Four lose robbery appeal
FOUR people jailed in 2018 for a 2016 robbery of a Markhams store in Paarl have lost their appeal against their sentence for aggravated robbery, but succeeded in their appeal against sentences for kidnapping and possession of a gun.
In February 2014 the four, Siyabulela Ndwanyana, Sonele Makgoba, Lehlohonolo Mathibe and Luthando Thosholo robbed the clothing shop in Lady Grey Street of clothes, cellphones and cash.
Following their conviction by the Paarl Regional Court, Ndwanyana, Makgoba and Thosholo were sentenced to 25 years each for aggravated robbery, possession of a gun and the pointing of the gun.
Mathibe, whose fingerprints were found at the scene even though he initially denied being present, received 30 years behind bars.
In their appeal the four argued that the magistrate erred in finding that they had been properly identified as the perpetrators of the crimes and that the charges against them were not proved beyond reasonable doubt.
Makgoba took issue with the fingerprint evidence which implicated him on the basis that it was located in an awkward position and that it was improbable that a firearm would have been held in such position.
Mathibe also took issue with the reliance on the fingerprint evidence used against him and also argued that the trial court erred in convicting him when he was not asked to plead on count 13, regarding the unlawful possession of a firearm.
All four said that the sentence imposed was unduly harsh and did not display an element of mercy given the fact that three of them were first offenders and that all four had been held in custody, awaiting trial, for four years at the time of sentencing.
In their submissions, the State argued that it was clear that the four were dishonest and that their versions and explanations regarding their fingerprints were clearly fabricated.
They said that none of the four men’s faces were covered during the course of the robbery and they were inside the store for approximately 30 minutes. This gave victims sufficient opportunity to look at their faces.
They argued that the sentences imposed should not be interfered with on appeal and that such sentences should stand.
In her ruling, Judge Kate Savage said the relevant aggravating factors, which included the seriousness of the crime committed and the circumstances under which it was committed, outweighed the factors put up in mitigation.
However, with regard to the sentence of 30 years’ imprisonment imposed on Mathibe, the judge found it to be “unduly harsh”.
Judge Savage said: “Taking into account his prior conviction for robbery balanced against the extensive period he spent in custody awaiting trial, as well as all other factors relevant to sentencing, an effective term of 18 years’ imprisonment is just and fair.”