S v Mofokeng

• Jurisdiction: South Africa
• Judge: Lamprecht AJ and Nieuwenhuizen AJ
• Judgment Date: 16 August 2013
• Citation: 2014 (1) SACR 229 (GNP)
• Docket Number: SH 52/07
• Hearing Date: 16 August 2013
• Counsel: MB Kgagara for the appellants.K Germishuis for the state.
• Court: North Gauteng High Court, Pretoria

Lamprecht AJ (Nieuwenhuizen AJ concurring):

Introduction

[1] On 14 April 2009 the three appellants were convicted in the regional court, Bela Bela, of one count of robbery with aggravating circumstances. H They were each sentenced to 15 years' imprisonment imposed in terms of s 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997 (the Minimum Sentencing Act). The trial court granted them leave to appeal their convictions, but not their sentences. The three appellants appeared in the same order as in the court a quo and, for ease of I reference, they will forthwith be referred to as accused Nos 1, 2 and 3.

[2] Most of the facts are not in dispute, the only real disputes being whether it was proven that the appellants were the persons who committed the robbery; whether they broke into the house in which they were eventually found by the police; and whether they brought any of the recovered goods and money into that house or had some of the stolen J goods on their person.

Lamprecht AJ (Nieuwenhuizen AJ concurring)

The facts according to the state A

[3] The state led the evidence of a number of state witnesses from whose evidence the following version appears:

[3.1]

On 6 November 2006 Samuel Siyema was the driver of a cash-in-transit vehicle of Fidelity Cash Management Services. B He had one crew member, Steven Moyo. [1] Their duties on this specific day were to collect bank deposits from various clients and to transport them to Absa Bank, Bela Bela, for deposit.

[3.2]

After collecting the money from the various pick-up points, they drove to Absa where they parked the vehicle. At C approximately 08h45 Siyema alighted, took some of the bags containing bank deposits and proceeded to the bank, closely followed by his crew member who also had some trunks and bags containing deposits.

[3.3]

Just as he was about to open the door to the bank he heard someone approach him from behind, and felt a firearm being D pressed against the back of his head, with the person ordering him to lie down. He tried to look at the person, but he was hit on the back of his head with the firearm. He fell down.

[3.4]

The unidentified robber then took the moneybags that he carried and his firearm from his hip and made off with them. E Apparently the robbers, who were more than one, also took the trunks and bags that Moyo had, before they took off. Siyema did not see any of the robbers at that time, and when he stood up he saw the person retreating from him, but only from the back.

[3.5]

A shot rang out and he saw some people climbing onto the back F of a Mazda Rustler bakkie. He saw four persons at the back of the bakkie, one had a long assault rifle and one, whom he identified in the dock as accused No 1, had a steel trunk containing money which had been taken from Moyo.

[3.6]

The robbers succeeded in making off with more than G R640 547,06, which was the amount recovered, as will be indicated below. In the meantime the owner of Calvin Security, Mr Burger, was contacted per radio by one of his security guards posted at Pick 'n Pay, close to Absa. The latter informed him that a robbery had been committed in front of Absa and H that the robbers were making a getaway in a brown Mazda Rustler bakkie, and that there was some shooting taking place.

[3.7]

Burger and a technician of his got into two different vehicles and sped off in the direction of Pick 'n Pay. At the crossing of the road to Settlers he spotted the vehicle passing them in the I crossing towards Settlers. They gave chase. He noted three people at the back of the Rustler bakkie, and two in front. The bakkie turned left into the township of Bela Bela at Masemula

Lamprecht AJ (Nieuwenhuizen AJ concurring)

A Street. At a T-junction the Rustler turned left, and then right again into the first street, Moloto Street. The vehicle stopped on the pavement and the people got off and out of the Rustler. His technician, who gave chase in front, alerted him per radio that they were drawing fire, after which he stopped and his B technician drove back past him. He saw that some of the people were also firing at him, and he could hear shots flying past him, including fire from an automatic weapon. He returned fire, with neither he nor his vehicle being hit and, so it would appear, none of the armed gang was hit, by his return of fire.

[3.8]

The five occupants of the Rustler ran away. He gave chase, but C lost sight of them. Some ran through different yards and different streets, but he ran in the direction that he perceived most of them did. He was then alerted by a certain man wearing a yellow cap that the people they were looking for were hiding in a two-roomed house where they apparently broke down the D door, and he pointed out the house as 151 Maroka Street.

[3.9]

According to the owner of the said house, Ms Mohlatedi, she was asleep at that time of the morning, as she was working a night shift. Her young son was awake though, busy having breakfast because he had a test to write at 12h00. She awoke, E hearing people say that the door must be broken down. The only door to her house was then forced open and some men came in.

[3.10]

She ran to the kitchen and realised that three men had already entered through the door that they had just forced open. Her F child was crying and she was also hysterical from the shock. She covered her son's head and she kept her head facing down. She could not see the three men well enough to later identify them. Neither could she see whether they had anything on them or whether they brought anything with them when they entered.

[3.11]

G After a while the police arrived and ordered the men to come out. She was also taken out of the house, and she was not present inside when the police took photographs and attached some things inside her house. She confirmed that she saw some moneybags on the photos that were taken in her absence, in her H fridge, on the table, and in her bedroom on the bed. She however, does not know how those things came to be in her house. She does not know whether they came in with the three men, or thereafter, but what she does know is that those items were not in her house before the men broke the door and entered.

[3.12]

I When the police arrived they surrounded and besieged the house. They ordered whomever was inside to come out or risk their being taken out with armed force. After a while all three of the accused persons came out, accused No 1 in front, and he surrendered. They were frisked for firearms. Captain Smit of J the police grabbed accused No 1 before he could attempt to get

Lamprecht AJ (Nieuwenhuizen AJ concurring)

away, told him that he was being arrested for armed robbery and A frisked him for firearms. When he could not find any, he asked accused No 1 where his firearm was. Accused No 1 then made a report to him and immediately volunteered to make a pointing-out. Accused Nos 2 and 3 were left in the presence of Superintendent Barnard and other police, while he and accused No 1 then walked off in a certain direction indicated by accused No 1. B

[3.13]

They walked through a number of premises, in the direction of the town, and crossed two streets. On the way, at the boundary fence between house No 151 and another, accused No 1 pointed out a white bag, indicated on photo No 21. Behind house C No 145 he pointed out a black bag, indicated on photo No 20. Accused No 1 also told him that, in the other yard, just behind the toilet, on the other side of the fence, he threw down the firearm that he had had. Smit left accused No 1, who was cuffed, in the presence of other police, climbed over the fence and, in the bushes behind the toilet, found a cocked 9 mm pistol. This was D photographed — photo No 22. (According to the prosecutor during cross-examination of accused No 1, [2] this particular firearm was in terms of ballistic examination linked to a discharged cartridge that was found at the scene at Absa Bank. The particular exhibits were not attached to the appeal record, so we could not determine whether this assertion was true.) [3] E

[3.14]

At that stage Insp Nel arrived there where he and accused No 1 were. Nel asked him whether he had properly searched the suspect, to which he replied — only superficially for a firearm. Nel, who has experience with robbers often hiding F stolen money and firearms in unusual places such as their underwear and their shoes, then conducted a thorough search of accused No 1. According to both Nel and Smit, Nel then found R10 000 (consisting of a bundle of 100 x R100 notes) in the accused's shoe, hidden under his foot, but on the sole of the shoe. Nel said that, although accused No 1 must have had G considerable difficulty walking with such a big wad of money (approximately 2,5 cm thick) in his shoe, it was not so strange to find it there, in the light of his experience, and it was definitely not impossible for a person like accused No 1 to hide it there. He said that accused No 1 appeared almost sheepishly H embarrassed (verleë) at having been caught out with the money in his shoe, after he had earlier managed to escape such close scrutiny by the other police. After accused No 1 gave such a

Lamprecht AJ (Nieuwenhuizen AJ concurring)

A report to Nel and Smit, the R10 000 was attached and treated as part of the stolen property. The R200 that was found in his pocket was, however, given to another policeman, since accused No 1 explained that it belonged to him personally and it was not linked to the stolen property.

[3.15]

B In addition to the two bags pointed out to Smit, inside Mohlatedi's house police officers found some other bags and a trunk, most of which were still sealed. Some were hidden in the fridge. All these bags and the trunk were identified as the bags and trunk...