S v Masuku

• Jurisdiction: South Africa
• Court: Western Cape Division, Cape Town
• Judge: Yekiso J and Sher AJ
• Judgment Date: 23 June 2016
• Citation: 2017 (2) SACR 321 (WCC)
• Hearing Date: 17 June 2016
• Docket Number: A 436/2015
• Counsel: J Engelbrecht SC for the appellant.LA Friester-Sampson for the state.

Sher AJ (Yekiso J concurring):

[1] This is a rather unusual matter. The appellant was arraigned before the regional magistrate, Cape Town, on two counts of robbery with aggravating circumstances, in that a firearm was allegedly involved, and E one count of kidnapping. On the one count of robbery it was alleged that at the Regency Hotel, Sea Point, he robbed members of staff of cash, and a bag containing keys, a cellphone and various personal items. In respect of the other count, it was alleged that he had robbed one Gerhard van Wyk of a red Alfa Romeo motor vehicle, and R9000 cash at Kuils River. F In respect of the remaining count of kidnapping it was alleged that he had deprived the said Van Wyk of his freedom of movement by transporting him in his own motor vehicle under threat of a firearm.

[2] The appellant pleaded not guilty to all three charges. He was legally represented and tendered a plea explanation. Other than admitting that G he lived at the Regency Hotel for a period of two weeks, he denied any knowledge of the alleged robbery which had been committed there. As far as the alleged robbery of the red Alfa Romeo was concerned, he said that when he was arrested on this charge he was in the process of buying the motor vehicle from the owner, and that is why he had the key in his possession. He denied any knowledge of the alleged kidnapping. H The state then proceeded to call a number of witnesses.

[3] Yolande Tsubentla testified that she started working as a receptionist at the hotel in June 1997. In September 1998 three men came to stay at the hotel for a week or so. The appellant was one of them. They became I acquainted with one another, and the appellant spent some time talking to her whilst she was on duty at reception. About six months later, on 21 March 1999, and whilst she was on duty, the appellant telephoned her and said he wished to see her. He later came to the hotel and they made arrangements to meet at a nearby convenience store, after Tsubentla's shift ended. At the appointed hour she found the appellant J and two other men in a red motor vehicle, and she accompanied them to

Sher AJ

a parking lot near the beach. The appellant then asked her to tell him A where the hotel's valuables were kept. She thought he was joking, but one of his compatriots pulled out a firearm and pointed it at her. She proceeded to give them a rundown of where the hotel's walk-in safe and guest safety-deposit boxes were, and depicted the location thereof on two sketches she drew for them. The appellant warned her not to tell B anyone what had transpired between them, and threatened to kill her if he ever found out she had spoken out of turn. Two days later, on 23 March 1999, when she reported at reception for the morning shift, she was informed by a colleague that the hotel had been robbed. On 25 March 1999 she was approached by one Capt Swart of the South African Police Service (the SAPS), who confronted her with the two C sketches, at which point she admitted that she had drawn them and explained how this had come about. The police then asked her to assist them in setting a trap for the appellant. She was instructed to phone the appellant and to arrange a meeting with him outside a department store in the centre of Cape Town and, when he arrived, Capt Swart and other members of the police duly arrested him. D

[4] I may point out at this juncture that, in line with the evidence which was given by Tsubentla, and later Capt Swart, the charge-sheet reflects that the appellant was arrested on 25 March 1999. However, his first appearance in the regional court was only on 27 March 2001, when it was noted that he was in custody on another matter. E

[5] I will return to the aspect of the various attendances before the regional court later. It will suffice, at this stage, to point out that from his initial appearance in March 2001, and until he was sentenced on 20 December 2002, the appellant was reflected as being in custody. F

[6] After the evidence of Tsubentla was concluded on 5 August 2002, the matter was remanded to the following day for the evidence of further witnesses. For the purposes of this matter it is not necessary to traverse such evidence in any detail. For the sake of completing the story, it may simply be mentioned that evidence was led of how the Regency Hotel and its staff G were robbed by two men on 23 March 1999 and of how, at about midday on the selfsame day, a young woman and her father found two bags containing a number of identity documents, bank cards, and keys, as well as the hotel's register and the sketches that had been drawn by Tsubentla, on a piece of open ground next to Modderdam Road in Heideveld. The hotel was informed of the find and the police duly collected the bags. And that is how the police got to Tsubentla and the appellant. H

[7] At the conclusion of the evidence of Capt Swart on 6 August 2002, the matter was postponed for further trial on a number of occasions. When the matter was again called on 19 December 2002, the appellant's legal representative indicated that he wished to change his plea to one of I guilty on all three charges. To this end, she proceeded to read out the contents of a statement which she had prepared on his behalf in terms of s 220 of the Criminal Procedure Act 51 of 1977 (the Act), which contained a list of formal admissions by the appellant, and which had been signed by both of them. In terms of this statement the appellant admitted the essential elements of all the charges, and he also admitted J

Sher AJ

that, A inasmusch as a firearm had been used at the time, aggravating circumstances in terms of the provisions of s 1 of the Act were present. The appellant declared in the aforesaid statement that the admissions were made 'freely and voluntarily without any duress', and that he was 'sorry' for what he had done, and he asked the honourable court to be 'merciful unto' him. On questioning by the magistrate, the appellant B confirmed that he was aware of the contents of the statement and that there was nothing in the statement with which he disagreed. He also confirmed that nothing was missing from the statement. As he put it: 'everything' in the statement was 'in order', and he further confirmed that he had signed the statement after reading it, and after 'understanding C the contents' (sic) thereof. As a result of these admissions the state closed its case and the magistrate duly proceeded to convict the appellant on all three charges.

[8] The appellant's attorney then informed the court that the appellant was serving two sentences: a sentence of 30 years' imprisonment which D had been imposed in August 2000, and a sentence of 40 years' imprisonment which had been imposed in February 2001. She indicated that the 30-year sentence had been imposed in KwaZulu-Natal and the 40-year sentence had been imposed by the High Court in Cape Town. Because it was of importance for the magistrate to have exact details of the appellant's E previous convictions, as this would impact on the 'quantum' of the sentence that he was to impose, he stood the matter down for the prosecutor to make further enquiries. On resumption, the prosecutor indicated to the court that the matter which was heard in KwaZulu-Natal had been before the Durban High Court on 26 July 2000 and concerned a charge of armed 'bank' robbery and numerous counts of kidnapping. F The other matter before the High Court in Cape Town concerned a...