S v Ramabokela and Another

• Jurisdiction: South Africa

S v Ramabokela and Another
2011 (1) SACR 122 (GNP)

2011 (1) SACR p122

Citation	2011 (1) SACR 122 (GNP)
Case No	A 733/2009
Court	North Gauteng High Court, Pretoria
Judge	Bam J and Van Der Byl AJ
Heard	September 15, 2010
Judgment	September 15, 2010
Counsel	JG Rautenbach SC for the appellants.; FC Roberts (DPP, Pretoria) for the State.

Flynote : Sleutelwoorde

Evidence — Of identification — Dock identification — Value of — While dock identification not carrying same weight as evidence emanating from proper H identification parade, not to be equated to answer to leading question — Dock identification to be evaluated in same manner as all evidence regarding identification: with caution — Weight to be attached to such evidence depending on circumstances of individual case, and on evaluation of totality of evidence, with usual cautionary rule having been applied.

Sentence — Imposition of — Factors to be taken into account — Appellants convicted of kidnapping, assault and culpable homicide during course of strike — I Whether mitigating factor that strike was legal — Public order central concern to community and to State — No citizen to be subjected to disorder and violence when other citizens decide to strike — Whether strike legitimate or unlawful in this respect irrelevant — Fact that strike legal not J mitigating factor — Appeal against sentence dismissed.

2011 (1) SACR p123

Headnote : Kopnota

The two appellants were each convicted on three counts of kidnapping, two A counts of assault with intent to do grievous bodily harm, and one count of culpable homicide. They were sentenced to an effective eight years' imprisonment. Their appeal against conviction turned mainly on the reliability of the identification evidence against them, and in particular on the admissibility of a dock identification by a witness, R, who had not previously known the appellants. It was contended that a dock identification B was analogous to the answer to a leading question, and that it should thus not be admissible. As to sentence, it was argued that the offences had occurred while the appellants were taking part in a legal strike, and that this should have been regarded as a mitigating factor.

Held, that, while a dock identification might not carry the same weight as evidence of identification emanating from a proper identification parade, it C could not be equated to the answer to a leading question. It was to be evaluated in the same manner as all evidence regarding identification — with caution. The weight to be attached to such evidence would depend on the circumstances of the individual case, and on an evaluation of the totality of the evidence, with the usual cautionary rule having been applied. The magistrate had correctly found that both witnesses were honest and reliable; D what was claimed to have been a contradiction in the evidence of one of them was in fact no more than a correction on a point about which the witness had had no reason to lie. The evidence of R corroborated that of the other witness, who was a colleague of the appellants, and this had correctly been taken into account by the magistrate in his assessment of the totality of the evidence. Accordingly, it had been proved beyond reasonable doubt that the two appellants had been actively involved in the offences, as alleged E by the State. (Paragraphs [21]–[29] at 127b–130f.)

Held, further, regarding sentence, that public order was a central concern to the community and to the State. No citizen should be subjected to disorder and violence when other citizens decided to strike, and whether the strike was legitimate or unlawful was, in this respect, irrelevant. The fact that this F strike had been a legal one was not a mitigating factor. The magistrate had taken into account all the relevant and material factors, and had considered non-custodial sentencing options. There had been no misdirection, and the sentence was an appropriate one. Accordingly, there was no basis upon which to interfere with it. (Paragraphs [32]–[39] at 131e–132e.) Appeals dismissed. G

Annotations:

Cases cited

Reported cases

Magmoed v Janse van Rensburg and Others 1993 (1) SACR 67 (A) (1993 (1) SA 777): referred to

S v Carolus 2008 (2) SACR 207 (SCA): referred to H

S v Chabalala 2003 (1) SACR 134 (SCA): dictum in para [15] applied

S v Daba 1996 (1) SACR 243 (E): criticised

S v Maradu 1994 (2) SACR 410 (W): considered

S v Michele and Another 2010 (1) SACR 131 (SCA) ([2010] 1 All SA 446): referred to

S v Moti 1998 (2) SACR 245 (SCA): referred to I

S v Mthetwa 1972 (3) SA 766 (A): dictum at 768A applied

S v Munyai 1986 (4) SA 712 (V): criticised

S v Ngobozi 1972 (3) SA 476 (A): referred to

S v Nkwenja en 'n Ander 1985 (2) SA 560 (A): referred to

S v Pieters 1987 (3) SA 717 (A): referred to

S v Roberts 2000 (2) SACR 522 (SCA): referred to

S v Sadler 2000 (1) SACR 331 (SCA) ([2000] 2 All SA 121): referred to J

2011 (1) SACR p124

S v Tandwa and Others 2008 (1) SACR 613 (SCA): dictum at 652g applied A

S v Thenkwa en 'n Ander 1970 (3) SA 529 (A): referred to

S v Trainor 2003 (1) SACR 35 (SCA) ([2003] 1 All SA 435): followed

S v Van Aswegen 2001 (2) SACR 97 (SCA): referred to.

Case Information

B Appeal against convictions and sentences imposed by a regional court. The facts appear from the judgment of Bam AJ, in which Van der Byl AJ concurred.

JG Rautenbach SC for the appellants.

FC Roberts (DPP, Pretoria) for the State.

Judgment

Bam AJ:

[1] From the outset it has to be recorded that the court a quo granted the appellants leave to appeal against the convictions, but refused leave to appeal against the sentences.

[2] The appellants have in the meantime addressed a petition to the D Judge-President of this division for leave to appeal against the sentences as well. The petition was successful and leave was granted.

[3] The appeal against the convictions and sentences will accordingly be dealt with simultaneously.

E [4] The appellants were convicted in the regional court, Pretoria, on three counts of kidnapping (counts 4, 6 and 8), two counts of assault with the intent to do grievous bodily harm (counts 11 and 13) and one count of culpable homicide (count 14). On 13 May 2009 the appellants were sentenced as follows:

(a)

F Counts 4, 6 and 8 taken together for sentence purposes: one year's imprisonment;

(b)

counts 11 and 13 taken together for sentence purposes: one year's imprisonment;

(c)

count 14: six years' imprisonment.

In toto each of the appellants has to serve eight years' imprisonment. G

[5] The charges resulted from incidents which occurred during a strike by Tshwane municipal workers at the end of January/beginning of February 2005.

[6] The municipal workers went on a strike, resulting in the municipality H employing independent subcontractors to remove refuse from certain parts of the city. The strikers were, however, discontent with this arrangement and started attacking the subcontractors.

[7] During the morning of 1 February 2005 the strikers kidnapped, assaulted and generally abused some of the subcontractors. One of the I subcontractors died as a result of a 'heart fracture' ('hartfraktuur') according to the postmortem report. The deceased also sustained multiple injuries all over his body, caused by 'blunt' instruments.

[8] The mob of strikers consisted of ± 600 individuals, and, accordingly, it is not strange that the identity of the strikers involved in the assaults, J is of concern to the State.

2011 (1) SACR p125

Bam J

[9] The two appellants were arrested by the police upon information that A they were actively involved in the assaults referred to above.

[10] Samuel Mahlangu, complainant pertaining to count 1 (kidnapping) and count 4 (assault to do grievous bodily harm), testified that he was kidnapped and assaulted and taken to a place where he was further assaulted, his clothes torn from his body and water poured on him. B

[11] According to this witness, he knew two of the assailants personally, in that he had been working with them for six months. One he knew by name and the other from having seen him on a daily basis. He substantiated his evidence by pointing out the two appellants in the C dock. He told the court that the first appellant was armed with a screwdriver and the second appellant with a knife. The two appellants played an active role in his kidnapping and assault. During his evidence he corrected himself and testified that the knife was actually in possession of the first appellant, and the screwdriver in possession of the second appellant. D

[12] The witness described in detail how the two appellants and other members of the striking group hit and kicked him. He further testified that his clothes, as well as the clothes of some of the other subcontractors, were torn from their bodies and how they were generally abused by E the strikers. He also testified that the two appellants were actively involved in the assault on the deceased. The deceased was being kicked...