S v Mbhense

• Jurisdiction: South Africa
• Judge: Msimang J and Pillay J
• Judgment Date: 05 February 2008
• Citation: 2009 (1) SACR 640 (N)
• Docket Number: AR 236/2004
• Hearing Date: 04 September 2007
• Counsel: Appellant in person.J Singh for the respondent.
• Court: Natal Provincial Division

Msimang J:

The appellant and his three co-accused appeared before the Pinetown regional court and were convicted of the crime of robbery with aggravating circumstances. On 17 October 2002 they were each sentenced to serve a term of 15 years' imprisonment. It would appear that C during December 2002 the appellant, who, at the time, was serving the said sentence at Westville Prison, filed a notice of appeal which went astray. On 26 February 2003 he caused to be despatched to the clerk of the Pinetown magistrates' court a handwritten letter addressed to the Director of Public Prosecutions enquiring as to the fate of his earlier notice of appeal. By that date the said clerk had already prepared a copy D of the record and such record had been submitted for consideration by the judicial officer in terms of rule 67(5) of the Magistrates' Courts Rules. A statement contemplated in the said rule was, however, not forwarded by the said judicial officer. Instead, on 22 January 2004 a minute was despatched by the said clerk to the registrar of this court, E placing it on record that: 'The Magistrate's reasons are not attached due to the fact that Mr Brits term of office has expired. His appointment has lapsed . . . .'

The appeal was then set down for argument only on 4 September 2007, a sad indictment of our appeals process. On that date the appellant F appeared before us unrepresented.

Briefly the prosecution's case against the appellant and his co-accused in the court a quo was that during the morning of 6 February 2002 a domestic helper employed by a family residing in New Germany had been accosted by four black males, one of whom was armed with a G firearm. During the incident she was taken to a toilet and the door thereof was closed. Approximately 127 items of household goods, including a computer, jewellery and clothing were removed from the premises. The domestic helper, who had been alone in the premises at the time, testified that she did not know her assailants, that prior to the H incident she had never seen them and that she was not certain that she would be able to identify them.

The police officers who, as a result of certain information, had repaired to appellant's residence on the same date, testified that upon their arrival there they found the appellant and his three co-accused seated on a sofa I with household goods spread on the floor. It was evident to the officers that the goods were being shared amongst the four occupants. The four were then placed under arrest. The appellant was handcuffed and his co-accused were ordered to load the goods onto a police vehicle. Suddenly one of them (accused 4) produced a knife and tried to stab one of the police officers, causing another officer to shoot him in defence of J his fellow officer. During the commotion accused 2 was able to escape

Msimang J

into a bush where he was later apprehended by a member of the Durban A Metro dog unit.

Later that day the owner of the premises where the robbery had been committed (the complainant) was brought to the police station and shown the goods that had been retrieved from appellant's residence. He positively identified them as belonging to him and as having been stolen B during the robbery. He, however, mentioned that certain goods were still missing. Another trip was then made to appellant's residence where a television set was discovered in a wall unit and a microwave oven was found in the kitchen. Both were positively identified by the complainant as his property and as having been stolen during the robbery. C

Further investigations by the officers revealed that a computer which had been stolen during the robbery was in the possession of one Nene. After an enquiry at the latter's place of residence, he brought the computer to the police station and informed the police that the same had been given to him by the appellant as security for the envisaged subsequent payment D to be made by the appellant to him, as he had been hired by the appellant to transport certain household goods from Mfuzani area to appellant's residence.

The appellant pleaded 'not guilty' to the charge of robbery and, at the E commencement of the trial, he did not disclose the basis of his defence. That basis, however, emerged during cross-examination of Nene and in appellant's evidence in his defence. Much as he admitted that the police had found him together with his co-accused at his residence with the stolen goods, he denied that the goods were being shared amongst the F four of them. The goods had been brought to him by Nene who had requested him to keep them for him as he had been expelled from a place where he (Nene) had been lodging. He admitted that a second trip had been made to his residence and that, on that occasion, a television set and a microwave oven had been removed. He, however, denied that the oven had been found in the kitchen.

When invited to advise us as to whether his appeal was directed against G conviction only or against both conviction and sentence, his response was that the appeal was directed against both. Regarding...