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IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: A793/03

In the appeal of:

MHLOBO MTHIMKHULU Appellant

and

THE STATE Respondent

JUDGMENT DELIVERED ON 6 MAY 2005

CLOETE AJ:

[1] On 20 December 1993 the Huntsman Service Station in Firgrove in the Western Cape was the target of an armed robbery which was perpetrated by several robbers armed with inter alia firearms. During the incident, two of the robbers each shot the manager of the service station, Mr John Petersen, once, and the robbers removed a cash amount of approximately R21 000,00 from the safe at the service station.

[2] The Appellant, an adult male who, according to the charge sheet, was in his thirties when the trial commenced during 1997, was, together with another accused, charged with inter alia the attempted murder of Mr Petersen (count one) and with the abovementioned robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 51 of 1977 (count three). After a trial which was finally concluded during 2001, the Appellant was convicted on both the abovementioned counts in the Regional Court, and sentenced to 10 years’ direct imprisonment on each count. It was not ordered that the sentences of imprisonment on each count shall run concurrently.

[3] The Appellant is now appealing to this Court against his abovementioned convictions and sentences.

[4] The only evidence adduced by the State against the Appellant at the trial in respect of counts on which he was convicted consisted of the pointing-out by the Appellant to a commissioned officer of the South African Police, Captain Leon le Grange, of the Huntsman Service Station as the place where the armed robbery was perpetrated by the Appellant and four companions, of the place where the Toyota Corolla motor vehicle in which they arrived at the service station was parked beforehand, the place where the Appellant waited outside with a knife in his hand, the place where his companions entered the service station, as well as of certain oral statements made by the Appellant to Captain le Grange during the course of such pointing-out. During the hearing of the appeal before us, it was common cause between counsel for the State and the Appellant that the Appellant’s oral statements to Captain le Grange during the pointing-out, viewed together with the pointing-out, amounted to a confession by the Appellant.

[5] In terms of section 217 (1) of the Criminal Procedure Act, evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, be admissible evidence against such person at criminal proceedings relating to such offence. Captain le Grange, having been a commissioned officer of the South African Police at the time, was a justice of the peace under the provisions of the Justices of the Peace and Commissioners of Oaths Act, 1963 (as amended), and accordingly, the proviso contained in subsection (a) was not applicable to him. Captain le Grange was also not connected to the unit which was investigating the offences against the Appellant.

[6] On behalf of the Appellant, it has been argued that the State had failed to prove that the Appellant’s confession had been freely and voluntarily made by the Appellant without him having been unduly influenced thereto. Furthermore, it was argued that the Appellant was at no time apprised of his right to take legal advice before saying or pointing out anything.

[7] Superintendent Swart testified that he spoke to the Appellant after the Appellant arrived in Cape Town from Welkom, where he was arrested. According to Swart, he informed the Appellant of his rights, including the right to remain silent. Captain le Grange testified that he informed the Appellant, before the pointing-out by the Appellant took place, that he was not obliged to point out anything or to say anything.

[8] I have however been unable to find any evidence by Superintendent Swart or Captain le Grange in the record to the effect that they had warned the Appellant in terms of his right to legal representation. The pointing-out and accompanying statements by the Appellant took place after the interim Constitution came into operation, but before the enactment of the final Constitution. In Key v Attorney-General, Cape Provincial Division & Another [1996] ZACC 25; 1996 (4) SA 187 (CC), the Constitutional Court stressed that fairness was an issue which had to be decided upon the facts of each case, and that the trial judge was the person best placed to decide whether the reception of such evidence was fair or not. In Director of Public Prosecutions, Natal v Magidela and Another 2000 (1) SACR 458 (SCA) it was stressed at para [20], with reference to the abovementioned Key-case, that it was not every breach of the provisions of the interim Constitution that automatically leads to the trial being unfair as fairness is an issue to be decided on the facts of each case.

[9] S v Khan 1997 (2) SACR 611 (SCA) provides an illustration of how these principles are applied in practice. In that case the accused had not, before confessing, been informed of his right to the assistance of a legal adviser. The court held that it was unfair that he was not so informed, but added that this did not necessarily mean that the confession ought to have been excluded. The answer to this further question lay in considering the rationale underpinning the exclusion of confessions under section 217 itself – a provision that was, after all, aimed at ensuring fairness. Since there had been no behavioural impropriety on the part of the police, no hint that the confession was unreliable, and no infraction of the privilege against self-incrimination or the right to silence (since the accused had been warned by the investigating officer that he could keep silent and that his words might be used against him), the evidence did not raise the mischief against which section 217 was aimed. It was held in that case that the unfairness of depriving the accused of the opportunity to be advised to remain silent had to be weighed against the fact that the accused had spontaneously, voluntarily, without improper influence or ill-treatment, knowing of his right to silence and his privilege against self-incrimination confessed reliably, to two murders. The discretion had, in that court’s view, to be exercised in favour of admitting the confession.

[10] I believe that a similar approach is called for on the facts of this case in regard to any failure by the police officers to inform the Appellant of his right to legal representation.

[11] The evidence of the Appellant was that he was assaulted and tortured by Superintendent Swart, and that he subsequently informed Captain le Grange about this. Superintendent Swart denied the alleged assault and torture, and Captain le Grange denied that the Appellant informed him of any such assault or torture.

[12 The presiding magistrate rejected the Appellant’s version that he was assaulted and tortured, and held that the Appellant’s statement to Captain le Grange and his pointing-out had been freely and voluntarily made. In my view, the magistrate was correct to do so. The evidence of the Appellant abounded with contradictions and inconsistencies. Two examples will suffice. During the trial within a trial, the Appellant’s attorney put it to Captain le Grange that the Appellant would testify that he was assaulted by inter alia a member of the police, one Temmers. However, during cross-examination by the prosecutor, the Appellant denied that he had been assaulted by Temmers. Furthermore, during the trial within a trial the Appellant’s attorney put it to Captain le Grange that the Appellant would testify that he was “deurmekaar, en hy sal nie alles weet wat aangegaan het” while he was with Captain le Grange. However, during cross-examination by the prosecutor, the Appellant denied that he was “deurmekaar”.

[13] When Superintendent Swart initially testified on behalf of the State, the Appellant was represented by an attorney Smit. At no stage during Mr Smit’s cross-examination of Superintendent Swart was it suggested to him that the Appellant had been assaulted or tortured by him or anybody else. Subsequently, the Appellant terminated the services of Mr Smit, and thereafter he was represented by another attorney, Mr Delbrooke-Jones. It was only after Superintendent Swart was recalled by the defence, halfway through the trial, that it was alleged for the first time during the trial that the Appellant had been assaulted and tortured.

[14] Furthermore, if the Appellant’s version is to be believed, one would have to accept that there was a conspiracy between inter alia Superintendent Swart, Captain le Grange and the interpreter to falsely incriminate the Appellant in the commission of the offences. On the facts of this case, such a conspiracy is so improbable that it cannot reasonably be held to have occurred. Why would Superintendent Swart force the Appellant to falsely incriminate himself in a case which Superintendent Swart was not investigating, but not on the case in which he was the investigating officer? Furthermore, the contents of the statements allegedly made by the Appellant to Captain le Grange are not suggestive of such a conspiracy. According to those statements allegedly made by the Appellant, he was armed with a knife and not, like the other robbers, with a firearm during the robbery, and he was not present inside the service station when the shooting took place and when the money was taken from the safe, but was waiting outside. If Captain le Grange had really wanted to incriminate the Appellant falsely, then this was an unlikely and somewhat halfhearted way to go about it.

[15] Accordingly, I conclude that the State has proved beyond reasonable doubt that the Appellant’s confession had been freely and voluntarily made by him without having been unduly influenced thereto. The magistrate held that the Appellant was a co-perpetrator with the other robbers and, on the basis of common purpose, convicted him of both the robbery and the attempted murder. In S v Lungile and Another 1999 (2) SACR 597 (SCA) in para [17] Olivier JA stated as follows in regard to the determination as to whether the required subjective insight was present in a case of common purpose, which view as to subjective insight is also applicable to this case:

“Generally speaking, the fact that the first appellant had prior to the robbery made common cause with his co-robbers to execute the crime, well-knowing that at least two of them were armed, would set in motion a logical inferential process leading up to a finding that he did in fact foresee the possibility of a killing during the robbery and that he was reckless as regards that result”.

[16] I would therefore dismiss the appeal of the Appellant against his conviction.

[17] The appeal against sentence can be disposed of quickly. It is trite law that the circumstances entitling a Court of appeal to intervene in a sentence another court has passed are limited, and these circumstances were recapitulated by Marais JA in S v Malgas 2001(1) SACR 469 (SCA) at para 12:

“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate Court would have imposed had it been the trial court is so marked that it can properly be described as ‘shocking’, ‘startling’, or ‘disturbingly inappropriate’”.

[18] On behalf of the Appellant it was argued before us that the trial magistrate erred in regard to sentencing by taking a subsequent conviction of robbery into account when sentencing the Appellant. In R v Zonele & Others 1959 (3) SA 319 (A) it was held that convictions for crimes committed after the crime for which the accused stands to be sentenced, can also be taken into account, in the sense that it is indicative of the character of the accused to be sentenced (and also see S v S 1988 (1) SA 120 (A)). Accordingly, I do not think that a misdirection occurred in this regard.

[18] The offences in this matter were committed by the Appellant before minimum sentences for certain serious offences were introduced by the Criminal Law and Procedure Act, Nr. 105 of 1997. However, in S v Khambule 2001 (1) SACR 501 (SCA) the Supreme Court of Appeal held as follows at para 24:

“Die brutale optrede van rowers doen ons land enorme skade aan en gooi ‘n donker skaduwee oor die vertroue van ons gemeenskap in polisiëring, vervolging en regspleging. ‘n Aanduiding van die erns waarmee die Wetgewer hierdie soort misdaad bejeën, blyk daaruit dat ‘n minimum vonnis van 15 jaar gevangenisstraf vir roof met verswarende omstandighede…voorgeskryf is…selfs vir ‘n eerste oortreder. Hierdie wetsbepaling is nie op die onderhawige geval van toepassing nie, maar gee nogtans ‘n aanduiding van die erns van die situasie”.

[19] In this case, the robbery was obviously planned in advance. Several of the robbers were armed with firearms, and accordingly, it was reasonably foreseeable that someone could be shot during the robbery. Mr Petersen was seriously injured when he was shot during the robbery, and was fortunate to survive. I am not persuaded that the magistrate misdirected himself in any material respect in regard to sentencing.

[20] I would therefore also dismiss the appeal against sentence.

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CLOETE AJ

I agree. The appeal is dismissed and the conviction and sentence confirmed.

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MOOSA J

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