Adams v S (CA & R 13/2013)  ZAECGHC 52 (3 June 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – GRAHAMSTOWN
CA & R 13/2013
Date Heard: 29 May 2013
Delivered: 3 June 2013
In the matter between:
ZOLILE ADAMS APPELLANT
THE STATE RESPONDENT
 This appeal stems from appellant’s conviction by the Regional Magistrate – Port Elizabeth on one count of robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act 51 of 1977. He was sentenced to a 15 year term of imprisonment. He appeals against both the conviction and sentence. The sole issue to be decided in respect of the conviction is the adequacy of the evidence on which his conviction followed.
 Thembalomzi Yamile the complainant ran a small spaza shop in Motherwell and testified that he knew the two accused Odwa Nyakatha and appellant well. They were all neighbours for many years and there had never been differences between them. On the 8 June 2010 he was returning home from an errand to buy 25 litres of paraffin, one of the products he sold in his spaza shop. On entering his yard, the two approached him and Odwa grabbed him from behind whilst appellant removed a wallet from his pocket containing a sum of about R200. During the scuffle, Odwa pushed him inside the room and took a jewellery chain, coins and a Samsung E250 mobile phone valued at R499. Throughout the time Odwa was inside the room, his girlfriend was also in the same room whilst appellant had remained outside. Odwa pushed him and he fell to the ground after which he ran out followed by appellant.
 Complainant immediately went to the home of appellant and found his sisters but his mother was not home. He proceeded to Odwa’s home and there he told his mother what Odwa had done. He told her that all he wanted was his money and property and did not want to report the matter to the police. He then removed a duvet from Odwa’s room and thereafter went to the local police station to report the robbery. In cross-examination, he said he did not think his girlfriend saw what had happened outside. He admitted to having made a statement to the police and was asked why he had said Odwa had taken his wallet from his pocket when it was in fact the appellant who had done so. He explained that Odwa had grabbed him, and that in that struggle appellant had removed his wallet. He added that:
“Both were acting in common purpose and I at that time I was also angry.”
His girlfriend did not scream. He emphasized that both Odwa and appellant were armed with knives. Ms Etsebeth for the defence put it to him that he was mistaken that the two assailants had robbed him of any goods. Counsel put it to him that Odwa was in fact at home when this took place and appellant was also elsewhere.
 Complainant’s girlfriend, Phelokazi Sami knew the two and had also never had any difficulties with them before. On the day in question she was waiting for complainant in his room where he sold paraffin, cigarettes and stamps. She said the two were in possession of knives and had followed complainant into the yard and had grabbed him demanding money. Once inside the room, Odwa took money, a chain and a mobile phone. The assailant inside the room brandishing a knife was Odwa and appellant stood outside near the door. Complainant said she must scream but she could not because she knew them and Odwa threatened her as a result she did not. The robbers subsequently left. In cross-examination, she conceded she could not see appellant as the room was L shaped but her boyfriend saw him. She said appellant stood at the entrance to the door and she could hear his voice. She said she also saw appellant as they ran away from the scene.
 Odwa Nyakatyha testified and denied robbing complainant and expanded by alleging that complainant harboured a grudge against him as a result of a sale of drugs (mandrax) transaction which had gone sour. He testified that he had received drugs from complainant in April 2010 to sell but had kept the proceeds of the transaction. He said he also used some of the drugs by ‘smoking’ them. He said complainant had demanded payment and this had resulted in a rift between them. He said the complainant’s girlfriend was also not telling the truth about his having gone there to rob the complainant. He was home that day and his mother could attest to this. In cross-examination he could not give a satisfactory answer as to why this version had not been put to the complainant when cross-examined. He said appellant was his friend and they were always together because they played football together. He was asked by the Court why he had said he was at home that day whereas complainant had arrived and not found him, his response was that he had gone to fetch maintenance money from his father elsewhere.
 Appellant in his defence testified that he knew the complainant and his girlfriend from seeing them within the neighbourhood. He did not rob complainant and did not know why they would lie and implicate him. He was also home that day with his parent and siblings. He washed his clothes that day and did not at all meet with Odwa. He said he did at times ‘smoke’ drugs with Odwa.
Appellant’s mother attended Court to testify for appellant but Ms Etzebeth however informed the Court that appellant had, for reasons unexplained, changed his mind and no longer wanted his mother to be called to testify as his own witness.
 In his judgment the Magistrate took into account that two witnesses testified for the State. Complainant’s girlfriend saw the first accused Odwa as the lead offender in the robbery. Appellant was with him. The complainant saw that both were armed, he knew them well and this was during the day. There was no question of mistaking the identity of the perpetrators. The accused defence consisted in an alibi. Odwa’s mother did not support his alibi. Appellant also saw fit to forgo the testimony of his mother at a time when she was available to testify.
 The evaluation of the evidence by the Magistrate accorded with the testimony adduced before it. I agree with his exposition thereof and the findings set out therein. The onus of proof rests on the State to prove beyond reasonable doubt that the accused committed the offences as charged. There is no onus on the accused to convince the Court of the truth of any explanation which he gives. Even if the explanation is improbable, the Court is not entitled to convict him unless it is satisfied, not only that the explanation is improbable but that beyond reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he entitled to his acquittal. See R v Difford1937 AD 370 at 373
In deciding whether the State has discharged the onus resting on it to prove its case beyond a reasonable doubt, the real issue, when dealing with the version of the accused, is whether, on all the facts, although the accused’s evidence might be unsatisfactory, his version can be rejected beyond reasonable doubt as false; alternatively put, whether his version could not reasonably possibly be true. See – S v Munyai 1986(4) SA 712 (V). See also S v V 2000 (1) SACR 453 (SCA) at 455
 I agree with the prosecutor in the matter in characterizing the appellant as a complete stranger to the truth. This brazen robbery took place in broad daylight at about 10h00, a time when everyone employs their attention and energy to the planned activities of the day ahead of them. The victim, a neighbor completely familiar with the two attackers, was busying himself with getting together the little stock of goods he could afford to equip his spaza shop. He had just arrived and entered the gate with paraffin bought to be sold. These attackers knew that he ran a small spaza shop and that good prospects existed for them to find money which would have been takings from sales to customers. Appellant was one of the two co-perpetrators who attacked the complainant outside his room after entering his yard and they held him up with knives. The appellant fully associated himself with the robbery and manhandled the complainant outside at knife-point and, in the process of carrying out this common purpose, removed the wallet of the complainant by force. Appellant thereafter remained outside whilst his co-perpetrator entered the room and forcefully helped himself to money, a gold chain and mobile phone. He thereafter ran away with the main offender and did not in any way disassociate himself from this criminal attack. His role was clear and he acted in concert with Odwa to carry out a planned robbery. It is immaterial in such circumstances who actually took the goods as the crime is carried out on the basis of a common purpose. Little doubt exists that appellant was correctly found guilty of the robbery on the proved facts. Their alibi defence was proved to be demonstrably false and a belated ill thought-out ruse to avoid responsibility for their criminal attack on law abiding neighbours and community members.
 Appellant was no longer a learner at the time of this conviction. He was 22 years of age, had a grade 8 education, no employment and a 10 month old child. He depended on his mother for support. Consequent on this arrest, he spent some 10 months awaiting trial on the present charge.
He has two previous convictions, the first of which is dated 20 August 2003 for theft. He has a previous conviction for theft for which he was sentenced in terms of section 297(I) (A) of Act 51 of 1977 and this sentence was postponed for a 3 year period.
On 06 October 2008 he was again convicted on a charge of robbery for which he was sentenced to a 3 year period under Correctional Supervision and a further 5 year period of imprisonment suspended for a five year period on certain conditions.
He committed this current offence with this suspended sentence hanging over his head. It is not certain whether this robbery was aggravated and whether same fell within the ambit of the minimum sentences provided for in the Criminal Law Amendment Act 105 of 1997.
 The State described him as lacking remorse. The Magistrate emphasized the gravity of the offence and the fact that complainant was attacked in the sanctuary of his own home. He commented on the daily fear that communities lived under as a result of young robbers who roam the streets day and night robbing people of their possessions and personal effects. He accepted the youthfulness of the appellant and pronounced on the need for compassion.
 Courts must always take into account that the foundations of proper sentencing continue to require the traditional cautions be observed.
“What has to be considered is the triad consisting of the crime, the offender and the interests of society.” – See S v Zinn 1969 (2) SA 537 (A). “An appropriate sentence actually means a sentence in accordance with the blameworthiness of every individual offender.”- See S v Qamata 1997 (1) SACR 479 (E).
 The charge on which appellant was convicted carries a minimum sentence as set out in Section 51(2), 52(2), 52A and 52B of the Criminal Law Amendment Act 105 of 1997. These provisions were brought to the attention of the appellant when charges were put and appellant was legally represented. In S v Skhipha 2006 (2) SACR 439 (SCA) para 16 the Court commented:
“This court, in S v Malgas, held that in determining whether there are substantial and compelling circumstances, a court must be conscious that the Legislature has ordained a sentence that should ordinarily be imposed for the crime specified, and that there should be truly convincing reasons for a different response. It is for the court imposing sentence to decide whether the particular circumstances include those factors traditionally taken into account in sentencing – mitigating factors. Of course these must be weighed together with aggravating factors. But none of these need be ‘exceptional’.”
 There is nothing on the SAP69 to indicate that the previous robbery conviction fell under the aforesaid minimum sentence legislation. In S v Mokela 2012 (1) SACR 431 (SCA) at 435c-d the Court observed commented:
“… the court below pointed out that there is a distinction between robbery and robbery with aggravating circumstances. As a result, the court below found that, correctly, that the regional magistrate ought not to have treated the appellant as a second offender and imposed a sentence of 25 years’ imprisonment, but should have treated him as a first offender in terms of s 51(2)(a)(i) of the Act, thus qualifying for a sentence of imprisonment of not less than 15 years…”
 The appellant was 22 years of age at the time of the commission of the offence. It has been held that at such an age a convicted individual has good prospects for rehabilitation. Moreover the value of the goods and the gravity of the offence in the manner carried out in each case must have a bearing on the sentence to be passed by a court. Where the victim was not harmed but threatened with an object, such factors must be taken into account in the overall determination allowing for a deviation from the minimum sentence prescribed. Put differently, a combination of these factors will in a proper case amount to substantial and compelling circumstances. – See S v Chokwe 2010 (1) SACR 141 (GNP) at 150b-c.
 The appellant is still young and the possibilities of rehabilitation will always remain a possibility. The prime mover in the crime is the co-accused who was sentenced to a lesser 10 year term of imprisonment. This was so probably in light of his being a first offender. The accepted evidence is that appellant remained outside after taking the wallet from the complainant. It is so that he also spent some 10 months awaiting trial and this period ought to have also been taken into account by the Magistrate. He does have a 5 (five) year suspended sentence stemming from the last conviction. The Magistrate ordered that 2 years of the 15 year sentence run concurrently with the 5 years, should that be put into operation. There was no certainty at the time of this appeal before us whether the relevant inquiry had been undertaken and the sentence put into operation. This would result in an excessive cumulative period of 18 years despite all the aforegoing substantial and compelling circumstances detailed herein. Clearly this is a misdirection necessitating this Court to intervene. In a conspectus of all the aforestated I make the following order.
(a) The appeal in respect of the conviction is dismissed.
(b) The sentence is set aside and replaced with the following:
(i) Appellant is sentenced to a 10 year term of imprisonment.
(ii) The above 10 year sentence will run concurrently with the suspended 5 year sentence in the event it has come into operation.
(iii) The sentence is antedated to 30 November 2011.
FOR APPELLANT: MR XOZWA
FOR RESPONDENT: MR ELS