ROBBERY COMMITTED BY THEFT OF INCORPOREAL THING THROUGH VIOLENCE OR FORCE

S v Sishuba [2018] 1 All SA 866 (ECLD, Mossel Bay)

Criminal law and procedure – Murder – Robbery with aggravating circumstances – Assessment of evidence – Inferences to be draw from common cause facts – Only reasonable inference that the court could draw from the surrounding facts and circumstances, was that the accused had prior knowledge of the incident and that he formed an association with an accomplice to commit the offences.

Criminal law and procedure – Robbery – Electronic transfer of money from victim’s account by victim, under threat of harm – Crime of robbery can be committed by the theft of an incorporeal thing through violence or force.

In June 2016, an elderly couple were attacked, robbed and killed in their home. It was common cause that a worker (“Steven”) employed by the male deceased in his business was involved in the murder and robbery, and later fled to Lesotho.

The accused was arrested by the police after a palm print of his was found at the scene of the crime. He was charged with two counts of robbery with aggravating circumstances and two counts of murder. Pleading not guilty to all the charges, he alleged that Steven had asked him to accompany him to his employer’s home because the employer needed extra help. He stated that when they were at the employer’s property, Steven attacked the employer. He alleged further that Steven had instructed him, under threat of violence, to help hit the deceased. The accused denied that he, himself, murdered or robbed the deceased or was involved with Steven in the murder and robbery of the deceased – or that he voluntarily took part in the attack on the first deceased. He further denied that he attacked or was present or assisted in the murder of the second deceased (the wife of the first deceased).

Held – The only portion of the accused’s version which could be accepted was that he had been on the scene where the first deceased was attacked. His version as to what really and truly happened on the scene was untruthful. In his initial statement to the police, he created the impression that he did not have any knowledge about this incident. He only told the police about how he accompanied Steven to the bus station and how Steven had left the keys of his house in his possession. However, he clearly knew what had happened to both deceased persons and that Steven was responsible for what happened. It was only at a later stage, when it emerged that a palm print of his was found at the scene and when he was required to give an explanation as to how his palm print could have been found on the scene, that he told the police that he himself was present at the scene when the first deceased was attacked. He gave different versions as to what really happened at the scene with regard to his involvement. He tried to mislead not only the investigating officer, but also the court by disavowing the various versions he gave to the police as well as the version that was given to the court in his explanation of plea. He was a poor witness who failed to take the court into his confidence. He was extremely evasive and argumentative during cross-examination when confronted with these different versions. Although at first denying that he was involved in the assault of the first deceased, in court during his explanation of plea, he admitted that he had assaulted the first deceased, albeit under duress from Steven.

The conduct of the accused after the incident was not consistent with that of an innocent bystander who was merely at the wrong place and at the wrong time. The only reasonable inference that the Court could draw from the surrounding facts and circumstances, was that the accused had prior knowledge of the incident and that he formed an association with Steven to commit the offences. The Court set out the various bits of evidence pointing to two people perpetrating the attack on each of the deceased.

The accused’s version was rejected as not reasonably possibly true. The Court found that he had formed a common purpose with Steven to murder both the deceased and rob them of their possessions.

In the course of the crime, the second deceased was forced to electronically transfer from her bank account an amount of R14 000 to the robbers. The question raised was whether that constituted the crime of robbery. The Court confirmed that the crime of robbery can be committed by the theft of an incorporeal thing through violence or force. Even though there was no physical handling of the money, the accused and Steven got the deceased through violent means, to transfer the money.

The accused was convicted on all four charges.

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