S v Mazeleni and Others (CA & R 224/04) [2005] ZANCHC 78 (23 February 2005)

Reportable: Yes / No

Circulate to Judges: Yes / No

Circulate to Magistrates: Yes / No

IN THE HIGH COURT

OF SOUTH AFRICA

(Northern Cape Division)

Case no: CA & R 224/04

Date heard: 2005-02-14

Date delivered: 2005-02-23

In the appeal of:

GEORGE

MAZELENI FIRST APPELLANT

ANDREW

MARSHALL SECOND APPELLANT

NKOZANA

MPANA THIRD APPELLANT

SONWABO

NJIKELANA FOURTH APPELLANT

versus

THE

STATE RESPONDENT

Coram: KGOMO JP et

MAJIEDT

J

JUDGEMENT ON APPEAL

MAJIEDT J:

The four appellants were convicted in the local Regional Court as follows:

1.1 All four appellants were convicted on two counts of robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977.

1.2 Third and fourth appellants were also convicted of the unlawful possession of firearms and ammunition.

This appeal is directed against the convictions and sentences. On behalf of the first, third and fourth appellants, Mr Cloete had conceded that the convictions, save for that on count 1, were in order and he had also conceded that there was no merit in the appeal against the sentences imposed. On behalf of the second appellant, Mr Schreuder had conceded that there was no merit in the appeal against the sentence imposed on his client.

The central issue which required adjudication at the trial was the question of identification of the robbers on counts 1 and 2, i.e. the robbery charges. Count 1 related to a robbery perpetrated on 5 May 2001 at Joggie’s Take Aways. In respect of that count the evidence of the complainant, Mr. Nooroodien, and Ms Lynette Hani was led by the State. On count 2 it was alleged that the appellants had on the following day, i.e. Sunday 6 May 2001, robbed the complainant Mr Ronny Naidoo of the Zambezi Café. On this count the evidence was led of the complainant, his assistant manager, Ms Lynette Phillips, Inspector Weideman (who was the first policeman to arrive at the scene as the robbers were exiting the shop), Mr Iqbal Mohammed, Ms Melanie Setlabi (an ex-girlfriend of the second appellant), Mr Lyton Mawela and inspectors Mafa and Luis as well as Captain Lourens.

The appellants all closed their cases without adducing any evidence. Consequently the Magistrate was called upon to adjudicate the matter on the uncontroverted evidence adduced by the State.

The magistrate, correctly in my view, found the following matters to be either common cause or duly proved by the State:

a) That the Joggie’s Take Aways and Zambezi Café were robbed on the 5th and 6th of May 2001 respectively by three unknown men who took money and other items from these two businesses.

b) That at Joggie’s Take Aways one of the robbers was armed with a pistol, while at the Zambezi Café two of the robbers were armed.

c) That shortly prior to the incident at Joggie’s Take Aways, a maroon BMW motor vehicle with tinted windows was spotted in a street in close proximity to the said business.

d) That inspector Weideman had arrested the first appellant in the immediate vicinity of the crime scene on the 6th of May 2001 shortly after the robbery at the Zambezi Café.

e) That the complainant on count 1, Nooroodien, had pointed out the first appellant at the scene of the robbery at Zambezi Café as being one of the robbers who had robbed him the previous evening.

f) That two of the robbers fled from the scene of the crime at Zambezi Café and that one of them was followed by a member of the public, Mr Iqbal Mohamed, to the nearby Madeira Café where this robber had climbed into a maroon BMW 5-series with a Gauteng registration number before the vehicle departed.

g) That the partial registration number of the aforementioned vehicle was BZ 839 GP – Mohamed was not clear about the 3rd letter following upon the Z.

h) That the second appellant is the owner of a maroon BMW 5-series with tinted windows and with registration number BZP 839 GP.

i) That during the evening of 6 May 2001 the second appellant, accompanied by his friend Melanie Setlabi, was arrested in his vehicle at the corners of Quinn- and Transvaal Roads.

j) That the third and fourth appellants were arrested later that evening at the Warrenton station.

k) That the second appellant is the holder of a valid fire-arm licence while the first, third and fourth appellants do not have such licences.

The following matters can in my view be added to the aforementioned as having been either common cause or duly proved by the State:

a) That shortly after the first appellant’s arrest at the Zambezi Café the police found in the first appellant’s possession certain of the items stolen from the Zambezi Café and from Ms Lynette Phillips.

b) That the police retrieved cigarettes hidden away in the boot of the second appellant’s vehicle.

c) That the police found two fire-arms under the pillows of the bunks occupied by the third and fourth appellants in the train compartment at Warrenton station.

The magistrate was mindful of the approach to be adopted when considering and evaluating evidence of identification and did in

fact in my view demonstrably apply a cautionary approach to such evidence. He considered first of all the events relating to count 2, i.e. the robbery at the Zambezi Café on 6th May 2001, and came to the conclusion that the circumstances prevailing at the time of that robbery was not conducive to a reliable identification. In particular he paid regard to the fact that the robbers were unknown to both the complainant Naidoo and his

assistant Phillips and also the shock and trauma which these witnesses must have endured during their ordeal. A further negative factor was the fact that Phillips was able at a subsequent identity parade to identify only one of her attackers, namely the first appellant.

On the other hand the magistrate found corroboration for their identification in the following:

a) The fact that the police found the complainant Naidoo’s cell phone in the possession of the fourth appellant a few hours later.

b) The fact that the police also found a firearm in the train compartment in the area which the fourth appellant was occupying.

c) Certain stolen items as well as Phillips’ chain was found on the first appellant shortly after his arrest.

The magistrate made credibility findings in favour of the identification witnesses as well as the police witnesses. From the judgement it appears that the legal representatives for the appellants at the trial did not argue that any of the witnesses called by the State were not credible. The magistrate found corroboration for the evidence of the police witnesses that firearms were found at the sleeping bunks occupied by appellants three and four in the train compartment, in the evidence of Mr. Mawela, their fellow passenger.

In addition the magistrate took into account the fact that certain of the stolen items were recovered in the possession of the third and fourth appellants. These circumstances led the magistrate to the conclusion that it was appellants three and four who had been part of the robbery and who had fled the scene from the Zambezi Café. He also found that one of them was the person who was followed by Iqbal Mohamed to the maroon BMW near Madeira Café.

The magistrate found the identification evidence with regard to the second count to be reliable and also found that there was sufficient corroboration for the identification by Naidoo and Phillips. His finding in this regard can in my view not be faulted at all. The magistrate was thus satisfied that the State had proved beyond reasonable doubt that all the appellants were guilty on count 2 and appellants three and four on counts 4 and 6 (unlawful possession of firearms and ammunition). With regard to counts 1, 3 and 5 (the events at Joggies Café), the magistrate convicted the appellants on count 1 (robbery with aggravating circumstances) by applying the so-called similar fact evidence principle. The appellants were all acquitted on counts 3 and 5. He referred to the numerous similarities between the events in count 2 and those in count 1 namely:

a) The fact that there were three robbers on both scenes where the second appellant was not one of the robbers.

b) That in both instances the robbers were armed with firearms.

c) That a vehicle similar to the one into which one of the robbers climbed after the robbery at Zambezi Café was seen just prior to the robbery at Joggie’s Take Aways.

One can add to the aforementioned similarities, the numerous similarities in the modus operandi of the robbers in both instances, as was highlighted by Mr Barnard for the State during his argument, namely:

a) The offences were committed in more or less the same area.

b) The robbery on count 2 was committed a day after the robbery in count 1.

c) In both instances the respective businesses were visited by one of the robbers prior to the robbery.

d) In both instances the victims were taken from one room to the other while the robbers were busy plundering the shop.

e) In both robberies the robbers were Black.

f) First appellant was identified in both instances as being one of the robbers.

It is settled law that similar fact evidence may be presented to prove the identity of a perpetrator.

See in this regard: S v Motshekgwa 1993(2) SACR 247(A) at 250 h – 251 b.

In my view the magistrate had correctly applied the similar fact evidence principle in this matter in his finding that the perpetrators on count 2 were also the perpetrators on count 1. With regard to his evaluation of the circumstantial evidence, I am also of the view that the magistrate cannot be faulted in the approach which he had adopted. In respect of both these aspects the numerous similarities alluded to hereinabove, can never be mere coincidence. A further important piece of corroboration is in my view to be found in the evidence of Melanie Setlabi who testified that she saw all four appellants in the vehicle of the second appellant during the afternoon of Saturday 5 May 2001 (i.e. shortly prior to the robbery at Joggies Café).

All things considered, I am of the view that there are no merits in the appeal against the convictions.

13.1 A last matter which requires consideration is the point taken by Mr Schreuder on behalf on the second appellant, namely that the magistrate erred in refusing to recuse himself from the hearing when such an application was brought. Quite apart from the fact that, as Mr Schreuder readily conceded when this was pointed out to him during argument, the second appellant did not advance this aspect as one of his grounds of appeal in the notice of appeal, the entire application before the magistrate was ill-conceived and devoid of any merit whatsoever. It was based on the fact that the magistrate had, while the trial in this matter was in progress, sentenced certain of the appellants on other offences. It was also based on certain utterances which the magistrate was alleged to have made in the course of the aforementioned sentencing.

13.2 Not only is there no evidence to support the unsubstantiated allegations about the magistrate’s utterances, but there is ample authority that the fact that a presiding officer has sentenced an accused in another matter, does not preclude such presiding officer from hearing another matter against the very same accused persons. Consequently this point taken by Mr Schreuder must also fail.

14. In view of the concessions made on sentence, I do not regard it as necessary in this judgement to deal with that aspect. Suffice to say that the sentences imposed were in my view fair and apposite in the circumstances having regard to the appellants’ personal circumstances, but more importantly the gravity of the offences and the interests of society.

15. Consequently in my view the appeal must fail.

___

SA

MAJIEDT

JUDGE

I concur and it is ordered as follows:

THE APPELLANTS’ APPEALS FAIL AND THE CONVICTIONS AND SENTENCES OF ALL FOUR APPELLANTS ARE CONFIRMED.

FD

KGOMO

JUDGE

PRESIDENT

FOR THE APPELLANT 1, 3 and 4 : ADV PJ CLOETE

FOR APPELLANT 2 : ADV J SCHREUDER

FOR THE RESPONDENT : ADV A BARNARD

DATE OF HEARING : 2005-02-14

DATE OF JUDGEMENT : 2005-02-