S v Mahlangu and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TV Ratshibvumo J and SS Mphahlele DJP
• Judgment Date: 23 September 2021
• Docket Number: A13 /2020
• Hearing Date: 23 September 2021
• Citation: 2021 JDR 2174 (MN)

Ratshibvumo J:

[1] Introduction.

On 08 April 2018 in a farm in Middelplaat, an elderly couple (Mr. Samuel and Mrs Emma Hlatshwayo) had strange visitors around 19h30. Two men walked into their premises under the pretext that they wanted a five litre container for petrol. It became clear from the beginning that they were about to be victims of a crime since the two men walked in wearing balaclavas and hand gloves. One of them also wore a blue work suit. At gunpoint, they were forced to surrender their cell phones, R5 000.00 in cash and their motor vehicle, a VW Golf. They were also assaulted. The two appellants were later arrested and charged with the crime of robbery with aggravating circumstances related to this incident. In a trial held at Ermelo Regional Court, they all pleaded Not Guilty. They were however convicted and sentenced to fifteen years' imprisonment each. They now appeal against the conviction with the leave by the trial court which refused the application for leave to appeal the sentence.

[2] The facts.

Following is the evidence that led to the appellants' arrest and conviction. When the two victims of this robbery related the incident to their daughter, Ms. Rosalina Hlatshwayo (Rosalina) the following day, she remembered seeing two men one of whom was wearing a blue work suit in the late afternoon that day. The man who wore the blue work suit was known to her as Mr. Albert Mahlangu (the first appellant) from Hendrina. The two men had been given a lift in a motor vehicle that she was also a passenger. She found

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Ratshibvumo J

it strange that they alighted at a spot where there were no residential houses. The nearest house from the road where they got off was over seven kilometres away and it was in a farm that belonged to her parents. She suspected that they could be the ones who robbed her parents. She informed the police of her suspicions. The police then took in the first appellant for questioning.

[3]

Constable Chauke (Chauke) from Hendrina Police Station is the officer who took the first appellant for questioning. When being questioned, the first appellant denied any knowledge about the robbery. Chauke became suspicious when during questioning, the first appellant received a call from a person whom he told that things were bad. He was also asked about a person who was in his company on the date of the incident. The first appellant later told him that although he was caught, the police would not be able to get the person with whom he was talking on the phone. Chauke decided to arrest him on those suspicions.

[4]

The Investigating Officer, Warrant Officer Khoza also questioned the first appellant on persons who were with him on the date of the incident. The first appellant told him that he was with the second appellant and another friend. He then took the Investigating Officer to point the second appellant at his workplace. When he was arrested, the second appellant confessed to the Investigating Officer that he knew about the incident and also handed over a cell phone saying it was taken during the robbery. The second cell phone also taken during the robbery was alleged to be with the third person who was his friend and colleague. He also took the police to this person as he was at the same workplace. Upon seeing the second appellant in the company of the police, the third person ran away. The cell phone taken from the second appellant was taken into the SAP 13 storage where it was kept pending the outcome of the trial.

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Ratshibvumo J

[5]

Warrant Officer Khoza also testified that Mr. Samuel Hlatshwayo identified the phone as his by the colour and by the portion in it that was damaged. This version was however denied by Mr. Hlatshwayo who said the police only called him to say they recovered the phone. This prompted the State to have the phone booked out of the SAP 13 storage to be brought to court. Mr. Hlatshwayo was recalled to identify it during the trial. He indicated that the phone shown to him at the trial was his and that it was taken during the robbery. He identified it by its brand (AG), its colour (white) and the screen which could no longer display well. Although he still had the box in which the cell phone came when he bought it and its purchase invoice at home, he was not asked to bring these to the police or to court for confirmation.

[6]

During the trial, the two appellants denied involvement in the robbery saying they knew nothing about it. The first appellant testified that he merely took the police to the first appellant because they wanted to know as to who was in his company on 08 April 2018. He did not admit any knowledge of the crime to them. The second appellant on the other hand denied having admitted to the police that he took part in the robbery. The Investigating Officer only asked him for his cell phone and he handed it over. When asked as to where he got it from, he took the police to a man from whom he bought it, and the said man ran away...