S v Syster
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Pangarker AJ and Salie J |
| Judgment Date | 23 August 2023 |
| Citation | 2023 JDR 3168 (WCC) |
| Hearing Date | 04 August 2023 |
| Docket Number | A101/2021 |
| Court | Western Cape Division, Cape Town |
Pangarker AJ (SALIE J CONCURRING):
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Pangarker AJ (SALIE J CONCURRING)
Introduction
This appeal against conviction emanates from the Mossel Bay Regional Court. The appellant was charged with robbery with aggravating circumstances read with section 51 of the Criminal Law Amendment Act 105 of 1997. The State alleged that on 30 July 2018 at Vodacom, Heiderand, Mossel Bay, the appellant unlawfully and intentionally assaulted Murishia Maart and/or Natasha Lucas and took with force several cell phones and R15 556 cash, with a combined total of R60 069, 05, being their property or in their lawful possession.
The State alleged that the aggravating circumstances were that the appellant threatened the complainants with a knife and slapped Ms Maart. In her judgment, the regional magistrate convicted the appellant as charged. He was sentenced to 15 years’ imprisonment.
The appellant was legally represented throughout the trial. The State called six witnesses and also relied on a photographic album (Exhibit A) depicting the interior of the Vodacom store in Mossel Bay Mall. The record also indicates that after conclusion of the last State witness’s evidence, an inspection in loco was conducted at the Vodacom store, whereafter the State closed its case. The appellant testified in his defence and called no witnesses.
Grounds of appeal
The grounds of appeal are that the magistrate erred in finding that the State had proved beyond reasonable doubt that the appellant robbed the Vodacom store as alleged. The second ground is that the magistrate erred by not finding that the appellant’s version was reasonably possibly true and that the robbery was staged by employees of the store.
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Pangarker AJ (SALIE J CONCURRING)
Evidence for the State
The first three witnesses for the State were employees of Vodacom. The following common cause facts emanate from the evidence of Murishia Maart, Natasha Lucas and her sister Yolande (Landi) Lucas (as the sisters share the same surname, I refer to them in this judgment by their first names): The three women were employed at the store at the time of the incident and Ms Maart was known to the sisters for 10 years prior to the incident. Furthermore, Yolande was in a relationship with Faizel Messier who was the appellant’s friend. The appellant was known to Yolande.
On 30 July 2018, the women arrived at the store after 08h00 and proceeded to commence their store duties. They testified that the store opened for business at 09h00. Natasha Lucas unlocked the store and the roller door remained partially open while Ms Maart was to cash up at the back office, Yolande attended to washing the dishes at the back and Natasha cleaned the front of store, which included mopping the floor. They explained that it was usual practice to leave the roller door slightly raised in order for the floor to dry. The women testified that the store’s lights were dimmed so as to discourage the public from entering prior to 09h00.
Natasha testified that her back was facing the roller door as she busied herself tying a garbage bag, and felt someone behind her and an object being pushed against her back. It is common cause that the man who entered the Vodacom store on that morning, was the appellant. According to Natasha, the man demanded cash and cell phones and forced her toward the back office where her colleagues were.
As Natasha and the man moved to the back, he snatched a black laptop bag from the wall, handed it to her and she was forced to open the free standing safe and place cell phones into the bag, which she proceeded to do. The women testified
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Pangarker AJ (SALIE J CONCURRING)
that Natasha passed the bag to Ms Maart so that she could place the money into it, but Ms Maart hesitated, and during this time, the man slapped her face. Ms Maart then proceeded to place the money into the bag.
The witnesses testified that the back office area was very small and after Ms Maart placed the money in the bag, they were all forced together at the sink, instructed to remain there and not to raise an alarm. The man then left them and according to Natasha everything happened very quietly. None of the women could indicate how he left the store. A minute or two lapsed after which Natasha ran from the store and raised the alarm with the security guard who came to their assistance. The witnesses testified that they were in shock after the incident.
Quite significantly, none of the employees could identify the man and were unable to describe him to Ms Gwaba, the security guard, and Constable Mathea, the police officer, who arrived at the store shortly after the incident. Yolande stated that the man wore a beanie low over his eyes. As regards the issue of lighting inside the store, Ms Maart testified that she could not identify the man as the store lights were dimmed. The witnesses testified that the back part of the store was lit by computer monitors which were switched on at the time.
The women testified that the owner had not done banking the weekend prior to the incident, hence there was a large amount of cash still in store on the Monday morning. On this aspect, Ms Maart’s evidence was that the owner does the banking and she does the cashing up every morning, though Natasha testified in cross-examination that the owner normally did the cashing up every morning but on that specific Monday morning, he had contacted Ms Maart to cash up.
It was common cause that there was no security camera inside the store but there was one mounted at the Spur restaurant opposite. In response to the appellant’s version put to them, all the employees denied that the roller door was closed when he entered the store and that the robbery was a fabrication. They confirmed that
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Pangarker AJ (SALIE J CONCURRING)
they attended a braai at Mr Messier’s house the evening before the incident but that they never saw the appellant at the premises. In addition, Ms Maart and Natasha testified that they did not know the appellant.
Natasha testified that an object was held against her back, yet when it was put to her that the State alleged that a knife was held against her neck, she then stated that the object was held to her neck and that she had forgotten this. According to her, there was enough light at the back of the store to be able to see where Ms Maart was seated and she did not know why her colleague could not describe the assailant as he stood very close to her when the bag was passed to place the money inside it.
Yolande testified that Mr Messier was previously convicted of theft from the Vodacom store, and was not allowed to enter it. She also stated that he would know the layout of the store. As regards the lighting, her evidence was that there was sufficient light at the back for Ms Maart to count the money, but she was also unable to identify the person who had entered the store. She denied the appellant’s version that she had requested him to collect a bag from the store.
Constable Malusi Mathea testified that he arrived at Vodacom to find the lights switched on but the back office was dark. He found all three employees crying and traumatized and from the limited information he obtained from them, he gathered that two of the women were slapped during the robbery. The Constable had viewed the video footage of the store’s entrance, which showed a male entering the main entrance and later calmly exiting the Mall entrance with a black laptop bag in his possession.
The State called Jesslyn Jantjies, the appellant’s girlfriend. She testified that she received information on the day in question that the appellant was at the bush where drugs were purchased and she was informed that Mr Messier should be advised of the appellant’s whereabouts. She recalled that shortly thereafter she
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Pangarker AJ (SALIE J CONCURRING)
saw Mr Messier and the appellant approach the latter’s house. The appellant was carrying a black laptop bag which he proceeded to take to his room and cover with a cushion and she was instructed not to scratch in the bag. The appellant then followed Mr Messier to his house, taking the laptop bag with him. In cross-examination, Ms Jantjies testified that the appellant never opened the bag in her presence.
The security guard, Babalwa Gwaba testified that she was doing patrols on the morning of the incident and noticed a coloured male enter the Vodacom store which had its roller door partially up. She did not find this suspicious as the women always allowed their friends to enter the store in this fashion. She also noticed that blue lights from the cell phone accessories shed light in the store. Sometime thereafter, a colleague alerted Ms Gwaba to the Vodacom employees who were traumatized and crying, and when she attended on them, they informed her that they were slapped and that a man had entered and taken everything in the store.
Ms Gwaba testified that none of the women were able to provide a description of the man, nor did they scream either during the incident or afterward to alert security. She viewed the Mall’s CCTV footage and recognized the person she saw enter the store by his clothes. The police were alerted and she relayed the information to Constable Mathea.
The appellant’s evidence
The appellant testified that he was friends with Faizel Messier and attended the braai at his friend’s house. He knew Yolande Lucas for more than 10 years and she requested him to collect a bag at her workplace the next day (Monday), which he agreed to do as he was to be remunerated for his efforts. He furthermore testified that he was unaware why Mr...
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