S v Sebidi and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Reddy AJ
• Judgment Date: 29 August 2023
• Citation: 2023 JDR 3298 (NWM)
• Hearing Date: 28 April 2023
• Docket Number: CA 48/22
• Court: North West Division, Mahikeng

Reddy AJ:

Introduction

[1]

This appeal comes before this Court by way of leave to appeal granted on petition on 15 September 2021 against the convictions and sentences imposed. The clear distinction between common purpose, joint possession, and the application of circumstantial evidence to the two latter legal principles is what engages this Court in this appeal. The interplay, if any, between these legal concepts arising predominantly from the common cause facts that falls for consideration.

[2]

The appellants were cited as accused 1, 3 and 4 in the Regional Court at Schweizer-Reneke. Accused 2 in the trial court has not appealed the convictions and sentences imposed in the Regional Court. In this appeal, accused 1, 3 and 4 are referred to as the first, second and third appellant respectively, and as “appellants” collectively.

[3]

The State proffered three (3) charges against the three appellants (and accused 2). The charges include robbery with aggravating circumstances read with the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997 - count 1; a contravention of section 3 read with sections 1, 103, 117, 120(1)

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(a) read with Schedule 4 Section 121, and section 151 of the Firearms Control Act 60 of 2000 (‘the FCA’), and further read with section 250 of the Criminal Procedure Act, 51 of 1977 (‘the CPA’) - (count 2); and a contravention of section 90 read with sections 1, 103, 117, 120(1) (a) and section 121 read with section Schedule 4 of the FCA and further read with section 250 of the CPA–(count 3.)

[4]

In respect of count 1, the appellants and accused 2 are alleged to have used a firearm to rob Nadi Hesma Le Roux (Le Roux) on 28 August 2009 of various items, including a Samsung Chatterbox Cellphone and cash in the amount of R3200.00. On counts 2 and 3 they are alleged on even date to have had in their possession a 9mm semi-automatic pistol and 8x9mm cartridges without holding a licence, permit or authorization issued in terms of the FCA to possess same.

[5]

On 24 March 2015, the appellants were convicted on the three charges. On the same day, each were sentenced on count 1, to 15 years imprisonment, with counts 2 and 3 taken together for purpose of sentence and sentenced to 6 years imprisonment. The Regional Magistrate ordered that the sentence imposed in respect of counts 2 and 3 run concurrently with the sentence imposed on count 1. The appellants were therefore sentenced to an effective 15 years imprisonment.

[6]

The appellants were further declared unfit to possess a firearm in terms of section 103(1) of the FCA.

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Condonation

[7]

The appellants seek condonation for the late prosecution of the appeal in this Court. This Court is seized with a judicial discretion, which must be exercised on a proper consideration of the facts being fully alive to the attainment of fairness to both sides. See: Civil Procedure in the Superior Court, Harms at B27.6; Melane v Sanlam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 C – F; Grootboom v National Prosecuting Authority, 2014 (2) SA at [36].

[8]

In light of the conclusion reached in this appeal, the prospects of success militate in favor of condoning the lateness of the prosecution of the appeal. Accordingly, the application for condonation is granted.

Background facts

[9]

On 28 August 2009, Le Roux after completing her duties as a cashier at Thares’s bottle store, proceeded on foot to her flat located a block away from her place of employment. Acting out of routine, she opened the security gate which allowed access into the block of flats, allowing the security gate to close mechanically behind her. After entry, as she proceeded to the passage that leads to the staircase that provides the way to the respective flats, she heard the security gate close for a second time, causing her to alter focus and look back.

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[10]

As she looked back, her handbag which was hanging on her left shoulder was yanked. She resisted, being cognizant of the fact that the contents of her handbag included her own keys and the keys to the safe at the place of employment. The resistance that she had offered encouraged her assailant to call out to another assailant in his company, to shoot. A firearm was pointed at Le Roux and whilst looking at the pointed firearm, her initial assailant pushed her in the direction of a wall, causing her to lose balance. As she tripped her fall was broken against the wall. At this juncture the handbag was removed and both assailants fled. The force used to dispossess Le Roux of her handbag caused her to sustain a blue mark on the left shoulder.

[11]

Le Roux yelled forhelp. Le Roux’s two brothers answeredthe call. About 8-9 meters away, another employee of the bottle store, whilst still on duty assisting a customer to carry his purchases to his motor vehicle, heard the cries of help from a voice from the block of flats. The individual who screamed for help was not visible. Notwithstanding same, he identified the voice as that of a female. Looking in the direction where the cries emanated from, he observed that three males were running towards the direction of the Engen Garage and getting into a white Opel Astra motor vehicle, at the rear doors of the Opel Astra. None of the three males were facially identifiable, but for the clothing apparel that was donned. One was wearing an orange overall with silver stripes, one who was carrying a bag under his armpit was wearing a blue denim jean and black jacket and the third was wearing a blue overall. The Opel Astra then sped off in the direction of the Delareyville Road. The police were alerted.

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[12]

The brothers of Le Roux; Rudi Voges and De Villiers du Plessis assisted to bring Le Roux outside the block of flats where the owner of the bottle store and certain employees had congregated.

[13]

Meanwhile, in Delareyville, Detective Officer Viljoen (‘Viljoen’), a member of the SAPS was on duty, with his colleague Constable Mojai (“Mojai”). Information received via radio control was that a white Opel Astra with Gauteng registration plates was alleged to have been involved in a robbery. Viljoen and his colleague drove in the direction of Schweizer- Reneke. Approximately 20 kilometers from Delareyville en route to Schweizer-Reneke, an Opel Astra matching the description passed at high speed towards the direction of Delareyville.

[14]

Reinforcements from the South African Police Service (‘SAPS’) were contacted to stop the Opel Astra at an identified T-junction at Delareyville and Schweizer-Reneke. According to Viljoen he executed a U-turn, at an estimated distance of 50 - 100 meters away from the Opel Astra and the emergency blue lights and the siren of the unmarked SAPS motor vehicle was activated. The Opel Astra proceeded at high speed with Viljoen in hot pursuit. As pre-arranged members of the SAPS were strategically positioned at the identified T-junction, which prevented the flow of traffic in either direction, the driver of the Opel Astra upon seeing the roadblock veered off the tar road onto a gravel road and into a veld where it eventually came to halt.

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[15]

With the aid of the spotlights from the SAPS vehicle and handheld torches, Viljoen noticed two persons alight from the Opel Astra. Using the light described, Viljoen focused on the person dressed in an orange overall who was in possession of a firearm in his right hand and pursued him whilst driving. This person was identified as accused 2 in the court a quo. Notwithstanding two commands by Viljoen to stop, accused 2 turned around, holding the firearm in both hands. Viljoen, uncertain whether the firearm had been cocked or was in the process of being cocked, discharged three shots at accused 2’s legs. Accused 2 fell and Mojai handcuffed him. Two meters from accused 2 a firearm was recovered with a magazine containing seven live rounds of ammunition, and one cartridge jammed in the chamber.

[16]

Constable Shadeso (‘Shadeso’) arrested the first appellant who was found lying in the grass about sixty-three paces from the Opel Astra. Shadeso could not recall the clothing apparel worn by the first appellant. Upon searching the first appellant, nothing was found in his possession. Crucially, only accused 2 and the first appellant were arrested at the scene in the veld.

[17]

When Viljoen returned to the Opel Astra, he observed that all four doors of the motor vehicle were open. The forensic unit of the SAPS were summoned and took control of the scene and attended to the lifting of finger, thumb and palm prints and the securing of exhibits. Fingerprints were lifted from the Opel Astra. More specifically a palm print was lifted from the surface of the right-side

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boot and a palm print from the rear-view mirror. The evidence loosely refers a thumbprint when the exhibit, clearly depicts a palm print. No issue has been taken that the comparison of the print in question proves that it is of the second appellant.

The approach on appeal to convictions

[18]

It is settled law that a court of appeal will not likely interfere with credibility and factual findings of the trial court. In the absence of an irregularity or misdirection, the court of appeal is bound by such findings, unless it is convinced that the findings are clearly incorrect or unless an examination of the record reveals that those findings are patently wrong. (S v Francis 1991 (1) SACR 198 (A) at 204C-E, S v Mkohie 1990 (1) SACR (A) at 100E).

[19]

In S v Hadebe 1997 (2) SACR 641 (SCA) at 645 E-F Marais JA stated as follows:

“Before considering these submissions it would be as well to recall yet again that there are well established principles governing the hearing of the appeals against findings of fact. In...