IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

DATE:	
								20 FEBRUARY 2009

In the matter between:

and

	

It is accordingly not clear if the appellant was sentenced to effective sentence of 15 years or 16 years imprisonment, although both in the judgment and in the vonnis-aanhangsel the magistrate concluded by saying the effective sentence was one of 15 years imprisonment.   In my view the benefit of any doubt should be given to the appellant and we must conclude that the effective sentence  passed  on  him was  15 years imprisonment.

I turn now to the appeal against the convictions. Ms Christelene Rossouw testified that she had been asleep at her home. In the early hours of the morning she was awakened by the sound of her sliding door being opened. As she was getting out of bed, two men appeared in the doorway, one of whom was the appellant. The two men were armed with an axe, a knife, a hammer and a rope. Appellant's colleague demanded guns, money and gold.

Thereafter Ms Rossouw was repeatedly and brutally assaulted by appellant and his colleague. She was smacked and repeatedly punched. She was struck with the back of the axe and the side of the knife. She was hit on her chest with the hammer. She was gagged and tied up with the rope. Appellant's colleague spat in her face. She was threatened repeatedly with death and subjected to racist insults.    Her watch was taken.   She was forced to disclose where the keys to her safe were kept. Appellant went downstairs and returned with ammunition, firearms and a bank bag, which Ms Rossouw said contained R15 000 or R20 000.

While appellant was out of the room, his colleague forced Ms Rossouw on to her bed, stabbed her several times with a pair of scissors and raped her. While he was raping her, appellant returned to the room. He handed a revolver to his colleague and he himself fired a shot in the passage. The two then left the house after locking Ms Rossouw in her bedroom. She testified that the firearms, a sum of money and various other items were taken from her home.

Members of the South African Police who had been summoned by the wife of Mr Verkuil, a neighbour, arrived shortly afterwards. After obtaining a description of Ms Rossouw's assailants, the police patrolled the area. Inspector Roux and Inspector Hawkins, who were in one vehicle, received a report that a shot had been fired at a truck on the R300. They drove there and saw the appellant, who, according to Roux, fitted the description they had been given. Appellant ran when he saw them. They chased him and Inspector Hawkins eventually caught him, immediately after he had jumped over a wall.

Both  Inspector  Roux  and   Inspector  Hawkins  testified  that appellant threw a 9 mm and a .22 bullet on the ground.   In his back pocket they found R1 000,00.    Under a brick, about a metre away, they found R14 500,00.  Appellant was wearing a woman's watch.   While taking appellant back along the route he had taken, Inspector Caswell, who had joined Roux and Hawkins, found two firearms, a revolver and a pistol.

Ms Rossouw testified that later that day the South African Police brought two firearms and a pair of white gloves to her at the hospital. She identified the gloves as belonging to her, which appellant had previously put on. She said she also identified the two firearms as belonging to her or her son. Inspector Caswell's evidence in that regard was inconsistent. At first he said that Ms Rossouw identified only the revolver as being hers. Later when recalled by the trial magistrate, he claimed she had identified both firearms. I do not think the discrepancy is of much importance as the appellant was charged merely with possession of those weapons.   Inspector Caswell's evidence as to where he obtained Ms Rossouw's glove, was also inconsistent. At first he said he could not recall whether he had found them in Ms Rossouw's house. Later he said he found them in the appellant's possession and had put the firearms in the gloves. In my view the latter version is more probable and confirmed by Ms Rossouw.

Advocate Van Wyk has also conceded, correctly, that the conviction of rape was not justified. Accordingly the conviction appropriate sentence for the remaining convictions.   I would make the following order:

Count 1 - "Accused is convicted of housebreaking with the intent to rob and robbery with aggravating circumstances."

(b)    The conviction and sentence on count 3 are set aside.

(c) The convictions on counts 5, 6, 7 and 8 are confirmed.

	
(c)     It   is   ordered   that  a   sentence   of  three  years imprisonment   on   counts   5,   6,   7   and   8   be   served concurrently with the sentence on count 1.    Accordingly the accused is sentenced to an effective sentence of 15 years imprisonment.

MOTALA, J

I agree

BINNS-WARD, A J