IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

 

In the matter between:
 
and

				JUDGMENT

[1]  The appellant was convicted by a Regional Court of:

Count 2 - unlawful possession of a firearm in contravention of Act 75 of 1969

Count 3 - unlawful possession of ammunition in contravention of the same statute 

Count 4 - armed robbery of and at Soland Bank, Strand, on 16 April 1998

Count 5 - armed robbery of Mr Bernardi at the same bank on the same day

Count 7 - attempted murder of Inspector Stofberg of the South African Police Service on the same day.

The      appellant      was      sentenced      as      follows: 
Count 2 - nine months' imprisonment 
Count  3 - nine months' imprisonment 
Count 4-15 years imprisonment 
Count 5 - eight years' imprisonment 
Count 7 - seven years' imprisonment 
None of the sentences was ordered to run concurrently. The total or aggregate period of imprisonment therefore came   to   31      years  imprisonment.      The   appellant appeals against the convictions and the sentences.

[2] The notice of appeal is a strange document. The appellant appeals in respect of some charges of which he was not convicted and against some, but not ail of the charges, of which he was convicted Because the case largely turns on identity and identification, 1 propose to took at the position overall.

[4] Near to the bank they saw what appeared to be the tail-end of a "hijack" of a red commercial bakkie belonging to Messrs Alofix. A report to that effect was made by the driver of the bakkie. The police set off in hot pursuit of the red bakkie. There were four men in and on the bakkie, two inside the cab and two on the open rear portion. The chase proceeded at high speed from the Strand past the Somerset West shopping maEI and on to the N2 towards Cape Town.

[5] At the Baden Powell exit the bakkie took the road towards Strandfontein and then drove into an area of Khayelitsha containing squatter housing. The police followed. On the way from the Strand to Khayelitsha, gunshots were exchanged between the police and the men on the back of the bakkie. One of those men appears to have been injured. He took to loading firearms which he handed to the other man, who then started shooting with firearms in both hands Prior to that these two men had let down the rear flap or tailgate of the bakkie and turfed the equipment into the road thereby presenting obstacles to the pursuing police vehicles. Those vehicles were not damaged by the shooting, nor were the policemen injured.

[6]	At Khayelitsha the uninjured gunman jumped off the bakkie carrying a grey or greyish sports bag or tog-bag and a firearm. He was pursued by Inspector Stofberg who saw him disappear into a hut with only one door. Stofberg heard the loud voices of a man and a woman inside the hut. He commanded the gunman to come out. The door was opened and, according to Stofberg, the appellant emerged, crawling on his stomach or his hands and knees.

[7]	Inside the hut Stofberg found the grey bag with a substantial sum of money in it plus a gun which had recently been used. The serial number of the gun had been filed off. Also inside the hut was a woman. Stofberg and another police witness referred to the jersey or top which the appellant was wearing. I shall deal with this later.

[8]	The appellant's defence was one of mistaken identity. He claimed to have been relieving himself at a public toilet made of cement.   When he emerged from this structure he was arrested without cause. He did not see the grey bag. He had nothing to do with the robberies or the other events which I have summarised.

[9] The magistrate, in a comprehensive judgment, disbelieved the appellant. She accepted the substance of the prosecution case and, in particular, the police evidence identifying or tending to identify the appellant. At trial none of the witnesses could identify the appellant as one of the robbers at the bank. The bank and police witnesses referred to a grey bag which was used by the robbers, recovered by Stofberg and eventually handed later that day to the bank with money in it. At the trial some two and a half years later, the police witnesses could no longer identify the appellant as one of the men on the back of the bakkie, or as the man whom Stofberg eventually arrested. It was not disputed, however, that the appellant was the arrestee.

[11] A bank witness, a Mrs van Breda, stated that one of the robbers was wearing a dark blue top "met rooi strepe op die mou". In cross-examination she said there was definitely something red on the sleeve but not all over the garment. Stofberg described the suspect whom he arrested as wearing "n trui met rooi, blou en groen kleur kolle". The distance between the bakkie and Stofberg's vehicle, driven by Sergeant van der Wag, varied from 100 to 200 metres until they reached Khayelitsha when it shortened to 50 metres. The arrestee was in Stofberg's sight throughout the chase on foot.

[12] In cross-examination it was suggested that appellant at the time of his arrest was wearing a top with blue, green and red diamond shapes on it. Stofberg testified that he is very fit and almost caught up with the suspect when chasing him on foot. He got to within eight metres.

[13] Sergeant van der Wag who drove the vehicle in which Stofberg   was   the   passenger,   also   described   the arrestee's top as having "rooi, groen en blou kolJe vooropWhile Van der Wag could not identify the appellant in court, he stated that when Stofberg brought the appellant back to the police vehicles in Khayelitsha he recognised the appellant.

[14] The appellant in his evidence described his jersey as having "dobbelstene op, die kleure was groen en rooi". The descriptions of the jersey or top are less than definitive. I think the significance is that Stofberg was able to concentrate on the suspect who ultimately did most of the firing and whom he chased through the squatter housing. The appellant's jersey on arrest corresponded in general terms with the aforegoing colour scheme. The grey tog-bag is a cogent link with the robbery at the bank.

[15] We need to remember that in an appeal on fact, the trial Court's findings of fact and credibility are presumed to be correct in the absence of material misdirection or unless those findings are clearly wrong. On the question of identity I am unable to fault the magistrate's judgment in either respect.

[20] No argument was addressed to us with regard to the firearm and ammunition convictions (counts 2 and 3) save those arising from the appellant's identity.
[21] For the aforegoing reasons I would confirm the several convictions.

[23] In giving chase, the conduct of Stofberg and Van der Wag and other police officers was nothing less than heroic. They are to be commended for their dedication to duty.

[24] The magistrate, in the exercise of her sentencing discretion, differentiated between the various offences. She specifically had regard to the cumulative effect of the sentences. The appellant is still a young man and his personal circumstances are not unusual. They were taken into account and there is no reason to think that they were under-valued. The appellant has previous convictions for robbery, theft and housebreaking dating back to 1992 and 1994, when he was still a youth. But these were not over-emphasised in the judgment on sentence. As the magistrate correctly pointed out, there was no indication of remorse.

[25] In short, I can find no material misdirection in the judgment on sentence. The aggregate sentence, although a long one, does not shock me when account is taken of everything which the appellant did that day I would therefore confirm the sentences.

[26] The appeal is dismissed. The convictions and sentences are confirmed.

					COMIE, J