S v MacDonald

• Jurisdiction: South Africa
• Judge: Trollip JA, Corbett JA and Botha AJA
• Judgment Date: 17 March 1980
• Citation: 1980 (2) SA 939 (A)
• Hearing Date: 29 February 1980
• Court: Appellate Division

S v MacDonald
1980 (2) SA 939 (A)

1980 (2) SA p939

Citation	1980 (2) SA 939 (A)
Court	Appellate Division
Judge	Trollip JA, Corbett JA and Botha AJA
Heard	February 29, 1980
Judgment	March 17, 1980

Flynote : Sleutelwoorde

Criminal law — Robbery — Attempted robbery — Assault by would-be robber on a third person — Evidence thereof relevant material in determining whether B act of robber constituted an implied threat of violence to the intended victim and, therefore, an attempted robbery — Appellant telling victim to stay calm and hand over the money — In the circumstances such constituting an implied threat of violence — Appellant thereafter grabbing and pushing back a third person trying to escape — Such constituting an assault on C third person and an implied threat of violence to intended victim — Attempted robbery proved.

Headnote : Kopnota

In appropriate circumstances there is no reason in principle or in logic why an assault upon a third person should be excluded from the relevant material to be considered in determining whether the would-be robber's D conduct constituted an attempted robbery by reason of an implied threat of violence to his intended victim.

The dictum in S v Ken 1966 (4) SA 514 (N) at 517E - H too widely stated.

The appellant and another had entered a business intending to rob it of money. Inside the premises, in an office, there was the manageress, an assistant and two Black customers. The appellant's accomplice had a balaclava cap pulled over his face and the appellant had a hat on. The appellant told the manageress to stay calm and to put 'the nuts' (ie the E money) on the counter. Thereafter, one of the Black customers attempted to escape, but the appellant grabbed her and pushed her back to the front of the counter. The appellant and his accomplice left shortly thereafter without completing the robbery. The appellant and his accomplice were convicted in a regional court of attempted robbery. Appellant's appeal to a Provincial Division was dismissed. In a further apeal, appellant F contended, inter alia, that there was no evidence of any violence or threat of violence and that the evidence of the assault on the Black customer who attempted to escape was irrelevant in considering whether appellant's conduct constituted an attempt to rob the complainant.

Held, that the appellant's words to the manageress, namely to stay calm and to put the money on the counter, in the circumstances amounted to an G implied threat of violence: the alternative, foreshadowed by the appellant's order, could hardly have been anything else but some form of violence, directed at overcoming any further show of resistance.

Held, further, that the circumstances, including the assault on the Black customer who attempted to escape, were a clear indication of the appellant's aggressive attitude in general, of his resolve to overcome attempts to thwart him in achieving his ultimate purpose by resorting to violence, and thus of an implied threat to the manageress if she refused H to submit and to comply with his demand for money.

Held, accordingly, that the appellant had been rightly convicted and that the appeal had to be dismissed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (IRVING STEYN J and GOLDSTONE AJ), dismissing an appeal from a conviction and sentence in a regional magistrate's court. The facts appear from the judgment of BOTHA AJA.

1980 (2) SA p940

S J Nochumsohn for the appellant: Inasmuch as the conviction relates to attempted robbery it is necessary to examine the requirements for and A essential elements of the crime of robbery. See Hunt South African Criminal Law and Procedure vol 2 at 640; the Transkeian Penal Code s 211; Ex parte Minister of Justice: In re R v Gesa; R v De Jongh 1959 (1) SA at 214A - C, 242H. The element of violence or threat of violence it would seem is a cardinal requirement and feature of robbery. Consequently, in B order to constitute an attempt at robbery, the requirement of violence or threat thereof must accompany the acts of the accused. See R v Ngobani and Another 1946 (1) PH H115; S v Elbrecht 1977 (4) SA at 165G - 166A - C. Violence exerted on a person other than the intended victim of the robbery is irrelevant to the issues at stake. See S v Ken 1966 (4) SA at 517E - H. A change of mind on the part of the accused, once his acts amount to an attempt in law, can have no effect upon his culpability. See R v Schoombie C 1945 AD at 547; R v B 1958 (1) SA at 203G; R v Hlatswayo 1933 TPD at 445.

Having regard to all the circumstances, the sentence imposed by the trial court and re-imposed by the Court a quo is unduly excessive, harsh and D severe and induces a sense of shock. This Court is, therefore, at large to interfere in the sentence in question. See S v Young 1977 (1) SA at 607G; S v Jivan 1970 (4) SA at 63 - 64H - D; S v Fazzie 1964 (4) SA at 684A - C; S v V 1972 (3) SA at 614D - E; S v Rabie 1975 (4) SA at 865H - 866A - C; S v Becker 1968 (1) SA at 27H - 28A - C; S v Holder 1979 (2) SA at 74H.

M C Schoeman for the State: Die Appèlhof het in Ex parte die Minister van Justisie: In re R v Gesa; R v De Jongh 1959 (1) SA 234 beslis dat bewys van 'n dreigement van geweld ook voldoende vir skuldigbevinding aan roof is. Die blote handeling van 'n persoon kan ook 'n dreigement inhou. Kyk S v Periac 1965 (2) PH H201. Die appellant se optrede het wel 'n poging F daargestel en daar was 'n vrywillige terugtrede van die appellant se kant. Kyk R v Hlatswayo 1933 TPA 441; S v Agmat 1965 (2) SA 874. E

By vonnisoplegging moet ook die aard van die misdaad en die belange van die gemeenskap in ag geneem word. Kyk S v Rabie 1975 (4) SA 855; S v Zinn 1969 (2) SA 537; S v Hougard 1972 (2) SA te 74.

Nochumson in reply. G

Cur adv vult.

Postea (March 17). H

Judgment

Botha AJA:

The appellant was charged with attempted robery before a regional magistrate in Boksburg. He was convicted and sentenced to three years' imprisonment, half of which was suspended for five years on appropriate conditions. He appealed to the Transvaal Provincial Division against his conviction and sentence. The appeal was dismissed, but leave was granted to the appellant to appeal to this Court.

The appellant was accused No 1 in the Court of first instance. He was tried together with one Ellerbeck, who was accused No 2, and to whom I shall refer...