Tsiliyana v S (CA&R24/2017) [2017] ZAECGHC 110 (17 October 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO. CA & R 24/2017

In the matter between:

THANDO TSILIYANA Appellant

and

THE STATE Respondent

APPEAL JUDGMENT

Bloem J.

[1] The appellant was charged with attempted robbery, unlawful possession of a firearm and unlawful possession of ammunition. He pleaded not guilty to all three charges. At the conclusion of the hearing he was convicted of attempted robbery and sentenced to two years’ imprisonment, acquitted on the charge of unlawful possession of ammunition and convicted of unlawful possession of a firearm and sentenced to seven years’ imprisonment. The sentence of two years’ imprisonment was ordered to run concurrently with the sentence of seven years’ imprisonment. The magistrate dismissed the applicant’s application for leave to appeal against his conviction and sentence. It is with the leave of this court, on petition, that the appellant now appeals against the conviction and sentence.

[2] To prove its case against the appellant the state called three witnesses. Nombulelo Fihlani testified that at approximately

18h00 on 2 February 2016 she and her husband were sitting in the lounge of their house. She was watching television when her attention was drawn by the noise of the closing gate to three men approaching the front door of their house. Initially only one person entered while the other two were standing outside near the door. The one who entered pointed a firearm at her and demanded money and cards, presumably bank cards. It was at that stage that she realised that her husband was no longer in the lounge. The other two men entered the lounge and tried to close the front door behind them. She resisted their attempts to close the door because, according to her, she did not want to die behind a closed door. As a result of that commotion her husband returned from the bedroom. He was armed with a spade. The three armed men ran towards the gate. Two of them managed to run away. Shortly thereafter Ms Fihlani heard a gunshot which, according to her, struck the person who was left behind and who she said was the appellant. He was about to exit the gate which was already open when a gunshot went off. He fell in front of the gate with his legs blocking the gate. His firearm was lying near him. Members of the community started gathering and assaulted the appellant whereafter the police arrived.

[3] Mzolisi Nanana is Ms Fihlani’s husband. He confirmed that he was sitting with his wife in the lounge of their house when he noticed three men entering through the gate. As they were walking towards the door he got up and went to his bedroom because he sensed trouble. He saw two of the three men through the window of his bedroom. They were standing on the stoep near the front door. Shortly thereafter they entered. He heard a commotion whereafter he took a spade which was behind the bedroom door and entered the lounge where he saw the three men and his wife. They were armed. One of the men said: “shoot, shoot!”. They pointed their firearms at him. He used the spade on them. They ran towards the gate. They struggled to open the gate. He used the flat side of the spade on the head of the one closest to him. The other two who had managed to run away turned around and shot in his direction. Mr Nanana closed the gate and went into his house. After he had put the spade in his bedroom he realised that members of the community had gathered and assaulted the person. He intervened. The police arrived shortly thereafter.

[4] Marcel Etseboch is a sergeant in the South African Police Service who arrived on the scene after the attempted robbery. He testified that he noticed a person who was bleeding on his head approximately six meters from the complainant’s gate. It is common cause that that person was the appellant. The appellant was arrested and hospitalised.

[5] The appellant testified that earlier that day he had a meeting with one of his friends who promised to lend him money. As he was on his way to his friend’s house at approximately 18h00 he saw three armed men with firearms coming from premises not far from where he was. They ran in his direction. He decided to also run. He later realised that the three men took a different direction. He returned to the street where he saw the three men for the first time. As he was walking along that street one person accused him of being one of the three armed men. Members of the community descended upon him. They assaulted him using a variety of weapons, including a spade. He lost consciousness only to regain it when he was in hospital.

[6] The magistrate, after he had considered the evidence, found that the appellant was an evasive and poor witness and rejected his evidence as false. He found that the appellant’s version was not reasonably possibly true.

[7] On appeal, as was the position before the magistrate, it was submitted that the only issue was the identity of the three armed men who attempted to rob Ms Fihlani. In other words, it was not in dispute that there was an attempt to rob Ms Fihlani. Ms Mazibukwana, attorney for the appellant, submitted that Ms Fihlani and Mr Nanana could not identify the appellant as one of the three men who attempted to rob her because they did not know him before that day. She also submitted that Mr Nanana lost sight of the three men when he returned to the house to put away the spade. It is correct that neither Ms Fihlani nor Mr Nanana knew the appellant before the incident. According to Ms Fihlani it was the appellant who was closest to her husband when there was a struggle to open the gate. Mr Nanana was in hot pursuit of the three men when they hurried to the gate. Both of them testified that it was when the appellant was at the gate that Mr Nanana hit him with the spade. It is correct that there is a discrepancy between the evidence of Ms Fihlani and Mr Nanana regarding what happened to the appellant after Mr Nanana used the spade on him at the gate. According to Ms Fihlani the appellant dropped to the ground. She assumed that to be result of him having been shot at. According to Mr Nanana the appellant was still standing when he turned around to return the spade to his house. It was only when he returned to the gate that he saw the appellant lying near the gate. In my view, that discrepancy is not material because both of them identified the person who was lying on the ground as the person who was hit by Mr Nanana at the gate. Ms Fihlani did not lose sight of the person until he fell down. That person was the appellant.

[8] In my view the magistrate correctly rejected the appellant’s version. It is improbable that the appellant would, on seeing three persons running in his direction, run away for no apparent reason. There is no evidence that other people also ran away. The appellant also did not explain at what stage he realised that the three men ran in a different direction. It is furthermore improbable that a person would almost immediately return to the very same street where he encountered danger that caused him to run away. It is also improbable that members of the community would accuse the appellant who, on his version, innocently went about doing his own thing, of having attempted to rob the complainant and her husband. Regard being had to all the evidence, I am of the view that the magistrate correctly found that the state proved beyond reasonable doubt that the appellant was one of the three persons who attempted to rob Ms Fihlani. There can be no doubt that the firearm that was found near him was the very same firearm that Ms Fihlani and Mr Nanana saw him holding when he was inside their house. He was accordingly correctly convicted of attempted robbery and unlawful possession of a firearm. The appeal against conviction should accordingly be dismissed.

[9] Regarding sentence, the appellant was 38 years old when he was sentenced during October 2016. Although he is single he is the father of two minor children who were then aged nine and six years respectively. Prior to his arrest he was employed as a taxi driver earning approximately R500.00 per week. He was in custody for approximately eight months before he was sentenced.

The appellant has been in conflict with the law since 1995 when he was convicted of two counts of robbery for which he was sentenced to eight months’ imprisonment which wholly suspended for five years on condition that he not be convicted of robbery committed

during the period of suspension. He was also convicted in 1995 of housebreaking with intent to steal and theft. His sentence was postponed until December 1999. Between 1995 and 2008 he was convicted on four occasions of theft with sentences ranging between a fine of R400.00 or sixty days’ imprisonment to fifteen months’ imprisonment. In 2013 he was convicted of robbery and sentenced to eighteen months’ correctional supervision, sixteen hours per month of community service to be performed during the period of correctional supervision and five years’ imprisonment, wholly suspended for five years on condition that he not again be convicted of conspiracy to commit robbery committed during the period of suspension.

[10] Both parties submitted that the appellant was convicted of serious offences. What aggravated the attempted robbery is that it was committed inside the complainant’s house where she and her husband were peacefully sitting in their lounge. Although they did not sustain bodily injuries, both of them had firearms pointed at them. The magistrate sentenced the appellant on the basis that the minimum sentence legislation applies to the facts of this case. Section 51 (2) of the Criminal Law Amendment Act[1] applies only if the state proves that an accused was in unlawful possession of an automatic or semi-automatic firearm.[2] The state failed to prove that the firearm in the appellant’s possession was an automatic or semi-automatic firearm. In any event, Mr Els, counsel for the state, confirmed that a .38 special calibre Taurus revolver is not an automatic or semi-automatic firearm. The Criminal Law Amendment Act therefore does not apply to the facts of this case.

[11] The legislature has nevertheless deemed the unlawful possession of a firearm so serious that a maximum period of fifteen years’ imprisonment may be imposed.[3] The magistrate found that there were mitigating circumstances. He took into account firstly, the fact that the firearms were not used; secondly, that Ms Fihlani and Mr Nanana did not sustain bodily injuries as a result of the robbery; and thirdly that the appellant sustained serious bodily injuries as a result of his involvement in the attempted robbery.

[12] The approach to be followed in an appeal against sentence was stated as follows in S v Bogaards:[4]

“Ordinarily, sentencing is within the discretion of the trial court. An appellate court's power to interfere with sentences imposed by courts below is circumscribed. It can only do so where there has been an irregularity that results in a failure of justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it. A court of appeal can also impose a different sentence when it sets aside a conviction in relation to one charge and convicts the accused of another.”

[13] Other than wrongly taking the provisions of the Criminal Law Amendment Act into account, the magistrate carefully considered the appellant’s personal circumstances, the interest of the community as well as the seriousness of the offences of which he had been convicted and balanced them against each other to arrive at the sentences which he has imposed. In my view a sentence of seven years’ imprisonment for the unlawful possession of a firearm under the circumstances of this case is appropriate. There is accordingly no reason for this court to interfere with the sentences imposed by the magistrate. The result is that the appeal against sentence should also be dismissed.

[14] In the result, the appeal against conviction and sentence is dismissed.

_______

G

H BLOEM

Judge of the High Court

Msizi AJ,

I agree

_____

N

MSIZI

Acting Judge of the High Court

For the appellant: Ms N M Mazibukwana of Legal Aid South Africa, Grahamstown.

For the state: Adv D Els of the office of the Deputy Director of Public Prosecutions, Grahamstown.

Date of hearing: 11 October 2017

Date of delivery of the judgment: 17 October 2017

[1] Criminal Law Amendment Act, 1997 (Act No. 105 of 1997).

[2] Section 51 (2) as read with Part II of Schedule 2 of the Criminal Law Amendment Act.

[4] S v Bogaards 2013 (1) SACR 1 (CC) at 14d-e.