Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA 
	(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number A16/2010

In the matter of:
THEBOHO MACULEKE (Acc. no. 1) 				First Appellant
THEMBA NHLAPO (Acc. no. 2) 					 Second Appellant
MPHO MONARENG (Acc. no. 3) 					 Third Appellant
VUYANI CECIL PETER (Acc. no. 5) 					 Fourth Appellant
BEN MADINGWANE (Acc. no. 6) 					 Fifth Appellant
MZIMKULU POHLELI (Acc. no. 9) 					 Sixth Appellant
ITUMILING THEKANE (Acc. no. 10) 					 Seventh Appellant
LUCAS RANYANE (Acc. no. 11) 					 Eighth Appellant
SOLOMON KEKENA (Acc. no. 12)					 Ninth Appellant 
ISAAN MOKONENYANE (Acc. no. 13)				Tenth Appellant
NOBO PETER MPANDE (Acc. No 14)				Eleventh Appellant
JOHANNES MOKOENA (Acc no 15)					Twelfth Appellant
MADODA NANTSHABA (Acc. no. 8)				          Thirteenth Appellant

versus
THE STATE								Respondent

MIA, AJ:

[21 On 12 June 2007, the fourteen appellants appealed against their convictions and sentences and the regional magistrate refused leave to appeal. Thirteen appellants petitioned this court for leave to appeal and on 3 February 2009, Waglay J and Le Grange J granted leave to appeal against conviction and sentence. On 4 February 2011. the appeal against conviction and sentence came before us. Mr. J A du Plessis appeared on behalf of the appellants. Ms. M Marshall appeared for the State.

Background facts

[3]     On 3 November 2001 Mr Herr parked his vehicle, a blue BMW 535i at
Green Acre shopping centre in Port Elizabeth. On his return to the vehicle about 40 minutes after completing his business, he found his motor vehicle had been removed. His vehicle was later used in an armed robbery as described below. On 5 December 2001 Mrs. van Antwerpen drove her husband's white BMW 735 to Walmer Boulevard for an appointment An hour later when she returned to her parking bay, the vehicle was gone. She did not see who took the vehicle. The vehicle was subsequently used in an armed robbery. In December 2001 the South African Police stationed at Mossel Bay contacted both owners to identify the vehicles which were recovered. The vehicles had been used in an armed robbery and were found abandoned on the N2. Both owners positively identified the vehicles as their own and found accessories missing such as the cigarette lighter and the ignition panel which was tampered with

Scene one
[4] On 6 December 2001. a Fidelity Cash Management Service Guard vehicle (hereafter the Fidelity van) conveying three guards travelled from Mossel Bay transporting cash. On the N2 after the bridge at Kleinbrakrivier the driver of the Fidelity van heard a loud sound. Immediately thereafter, the right back wheel burst. The driver of the Fidelity van observed a white BMW vehicle driving behind him. He further observed a blue BMW vehicle on his left. The white BMW vehicle now moved to his right hand side. One of the passengers in the white BMW leaned out of the window carrying an AK47 firearm. This passenger shot at the Fidelity van causing the window to shatter. The inner window was bullet proof and remained intact. The passenger in the white BMW continued shooting until the Fidelity van came to a standstill. One of the bullets aimed at the wheels ricocheted and penetrated the vehicle through the floor of the Fidelity van narrowly missing the driver and two guards.

[5] The occupants of both BMW vehicles got out and ordered the guards to get out of the van They pointed firearms at the Fidelity guards. They removed the driver and the guards' .38 Taurus revolvers and ordered them to lay face down on the ground. One of the guards was punched in the face when he opened the sliding door. Whilst on the ground, the robbers demanded to know where the blue bags were and shot at the ground between the guards. The group of robbers left with the bags of money and some cash boxes. The driver flagged down a passer by to report the robbery.

Scene two
[6] The guards were collected from the scene of the robbery and driven to a spot where the two BMW vehicles were abandoned. Bullets, cartridges and money trunks were found in and around the vehicles. The guards identified the vehicles as the same vehicles used in the robbery. While the guards were at the police station, giving statements, a group of men arrived who were alleged to be the robbers

Scene three
[7] After the guards reported the robbery, a team comprising of the Response Unit, a team from the SANDF and other branches of the SAPS went to 22 Mawawa Street. Kwanonqaba, in Mossel Bay. While driving to the address they were requested to intercept a yellow BMW that left the property. They stopped the yellow BMW and arrested the driver

[8] Upon arriving at 22 Mawawa Street, the police entered the property and identified themselves. They were met with gunfire and retreated. Inspector van der Mescht and Inspector Harmse then entered the house under gun fire from the appellants who were inside the house. They identified two of the appellants in the house who fired at them and at the team parked outside. Inspector Harmse and Inspector van der Mescht saw appellant three, in a white t-shirt and appellant fifteen wearing a yellow t-shirt shoot at the police. When Inspector van der Mescht realized that there were many occupants in the house, he withdrew and threw a shock grenade into the house. The appellants then exited the house with their hands in the air. The police entered and found money in blue bags, ammunition and firearms in full view lying around the house.

van. It is trite that an inference sought to be drawn must be consistent with all the proved facts. Further, it should exclude every reasonable inference other than the one sought to be drawn and there must be no doubt that the inference drawn is correct

Ad conviction on counts 2.3 and 4: attempted murder 
[12] Counsel submitted on behalf of the appellants that the three counts of attempted murder on the Fidelity guards cannot stand as the guards travelled in an armoured vehicle and no shots were fired directly at the Fidelity guards. The driver's evidence was that the passenger leaning out of the white BMW shot at them directly. The outer glass shattered. The evidence of the driver was that a bullet did in fact penetrate the armoured vehicle and narrowly missed him. It is reasonable and foreseeable that shooting a lethal weapon aimed at a person will have fatal consequences. It is convenient to submit with the benefit of hindsight that a fatal result could not have ensued now that the appellants are aware that the inner window was bullet-proof glass. None of the appellants testified that they were aware that it was an armoured vehicle at the time that the shooting occurred. The passenger in the white BMW had the requisite intention to shoot at the Fidelity guards and a bullet in fact penetrated the vehicle.

impossible."

Ad conviction on count 5

Ad conviction on counts 10 and 11: Arms and Ammunition Act 75 of 1969

[16] The evidence of Inspector Rhode was that firearms and ammunition were found in a sports bag at 22 Mawawa Street Some firearms were at a window and others were found at different places in the house. 77 x R5 bullets, 5 x AK47 magazine rounds and 115 x AK47 rounds were found at 22 Mawawa Street. The Fidelity guards four .38 Special revolvers which matched the serial numbers of the four .38 Special Taurus revolvers booked out to the Fidelity guards were also found at 22 Mawawa Street. The evidence of Inspector Harmse was that one of the appellants threw firearms to the other appellants who were in the house. He could not see the appellants other than appellants 3 and 15 from his point of observation. This was not disputed by the appellants.

“
(b)     the actual detentors had the intention to hold the guns on behalf of the group.

Ad conviction on count 6 and 7 : attempted murder on SAPS

[23] I am persuaded that whilst all the appellants were on the scene it cannot be said that the only reasonable conclusion to be drawn from the proven facts is that appellants 1 to 14 excluding appellants 3 and 15 had the intention to shoot
Inspectors van der Mescht and Harmse. On these counts the State has not met its onus beyond reasonable doubt and appellants 1. 2. 4. 5. 6. 8. 9, 10. 11, 12. 14 and 15 should receive the benefit of the doubt. Appellant 4 was not before this Court on appeal, however, for the conviction to remain, would not be in accordance with justice I rely on an inherent review power in this regard and am of the view that the conviction and sentence relating to accused 4 should also be set aside

Ad conviction on counts 8 and 9: theft of the motor vehicles
[24] The appellants were not found in possession of the two BMW motor vehicles used in the robbery at scene one. It is clear however that the execution of the robbery entailed prior and detailed planning involving securing the motor vehicles. The suggestion that the evidence does not prove intention to steal was not pursued with any conviction by Mr. du Plessis appearing for the appellants and correctly so. Both owners stated that their vehicles were locked and no-one had permission to use the vehicles during this time. It is not disputed that these vehicles were the same vehicles used in the robbery.

[25] The Regional Magistrate correctly found that the successful execution of the robbery required considerable planning and preparation. This required that the motor vehicles be acquired. The person or persons who perpetrated the actual theft did so in furtherance of the robbery and for the benefit of the group to realise a common purpose, namely the robbery of the Fidelity guards at scene one. The cigarette lighters belonging to the BMW vehicles were found at 22 Mawawa Street. Shells and bullet heads found at the BMW vehicles were linked to the firearms found at 22 Mawawa Street through the ballistic report. There is clearly a link. The owner of the blue BMW specifically indicated that small items, such as the cigarette lighter, was removed. There is no indication that any of the appellants disassociated themselves from this act or the robbery. In finding that there was common purpose with regard to the robbery the appellants therefore had the intention to steal the two motor vehicles which was in preparation for the robbery.

Ad sentence.
[26] In determining the appropriate sentence, the Regional Magistrate had regard to all the offences in relation to the triad of factors applicable to sentencing. The difficulty in sentencing is alluded to in view of the minimum sentence being applicable to some counts while others had sentences laid down by statute. He also took into account the personal circumstances of each of the appellants before the court, the impact of the trial lasting for five years on their lives economically and socially and indicated that this would be taken into account in sentencing the appellants. He also acknowledged the hardship their families endured as a result of their being in custody for the duration of the trial.

[27] At the time of their arrest the appellant's ages ranged from 23 years old to 38 years old. Appellants had the following previous convictions, appellant 2 for use of a motor vehicle without the owners' consent, appellant 3 for theft and robbery, appellant 6 for assault, appellant 11 for robbery, appellant 12 for possession of an unlicensed firearm, and appellant 14 for robbery. Appellants 1, 5. 8. 10, 13 and 15 were first offenders. The Regional Magistrate took into account that the appellants had families and children. They lived in areas outside of Mosselbay and were separated from their families for the duration of the trial. During this time they lost loved ones and could not pay their last respects.

[28] The Regional Magistrate had regard to their educational qualifications, and noted that many of them had a secondary education and were employed prior to their arrest. In this regard he notes that there were no explanations tendered for the commission of the offence. He was of the view that each of the appellants were capable of advancing in life to better prospects without resorting to crime. In view of the absence of an explanation for the crime, the Regional Magistrate found that it was difficult to ascertain mitigating factors which may have been applicable and could be considered to reduce the sentence.

[29] Whilst there was an absence of mitigating factors, the Regional Magistrate had regard to various factors which he regarded as aggravating, namely that the operation required extensive planning, the theft of motor vehicles that occurred before the robbery, the procurement of a large number of firearms, the arrangement of a safe house to hide in. The extent of the planning and the scale of the robbery and the force used as well as the potential loss of lives at scene one as well as scene three were regarded as aggravating factors. The Regional Magistrate noted that whilst robberies had increased in frequency, that the scale of this kind of robbery in the area was unprecedented and in view of the increase in violent crimes, measures were necessary to protect society.

[30] Even though the appellants were incarcerated for five years the Regional Magistrate found that the lack of remorse and the absence of reasons explaining the conduct led to the conclusion that there were no circumstances which could be regarded as substantial and compelling to justify a deviation from the prescribed sentence. Notwithstanding his finding that there was an absence of substantial and compelling circumstances, the Regional Magistrate nevertheless took counts together for the purpose of sentence and ordered some sentences to run concurrently with others and thereby reduced the effective sentence to one of 26 years imprisonment.

appellate jurisdiction with regard to sentence and said:

"Time spent in prison awaiting trial is. at the very least, equivalent to time served without remission. In addition, such prisoners do not get the benefit of any presidential pardon. What cannot be disputed is that the lot of the awaiting-trial prisoner is harsher than that of a sentenced prisoner in that he or she cannot participate in the programmes that a prison may run What he or she is condemned to is a seemingly endless routine of boredom in the course of which he or she cannot earn any privileges for which serving prisoners can qualify by reason of good conduct. Judicial cognisance can also be taken of the gross overcrowding in prisons housing awaiting-trial prisoners."
[34] In view hereof it is appropriate that the 5 years which appellants spent in custody awaiting trial be regarded as a substantial and compelling factor and that the sentence on count 1 be reduced by 5 years. The remainder of the sentences remain unaffected in view of my finding that there was no misdirection in that regard. I am persuaded having regard to the facts above that there was misdirection on count 1 relating to all the appellants and appellants 1. 2. 5, 6, 8. 9, 10, 11 and 13 in respect of counts 6 and 7. The sentences on count 1 relating to all appellants and counts 6 and 7 in relation to appellants 1, 2, 5, 6, 8, 9. 10, 11 and 13 should be set aside in view of the appeal being upheld. The same applies in respect of appellant 4 on counts 1,6 and 7

[35]   For the reasons given above the following order is made:
1. The appeal in respect of appellants 1, 2. 3, 5. 6, 8, 9, 10, 11, 12, and 13 against conviction on count one is dismissed.
2. The appeal in respect of appellants 1. 2, 3. 5, 6, 8, 9, 10, 11. 12 and 13 against sentence is upheld. The sentence in respect of accused 4 is reviewed. The sentence is set aside and replaced with the following order: Appellants 1, 2, 3. 5, 6. 8. 9, 10, 11, 12 and 13 and accused 4 are sentenced to 10 years imprisonment.
3. The appeal in respect of appellants 1, 2, 3. 5, 6, 8. 9, 10, 11, 12 and 13 against the conviction and sentence on counts two, three and four is dismissed.

4.	The appeal in respect of appellants 1, 2, 3, 5, 6, 8, 9. 10. 11, 12 and 13 against the conviction and sentence on counts five, ten and eleven is dismissed.
5.	The appeal in respect of appellants 3 and 12 against the conviction and sentence on counts six and seven is dismissed.
6. The appeal in respect of appellants 1, 2. 5. 6. 8. 9. 10, 11 and 13 against the conviction on count six and seven is upheld. The conviction and sentence in respect of appellants 1, 2, 5, 6, 8, 9, 10. 11. 12 and 13 is set aside.
7. The conviction and sentence in respect of appellant 4 is reviewed and set aside.
8. The appeal in respect of appellants 1. 2. 3. 5. 6, 8. 9. 10. 11, 12 and 13 against the conviction and sentence on counts eight and nine is dismissed.
9. The Registrar is directed to inform accused no. 4 through the Head of the Prison, where he is incarcerated, and the South African Criminal Record Centre, that the conviction and sentence on count 6 and 7 has been set aside and the sentence on count 1 is reduced to 10 years imprisonment. This order will reduce his effective sentence to 21 years imprisonment.

MIA,  A J