of 1996.

[14] It is common cause that the Appellant was advised of his constitutional right to remain silent and the consequences of not remaining silent. It is submitted on Appellant’s behalf that the investigating officer did not testify that he advised the Appellant, that remaining silent may have adverse consequences. It is further contended that the pro forma warning statement does not provide a warning that remaining silent may have adverse consequences, that consequently the failure by the Appellant not to disclose his alibi defence in his warning statement is of no legal consequence.

[15] There is a distinction between an inference of guilt from remaining silent and inference of a credibility finding from remaining silent relating to the non-disclosure of an alibi prior to trial. The pre trial right to silence in terms of section 35 (1) (a) is distinguishable from the right to silence during a trial which right is protected by section 35 (3) of the Constitution. It is impermissible to infer guilt from the failure to disclose an alibi timeously, but the failure to disclose an alibi timeously may have consequences and is relevant in the evaluation of credibility.

[16] It is a trite common law rule of evidence that the non-disclosure of an alibi defence prior to trial is a factor which may affect the probative value of the evidence supporting the alibi, such a non-disclosure is a justifiable limitation in terms of section 36 (1) of the Constitution of the right to remain silent.

[17] The absence of a prior warning that Appellant’s right to remain silent might have adverse consequence is a factor which has to be considered together with other factors in evaluating the evidence of the alibi defence, secondly, it is a factor which is taken into account in determining the probative value of the alibi, whether it is reasonably possibly true. The absence of a prior warning is an exigency which validates the cogency to be placed on the late disclosure of an alibi when there was a prior warning and where there was none.

See S v Thebus and Another SACR 319 at p 348 and 349.

[18] The contention is that the trial judge without fore warning or any conclusive proof made an adverse inference and concluded that the Appellant’s failure to disclose his alibi – defence prior to the trial constituted a misdirection and an irregularity. The above submission is premised on the ground that the Appellant was not cross examined during his bail application in the Magistrates’ Court to ascertain whether he had not prior to the commencement of the trial disclosed his alibi – defence to either the South African Police or the Magistrates’ Court. The argument continues that in the absence of such an enquiry it could not be held that the Appellant had in fact failed to disclose his alibi – defence prior to the commencement of the trial.

[19] The Appellant in his warning statement pertinently responds as follows to the written question, in that statement;

“Do you wish to make a statement in relation to the allegations made against you? Response I deny the allegations I did not conspire with anybody to rob Mr Motsisi.”

[20] It is common cause that there is no reference to Appellant’s girlfriend in the warning statement. The Appellant denied any involvement in the robbery. Appellant’s counsel disclosed his alibi – defence that Appellant slept with his girlfriend on the 8^th July 1997 at her parents home until the morning of the 9^th July 1997.

[21] Having regard to this evidence the trial judge correctly found that Appellant did not disclose his alibi prior to the commencement of the trial. Critically the trial judge did not draw an inference of guilt from the pre trial silence of the Appellant. The trial judge took into consideration that the Appellant’s pre trial non–disclose of the alibi was one of the factors to be evaluated in the assessment of Appellant’s credibility.

[22] The trial judge in rejecting the evidence of Appellant’s girlfriend made credibility findings against her after evaluating her evidence. Similarly the trial judge made credibility findings against the Appellant after evaluating his evidence in relation to the totality of the evidence.

[23] The trial judge made the factual finding that Mokemane and Accused No 1 were not lying when they implicated the Appellant in the planning of the robbery. Their evidence was accepted after the trial judge found that it is highly improbable that either Mokemane or Accused No 1 had any reason or motivation to falsely implicate the Appellant in the commission of the offence. The contention that the State has failed to prove its case beyond a reasonable doubt therefore has no merit.

AD SENTENCE

[1] It is submitted that there is a reasonable possibility of a court of appeal finding that that the trial court erred in the following respects;

1. in over-emphasizing the seriousness of the offence, the prevalence thereof and the interest of society at the expense of the personal circumstances of the Applicant and the fact that he was a first offender;

2. in not finding that as the Applicant had played a substantially lesser role than Mokemane and Accused 1 in the execution of the robbery that he had to be sentenced to a lesser sentence;

3. in finding that the moral blameworthiness of all three the accused persons was the same and should have been equated with that of Mokemane;

that there is a reasonable possibility etc.

[2] It is trite that sentence is pre-eminently a matter that vests in the discretion of the trial court. A court of appeal will ordinarily not interfere with the exercise of such a discretion unless it can be shown that the trial court did not exercise it’s discretion judicially; either as a result of an irregularity or a misdirection or if the sentence imposed is so shockingly inappropriate that it is clear that the trial court acted unreasonably.

See S v Kwatsha 2004 (2) SACR 564 at 569 A – B.

[3] The trial judge before imposing sentence, applied the relevant principles relating thereto; namely the personal circumstances of the Appellant, the seriousness of the crime and the interests of society, and the prevalence of the offence. The trial judge found that the Appellant played a leading role in devising the plan to rob the deceased, and found that despite the fact that Appellant was not at the scene when the offence was committed, he was equally morally blameworthy as the other perpetrators.

[4] The sentence of sixteen (16) years imprisonment imposed having regard that the robbery was committed with a firearm and was well planned, that a substantial amount of money was stolen; is not disproportionate neither is it shockingly inappropriate, and is in conformity with sentences imposed for similar offences.

[5] In the premises in my view there is no reasonable possibility that a court of appeal could find that on the same evidence there are prospects of the appeal succeeding against the conviction of the Appellant and neither are there reasonable prospects that a court of appeal may interfere with the sentence imposed.

The application for leave to appeal on both conviction and sentence is dismissed.

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R D MOKGOATLHENG

ACTING JUDGE OF THE HIGH COURT

02 JUNE 2005

APPEARANCES:

FOR THE APPELLANT : ADV C J ZWIEGELAAR

FOR THE RESPONDENT : ADV E D REYNIERSE

APPELANT’S ATTORNEYS: DAVID H BOTHA, DU PLESSIS & KRUGER INCORPORATED c\o HERMAN SCHOLTZ

RESPONDENT’S ATTORNEYS: STATE ATTORNEYS

DATE OF HEARING : 22 APRIL 2005

DATE OF JUDGMENT : 02 JUNE 2005

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