IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
					CASE NUMBER:A321/2010
					DATE: 15 OCTOBER 2010
In the matter between: 

and

JUDGMENT

The robbery of which the appellants were accused was against one Franklin Witbooi, whom they were alleged to have stabbed and hit with a blunt object on or about 8 November 2008, at or near Athlone, with intent to steal cash of R650.00 from him. The State relied on the testimony of a single witness, namely Witbooi. Each of the appellants testified in his own defence and neither called any further witness.

Witbooi testified that on the night of 8 November he had been walking from visiting one friend to visit another in Vygieskraal. He was alone and it was after 9 p.m. and there were no street lights. He had not had anything alcoholic to drink. As he was walking, someone seized him from behind by his belt. He struggled to free himself and in doing so, turned and saw that it was the second appellant, Visagie, whom he knew from living in the same area for some time. He told Visagie to release him and Visagie told him just to stand still and hand over his money.

Welkom initially denied knowing Witbooi. Subsequently he acknowledged that Witbooi and he lived close to one another and saw each other frequently. He also initially denied knowing anything about the robbery. Subsequently he said that he had in fact seen Witbooi that night. He and Visagie had been together drinking. At 11 p.m. they were on their way home and were passing a shop. They saw Witbooi who asked them whether they had seen three people. They answered that they had not, whereupon Witbooi began abusing them. They took no further notice of Witbooi and walked on. There were a number of other people in the vicinity.

Visagie denied knowing Witbooi at all or even having seen him previously. He said that he had been with Welkom on the night of the robbery. They had been drinking and were on their way home. At a shop he bought some cigarettes, and as they were leaving, Witbooi confronted them. Witbooi was drunk and asked Welkom whether he had seen three people. At that Visagie's mother approached and he left with her. There were also other people in the vicinity. The following morning Witbooi and two others came to Visagie's home and assaulted him. Again none of this had been put to Witbooi, although in response to a question by the court, Visagie said that he had given his version of events to his attorney. Visagie could not suggest why Witbooi would incriminate him falsely, other than that Witbooi may have been offended, because he could see the night before that Visagie was not concerned about him.

In the current instance the learned magistrate considered Witbooi to be a credible and trustworthy witness. He had given his evidence in a straightforward and logical manner and had not given the impression of seeking to conceal anything or to incriminate the appellants falsely. As to the reliability of Witbooi's identification of the appellants, it was dark and Witbooi would have been alarmed and suffered a measure of pain. However, it would not have been pitch dark, and the appellants were within touching distance of him. Moreover, he must have known the appellants and their addresses as he testified. Welkom clearly knew who Witbooi was and where he lived, and no other explanation was offered for the arrest of
Visagie the following morning.

In the circumstances the learned magistrate held the identification of the appellants by Witbooi, as perpetrators of the robbery against him, to be reliable. I see no reason to question the correctness of the verdict reached by the learned magistrate or his reasons for arriving at that conclusion. A trial court has the benefit of seeing, hearing and appraising witnesses and there does not seem to me to be anything in the record to suggest that the learned magistrate was wrong in his evaluation of the evidence.

The appellants clearly did not tell their attorney of having come across and spoken with Witbooi the evening of the robbery,  otherwise she would  undoubtedly have  put  it to Witbooi. It follows that Visagie's evidence that he did furnish his attorney with the version to which he testified, is not credible. Given the obvious importance thereof, Welkom's evidence that he did not furnish his attorney with the version to which he testified because he was not asked about it, is also not credible.

I consider the circumstances to have been such that Witbooi would have been quite capable of identifying as perpetrators of the robbery against him, individuals known to him, as it seems clear the appellants were, and I agree with the learned magistrate that with Witbooi having no axe to grind with the appellants, it is improbable that he would falsely have incriminated them.

Section 51(2)(i) of the Criminal Law Amendment Act 105 of 1977, read with Part II of Schedule 2 thereto and section
51(3)(a) thereof, provides for minimum sentences of imprisonment for varying periods to be imposed on various classes of offenders convicted on the charge of robbery with aggravating circumstances, unless in the instance the court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence.

In my view, without minimising the seriousness of the crime or armed robbery, and mindful of the need to quell crimes of violence, a sentence of direct imprisonment for eight years, after a period of 14 months in custody, for youthful culprits, who were effectively first offenders, and who were in regular employment before their arrest, and, in the case of Visagie, who was voluntarily maintaining a child, for a crime in which the weapons used were items not designed as weapons, in which serious injuries were not caused and in which relatively little was taken, is disturbingly inappropriate.
I consider a period of direct imprisonment for each appellant to have been appropriate, but blending the need to send a strong message to the community that crimes of the kind in question will not be tolerated with an element of mercy, and to provide an incentive for the appellants to mend their ways, I would have imposed on each of the appellants a sentence of imprisonment for eight years, of which three were suspended for a period of five years from the date of his release, on condition that he was not convicted of a crime involving theft or attempted theft or violence or a threat of violence committed within that period.