THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable

CASE  NO: 494/07

In the matter between :

LUVUYO MANELI
Appellant

and

THE STATE
Respondent

__________________________________________________________________________

Before:
STREICHER, HEHER JJA & KGOMO AJA
Heard:
3 MARCH 2008
Delivered:
1 APRIL 2008
Summary:
Robbery – duplication of convictions.
Neutral citation:
Maneli v The State (494/07) [2008] ZASCA 50 (1 April 2008)

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STREICHER  JA

STREICHER JA:
[1] The appellant was convicted in the Regional Court for the Regional
Division of the Eastern Cape on two counts of robbery and sentenced to 10
years’ imprisonment in respect of each count with 5 years of the sentence in
respect of the second count to run concurrently with the sentence imposed in
respect of the first count. An appeal to the High Court, Eastern Cape Division,
was dismissed. With the necessary leave the appellant now appeals to this
court.

[2] The evidence led at the trial can be summarised as follows. Five men
arrived in a motorcar at the farm of Mr Maske. Two of the men, one in police
uniform, got out of the car, approached Mr Mabele, one of the two gardeners
who were working in the garden, and asked him where his employer was.
Mabele directed them to Maske’s office where they enquired whether he
employed somebody whose name they mentioned. Maske called Mr Joni, the
other gardener, to come and assist but when Joni entered the office one of the
men produced a gun and asked where Maske’s money was. Maske told them
that there was R1 000 in the top drawer of his desk. In the meantime he was
searched and his wallet which contained R40 was taken from him. At that
point, Mabele, was also brought into the office. Maske was then turned
around to face the wall and while he was in that position he got the
impression that two more men had entered the office. From the sounds that he
heard he gathered that Mabele was being assaulted while he, Maske, was
continually being asked where his money was. Eventually Maske and the two
gardeners were tied up, the robbers left the office, closed the door and walked
across to the homestead. Maske and the gardeners remained quiet until they
heard a car driving off. They then managed to free themselves, left the office
and met the domestic staff and Mrs Rautenbach, his sister-in-law, who were
walking across from the house to the office.

[3] Mrs Rautenbach was visiting the Maske’s at the time. She and two
domestic servants were the only people in the house. Maske’s wife had gone
to a meeting. While she was looking up a telephone number a man with a
revolver in his hand entered and asked her where the money was. She replied
that she did not have money and was thereupon taken to the laundry where
she was tied up. One of the domestic servants was already there and the other
one was subsequently brought in. Both of them were also tied up. They heard
screaming outside and thought that Maske or one of the gardeners was being
killed. Thereafter they heard footsteps coming and going, doors being banged
and eventually a motorcar that was being driven away. It was established that
a video recorder, a mini hi-fi set and a camera case, all of which belonged to
Maske, had been taken from the house.

[4] The appellant and one Lindile Magi were subsequently convicted of
having robbed Maske of R1 040 (count 1) and of having robbed Mrs
Rautenbach of the items that had been taken from the house (count 2). The
appellant appealed against his convictions and the sentences imposed. Magi
only appealed against the sentences. Both appeals were to the Eastern Cape
Division but they were separately heard.  The appellant’s appeal was heard on
28 July 2000 and dismissed. A subsequent application for leave to appeal was
also dismissed. Magi’s appeal was heard on 4 June 2003. Although Magi had
only appealed against the sentences imposed the court was asked to exercise
its review jurisdiction and set one of the convictions aside on the ground that
the two convictions constituted an improper duplication of convictions. The
court was of the view that there had in fact been a duplication of convictions
and set the conviction and sentence in respect of count 2 aside. In his
judgment Chetty J said:
‘The tying up of Mrs Rautenbach and Mr Maske’s domestic workers was merely to
incapacitate them to facilitate the removal of Mr Maske’s possessions, listed in count 2.

These separate acts constituted one continuous criminal transaction and were not distinct
offences.’

[5] The question whether there had been a duplication of convictions had
not been raised in the appeal of the appellant to the Eastern Cape Division but
on 30 March 2006 leave was granted to him to appeal to this court. The only
issue in this appeal is whether there had been such a duplication of
convictions.

[6] Robbery consists in the theft of property by intentionally using violence
or threats of violence to induce submission to its taking.1 In the present case
the appellant and the men who accompanied him obviously went to the farm
with the intention to steal and to use violence or threats of violence to induce
submission to the taking of whatever they wanted to take. There is no reason
to think that they intended to steal only from the office, which, although
detached from the house, would appear to be close to the house. To the
contrary, all the indications are that the intention was to steal from the office
as well as the house. In order to achieve their purpose, common sense dictates
that they first had to incapacitate the owner of the farm and the male
employees in the immediate vicinity. That is exactly what they did. Two men
got out of the car and the first thing they did was to ask one of the gardeners
where his employer was. Neither of the gardeners saw the other three
occupants of the car get out of the car. They probably did so immediately
after the two gardeners had been called to the office and it is probably only
then that one or more of the robbers entered the house. The theft from the
office and the theft from the house nevertheless took place at about the same
time. Mrs Rautenbach had already been tied up in the laundry  when she
heard the screaming of Mabele during the assault on him in the office.

1 S v Benjamin and Another 1980 (1) SA 950 (A) at 958H; and J R L Milton South African Criminal Law and
Procedure 3 ed p 642.

[7] In the light of these facts Maske was probably tied up, not only to
induce submission to the taking of the money he kept in his office but also to
induce submission to the taking of goods from his house. In so far as the
goods taken from the house are concerned the assaults on the people found in
the house were committed with the same object in mind. However, proof of
the assault on Maske and of the theft of the goods taken from the house would
have proved the robbery in respect of the goods taken from the house without
any evidence of the assaults on Mrs Rautenbach and the domestic servants.
See in this regard Ex parte Minister van Jusitisie: In re S v Seekoei 1984 (4)
SA 690 (A). In that case the accused assaulted a woman at her home on a
farm and forced her to point out the keys of her shop. The shop was
approximately two kilometres from the house. He then tied her to a pole and
drove to the shop with her motorcar where he stole money and goods. At
707E-G Rabie CJ said:
‘In die onderhawige geval, kan in hierdie verband gesê word, het daar `n tyd verloop
tussen die oomblik waarop die klaagster aangerand is en die oomblik waarop die goed uit
die winkel gesteel is, en daar was ook `n afstand van ongeveer twee kilometer tussen die
winkel en die plek waar die klaagster aangerand en vasgemaak is, maar hierdie verskille in
tyd en afstand is van geen wesenlike belang nie: die toepassing van die geweld en die
diefstal waarop daardie geweld gerig was en wat deur daardie geweld moontlik gemaak is,
was wesenlik één aaneenlopende – en daarby één beplande – optrede wat die misdaad roof
uitmaak.’

[8] To determine whether there had been an improper duplication of
convictions the courts have formulated certain tests. However, these tests are
not equally applicable in every case. One such test is to ask whether two or
more acts were done with a single intent and constitute one continuous
criminal transaction. Another is to ask whether the evidence necessary to
establish one crime involves proving another crime.2 In the present case, for
the reasons stated above, it is probable that the theft of the money from the

2 S v Grobler and Another 1966 (1) SA 507 (A) at 511G-H; and S v Prins and Another 1977 (3) SA 807 (A)
at 814C-E.

office and from the house by the use of violence to induce submission was
done with a single intent and constituted one continuous criminal transaction.

[9] The other test is not applicable, at least not if literally applied, in the
case of the theft of various articles at the same time and place. If a person
were in these circumstances charged with a separate offence in respect of each
item stolen, evidence necessary to prove the one charge would not prove the
theft of the other item. Yet, in such a case a conviction of an offence in
respect of each item stolen will constitute an improper duplication of
convictions (see S v Verwey 1968 (4) SA 682 (A) at 687F – 688B and 689D-
F).

[10] For these reasons I am satisfied that the theft of the money from the
office and the theft of goods from the house by the use of violence to induce
submission constituted one offence and that the appellant’s conviction on
counts 1 and 2 constituted an improper duplication of convictions. It follows
that the conviction in respect of count 2 should be set aside.

[11] The following order is made:
The appeal is upheld. The appellant’s conviction and sentence in respect of
count 2 are set aside.

__________________
P E STREICHER
JUDGE OF APPEAL

CONCUR:
HEHER JA)
KGOMO AJA)