SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 943/2017

In the matter between:

ISHMAEL JIYANE

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Jiyane v The State (943/2017) [2018] ZASCA 111 (13
September 2018)

Coram:
Seriti, Saldulker, Mbha and Molemela JJA and Mokgohloa
AJA
Heard:
18 August 2018

Delivered: 13 September 2018

Summary: Criminal law and procedure - appellant incorrectly convicted
on a charge of robbery and sentenced to three years’ imprisonment -
appeal against sentence and conviction upheld and set aside - appellant
found guilty of assault with intent to do grievous bodily harm - sentenced

to three years imprisonment wholly suspended for five years on certain
condition.

________
ORDER

___
On appeal from: Gauteng Division of the High Court, Pretoria (Basson
and Teffo JJ sitting as court of appeal):
1 The appeal against both conviction and sentence succeeds.
2 The accused’s conviction and sentence are set aside and replaced with
the following:
‘(a) The accused is guilty of assault with intent to do grievous bodily
harm.
(b) The accused is sentenced to three years imprisonment wholly
suspended for five years on condition he is not convicted during the
period of suspension of any offence involving violence.’

___
JUDGMENT

___
Seriti JA (Saldulker, Mbha and Molemela JJA and Mokgohloa
AJA):

[1] The appellant was arraigned on 20 April 2015 in the Magistrates
Court, Daveyton on a charge of robbery, read with the provisions of s 51
of the Criminal Law Amendment Act 105 of 1997. The allegations
levelled against him were that on 24 August 2014 he unlawfully and
intentionally assaulted Mr John Malinga, the complainant, and with force
took a cellular phone and an amount of R1000.00 from him. He was
convicted as charged and sentenced to three years’ imprisonment. He was

also declared unfit to possess a firearm in terms of s 103 of the Firearms
Control Act 60 of 2000.

[2] The appellant was granted leave to appeal against both his
conviction and sentence which appeal was dismissed by the Gauteng
Division, of the High Court Pretoria (per Basson and Teffo JJ). The
appellant with special leave of this Court, now appeals against his
conviction and sentence.

[3] The background facts are as follows. The complainant testified that
on the day in question, at approximately 05h00, he went to the premises
of the appellant’s tenant, one Thembe. When he arrived at the premises of
the appellant the gate was locked. Whilst still waiting at the gate a young
child came and opened the gate. The child was apparently going to the
shop.

[4] The complainant entered the premises and knocked on Thembe’s
room door, as he was supposed to give her R500. The appellant emerged
from the main house and said that it was still morning and the
complainant was causing a disturbance. When the complainant asked the
appellant if he could see Thembe, the appellant re-entered his house, and
he returned with a sjambok in his hand. The appellant ran towards him,
and realising that the appellant was going to hurt him and he ran away to
another street. The appellant continued to chase after him and eventually
got hold of the complainant and began hitting him with the sjambok
several times until he fell to the ground. Whilst the complainant lay on
the ground the appellant continued his assault upon him, although he
apologized the appellant continued to hit him with the sjambok. The
appellant then began to search him and took his cellular phone and

R1000.00. After taking his money and cellular phone, the appellant went
back to his residence.

[5] The complainant stood up and when he looked around he saw the
appellant coming towards him, carrying a knobkierie. He once again ran
away and the appellant chased him, caught up with him and hit him again
several times with the knobkerrie. The complainant sustained serious
injuries namely a fractured left wrist, a fractured right leg and bruises to
the face and the back of his head. The South African Police officers
arrived at the scene and an ambulance was summoned which transported
him to hospital. He was hospitalised for approximately 10 weeks. At the
hospital he had to undergo an operation, amongst other medical
treatments and procedures, which necessitated the application of plaster
of paris to his arm and leg.

[6] In his evidence-in-chief, the complainant testified that during the
first episode of assault, the appellant searched him and took his cellular
phone and money. He further said ‘when I stood up, I realized that he
took my cell phone and I did not have money anymore. I saw that he did
take the phone and when I searched myself, I did not have money
anymore’.

[7] During cross-examination of the complainant, the defence attorney
put it to the complainant that on the day in question nobody opened the
gate for the complainant and he might have jumped over the fence or the
gate. He was knocking hard on the door and the appellant chased him out
of the yard. The appellant blew a whistle to notify the community that
there was an intruder in his yard. As the appellant was blowing the
whistle, the complainant charged at him and assaulted him. Members of

the community thereafter arrived and assaulted the complainant. It was
also put to him that the appellant will testify that he did not take the
complainant’s cellular phone and money.

[8] The appellant in his evidence-in-chief only confirmed the
correctness of the version put by his legal representative to the
complainant. In cross-examination, the appellant stated that on the day in
question he heard somebody knocking hard at the door and windows. He
further said, that the knocking started at 04h00 and persisted until 05h00
and that the complainant was severely intoxicated. The appellant admitted
that he beat the complainant but did not know if he sustained any injuries
nor the extent thereof. During the cross- examination of the complainant
it was never put to him that he knocked hard on the windows nor that he
knocked from 04h00 until 05h00 or that he was very drunk. In S v Boesak
2000 (1) SACR 633 (SCA) at 647C this court held:
‘. . . [I]t is clear law that a cross-examiner should put his defence on each and every
aspect which he wishes to place in  issue, explicitly and unambiguously, to the
witness implicating his client.’
With this in mind, it is clear that the appellant’s counsel did not put these
assertions to the complainant and this to me appears to be an afterthought
on the part of the appellant.

[9] In the heads of argument and during oral submissions the
appellant’s counsel submitted that the appellant did not receive a fair trial
as the Magistrate constantly descended into the arena, and his conduct
constituted a substantial deviation from the standard of conduct and
impartiality required from a presiding officer. The appellant’s counsel
further submitted that the magistrate’s line of questioning amounted to a
cross-examination of the appellant and were posed in an intimidating

manner. I have scrutinised the questions put to the appellant by the
magistrate. In my view, although the questions were extensive, I am
unable to find any indication that the magistrate’s conduct constituted a
substantial deviation from the standard of conduct and impartiality
required of him. There is no indication that the magistrate descended into
the arena nor that he was cross-examining the appellant. These
submissions are therefore without merit.

[10]    The appellant’s counsel further submitted that the trial court erred
in accepting the evidence of the complainant who was a single witness.
The trial court approached the evidence of the complainant with caution.
After analysing all the evidence, the trial court came to the conclusion
that the complainant was a credible witness. A court of appeal is not at
liberty to depart from the trial court’s finding of fact and credibility
unless they are vitiated by irregularity or unless an examination of the
record of evidence reveals that those findings were patently wrong. In S v
Pistorius 2014 (2) SACR 314 (SCA) para 30 this court held as follows:
‘It is a time-honoured principle that once a trial court has made credibility findings an
appeal court should be deferential and slow to interfere therewith unless it is
convinced on a conspectus of the evidence that the trial was clearly wrong (R v
Dhlumayo & another 1948 (2) SA 677 (A) at 706; S v Kebana [2010] 1 All SA 310
(SCA) para 12.’
I cannot find any reason to interfere with the factual and credibility
findings of the trial court. (See also S v Francis 1991 (1) SACR 198 (A)
at 198J-199 (A) and S v Hadebe & others 1997 (2) SACR 641 (SCA) at
645E-F.)

[11] The appellant’s counsel submitted that even if the evidence was
correctly accepted, the appellant was convicted of the wrong offence by

the trial court. He further submitted that the appellant should, in the
circumstances of this case, have been convicted of common assault or
assault with intent to do grievous bodily harm.

[12] In terms of s 260 of the Criminal Procedure Act 51 of 1977, an
accused facing a charge of robbery may be convicted of assault with
intent to do grievous bodily harm or the offence of common assault which
are competent verdicts on a charge of robbery, if such offences are
proved.

[13] Robbery consists of the theft of property by unlawfully and
intentionally using violence to take the property of another person or the
threat of violence to induce the possessor of the property to submit to the
taking of the property. In this matter, there is no evidence which suggests
that the appellant assaulted the complainant with the intention of taking
any of his property. The assault was not aimed at getting the complainant
to submit to the taking of his property. Further that the complainant did
not seem to recall how he lost his cellular phone and money. In his
evidence the complainant said that the appellant took his cellular phone
and money and thereafter the appellant returned to his house. He stood up
and he realised that the appellant took his cellular phone and money. On
the totality of the evidence it was not proved beyond reasonable doubt
that the appellant used violence against the complainant with the intent of
depriving the complainant of his belongings.

[14] My view is that the trial court erred in convicting the appellant on
the robbery charge. The evidence led is sufficient to sustain a conviction
on the competent verdict of assault with intent to do grievous bodily
harm, as the injuries sustained by the complainant are serious injuries and

further a conviction on this basis is supported by the evidence led before
the trial court.

[15] I now turn to the issue of sentence. In mitigation of sentence the
appellant’s counsel advised the court that the appellant was 32 years old
at the time of his sentencing by the trial court. He has one minor child
aged four years, the child and the mother of the child are dependent on
him for support and maintenance and the appellant was a first offender.

[16] The trial court imposed the sentence it did on the basis of a
conviction of robbery and in the light of that fact my view is that the
conviction has no factual basis, the sentence imposed by the trial court
should be set aside and substituted with an appropriate sentence. The
facts of this case demand the imposition of a wholly suspended sentence;
the appellant is not a candidate for a custodial sentence. In my view a
sentence of three years wholly suspended will be appropriate in this case.

[17] In the circumstances I make the following order:
1 The appeal against both conviction and sentence succeeds.
2 The accused’s conviction and sentence are set aside and replaced with
the following:
‘(a) The accused is guilty of assault with intent to do grievous bodily
harm.
(b) The accused is sentenced to three years imprisonment wholly
suspended for five years on condition he is not convicted during the
period of suspension of any offence involving violence.’
__________________
LW SERITI
JUDGE OF APPEAL

APPEARANCES

For Appellant:
A Gissing

Instructed by:
Strauss De Waal Attorneys, Johannesburg

Symington De Kok, Bloemfontein

For Respondent:  S Scheepers
Instructed by:        The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein