IN THE HIGH COURT OF SOUTH AFRICA CAPE OF GOOD HOPE PROVINCIAL DIVISION

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA CAPE OF GOOD HOPE PROVINCIAL DIVISION CASE NO : A205/2005 In the matter between : SAMUEL SALMANS [SALMONS] Appellant and THE STATE Respondent JUDGMENT DELIVERED THIS 10 th DAY OF NOVEMBER, 2005 FOXCROFT, J : The Appellant was convicted in the District Court, Thembalethu, George, on a charge of robbery. He was sentenced to three years imprisonment and the appeal lies only against the conviction. The grounds of appeal appear at p.62 of the Record and are in handwriting. As is repeated in the Heads of Argument, the grounds of appeal amounted to two complaints, the first being that a witness

2 2 testified that the Appellant was wearing a yellow cap and that she had recognised him for that reason only. The second complaint was that while witness No 1 was giving her evidence, witness No 2 was present in court. Mr Cloete, an attorney appearing on behalf of Appellant, submitted further in his Heads of Argument although this point had not been raised as a ground of appeal that the charge upon which Appellant had been found guilty should have been theft and not robbery. He referred to the Record at p.5 in support of his view that no force was used. In my view, there is no substance in the grounds of appeal raised initially by Appellant. The complainant had testified that she knew who he was and that she had seen him many times before that night. She added that she was standing directly under a light when her cellphone was taken from her. She was also able to give a detailed description of his clothing, including the fact that he wore a yellow cap. She also gave the police his address, and she knew that the Appellant was on parole. This evidence was corroborated by the witness Kevin Ceasar, who testified to the effect that he had noticed the Appellant, whom he knew

3 3 by the nickname Bees, approaching the complainant who was talking on her cellphone. He also identified Appellant by the yellow cap. Appellant admitted in court that he did own a yellow cap. I have no doubt that the Magistrate was correct in finding that there was sufficient evidence identifying the Appellant as the person who had taken the complainant s cellphone. Mr Pothier, who appeared for the State, conceded that it is undesirable for witnesses to be in court while other witnesses testify, but submitted that this was not the type of irregularity which would vitiate a trial. The question is whether or not the trial can be said to have been unfair as a result of the irregularity. I agree with his submission that there is nothing to suggest that Ceaser adapted his evidence according to what he might have heard the complainant saying in court. In fact, he described the Appellant as wearing 'n valerige top, whereas complainant had described it as of a cream colour. Ceaser also insisted that he did not see the Appellant actually taking the cellphone, and as Mr Pothier pointed out, it would

4 4 have been simple to strengthen the complainant s evidence, having heard it, to say that he had seen the Appellant grab the cellphone. The evidence at p.18 of the Record shows that the witness, Ceaser, was not prepared to simply fall in with the prosecutor s question, put in a leading form. The evidence reads as follows : STAAT : En toe, wat het gebeur? GETUIE K. CEASER : Wanneer? STAAT : Na hy nou die foon gegryp het. GETUIE K. CEASER : Toe hy die foon gegryp het? STAAT : Ja. GETUIE K. CEASER : Ek het nie gesien hy gryp die foon nie.. STATE : Sorry your Worship, I withdraw that line of questioning. Nothing further, your Worship. Again, I am satisfied that the Magistrate was correct in accepting the evidence of Ceaser as corroborative of that of the complainant. As to the correctness of the robbery conviction, the Record shows that the complainant saw the Appellant mumbling to himself and ignored him,

5 5 And I was busy on the phone. So he walked back towards his friends and walked past me again. As I was about to put the phone to my ear, that is when he grabbed the phone and he ran. [Record, p.5] She repeated this evidence on page 6 of the Record, where she apparently demonstrated to the Court the hand in which she was holding the phone when the Appellant grabbed the phone. In his Heads of Argument, Mr Cloete referred to certain authorities in support of his submission, but at the hearing of the appeal he handed up a further authority in this Division. The case is that of S v MATI reported in 2002[1] SACR 323. In an automatic review judgment, NGWENYA, J had to deal with a very similar situation as the one before us, on the face of it. In that matter the accused pleaded guilty, and in answer to questions said that he had been at a traffic light and had seen the woman across the street with a cellphone in her hand. He had crossed the street and as he walked past, had grabbed [gegryp] the cellphone out of her hand and run away. She screamed and he was chased and caught by other persons. NGWENYA, J with whom MSIMANG, AJ concurred in this review judgment noted that what he colloquially described as mobile phone snatching was not different to handbag snatching and he acknowledged that handbag snatching had

6 6 for many years been treated as theft. A number of cases are referred to where the earlier approach had been adopted, and then the case of S v MOGALA EN ANDERE, 1978[2] SA 412 [A] is dealt with. In that matter, RUMPFF, CJ questioned the longheld conventional view about bag snatching and said : Ek vind dit moeilik om te verstaan waarom 'n persoon wat met geweld 'n handsak uit 'n vrou se hand ruk, nie geweld pleeg nie (al hoef dit gering te wees) met die doel om die handsak te ontneem. Dit skyn my haarklowery te wees om te sê dat die geweld toevallig is, of dat dit die slagoffer nie in 'n toestand van onmag plaas nie. Die gryper weet goed dat hy alleen deur 'n onverwagte vinnige en harde ruk die handsak kan kry. Hy weet dat sy slagoffer weerstand sou bied indien hy dit gewoonweg sou probeer vat. Daarom moet hy die slagoffer se greep en verdere weerstand byvoorbaat uitskakel deur vinnige handeling wat uit geweld bestaan. RUMPFF, CJ found it unnecessary to review the previous decisions since he was satisfied on the facts that the evidence showed that force [ geweld ] was used to get the handbag away from the complainant in that matter. It has been pointed out by a number of academic writers and judges

7 7 that the remarks by RUMPFF, CJ in STATE v MOGALA were obiter. For instance, in DE WET EN SWANEPOEL, Strafreg, 4 th Ed at p.376, the learned authors say the following : Hierdie obiter dictum het aanleiding gegee tot 'n aantal beslissings waarin die grypdief wat maar net die handsak uit die slagoffer se greep pluk as rower beskou word sien S v SITHOLE 1981[1] SA 1186 [N]; S v MAFOKENG 1982[4] SA 147 [T]; S v WITBOOI, 1984[1] SA 242 [C]. Na my mening is die geweld wat by hierdie situasies beoefen word darem 'n bietjie dun. Daar is per slot van rekening geen geweld op die persoon beoefen nie. That view of the authors is, of course, at variance with what RUMPFF, CJ said at p.415h of S v MOGALA [supra], since he said : Daarom moet hy die slagoffer se greep en verdere weerstand byvoorbaat uitskakel deur 'n vinnige handeling wat uit geweld bestaan. The writers may have been concerned about the sort of situation which has occurred in some cases and which came before the Transvaal Provincial Division in S v MASILELA, 1996[3] All SA 42; 1996[2] SACR 127 [T]. There, the Court referred to the definition by SNYMAN

8 8 in Strafreg, 3 rd Ed : Roof is die wederregtelike, opsetlike, gewelddadige wegname en toeëiening van 'n ander se roerende liggaamlike sake. At 516 the writer adds : Die klaer se weerstand moet oorkom word en die saak verkry word deur middel van geweld ten aansien van sy persoon. He also refers to HUNT s definition in South African Criminal Law and Procedure, 2 nd Ed. 680, where robbery is defined as Robbery consists in the theft of property by intentionally using violence or threats of violence to induce submission to the taking of it from another. In that work, HUNT added the following at 682 : Any violence which would constitute an assault suffices, it may be

9 9 very slight in degree, and it need not cause injury. The emphasis is that of ELS, J. The words of RUMPFF, CJ in S v MOGALA are then referred to, and what is emphasized is the fact that the bag in that case was forcibly removed from a woman s hand. The judgment of THIRION, J in S v SITHOLE, 1981[1] SA 1186 is then also dealt with, particularly in respect of the finding of the learned Judge in that matter that the violence must be directed against the person of the victim. The ratio of the MASILELA case appears at p.46 of the report, where one finds the following : In hierdie geval, alhowel daar 'n geringe mate van geweld was, was die geweld nie gerig teen die liggam {persoon] van die slagoffer nie. Hier het die beskuldigde bloot die selfoon van die lyfband van die klaer afgeruk en die blote feit dat die klaer ontneem is van 'n voorwerp wat hy aan sy persoon gedra het, stel nie per se roof daar nie. Hierdie geval kan onderskei word van die gevalle waar die handsak uit die fisiese greep van die slagoffer gegryp word. Of waar 'n ketting om die nek van die slagoffer geruk word. In daardie geval word die geweld wel gerig teenoor die liggaam van die slagoffer. The underlined words are the emphasis of ELS, J.

10 10 It would seem to me, therefore, that the Transvaal Court supports the remarks of RUMPFF, CJ and THIRION, J. What THIRION, J said in S v SITHOLE at 1188A was the following. It is not violence of whatever nature that suffices as an element of robbery. Attempts have been made from time to time to define or circumscribe the nature of the violence required for robbery. Thus Hunt says in SA Criminal Law and Procedure vol 2 at 644 that, in order to support a conviction for robbery, the violence must have been used with the intention that it would overcome resistance and induce submission to the taking and must have had that effect. Violence which is not employed with that intention and which does not have that effect, Hunt refers to as incidental violence or ex post facto violence which, he says, is not the kind of violence which will support a conviction for robbery. I have quoted this passage since it is important to understand the context and the criticism by NGWENYA, J in S v MATI of THIRION, J s remarks. THIRION, J was, on my reading, not referring to degrees of violence when he said that it is not violence of whatever nature that suffices as an element of robbery. In referring to HUNT s remarks about violence having to be used with the intention of overcoming resistance and not being merely incidental or ex post facto violence, it seems

11 11 that THIRION, J meant that that kind of violence would not suffice as an element of robbery. NGWENYA, J seems, with respect, to have understood the remark of THIRION, J to mean that only violence of a level of seriousness would ground a robbery charge. NGWENYA, J immediately goes on to deal with S v SITHOLE and S v WITBOOI in the Cape Court as cases endorsing the obiter dictum in S v MOGALA, where the Court held that even the slight force in bag snatching would be sufficient to constitute robbery, and then adds : To do so in my view is to equate force with violence. To this extent I regretfully and respectfully disagree with both judgments. S v WITBOOI, 1984[1] SA 242 was a decision of two judges of this court, normally binding upon later Courts in the Division. The Cape Court agreed with the decision in SITHOLE that for handbag snatching to amount to robbery, it is sufficient if the culprit intentionally uses force in order to overcome the hold which the victim has on the bag for the purpose of ordinarily carrying or holding it.

12 12 In the latest edition of HIEMSTRA, Suid-Afrikaanse Strafproses, 6th Ed. at 662, the writers remark that Daar was al haarklowery oor die vraag of handsakgrypery roof is dan wel diefstal, aangesien die slagoffer nie weerstand bied nie en die daad onverwags is. Die verskil tussen die sakkeroller en die handsakgryper is dat eersgenoemde met lis te werk gaan en die ander met geweld. Hoe weinig ook die liggaamsaantasting by handsakgrypery mog gewees het, daar is geweld en die misdaad is roof (S v MOGALA, 1978[2] SA 412 [A]). Dieselfde is beslis in S v WITBOOI, 1984[1] SA 242 [K] en ook in MATJEKE, 1980[4] SA 267 [B]. In S v MATI, NGWENYA, J then refers to what J R L MILTON says in South African Criminal Law and Procedure, Vol. 2 3 rd Ed. At 651, namely that the term violence in describing robbery, must be understood as a term of art meaning no more than the use of force of any significant degree. One is not, of course, dealing with a statutory offence, but a common law crime with Roman roots in our system. On the same page of MILTON s work the author points out that the word violence is traditionally used to describe this element of the conduct of an accused robber, but that confusion is possible, since conceptually, violence denotes the use of a particular degree of force, namely that

13 13 characterized by the exertion of great physical force or strength, done or performed with intense or unusual force. [Oxford English Dictionary, sv violence. MILTON, continuing, points out that it is interesting to note that it was concluded that the English Theft Act of 1968 altered the previous law when it redefined robbery as involving the use of force in order to obtain the property. The word force in this context is construed as involving some physical strength so that under that Act theft becomes robbery where it is accomplished by anything that can realistically be called force, of whatever degree. MILTON then deals with the application of the violence criterion in English and American law, where it was held that force used by a pickpocket or bag snatcher did not constitute robbery, presumably on the reasoning that the indirect or incidental force required for these purposes did not amount to violence. That would be a conclusion easily reached if one was thinking of the dictionary definition of the word violence. As has been shown above, a similar principle prevailed in South African law until the judgment in S v MOGALA in 1978 and other cases, after which the view developed that even the slight force involved in bag snatching is sufficient to constitute robbery.

14 14 MILTON continues : This suggests that South African Law has come to regard force rather than violence as the defining element of robbery. Given that an assault can be committed by using only the slightest degree of force, this view would be consistent with the concept that robbery is theft accompanied by an assault. In Principles of Criminal Law by JONATHAN BURCHELL AND JOHN MILTON, 3 rd Ed. 2005, the matter is dealt with at p.819. It is said that robbery consists of two acti rei, one being the taking of control of the property, the other the act of applying (or threatening to apply) force to the person of the victim. A passage in a judgment by KUMLEBEN, J in S v DLAMINI, 1975[2] SA 524 [D] at 527 A-B is then quoted as follows : The violence [assault] and the theft are joint features of one crime. The key considerations justifying a conviction of this composite crime are proof that the assault and the theft formed part of a continuous

15 15 transaction and that the assault was a means by which the unlawful possession was obtained. This passage certainly supports the earlier view of MILTON as to the South African courts coming to regard force or assault as defining words rather than violence in robbery. BURCHELL then goes on at p.820 to deal with various matters like the causal connection of the violence to the theft, and then comes to a discussion of S v MATI at p.821. A passage from the judgment is then quoted on p.821, but the comments in the textbook are out of context. As NGWENYA, J said in S v MATI at 328D, MILTON had made certain other remarks under the heading Public Violence. These indeed appear at p.85 of his work1, where in the context of public violence MILTON says that that crime is committed only where actual violence or the threat of it is used and that there is a difference between force and violence. MILTON does say that force connotes the application of energy to an obstacle with the view to moving it, while violence involves the exercise of physical force so as to inflict injury or damage to persons or property. He continues as follows at p.85 : 1 South African Criminal Law and Procedure, Vol II, 3 rd Ed.

16 16 Thus the concept of violence has connotations of vigorous hostility and aggression which are not necessarily a feature of force. He continues to say that the crime, i.e. public violence, is not committed by the use of mere force and that Herein lies, it is submitted, the distinction between lawful public protest and unlawful public violence. Public protest may in its more physical manifestations involve the use of force. [See S v Mlotshwa, 1989[4] SA 787 [W], where force and verbal remonstrations by picketers did not constitute public violence.] It is clear, in my view, that MILTON was not there dealing with any difference between violence and force in the context of what conduct on the part of an accused robber was required to be shown, but was dealing, under the heading of Public Violence, with something quite different. NGWENYA, J went on at 328F to say that The fact that the perpetrator acted swiftly or took his victim by surprise does not in my view elevate mere force to violence.

17 17 NGWENYA, J went on to hold that where there is doubt in a Court s mind as to whether violence has been shown beyond reasonable doubt, surely, in that instance, the Court should find that the crime committed is that of theft. I cannot agree with that approach in the light of the authorities which I have enumerated above, since it is clear that any force applied to the person of a victim, however slight, is sufficient to constitute robbery. As stated in the Annual Survey of South African Law, 2002 at 827, it always depends on the facts. Of course, if it is necessary for the accused to push the complainant or use some other mild violence, the court should find that robbery and not theft has occurred but, on the facts of Mati and in similar bagsnatching scenarios, it should find the reverse. The remarks of RUMPFF, CJ in S v MOGALA, even if obiter, are of great persuasive force and have been followed in this Division, as in other Divisions, in S v WITBOOI [supra]. In my view, the physical grabbing of a bag or a cellphone out of a complainant s hand constitutes a physical intervention necessary for the dispossession,

18 18 and whether one calls it force or violence, one has a physical act committed against the person of another. This, in my view, complies with the definition of robbery. The grabbing of the cellphone was in itself the violent act, committed against the person of the complainant. To grab is to seize suddenly and roughly [Concise Oxford Dictionary, 2002]. In my view, the violence in S v MATI, as in the case before us, occurred the moment the grabbing took place. Just as the victim in S v MATI was holding the cellphone which had been grabbed, the victim in the present case was holding the cellphone when it was grabbed out of her hand. S v WITBOOI also concerned the case of a woman who had her bag pulled from under her arm by a rapid movement which caused her to lose her grip. VIVIER, J [VAN HEERDEN, J concurring] followed the view of THIRION, J, that for handbag snatching to amount to robbery it is sufficient if the culprit intentionally uses force in order to overcome the hold which the victim has on the bag for the purpose of ordinarily carrying or holding it. In my view, exactly the same applies to a cellphone grabbed out of a hand.

19 19 At p. 656 of his work, MILTON also refers to the fact that S v MOGALA was subsequently adopted with approval in a number of Provincial Division decisions, and he adds and expresses what is the preferred approach in this regard. There follows the quotation from S v SITHOLE at 1190 B-C, which I have already used. See too S v MOHAMED, 1999[1] SACR 287 [OPA] at 290, where a Full Bench held that the snatching of a necklace from the complainant s neck constitutes robbery, since an assault had taken place. In S v GQALOWE, 1996[2] SACR 172 [E], MULLINS, J approved SITHOLE, MOFOKENG and WITBOOI, but distinguished these cases because, in the matter before him, money was pulled out of a back pocket by stealth, not violence. As MULLINS, J said, that case had all the elements of pickpocketing, not robbery. In the result, I am satisfied that the decision in S v MATI is incorrect and that the earlier decisions to which I have referred correctly state the legal position. It follows that the Magistrate was correct to convict the Appellant in this matter. The appeal is dismissed, and the conviction and sentence (against

20 20 which there was no appeal) are confirmed. J G FOXCROFT LE GRANGE, AJ : I agree. A LE GRANGE ---ooo0ooo---

21 21 REPORTABLE JUDGMENT IN THE HIGH COURT OF SOUTH AFRICA CAPE OF GOOD HOPE PROVINCIAL DIVISION CASE NO : A205/2005 In the matter between : SAMUEL SALMANS [SALMONS] Appellant and

22 22 THE STATE Respondent Counsel for Appellant : Att. R Cloete Instructed by : Legal Aid Advocate for Defendant : Adv M Pothier Instructed by : State Attorney Dates of Hearing : 4 th November, 2005 Date of Judgment : 10 th November, 2005