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

In the matter between 

and

JUDGMENT

[1] The two appellants were charged (together with three others) in the Regional Court at Wynberg with one count of housebreaking with intent to rob and robbery with aggravating circumstances on 29 June 2004. Both, appellants (and all other accused) were convicted and sentenced on 31 July 2006 to an effective term of imprisonment of 15 years each. Leave to appeal was sought and granted.

[2] The first appellant now appeals to this Honourable Court against his conviction and sentence and second appellant appeals against his conviction only.

[4] The sentence is attacked on the ground that the presiding officer failed to take into account that the first appellant was a first offender who has been in custody since his arrest on 11 February 2003 until sentence was imposed on 31 July 2006.

[5] Mr David James Chaka (the complainant) testified on the events that took place on 10 February 2006 at about 12 midnight. He and his wife were awoken by four mates rushing into their bedroom and jumped onto their bed as they lay asleep. Torches were shone in their eyes as they woke up. Two males held him down on the bed and the other two held his wife and tied them up. His 15 year old son was also brought into the bedroom and tied up. They were covered with blankets. The complainant was robbed of the items mentioned in the charge sheet including, amongst others, R2 000 in R200 notes and two vehicles.

[6] The arresting officer, Inspector Daniel Tredoux, testified that he and his partner were on patrol (accompanied by Netstar) in the early hours of 11 February 2003 when they received a radio report of a robbery that had taken place during which two vehicles, a Volkswagen microbus and a Volkswagen Golf, had been stolen. They proceeded to a place in Guguletu, known to them as a place where previous stolen vehicles had been recovered. The place is called Malunga Mews.

[7] The found the stolen Volkswagen Microbus parked at a block of flats in Malunga Mews and whilst waiting for a tow-truck to take it to storage, they heard people approaching the area where the vehicle was. They concealed themselves behind a wall and revealed themselves with their firearms in their hands as soon as they were near the vehicle.

[9] It is not necessary at this stage to deal with the evidence of the other policeman, Inspector Drew Manson, and the fingerprint expert Mr Gregory Grieb.

[10] First appellant said that he had gone to collect the club money on his mother's behalf at approximately 11 o'clock in the evening. He was going to use the money the following day to buy school clothes for himself. He then went to a certain tavern in the area where he remained for two to three hours listening to music. Thereafter he decided to visit his girlfriend and was arrested on his way in the vicinity of the stolen Volkswagen Microbus in NY8, He said that he explained to the arresting officer that the money in his possession was the money he had collected for his mother and was to use the money to buy clothing for himself the following day.

“My bevinding met betrekking to beskuldigde nomrner 1 en 4 (Appellant 1 en 2) is dat hulle het tnderdaad daarvan geweet, indien hulle nie self deel geneem het nie, het hulle daarvan geweet en hulle vereenselwig met die optreding van die werklike rowers".

The test the Court should have applied is whether there is a reasonable possibility that the evidence of both appellants could reasonably possibly be true.

The criticism of this evidence is entirely misplaced. The first appellant explained that he discharged his legal representative as she had not carried out his instructions and that he had communication problems with her.   This evidence shows that the first appellant's version at the time of arrest is consistent with his testimony in court.

And in any event, even if first appellant is found to have lied with regard to his possession of the money, I am not satisfied that this is the only reasonable inference that can be drawn that the two appellants were involved in the commission of the offence as charged.

[15]  I accordingly uphold the appellants' appeal and set aside the convictions and sentences.