S v Toubie

• Jurisdiction: South Africa
• Citation: 2004 (1) SACR 530 (W)

S v Toubie
2004 (1) SACR 530 (W)

2004 (1) SACR p530

Citation	2004 (1) SACR 530 (W)
Case No	A1059/02
Court	Witwatersrand Local Division
Judge	Malan J, Khampepe J and Farber AJ
Heard	August 27, 2003
Judgment	December 8, 2003; December 9, 2003
Counsel	Z Omar (attorney) for the appellant.; M A Mohlala for the State.

Flynote : Sleutelwoorde

Plea — Plea of not guilty — Explanation of plea — Statement in terms of s 115 of Criminal Procedure Act 51 of 1977 doesn't place additional onus on State — On contrary, burden which rests on State remains static throughout, namely that of having to establish guilt of accused beyond reasonable doubt. C

Indictment and charge — Splitting of charges — Accused participating in robbery in which several people and business robbed — Individual acts of robbery committed within framework of single intent — Evidence necessary to sustain any one of them indispensable for purpose of sustaining others — Force used to overcome one, and in process to rob person, was same force D which enabled accused to deprive business of its goods — Conviction on three counts of robbery involving improper duplication.

Indictment and charge — Splitting of charges — Unlawful possession of firearm and unlawful possession of ammunition — Evidence necessary to prove offence of unlawful possession of unlicensed firearm complete without essential evidential matter necessary to sustain charge of unlawful E possession of ammunition being brought into matter — Acts foundational to two charges constitute separate criminal offences and fall to be treated as such.

Sentence — Appeal — Court's powers on appeal — Trial Court erroneously failing to apply provisions of minimum sentencing legislation — State not appealing against sentence — As appellant had right to F raise on appeal propriety of sentence in circumstances where leave to appeal granted in respect of conviction only, there is no reason in logic why similar right ought not to enure for benefit of State — Court altering appellant's sentence to that prescribed in relevant legislation, inter alia replacing sentence of 20 years' imprisonment with one of life imprisonment. G

Headnote : Kopnota

A statement in terms of s 115 of the Criminal Procedure Act 51 of 1977 does not place an additional onus on the State. On the contrary, the burden which rests on the State remains static throughout, namely that of having to establish the guilt of an accused beyond reasonable doubt. (At 543b.) H

Where the appellant had participated in a robbery in which several people and a business were robbed, the individual acts of robbery were committed within the framework of a single intent. The evidence necessary to sustain any one of them was indispensable for the purpose of sustaining the others. The force used to overcome one, and in that process to rob the person, was the same force which enabled the appellant to deprive the business of its goods. Therefore the I conviction of the appellant on three counts of robbery involved an improper duplication. (At 547f - g.)

The evidence necessary to prove the offence of unlawful possession of an unlicensed firearm in contravention of s 2, as read with ss 1 and 39, of the Arms and Ammunition Act 75 of 1969 would be complete without the essential evidential matter necessary to sustain a charge of unlawful J

2004 (1) SACR p531

possession of ammunition in contravention of s 36, as read with ss 1 and 39, of Act 75 of 1969 being brought into the matter. The A acts foundational to these two charges constitute separate criminal offences and fall to be treated as such. (At 550f - g.)

Where the trial Court had erroneously failed to apply the provisions of minimum sentencing legislation and the State had not appealed against sentence, the Court on appeal held that, as an appellant had the right to raise on appeal the propriety of her or his sentence in B circumstances where leave to appeal had been granted in respect of the conviction only, there was no reason in logic why a similar right ought not to enure for the benefit of the State, provided only that the appellant is properly before the Court of appeal. So much is evident from s 322(6) of the Criminal Procedure Act 51 of 1977, which expressly empowers a Court of appeal to impose punishment more severe C than that imposed by the Court below, or to impose another punishment in lieu of, or in addition to, another punishment when exercising the powers conferred under the section as a whole. One such power relates to the imposition of such punishment as ought to have been imposed at the trial in circumstances where the appeal is one against conviction only. Accordingly, the Court altered the appellant's sentence to that D prescribed in the relevant legislation, inter alia replacing a sentence of 20 years' imprisonment with one of life imprisonment. (At 556i - 557c.)

Annotations:

Cases cited

Reported Cases

R v Aspling 1953 (1) PH H64 (C): applied E

R v Dhlumayo and Another 1948 (2) SA 677 (A): applied

R v Khan and Others 1949 (4) SA 868 (N): applied

R v Koekemoer 1956 (2) SA 140 (E): applied

R v Peter 1965 (3) SA 19 (SR): applied

R v Pieterse 1916 CPD 262: applied

R v Sakombanda 1953 (1) PH H91 (SWA): applied F

R v Van der Merwe 1921 TPD 1: applied

R v Vumiso 1941 EDL 259: applied

S v Bhamjee 1993 (1) SACR 627 (W): considered

S v Grobler 1972 (4) SA 559 (O): applied

S v Grobler en 'n Ander 1966 (1) SA 507 (A): applied

S v Khambule 2001 (1) SACR 501 (SCA) ([2001] 3 All SA 274): applied G

S v Le Roux 1973 (2) SA 103 (SWA): applied

S v Malinga and Others 1963 (1) SA 692 (A): applied

S v Morgan and Others 1993 (2) SACR 134 (A): considered

S v Ndlovu 1962 (1) SA 108 (N): applied

S v Nhlapo and Another 1981 (2) SA 744 (A): applied

S v Phallo and Others 1999 (2) SACR 558 (SCA): applied H

S v Polelo 1981 (2) SA 271 (NC): applied

S v Prins en 'n Ander 1977 (3) SA 807 (A): applied

S v Shenker and Another 1976 (3) SA 57 (A): applied

S v Talane 1986 (3) SA 196 (A): applied

S v Van der Meyden 1999 (1) SACR 447 (W): applied

S v Verwey 1968 (4) SA 682 (A): applied. I

Legislation cited

Statutes

The Arms and Ammunition Act 75 of 1969, ss 1, 2, 36 and 39: see Juta's Statutes of South Africa 2002 vol 1 at 2-21 - 2-22, 2-29 and 2-30 - 2-31

The Criminal Procedure Act 51 of 1977, s 115, 322(6): see Juta's Statutes of South Africa 2002 vol 1 at 1-346 and 1-392. J

2004 (1) SACR p532

Case Information

Appeal from a decision in the Witwatersrand Local Division (Mophosho AJ). The judgment of the Court was handed down by Farber AJ A (Malan J and Khampepe J concurring). The facts appear from the reasons for judgment.

Z Omar (attorney) for the appellant.

M A Mohlala for the State.

Cur adv vult. B

Postea (December 9).

Judgment

Farber AJ:

At all material times relative to the events which will be described presently, a firm named Paputsi carried on business as a retailer of clothing from premises situate at the corner of Commissioner and Kruis Streets, Johannesburg. During the C late afternoon of 28 December 1998, a group of persons entered the premises. What then, and thereafter, happened can only be described as bedlam of the worst kind.

These events ultimately led to the arraignment on 6 August 2001 of the appellant before Mophosho AJ and two assessors in the Witwatersrand Local Division on ten counts. They are as follows: D

1.

Count 1 - the robbery of Corrie van Zyl and/or Zwelakhe Dumane and/or Jubeida Kroet, which robbery involved the removal from their possession of some 25 articles of clothing, three pairs of shoes and two pairs of sunglasses. E

2.

Count 2 - the robbery of Corrie van Zyl, involving a Seiko wristwatch and cash in the sum of R100.

3.

Count 3 - the robbery of Zwelakhe Dumane, involving a 9mm CZ7.65 pistol, bearing serial No WR227122, and a Motorola cellular telephone. F

4.

Count 4 - the murder of Mvuyo Mwelase.

5.

Count 5 - the attempted murder of Andreas Thoni.

6.

Count 6 - the attempted murder of Mbulaheni Hendrick Ramafamba.

7.

Count 7 - the attempted murder of Dumisani Kenneth Dhlamini. G

8.

Count 8 - the attempted murder of Emily Mollo.

9.

Count 9 - the unlawful possession of an unlicensed firearm in contravention of s 2, as read with ss 1 and 39, of Arms and Ammunition Act 75 of 1969.

10.

Count 10 - the unlawful possession of ammunition in contravention of s 36, as read with ss 1 and 39 of Act 75 of 1969. H

The State in the indictment alleged that the robberies which formed the subject-matter of counts 1, 2 and 3 had been committed in aggravating circumstances within the meaning of s 1 of the Criminal Procedure Act 51 of 1977 (the Code), which circumstances have, in relation to robbery or attempted robbery, been defined therein to mean: I

'(i)

the wielding of a fire-arm or any other dangerous weapon;

(ii)

the infliction of grievous bodily harm; or

(iii)

a threat to inflict grievous bodily harm,

by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence.' J

2004 (1) SACR p533

Farber AJ

Despite his plea of not guilty, the appellant was convicted on all counts, other than that relating to the attempted murder of Emily Mollo A (count 8).

These convictions attracted the following sentences:

1.

Count 1 - six years' imprisonment.

2.

Count 2 - six years' imprisonment. B

3.

Count 3 - six years' imprisonment.

4.

Count 4 - 20 years' imprisonment.

5.

Count 5 - six years' imprisonment.

6.

Count 6 - six years' imprisonment.

7.

Count 7 - six years' imprisonment.

8.

Count 9 - three years' imprisonment. C

9.

Count 10 - two years' imprisonment.

The trial Court directed that the...