|Sonwabo Dlakiya (“the Appellant”) pleaded not guilty to one count each of housebreaking with intent to rob (“count one”) and robbery with aggravating circumstances (“count two”) to which he was later convicted for by the Trial Court. The facts giving rise to the matter were as follows, the Appellant broke into the house of an elderly Complainant, he assaulted her, bound and gagged her whilst the Appellant and his accomplices ransacked the house and fled with a number of valuable items as well as the Complainant’s white Toyota Rav 4 which was parked outside her house at the time.|
|Two days later, the Complainant’s vehicle was spotted, by Sergeants Gosa and Botha near a tavern, where the rear number plate had been removed. The Sergeants followed the vehicle as it sped away, the Appellant then abandoned the vehicle in an attempt to flee on foot, but was later apprehended by Gosa, whilst Botha radioed and confirmed that the vehicle had been reported stolen two days prior.
The Trial Court, ultimately, sentenced the Appellant to 5 (five) years imprisonment on count one and a further 10 (ten) years on count two, which were to run concurrently. The Appellant with leave of the Trial Court appealed against both his sentence and conviction.
| CONDONATION ISSUES
The ancillary issue in this case concerned condonation, the Appeal Court had to consider the circumstances surrounding the Appellant’s legal representative’s late filing of his Heads of Argument (“HoA”). It transpired that the Appellant’s HoA were filed timeously according to evidence of the Registrar’s dated stamp presented on the covering page of the Appellant’s HoA. However, the HoA was filed without any requisite proof of service on the State. The State, thus having never had receipt of the Appellant’s HoA or any responses from the Appellant’s legal representatives, applied for the appeal to be struck from the roll.
|The Appeal Court averred that in the ordinary course of events, the above illustrated facts that would be enough to strike the appeal from the roll, in order to have a formal condonation application brought before it. However, the Appellant’s situation could not be considered ordinary as his freedom was at stake and the late filing of his HoA was due to no fault of his own. Ultimately, the Appeal Court took several factors into consideration: the interests of justice; the nature of the relief sought and the extent the cause of delay would cause on the administration of justice to arrive at its decision to deal with the merits of the appeal and not strike the matter from the roll.|
| GROUNDS OF APPEAL
|The Trial Court convicted the Appellant on circumstantial evidence as there was no actual forensic evidence present which thus led to the Appellant advancing the following grounds of appeal against conviction, the two main grounds will be discussed, namely that the Trial Court erred in:
a) convicting the Appellant on two counts of what is essentially a continuing offence; and
b) finding that the State succeeded in proving its case beyond a reasonable doubt.
The Appeal Court held that, whilst housebreaking with intent to commit a crime consists of unlawfully and intentionally breaking into and entering a building or structure, with the intention of committing a crime inside it the distinguishing factor in this case was that the vehicle was stolen from outside the Complainant’s home, during the robbery. The Appeal Court was not convinced with the Trial Court’s findings of conviction on two separate counts and later reconciled this in stating that even where two crimes have been committed (which form part of one offense, the application of the doctrine of recent possession to a charge of theft), they are treated as one crime for the purposes of sentencing.
The Appellant was found in possession of the vehicle two days later, coupled with the Appellant’s elusive behavior in trying to speed away from the Sergeants and later attempting to flee. Together with the fact that the rear number plate had been removed, and the proximity of time in which the Appellant was found with the vehicle illustrated, that he was connected to the robbery and wanted to conceal the stolen goods in his possession. The Appeal Court thus held that the State had succeeded in proving its case beyond a reasonable doubt.
|The Appeal Court considered the Appellants compelling circumstances and interests of justice when ruling on sentence, as the minimum prescribed sentenced for aggravated robbery is 15 (fifteen) years. The Appeal Court Judge did not fault the Trial Court Judge’s sentence of 15 (fifteen) years but only stated that she was misdirected in splitting the charges as the robbery of the vehicle, which was separate from the housebreaking, was already catered for in count two which directed imprisonment of 10 (ten) years (duplicated sentencing).|
The Appeal Court ultimately held that the appeal in respect of the conviction should be dismissed and that the appeal as to sentence must succeed, to the extent that counts one and two are taken as one offense, as such the Appellant was sentenced to 10 (ten) years.
|Condonation will be considered based on the applicant’s reasonable excuse for delay in filing papers coupled with the interests of justice especially in cases where a person’s liberty is at stake. Further, where multiple charges constitute the continuing of one offense the charges need not be split up so as to avoid duplication of punishment during sentencing.
Written by Divina Naidoo Checked by Anja Van Wijk