Court name
High Court of eSwatini

Potgieter v Rex () [2002] SZHC 74 (02 September 2002);

Law report citations
Media neutral citation
[2002] SZHC 74
Coram
Sapire, CJ









THE
HIGH COURT OF SWAZILAND


CRIM.
APPEAL CASE NO.22/02


FRANCE
BHEKI POTGIETER Appellant


And


REX Respondent


CORAM: SAPIRE
C.J.


MASUKU
J.


For
Appellant: Mr. L. Gama


For
Respondent: Ms.M.S. LaNgwenya


JUDGEMENT


2/09/02


Masuku
J.


The
Appellant, to whom I will refer to as "the accused" for
purposes of convenience, was found guilty of two counts of robbery by
the Manzini Senior Magistrate, His Worship, Mr. N. Nkonyane. On the
first count, he was sentenced to three years imprisonment without the
option of a fine and to four years imprisonment without the option of
a fine on the second. Both sentences were ordered to run
consecutively.


2


The
Crown, after reconsideration, abandoned a point in limine, to the
effect that the appeal had been noted out of time. This is a laudable
step, seeing that there were certain holidays falling within that
period and which had not been considered by the Crown in raising the
said point. Nothing further needs be said regarding this point
therefor.


At
the commencement of the hearing, Mr. Gama fairly conceded in my view
that there was overwhelming evidence against the accused and on the
basis of which the learned Magistrate correctly returned the verdict
of guilty on Count 1. This is correct and for that reason, there is
no need to interfere with the accused's conviction on this count and
it shall therefor stand. What needs scrutiny is Count 2, which was
couched in the following language:


"The
accused persons number 1, 2 and 3 are guilty of the offence of armed
robbery, in that upon or about the 13th January 2001 and at or near
Fairview in the Manzini Region, the said accused acting in common
purpose did wrongfully and unlawfully using force and violence to
induce submission by Cookie Dlamini did take out of him (sic)
immediate care and possession a sum of E1, 200.00, the property of or
in the lawful possession of Cookie Dlamini by threatening to shoot
her with a fire-arm."


I
need only mention that as stated in the charge sheet, there were
three accused persons initially. The accused was no.1 in the Court a
quo. Accused 2 was acquitted and discharged at the conclusion of the
trial, whereas no.3 was acquitted and discharged at the close of the
Crown's case.


The
evidence against the accused on count 2 is to be found in the sworn
testimony of PW6 Cookie Dlamini, the complainant and PW8 Andrew
Whyman. PW6 testified that on the 13th January 2001, at or about
07:45, she left her home in Fairview for Coates Valley, where she
runs a hair salon and a bar. On arrival at the business premises, she
checked and found that the money was safe and she took it. As she
opened the door to go out, somebody pushed her into the bar towards
the counter and pointed a firearm at her,


3


demanding
some money from her. The money she had was E1, 200.00, consisting of
coins and notes. The assailant fired a shot from the firearm, but no
bullet was discharged. He pushed her and she fell down, whereupon he
took the plastic bag in which the money was contained and ran away.


It
was her further evidence that she picked herself up, pursued this man
and raised an alarm. She described the clothes worn by her assailant
but nothing turns on that. She informed the Court that the assailant
was the accused, whom she saw for the first time on that day. The man
and his two companions then jumped over the fence and she heard the
sound of gunfire. Those who responded to her alarm informed PW6 that
they knew the assailants. She thereafter telephoned the Police who
came and obtained a statement from her.


The
accused cross-examined PW6 regarding his identity and she informed
the Court that she relied on the people who had told her that they
knew the accused and that she was also seeing him in Court that day.
This amounted to dock identification, which the learned Magistrate
correctly rejected as an improper basis for finding the accused
guilty.


PW8,
on the other hand testified that some time in January 2001, he gave a
lift to the three accused persons in a vehicle that he was driving.
They were on the road leading to Moyamunye and asked to be dropped at
Moyamunye bar, which PW8 did. It was his evidence, which was not
denied, that he knew the accused person and that they grew up
together in Fairview. PW8 was heading for a shop within the complex
which housed the bar which the accused persons were to supposedly
patronize. As PW8 walked out, he heard the bar-lady raising an alarm
and he saw the accused person jumping over the fence together with
one of his two companions. The third one ran around the building and
as the two fled, he heard the sound of a firearm, with somebody
firing into the air. PW8 testified further that the accused had shown
him the firearm when they were in the vehicle and proceeded to show
him the ammunition. Nothing turned on the accused's cross-examination
of this witness. He however never denied any portion of PW8's
evidence.


4


Mr.
Gama's main contention in attacking the propriety of the conviction
is that the evidence of PW8 does not place the accused at the scene
of the offence as he testified that he left the accused and his
companions at Moyamunye, whereas the robbery took place at Langwenya
Bar, according to PW5. It is correct that the place where the crime
was allegedly committed does not bear the same name, regard had to
the evidence of PW6 and PW8. What compounds issues, according to Mr.
Gama is that whereas PW6 testified about the date of the commission
of the offence as that appearing on the charge sheet, namely, the
13th January, 2001, PW8 does not mention the date in his evidence,
which places the Court in the danger of upholding an appeal where
there is a doubt as to where and when the offence occurred.


In
considering Mr. Gama's submissions, sight must not be lost of the
events described by the two witnesses mentioned above. In particular,
their evidence regarding the number of assailants is consistent and
so is the reaction of the assailants, namely, that they jumped over
the fence and ran away. Both witnesses also testified about hearing
the sound of gunfire. Regarding the date, although PW8 could not
recall it with precision, he did mention in his evidence that it was
in January 2001. PW6 testified that it was in the morning but PW8 was
not asked as to the time when the robbery took place. It is however
clear from his evidence that it was in the morning as the accused
told him that he was from the Why Not night club, it being a
notorious fact that this club operates at night until the early hours
of the morning. Furthermore, PW6 testified that as the men ran away,
she shouted to raise an alarm. This was seen and heard by PW 8 as he
confirms it in his evidence. These issues in my view provide further
corroboration in the two pieces of evidence.


Regarding
the different name ascribed by both witnesses to the scene of the
offence, it is worthwhile to closely examine their testimony.
According to PW6, she operated a bar at Coates Valley under the
style, "Langwenya Bar". PW8 on the other hand does not
mention where the bar is situate but it is apparent that it was
housed in a building complex called Moyamunye where there were a
number of shops and to which PW8 was


5


heading.
Can it be said in the circumstances that both witnesses were
testifying about two different places in the circumstances? I think
not.


As
recounted earlier, the\ chronology of events and the events
themselves are of such striking similarity as to exclude a
coincidence. Furthermore, it would appear that PW8, in referring to
the Bar called it by the name of the complex, which was given by the
accused when he cross-examined PW8. More importantly, the accused
person never denied having been at the place where the robbery took
place, whether for our purposes it was Moyamunye bar or Langwenya
bar. In the face of incriminating evidence which placed him at the
scene, he failed to give any reasonable explanation that carried any
possibility of truth. The learned Magistrate in my view correctly
rejected his story, particularly in view of the fact that PW8 knew
the accused for some length of time and testified that when offering
the accused a lift, the latter had shown him a firearm. He later saw
the accused jumping over a fence and a bar lady, who must have been
PW6 shouting. These events appear to be too much of a coincidence.


I
am of the view that in the premises, the facts of the matter lead to
the one and only inference, namely that the accused was one of the
robbers who swooped on PW6's money on the day in question. I
accordingly dismiss the appeal against conviction on Count 2 as well.


The
principles applicable to appeal against sentence were stated with
absolute clarity by Mahomed C.J. (as he then was) in S vs SHIKUNGA
2000 (1) SA 616 (Nm SC) at 631. The learned Chief Justice made the
following trenchant remarks:


"It
is trite law that the issue of sentencing is one which vests
discretion in the trial court. An Appeal Court will only interfere
with the exercise of this discretion where it is felt that the
sentence imposed is not a reasonable one or where the discretion has
not been judiciously exercised. The circumstances in which a Court of
Appeal will interfere with the sentence imposed by the trial Court
are where the trial Court has misdirected itself on the facts or the
law


6


(S
VS RABIE 1975 (4) SA 855 (A); or where the sentence that is imposed
is one which is manifestly inappropriate and induces a sense of shock
(S VS SNYDERS 1982 (2) SA 694 A; is such that a patent disparity
exists between Sentence that the Court of Appeal would have imposed
(S VS ABT 1975 (3) etc: or where there is an under-emphasis of the
accused's personal circumstances (S VS MASEKO 1982 (1) SA 99 (A) @
102; S VS COLLETT 1990 (1) SACR 465 (A))"


The
only bases upon which Mr. Gama contended the Magistrate had
misdirected himself was on the question that the accused was a first
offender and that he was very young then. These are factors which the
learned Magistrate appears to have considered, but taking into
account the seriousness of the offences, he found it fit to impose
the sentences that he did and further found it proper in the
circumstances to order that the sentences run consecutively. In
NTOKOZO M. DLAMINI AND ANOTHER VS THE CROWN CRIM. APP. 10/2001,
Tebbutt J.A. had this to say at page 8 of the judgement:


"The
seriousness of their crimes, their moral blameworthiness and their
lack of remorse or regret justify lengthy sentences of imprisonment.
Society would require of this Court that it marks its severe
disapproval of this type of criminal behaviour by heavy sentences of
incarceration. Its sentences must also serve as a deterrent not only
to the appellants to abstain from similar behaviour in the future,
but to others who may have like-minded schemes in contemplation. At
the same time, the reformative aspect of punishment should not be
overlooked. The two appellants were 19 and 18 at the time of the
offence. They are both first offenders. They must be given the chance
rehabilitate themselves into society at an age when they can still do
so. " (my own emphasis).


The
accused was seventeen years at the time of commission of these
offences and had been co-charged with persons who were at least seven
years his seniors. For the above reasons, it is my view that these
factors should redound to the benefit of the accused. By so doing,
the Court must in no way be misconstrued to be condoning the
accused's


7


behaviour.
The offences he committed were undoubtedly serious and he must avoid
being on a collision course with the law so early in his life. That
both complainants sustained some injuries at the accused's hands is
no light matter. You are being afforded an opportunity to soberly
reflect on your actions and to resolve never to be found on the wrong
side of the law again. Should you choose not to heed these wise
injunctions, you will have to be dealt with no moderation.


The
sentences imposed by the learned Magistrate be and are hereby
confirmed but I order that they be ordered to run concurrently, in
which case you are to serve the sentence meted out in Count 2. The
sentences are ordered, as the Magistrate had done, to run with effect
from the 19th January 2001.


T.S.
MASUKU


JUDGE


I
agree.


S.W.
SAPIRE


CHIEF
JUSTICE