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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: CA 54/08

In the matter between:

MOKGELE KENNETH MOLEFI APPELLANT

and

THE STATE RESPONDENT

CRIMINAL APPEAL

HENDRICKS J & MATLAPENG AJ

FOR THE APPELLANT : MR S MOOKELETSI

FOR THE RESPONDENT : ADV MAKHAGA

DATE OF HEARING : 05 SEPTEMBER 2008

DATE OF JUDGMENT : 02 OCTOBER 2008

JUDGMENT

MATLAPENG AJ:

Introduction

[1] The appellant was convicted of robbery with aggravating circumstances and was sentenced to undergo fifteen (15) years imprisonment by the Regional Court. He now appeals against both the conviction and sentence. When the matter served before the Regional Court, the appellant was accused no. 1 and he had a co-accused (accused no. 2). For the sake of convenience, I will refer to them as they were referred to in the court a quo. Accused no. 1 was legally represented and when called upon to plead he pleaded not guilty to robbery with aggravating circumstances but guilty to common assault, which plea the State declined to accept.

Factual background

[2] The following evidence was led:

2.1 On 17 November 2006 at about 13h00 the two accused, together with their friends, were at a place called Crossing where they consumed liquor. A person by the name of Bakang approached them and made a report. In consequence of the report, accused no.1 and 2 approached the complainant Thabo Thapo. Accused no.1 then held the complainant by his waist belt and asked him what he was doing to Bakang. The complainant addressed Bakang directly and asked him: “What did I do to you.”

2.2 Accused no.1 then slapped the complainant twice with an open hand in the face. The complainant saw accused no.2 opening a knife (apparently it was a clutch knife although it is not stated in the evidence). The complainant tried to free himself from the grip by accused no.1 but in vain. Accused no.1 hit the complainant on the cheek with a fist. Accused no. 2 then stabbed the complainant twice on the left side of the chest with the knife. The two blows were delivered whilst accused no.1 was still holding the complainant by the waist belt.

After the complainant was stabbed for the second time he noticed accused no.1 inserting his hand in the complainant’s back pocket and took out R200.00.

2.3 As a result of the stabbing he was attended to by a doctor and by consent between the State and the defence, a form known as J88 was admitted as evidence. This is the form normally completed by medical practitioners in cases where allegation of violence against a victim has to be investigated. The complainant was admitted in a hospital and detained for five days because one of his lungs had collapsed.

[3] Thapelo Nyebeleza was called as a witness by the State. He confirmed the events as stated above except the taking of the R200.00. In that regard he said he saw accused no.1 putting his hand inside the complainant’s pocket but he did not see him taking the money. Later when he, Thapelo, searched the complainant in order to secure the complainant’s valuables, the R200.00 was no longer in the pocket of the complainant. That concluded the State’s case.

[4] Accused no. 1 testified in his defence. There is not much of a difference between his testimony and that of the State. He confirmed that he held the complainant by the waist belt and slapped him twice. He denied that he hit the complainant with a fist and further that he searched the complainant’s pockets. He was not aware that accused no. 2 had a knife in his possession. However, he saw accused no.2 stabbing the complainant with the knife on the chest.

The issues

[5] The question to be determined in respect of the conviction is whether or not there was a common purpose between accused no. 1 and accused no. 2. Furthermore, whether accused no. 1 disassociated himself from the actions of accused no. 2.

[6] With regard to sentence, the question is whether the learned Magistrate was right to find that there were no substantial and compelling circumstances entitling him to deviate from the minimum sentence laid down.

The conviction

[7] Mr Mookeletsi on behalf of accused no. 1 submitted that there is no direct evidence that the accused planned to rob the complainant. Furthermore there is no evidence to proof that accused no. 1 and his co-accused acted with one common intention of committing a robbery on the complainant.

[8] There are a number of decisions to the effect that there need not be proof of prior agreement before liability on the basis of common purpose can be established. One has to look at the conduct of the accused to see whether common purpose has manifested or not. See in this regard S v Sefatsa and Others 1988 (1) SA 868 (A), S v Mgedezi and Others 1989 (1) SA 687 (A).

In S v Singo 1993 (1) SACR 226 (A) at 233 B-C, it was stated that:

“It is clear that in such cases liability requires, in essence, that the accused must have intent, in common with the other participants, to commit the substantive crime charged (in this case, murder) and that there must be an active association by him with the conduct of the others for the attainment of the common purpose.”

[9] In the present case there is no evidence that accused no. 1and 2 sat down and agreed to go and rob the complainant. What the evidence show is that accused no. 1 and 2 were together at the Crossing. They got a report from Bakang. Accused no. 1 went to the complainant and held him by his waist belt and slapped him. Accused no. 2 also arrived where accused no. 1 was busy hitting the complainant, took out a knife and stabbed the complainant not only once but twice. These facts are common cause. The evidence further shows that after the complainant was stabbed for the second time by accused no. 2, he managed to free himself from the clutch of accused no. 1 and it was then that accused no. 1 searched him.

[10] I am also of the view that there is credible evidence that money was taken from the complainant. The complainant himself, before he became dizzy, saw accused no. 1 searching him and taking the R200.00 which was in his pocket. The fact that the complainant was searched is corroborated by the second State witness who was observing the events as they unfolded. The second State witness was fair enough to say that he did not see accused no. 1 removing the money but he saw accused no. 1 putting his hand in the complainant’s pocket. Later when the second State witness searched the complainant in order to secure his valuables, he found that the R200.00 was missing which R200.00, he knew to have been in the complainant’s pocket.

[11] I am of the view, given the above state of facts, that the two accused had one common purpose of committing a robbery on the complainant. It was through the act of accused no. 1 when he grabbed the complainant by the waist belt that enabled accused no. 2 to have a free hand in stabbing the complainant. It was through the act of accused no. 2 (the stabbing) that made conditions conducive for accused no. 1 to have an undisturbed access to the complainant’s pocket.

[12] That the two accused did not sit down around the table and plan the robbery is self evident. The sum total of the two accused’ synergisms resulted in the commission of the robbery. Accused no. 1, at no stage disassociated himself from the commission of the offence because the evidence is that the two accused left together after the commission of the robbery. Thus, there is no question of him disassociating himself from the conduct of accused no. 2.

See:- S v Musingadi and Others 2005 (1) SACR 395 (SCA) at page 407 paragraph 35.

[13] I am satisfied that the conviction is in order and the appeal in respect of conviction must fail.

I now turn to the sentence.

Sentence

[14] Mr Mookeletsi submitted that there are indeed substantial and compelling circumstances present in this matter and that the learned Magistrate failed to invite the defence to address the Court on whether the particular circumstances were present or not. The finding by the learned Magistrate that these circumstances were absent is unfounded and irregular.

Substantial and Compelling Circumstances

[15] The accused are convicted of robbery with aggravating circumstances. In terms of the Criminal Law Amendment Act 105 of 1997 where a person has been convicted of robbery with aggravating circumstances, the legislature has ordained a minimum sentence of 15 years imprisonment in case of a first offender. The Court may deviate from imposing the minimum sentence if it is satisfied that substantial and compelling circumstances exist which justifies the imposition of the lesser sentence.

See:- Section 51(2)(i) of the said Act.

[16] It has been said that “although there is no onus on an accused to prove the presence of substantial and compelling circumstances, it must be so that an accused who intends to persuade a Court to impose a sentence less than that prescribed should particularly raise such circumstances for consideration”.

See:- S v Roslee [2006] ZASCA 14; 2006 (1) SACR 537 SCA at 545 paragraph 33.

In Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA) at 205 par 13 the Court held that:

“Life imprisonment is the heaviest sentence a person can legally be obliged to serve. Accordingly where s 51(1) applies, an accused must not be subjected to the risk that substantial and compelling circumstances are, on inadequate evidence, held to be absent. . . .”

I agree with these sentiments.

[17] At the end of the day it is the court that has to make a determination as to whether there are substantial and compelling circumstances. This the court can only do if adequate evidence is placed before it in a given case. Should an accused either in person or through his legal representative not raise the issue, I am of the view that the court should mero motu pertinently point out to the accused or legal representative the need to address it on such issue. Failure to do so will result in the court not being able to make a proper determination with the result that an accused may get a much more severe sentence than would ordinarily be the case.

[18] In the present appeal, no evidence was placed before the learned Magistrate regarding the existence or non existence of substantial and compelling circumstances. One find only a bald statement at page 34 of the record by the learned Magistrate stating that:

“I tried to look at the circumstances as to why I should deviate from the minimum sentence and I must tell you that I could not find one because my belief is that punishment should be in line with your moral blameworthiness and that is exactly what is said in the matter of S v (indistinct) 1991 (1) SACR 479.”(sic)

Incidentally I could find no law report bearing the said citation even after making provision that the transcribers could not make out the name of the report. I am of the view that the Magistrate should have done more than what he did.

[19] As to what can be taken into account in determining what are substantial and compelling circumstances, the law reports are replete with authorities that give guidance in this regard. The locus classicus is the matter of S v Malgas 2001 (1) SACR 469 (SCA) especially page 482 paragraphs F, G, I and J. See also S v Mahomotsa 2002 (2) SACR 435 (SCA).

In S v Nkomo 2007 (2) SACR 198 (SCA) the Court at page 203, paragraph 13 stated:

“The factors that weigh in the appellant’s favour are that he was relatively young at the time of the rapes, that he was employed, and that there may be a chance of rehabilitation. No evidence was led to that effect, however.”

At paragraph 14 of the very same law report the Court found that the above factors were substantial and compelling circumstances.

[20] Accused no.1 is 18 years of age, he attends school, he is a first offender, liquor played a part albeit to what extent is not clear, the robbery was not pre-planned, accused no. 1 cannot be regarded as one of those unmitigated offenders incapable of being reformed. I am of the view that the personal circumstances of accused 1 as a whole are indeed substantial and compelling.

[21] In view of the conclusion that I have reached, what remains is to determine what sentence to impose. In so doing, mitigating factors as well as aggravating factors have to be looked at as well as the purpose of punishment. I take into account the accused personal circumstances as sketched out above. I also take the following aggravating factors into account nl: the seriousness of the injuries suffered by the victim, and the fact that a lethal weapon was used.

[22] I am of the view that even though accused no. 1 did not do the actual stabbing, his moral blameworthiness is not diminished. He is equally to blame as accused no. 2 (the person who wielded the knife). In fact he made conditions propitious for accused no. 2 to stab the complainant by holding him.

In conclusion, the sentence imposed by the learned Magistrate has to be set aside and be replaced with an appropriate sentence.

[23] I am aware that only accused no.1 launched an appeal. His moral blameworthiness and that of his co-accused (accused no. 2) is the same. From the record it is clear that accused no. 2 is also 18 years of age, a first offender, he intends to go back to school and liquor also played a part in this robbery. I have decided to use my inherent power of review and also look into his position. I am of the view that substantial and compelling circumstances also exists in his case.

[24] In view of the abovementioned, the sentence of accused no. 2 should also be set aside and be substituted with an appropriate sentence. His personal circumstances are similar to that of accused no. 1 and I am of the view that the same sentence must also be imposed on him.

Order

Consequently, I make the following order:

[i] The appeal against conviction is dismissed.

[ii] The sentence imposed by the Magistrate is set aside and is replaced with the following sentence:

“Seven (7) years imprisonment.”

[iii] The sentence imposed on accused no. 2 is also set aside and replaced with the following sentence:

“Seven (7) years imprisonment.”

[iv] The Registrar is directed to send a copy of this judgment to accused no. 2 as well as the Department of Correctional Services and the prison authority where accused no. 2 is kept.

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D. I. MATLAPENG

ACTING JUDGE OF THE HIGH COURT

I agree.

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R. D. HENDRICKS

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPELLANT: S M MOOKELETSI

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