S v Mofokeng

• Jurisdiction: South Africa
• Citation: 2014 (1) SACR 229 (GNP)

S v Mofokeng
2014 (1) SACR 229 (GNP)

2014 (1) SACR p229

Citation	2014 (1) SACR 229 (GNP)
Case No	SH 52/07
Court	North Gauteng High Court, Pretoria
Judge	Lamprecht AJ and Nieuwenhuizen AJ
Heard	August 16, 2013
Judgment	August 16, 2013
Counsel	MB Kgagara for the appellants.; K Germishuis for the state.

Flynote : Sleutelwoorde

Robbery — Aggravating circumstances — What constitutes — Accomplice — B Liability of, where accomplice did not perform any act suggesting that there were aggravating circumstances — Insertion of 'accomplice' in definition of 'aggravating circumstances' in s 1(1)(b) of Criminal Procedure Act 51 of 1977 — Exact role of each accused person not needing to be determined before he could be held guilty of robbery with aggravating C circumstances.

Headnote : Kopnota

The three appellants were convicted in a regional court of robbery with aggravating circumstances and were sentenced to 15 years' imprisonment each. They appealed against their sentences. Their convictions arose from D an incident in which employees of a security company delivering cash were attacked by a group of armed men who made off with over R600 000 in cash. The owner of a security company, who had been alerted that a robbery had taken place, spotted the vehicle involved in the robbery from a description supplied to him. He gave chase and eventually the three appellants were found together in a house and all the cash was recovered. E Only the first appellant was identified as having taken part in the robbery, and the conviction of the other two appellants was based on circumstantial evidence. In considering the merits of the appeal, the court felt obliged to consider the effect of the judgment in S v Masingili and Others2013 (2) SACR 67 (WCC), and whether as a result of this decision the exact role of each of the accused persons in the commission of the robbery needed to be determined in order to establish whether each of them could be held guilty F of robbery with aggravating circumstances. The court held that the Masingili decision was flawed in a number of respects and was wrong in law, and did not need to be followed, until such time as a higher court confirmed it, a prospect it considered highly unlikely to happen. (Paragraph [19] at 244h.) After examining the evidence the court dismissed the appeal and upheld the convictions of each of the appellants.

Annotations:

Cases cited

Case law

Director of Public Prosecutions, Transvaal v Mtshweni2007 (2) SACR 217 (SCA) ([2007] 1 All SA 531): referred to H G

R v Blom1939 AD 188: referred to

R v De Villiers1944 AD 493: referred to

R v Hepworth1928 AD 265: referred to

R v Hlongwane1959 (3) SA 337 (A): referred to

R v Sibanda 1963 (4) SA 182 (SR): referred to

S v Jaffer1988 (2) SA 84 (C): referred to I

S v Khala1995 (1) SACR 246 (A): referred to

S v Khumalo en Andere1991 (4) SA 310 (A): referred to

S v Makobe1991 (2) SACR 456 (W): referred to

S v Malinga and Others1963 (1) SA 692 (A): referred to

S v Mashiane en Andere1998 (2) SACR 664 (NC): referred to

S v Masingili and Others2013 (2) SACR 67 (WCC): criticised and not followed J

2014 (1) SACR p230

A S v Mavuso1989 (4) SA 800 (T): referred to

S v Mbuli2003 (1) SACR 97 (SCA) ([2002] ZASCA 78): referred to

S v Mgedezi and Others1989 (1) SA 687 (A): referred to

S v Morgan1993 (2) SACR 134 (A): dictum at 172j applied

S v Mthethwa1972 (3) SA 766 (A): referred to

S v Mtsweni1985 (1) SA 590 (A): referred to

B S v Munyai1986 (4) SA 712 (V): referred to

S v Ngubane1985 (3) SA 677 (A): referred to

S v Nkwenja en 'n Ander1985 (2) SA 560 (A): referred to

S v Ntsele1998 (2) SACR 178 (SCA) ([1998] 3 All SA 517): referred to

S v Ressel1968 (4) SA 224 (A): referred to

S v Sesetse en 'n Ander1981 (3) SA 353 (A): referred to

C S v Sinam1990 (2) SACR 308 (E): referred to

S v Singh1975 (1) SA 227 (N): referred to

S v Thebus and Another2003 (2) SACR 319 (CC) (2003 (6) SA 505; 2003 (10) BCLR 1100): referred to

S v Van Tellingen1992 (2) SACR 104 (C): dictum at 106 applied

S v Van Wyk 1992 (1) SACR 147 (NmS): referred to.

Legislation cited

Statutes D

The Criminal Procedure Act 51 of 1977, s 1(1)(b) 'aggravating circumstances': see Juta's Statutes of South Africa 2012/13 vol 1 at 2-340.

Case Information

MB Kgagara for the appellants.

K Germishuis for the state. E

Appeal from convictions in a regional court for robbery with aggravating circumstances.

Order

F That the appeal be dismissed (and the convictions of the appellants on one count of robbery with aggravating circumstances, with the resultant sentences of 15 years imposed in terms of s 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997, be upheld).

Judgment

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.

2014 (1) SACR p231

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

2014 (1) SACR p232

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...