S v Dube
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | TA Maumela J and JT Leso AJ |
| Judgment Date | 09 September 2021 |
| Docket Number | A 460/2016 |
| Hearing Date | 16 October 2019 |
| Court | North Gauteng High Court, Pretoria |
| Citation | 2021 JDR 2067 (GP) |
Maumela J:
Before the Regional Court sitting at Mkobola, Benoni in the Regional Division of Mpumalanga, the court a quo, the Appellant Ginger Alucia Dube, who was, 38 years old at the time he was arraigned appeared. He was, together with two others namely; Lucky Edward Phadime, a male who was 45 years of age at the time he was arraigned, and Noah Shimane Mashile,
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Maumela J
a male who was 42 years of age at the time he was arraigned. The Appellant was charged with two counts as follows:
Count 1: Robbery with Aggravating Circumstances as intended in Section 1 of the Criminal Procedure Act No 51 of 1977 and;
Count 2: Contravening the provisions of section 120 (6) (a), read with section 1, 103, 120 (1) (a), section 121, read with section 151 of the Firearms Control Act 2000:(Act No 60 of 2000); Unlawfully pointing another with a firearm, an antique firearm or an airgun.
CHARGES AGAINST THE APPELLANT:
On Count 1, the allegations were that upon or about the 20th of October 2011, at or near Velly's Store Kwaggafontein 'C', in the Regional Division of Mpumalanga, the Appellant did unlawfully and intentionally assault Sayam Haque and did then and with force take the following items, to wit: Cash in the amount of R 6000-00, airtime worth R 8000-00 and cigarettes valued at R240 00, from his person, protection or lawful possession; the aggravating circumstances being in that a firearm was used.
On Count 2, the allegations were that upon or about 20th of October 2011, at or near Velly's Store Kwaggafontein 'C', in the Regional Division of Mpumalanga, the Appellant and his co-accused did unlawfully point a firearm, whether or not it was loaded or capable of being discharged, at another person, to wit Velly Skhosana, a male who is 57 years of age, without good reason to do so.
When the charges were put, the Appellant understood them. They all exercised their right to remain silent and therefore did not disclose the basis of their defence. The state led evidence, much as the defence did. The court a quo upheld the version of the state and rejected that of the defence.
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Maumela J
BACKGROUND:
The crimes, in this case, were committed at 20h15, and the accused was arrested at 20h30 which was immediately after the offences were committed. The Appellant testified under oath in his own defense. In advancing his defense, the Appellant and his co-accused advanced an alibi in that they all maintained that they were never at the scene of the crime including at the time at which the crimes were committed. However, the Appellant and his co-accused do not deny that they were in the vicinity of Kwaggafontein, at a place not far from the scene of the crime. He disputes that his identity was proven beyond a reasonable doubt before court a quo.
EVIDENCE:
Sayam Haque was the first witness to be called by the state. Under oath, he testified that on the day of the incident he, together with his assistant, was at the shop when the person who was Accused number 1 before court a quo, entered the shop and asked after the price of a 25 kg bag of meal-meal. Eventually, he ordered a 12 kg packet of meal-meal. He produced a R 50-00 note purporting to make payment. When the assistant opened the burglar door, accused 2 and 3 before the court a quo entered the shop.
The complainant testified that at that time, the Accused number 1 grabbed him with the collars of his T/shirt. A struggle then ensued between him and Accused number 1. He fell, whereupon Accused number 2 pinned him to the ground with his leg. The complainant testified that as he lay face-up on the ground, a fourth person entered the shop and tied his assistant before taking him into the bedroom. At the same time, customers who meant to buy from the shop were chased out by one of the perpetrators. Using force, the culprits dispossessed him of an amount of R 5000-00 which he had on his person. They also took an amount of R 1000-00 which was on the counter.
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Maumela J
All culprits then ran out towards a black City Golf vehicle which was stationary outside, which then drove off. The police were called and they arrived soon. They chased after the culprits in the direction to which he pointed them. He said that the police caught up with the black Golf in which the occupants still had the loot in their possession. It was the same loot which was robbed from his shop. He told the court that the Appellant fired shots as he and the culprits ran out of the shop towards the get-away car; the Black Golf and He also insulted him saying to him "voetsek!".
He said that he saw the Appellant and his co-accused clearly as the culprits left the shop. The Appellant was wearing an overall and the police found him in the overall.
Valley Skhosana, the owner of the shop also testified under oath. He testified that as the robbery unfolded, the Appellant pointed at him with a firearm. Shortly after the robbery, he flagged down a police vehicle which stopped. He reported the robbery which had just taken place. The police immediately chased after the culprits, heading towards the direction he gave. They pursued the black Golf vehicle until they caught up with it. Both the complainant and Valley Skhosana testified that the area was well illuminated by street lights which enabled them to see the faces of the culprits and their manner of cloth well enough. The police arrested the Appellant and his co-accused and after they were arrested.
David Sibanyoni, who is a member of the South African Police Services also testified under oath as a state witness. He told the court that he and his colleagues responded upon being called out to the scene of the crime on the day of the incident in this case. After Valley Skhosana related to him what took place, he gave chase after the Black Golf that had been described as the getaway car.
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Maumela J
Elias Temba Giyane testified Under oath, that he is the one who arrested the Appellant's and his co-accused while the latter were attempting to flee. During the trial, the Appellant's co-accused told the court that at the time he was arrested, he had only hitched a hike from the Appellant and his co-accused.
Captain Malope told the court under oath that when he arrived at the scene, the Appellant and his co-accused were already been apprehended. He said that they searched the Appellant and found an amount of R1 210-00 hidden inside some 'tekkies' [1] that Appellant had in his possession. The Appellant disputed the evidence by this witness but he stayed stuck to his version.
The Appellants testified in his own defence. The Appellants told the court that on the day of the incident, he and his co-accused drove to Kwaggafontein to visit his girlfriend. The other co-accused confirmed the contention by the Appellant to the effect that on the day of the incident, he had only hitched a hike from the his co-accused.
RE: CONVICTION.
The Appellant contends that before the court a quo, the state did not prove the cases against them beyond a reasonable doubt. It is trite that in criminal cases, the onus rests on the state to prove the case against the accused beyond a reasonable doubt. In the case of Prinsloo v State [2] the Supreme Court of Appeal enunciated the law as follows: "It is trite that the State bears the onus to prove the guilt of the Appellant beyond reasonable doubt and that there is no duty on the Appellant to convince the court of the truthfulness of any explanation which he gives. If his explanation is found to be reasonably possible true, the court will have no reason to reject " it.
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Maumela J
See also S v Mbuli [3] . See also S v V [4] ; where the court went further to stated the following: "However, this does not require proof beyond any shadow of doubt by the State". See S v Phallo [5] . The same view was expressed by Slomowitz AJ in S v Kubeka [6] . It was therefore incumbent upon the state to prove beyond a reasonable doubt that the Appellants are the culprits who committed the robbery in this case.
Before the court a quo the Appellant put the identity of the culprits in dispute. None of the witnesses, in this case, had seen their attackers before the day of the incident in this case. Therefore, the state had to prove beyond a reasonable doubt that the identity of the culprits has been established beyond reasonable doubt. The court a quo found that the identity of the culprits has been proven beyond a reasonable doubt and thus, it found that the Appellants are the ones who committed the robbery.
In this appeal, the Appellant seeks for this court to interfere with the finding made by the court a quo. It is trite that appellate courts do not have wholesale powers to interfere with findings made by trial courts. In the case of S v Fancis [7] , the court stated the following: "The powers of a Court of appeal to interfere with the findings of fact of a trial court are...
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