In the matter between: 

THE STATE 
versus
MAWETHU JAVU (JAWA)

JUDGMENT

The Accused was convicted on the 26 September 2006 in the Regional Court of Malmesbury together with a second accused of the crime of robbery, the State having alleged that aggravating circumstances were present and that in consequence the provisions of the minimum sentence legislation namely Act 105 of 1997 were applicable.

The Accused was legally represented, pleaded not guilty and was duly found guilty and sentenced to a term of imprisonment of 12 years. He now comes on appeal with the consent of this court against both the conviction and the sentence.

The evidence for the State was relatively brief.   Mrs Sasson, an employee of a business in Malmesbury testified that she and a fellow worker, Mrs Fredericks, were confronted by two black gentlemen who appeared on the scene. They were threatened with a firearm held by one of them and robbed of cash of about R3 000. It is not in dispute that the assailants arrived in a blue Volkswagen motor vehicle which had yeflow number plates.

In cross-examinatfon, it was put to her that the Accused had brought the vehicle back sometime between 11.15 and 11.30 but she denied that saying that she remembered that it was about 12 o'clock. That was the time when toddlers came home from school and can she remember the toddlers were on their way home when the accused arrived. More importantly, she testified that when the Accused arrived driving the motor vehicle, he did so at great speed.  He brought the vehicle to a stop, jumped out of it, threw the keys of the vehicle to her and then ran off in the company of two other men who were with him in the motor vehicle. Shortly thereafter the police arrived. She indicated to them the name of the Accused who she knew and the Accused was arrested shortly thereafter.

The established facts are that Mrs Basson testified that two persons, one of whom was Accused No. 2, had arrived in a blue Citi Golf and held them up and it is common cause that the Appellant and Accused No. 2 were in the car when it arrived back at Teresa's residence.

The Regional Magistrate was impressed by the evidence given by Teresa Masoko. In his judgment he said that she did not put a foot wrong, that she was candid and convincing, that she was transparent and truthful. In legal parlance, this means that he found her to be credible and honest. It is important that her evidence was to the effect that the car returned at 12 or shortly thereafter which is very shortly after the robbery was committed. It also must be accepted that the Accused arrived in a rush, threw the keys to Teresa and that he and the other occupants then ran away.

The Accused presented an elaborate story to indicate that the time in question the car was not in his possession. Two aspects are particularly unlikely and improbable. Firstly, why would he go off with a perfect stranger to help her sort out something with a cell phone? And, importantly and most importantly, why would he hand the keys of the vehicle to the two men who he says were with him? There was no reason at all for him to give them the keys. He says that they simply asked whether they could sit in the vehicle because the weather was not favourable.

The Regional Magistrate found the Appellant to be a poor

witness and said of him:
"He was argumentative, evasive and hesitant. Sometimes he refused to answer certain questions. It is clear from the evidence of Accused No. 1 that he wanted to telt or show the Court that he was not in possession of the motor vehicle from around 11 until he got the motor vehicle at around twenty past eleven and then drove home."

Added to this, is that in cross-examination of Teresa Moseka it was put her that he returned the vehicle between 11.15 and 11.30 which clearly could not have been the case There are also other discrepancies between his evidence and that of Accused No. 2 as highlighted by the Magistrate, but it is not necessary for me to point that out.

In effect, the State relies on the evidence of a single witness and the Regional Magistrate applied the necessary caution in dealing with her evidence, it is also true that the State relies on circumstantial evidence and the test here is that from the admitted facts the conclusion which the State seeks to draw must be the only reasonable conclusion. It is important that the car was returned very shortly after Mrs Basson said that she was robbed. A car was identified by her as being used by the two persons who committed the robbery and was returned at great speed. In my view, the Magistrate was perfectly correct in convicting the Accused and the appeal against the conviction must fail.

As to the appeal against the sentence, the Magistrate found substantial and compelling circumstances to be present and for that reason did not impose the minimum sentence prescribed by the legislation. For the Appellant to succeed on appeal, he must satisfy the Court that the Magistrate did not exercise his discretion properly in arriving at the sentence of 12 years.

							CLEAVER,J
I agree.

							BRUSSER, AJ