IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER: A40/11
DATE: 18 MARCH 2011
In the matter between:
The appellant, Mr Matthew Klaas. a 25 year old male, was convicted on the
14th of May 2010 in the Bellville Regional Court on one count of robbery with
aggravating circumstances. He was sentenced to ten (10) years imprisonment,
of which three (3) years were conditionally suspended for five (5) years. The
appellant was charged together with a Mr Andrew Blaauw (as the first
accused) who was acquitted.
Leave to appeal against both the conviction and sentence were granted. The
charge arises out of an incident on the 12,n of January 2010 at 17
Joostenberg Street, Goedemoed, Bellville, where the appellant and his
co-accused were alleged to have held up a Ms Leonora Marx with the use of
a knife, and robbed her of a gold chain and a ring.
The appellant was legally represented at the trial and having pleaded not
guilty to the offence, confirmed that he understood the provisions of the
Minimum Sentence Legislation, which was applicable to the charge in the
event of him being convicted. Mr Blaauw also pleaded not guilty and both he
and the appellant tendered written explanations of their pleas, which were
read out into the record by the legal representative. In brief, Mr Blaauw
admitted that on the 12th of January 2010 he was in the company of the
appellant and that they had been on their way from Durbanville to
Fisantekraal where they lived. Near Uitzicht they saw the complainant
sweeping her front stoep and Blaauw said to the appellant that he would ask
her for some water. The appellant waited for him on the pavement. The
complainant asked him what he wanted, to which he replied that she should
hand over her chain from around her neck. She refused. He unhooked the
chain on which the ring hung. After doing so. he took out a pocket knife and
instructed her to remain where she was.
As he moved away from her, he saw the appellant approach them and asked
him what was going on. He told the appellant to run. They were later
arrested and the necklace and ring were found in his possession. He claimed
that he had merely robbed the complainant of the chain and ring without the
use of a weapon, and admitted that he had done so unlawfully and with the
necessary intention to commit the offence of robbery
In his plea explanation the appellant confirmed in part the details set out in the
statement of Blaauw. He claimed though that he had approached Blaauw to
find out why he had taken so long When he got as far as the lawn of the
premises, Blaauw ran towards him and said that they should run. He ran as
he thought that Blaauw was being chased by dogs. He claimed that they were
later arrested and the items of the complainant were found on Blaauw. He
denied any involvement in the commission of the offence.
The state tendered the evidence of the complainant, Ms Leonora Marx, while
Blaauw and the appellant testified in their own defence.
The central issue in the appeal is whether the complainant had reliably
identified the appellant as the person who had committed
the offence, and whether the robbery was committed with the
use of the sharp instrument. The Magistrate in his judgment set out a detailed
the evidence and save for those aspects material to the issue of identification,
the remainder of the evidence bears no repetition.
In summary Marx testified that the incident had occurred in broad daylight
between 12:00 and 12:30pm. She was confronted by the appellant whilst
sweeping outside her house. Appellant had come right up to her with what
appeared to be a sharp instrument. She described the instrument as the point
of a screwdriver or a pen and that he had threatened her that unless she
handed over the chain, he would kill her. She did not do so and she looked
around to see if there was a neighbour or anybody else nearby She had at
this stage also moved towards the front of the house as she did not know
what to do. The appellant unhooked the chain from around her neck and
removed it Her husband's gold ring hung on the chain. At that stage she saw
Blaauw walking past them in the direction of the front door. She shouted out
her husband's name and both the appellant and Blaauw immediately fled.
She claimed that the incident occurred very quickly and that she was in a
state of shock. She claimed though that she had clearly identified the
appellant as the perpetrator and that he had threatened her with a sharp
instrument. She described him as dark in complexion and heavier built than
Blaauw. She also observed that Blaauw's hair was dyed yellow in colour.
After the appellant and Blaauw fled she immediately phoned the police at
Durbanville. She thereafter got into her car to search for the perpetrators
herself, as she claims she was desperate to retrieve the chain and the ring as
both had particular sentimental value for her. She saw two persons emerge
near an open field and decided to go to the police station to have the police
accompany her further in the search. She gave the police a description of the
perpetrators and they followed her in two separate vehicles. She later left for
home and on her way one of the policemen, Carolus, informed her that they
had apprehended two suspects. The chain however was not found on them,.
She insisted that they look for the items where she had initially spotted the
two men near the open field. The police subsequently found the chain
hanging on a stick and she identified the items as hers. She also identified the
two suspects in the police van as the appellant and his co-accused.
She claimed that she had been shocked by the incident and was confused
when the appellant denied that he had taken her chain when confronted in the
She claimed that Blaauw had not said or done anything to her during the
incident. She had never seen either of them prior to the incident.
In cross-examination she remained adamant that it was the appellant who had
robbed her of her chain and the ring and not Blaauw. She denied both of their
Blaauw testified that he was 18 years old at the time of the incident and
repeated the version as set out in his plea explanation. During his evidence in
chief he repeatedly referred to we "ons" in the context of both him and the
appellant having robbed the complainant. He stated: "Toe ons die vrou se
hangertjie gevat." And further: "Toe ons die vrou rob, toe hardloop ons." He
denied though that he had brandished a screwdriver or similar instrument at
the complainant and claimed that he had merely threatened her with his
pocketknife after he had already removed the chain. He confirmed that his
hair was dyed yellow at the time, but claimed that the complainant was
mistaken in her identification of the appellant as the perpetrator.
In cross-examination he denied that he had been pressurized or intimidated
by the appellant into taking the blame for the robbery on himself. He claimed
though that the appellant had approached him while he was busy removing
the chain from around the complainant's neck.
The appellant in his testimony maintained the version that it was Blaauw who
had robbed the complainant. He claimed that he had at some stage walked
towards them and saw Blaauw with a knife in his hand, who was "besig met
die vrou." He claimed that he saw that there was a scuffle between them and
that the complainant was holding onto the chain around her neck. He claimed
he knew that when they fled they would be caught and that he knew what
Blaauw had done, was wrong. As they fled he asked Blaauw to show him the
The State asked for a conviction of both Blaauw and the appellant on a
charge of robbery with aggravating circumstances. The legal representative
on behalf of the defence asked for the conviction of Blaauw of robbery, and
the acquittal of the appellant.
The state bore the onus of proving that the appellant had committed the
offence beyond reasonable doubt. It is generally accepted that a Court will
approach the evidence of identification with the necessary caution. In S v
Mthetwa 1972(3) SA 766(A) the Court stated:
"Because of the fallibility of human observation, evidence of identification is
approached by the Courts with some caution. It is not enough for the
identifying witness to be honest. The reliability of his observation must also be
tested. This depends on various factors such as lighting, visibility and eyesight;
the proximity of the witness; his opportunity for observation, both as to time
and situation; the extent of his prior knowledge of the accused; the mobility of
the scene; corroboration; suggestibility; the accused's face, voice, buitd, gait,
dress; the result of identification parades, if any; and, of course evidence by
one or on behalf of the accused. The list is not exhaustive. These factors, or
such of them are applicable in a particular case are not individually decisive,
but must be weighed one against the other, in the light of the totality of the
evidence, and probabilities."
Evidence of identification therefore requires close examination and scrutiny by
the Courts as was stated in S v Shekelele 1953(1) SA 6360 at 638, where
Dowling (J) said:
"Witnesses should be asked by what features, marks or indications
they identify the person whom they claim to recognise. Questions
relating to the height, build, complexion, what clothing he was wearing
and so on should be put. A bald statement that the accused is the
person who committed the crime is not enough. Such a statement
unexplored^ untested and uninvestigated, leaves the door wide open
for the possibility of mistake."
The Courts have frequently observed the danger of relying on the
identification of a single witness. In such circumstances it is necessary for
other corroborating evidence to be found in support of such identification.
The Magistrate appropriately approached the evaluation of the evidence in its
totality and not in a piecemeal fashion. He was impressed with the
complainant as a witness, the manner which she had testified, a description of
the events and the role that the appellant and Blaauw had played.
The Magistrate was particularly mindful that the complainant was a single
witness and approached her evidence with the necessary caution. He
considered whether the complainant was bona fide in her identification of the
appellant and so too considered her reliability. He had no doubt about her
bona fides and assessed the reliability of her identification within the context
of the evidence of both the appellant and Blaauw. He found that there were
contradictions in their versions which were in certain respects also improbable.
It appeared too that the appellant had changed and adapted his version
during testimony. He also found that their evidence had differed with that of
their plea explanations. The Magistrate noted that the incident had occurred in
broad daylight and that the complainant had looked directly in his face. He
also noted the remarkable difference in build and complexion between the
appellant and Blaauw, and found it highly improbable that the complainant
would have been mistaken in the identification of the appellant as the
perpetrator as opposed to Blaauw who had strikingly yellow dyed hair during
The Magistrate accepted the reliability of the identification made by the
complainant and accepted her evidence where it contradicted that of both the
appellant and Blaauw. It appeared that the appellant's own legal
representative when leading him in chief, expressed an impatience at his
changing of his versions.
Counsel for the state appropriately referred to the decision of Griessel (J) in S
v Bailey 2007(2) SACR(1)(C) at page 16. paragraph C-E where the following
"Bearing in mind the advantage which a Trial Court has of seeing,
hearing and appraising a witness, it is only in exceptional cases that
this Court will be entitled to interfere with a trial court's evaluation of
In order to succeed on appeal the appellant must therefore convince us
on adequate grounds that the trial court was wrong in accepting the
evidence of the State witnesses - a reasonable doubt will not suffice to
justify interference with their findings."
It is apparent that from a consideration of the evidence of both the appellant
and Blaauw, that there were material contradictions and inconsistencies in
their evidence and in certain respects was just not probable. By way of
example the appellant claimed, and contrary to his plea explanation, that he
had seen Blaauw struggling with the complainant while brandishing a knife in
In his plea explanation he claims not to have had any knowledge of the
robbery. Moreover the appellant claims that he went onto the stoep to see if
anything had fallen as a result of the scuffle between Blaauw and the
complainant. His version on this aspect simply makes no sense and appears
to be nothing more than an attempt at rationalising his actions. If anything, it
reflected poorly on his credibility and the inherent improbabilities of his
The magistrate correctly accepted the version of the complainant and that her
identification of the appellant was reliable. Despite the purported attempt by
the appellant to provide and an exculpatory version and a wholly inadequate
attempt at placing the blame of the robbery on his younger co-accused, the
State had successfully proved beyond reasonable doubt the guilt of the
appellant of robbery with aggravating circumstances.
In considering an appropriate sentence the Magistrate considered in detail the
accused's personal circumstances, the nature and seriousness of the offence
and the interests of society. The offence which the appellant has been
convicted of attracted the minimum sentence of fifteen (15) years
In order for the Magistrate to deviate from such sentence, the Court had to
find substantial and compelling circumstances in favour of the appellant. The
appellant's personal circumstances were placed on record by his legal
representative. He was unmarried and had lived with the mother of their two
year old child. They lived in a backyard dwelling in Fisantekraal. Prior to his
arrest he had worked at G&E Home Improvers for a year, where he had built
cupboards and did some paintwork. He had at that stage an income of
R120 per day. The appellant was originally from Moorreesburg where he had
lived with his parents and who are still alive and has two brothers and three
sisters. He attended school up to Grade 9 and claimed that as a result of
financial pressure he was unable to continue with his studies and that he was
forced to leave school. He claimed that his family had lived under difficult
financial circumstances. In 2005 he moved to Cape Town where he worked
as a labourer.
The appellant has two previous convictions, the first for theft and the second
for housebreaking with the intent to steal and theft.
In respect of the latter conviction he was convicted on the 6th of February
2007 and was sentenced to eighteen (18) months imprisonment, of which
eight (8) months was suspended for a period of five (5) years. It is evident that
the appellant had committed the present offence during the period of
suspension of his earlier sentence.
The Court took into account the extent of the trauma suffered by the
complainant, which appeared visible during her testimony in court. She had
been robbed in the immediate vicinity of her house, with a sharp weapon, and
in blatant violation of her privacy and personal property.
The Court was mindful of the objectives of sentencing, such as prevention,
retribution and rehabilitation. The Court referred to the decision of S v Chowe
2010(1) SACR 141 (GNP), in which Mavundla (J) stated that when
considering the imposition of a minimum sentence:
"Such sentences must by their very nature be reserved for callous and
Having considered the personal circumstances of the appellant and his
relative youth, the magistrate was correctly of the view that there existed
substantial and compelling circumstances to deviate from the minimum
He was also of the view that in the light of the appellant's circumstances there
exists the possibility of rehabilitation and that in such circumstances it would
not be appropriate to impose the minimum sentence on him. The magistrate
nonetheless admonished the appellant that he was being given a last chance
and appropriately warned him that if he committed such offences in the future,
he could face the full extent of the minimum sentence legislation.
Having considered the sentence imposed by the Magistrate and the reasons
for the punishment, I'm of the view that no irregularity was committed, and
neither does the sentence induce a sense of shock. The appellant appears
rather to have benefited from a generous measure of mercy by the magistrate.
The offence for which he has been convicted is serious and a menace in our
society. The Courts are required to deal with such offences firmly as a clear
demonstration to the public of the seriousness and the intolerance of such
behaviour. The Courts are nonetheless required to display an appropriate
measure of mercy such as that enjoyed by the appellant.
In the result I propose to dismiss the appeal and to uphold the conviction of
the appellant of robbery with aggravating circumstances, and to confirm the
sentence imposed by the magistrate. The following order is made:
1. The APPEAL IS DISMISSED and the CONVICTION IS
2 THE SENTENCE OF TEN (101 YEARS, OF WHICH THREE (3)
YEARS IS SUSPENDED on condition that the appellant is not
convicted of robbery or theft during the PERIOD OF FIVE (5) YEARS.
SAMELA. AJ: I agree.
SALDANHA, J: It is so ordered.