CASE NO.: CR 88/05
SUMMARY
THE STATE
versus
DONALD TJIVIKUA
HOFF, J et VAN NIEKERK, J
28 JULY 2005
REVIEW
Accused convicted of robbery - put hand into pocket of victim and
removed N$90 - no force used - victim not aware of accused's act reliance on authorities regarding difference between bag-snatching and
pickpocketing - pickpocketing constitutes theft because there is no
violence - conviction of robbery substituted with conviction of theft.
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CASE NO.: CR 88/05
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
versus
DONALD TJIVIKUA
(HIGH COURT REVIEW CASE NO.: 788/05)
CORAM:
Delivered:
HOFF, J et VAN NIEKERK, J
28 July 2005
________________________________________________________________________
REVIEW JUDGMENT:
VAN NIEKERK, J:
The accused was charged with robbery in that he -
“..............did unlawfully and with the intention of forcing him into
submission, assault/threaten to assault Mathias Sam by grabbing
property by force and unlawfully and with intent to steal took (sic) from
him cash in the amount of N$90, the property of or in the lawful
possession of the said Mathias Sam.”
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The accused pleaded guilty and when questioned in terms of section
112(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of 1977), the
following was inter alia recorded:
“Q:
It is alleged that you met Mathias Sam there and you grabbed
cash by force from him, do you agree sir.
A:
That's correct.
Q:
How much force did you use.
A:
I entered into his pocket and took out his money.
Q:
Was he aware that you were taking his money.
A:
No
Q:
If he knew would he have agreed that you take his property - cash.
A:
No.”
After the questioning continued and was completed, the accused was
convicted.
Before sentence the public prosecutor inter alia stated:
“He is a first offender.
He pleaded guilty though no amount of force
used. He took out money of the victim's pocket.”
I asked the magistrate on review whether the element of violence or
threats of violence was sufficiently established to convict of robbery.
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The learned magistrate responded with reliance on several cases that it is
clear that neither violence nor threats of violence were admitted and that
there seems to have been insufficient questioning in terms of section 112
(1)(b). She suggests that the accused be convicted of theft.
In S v Gqalowe 1992 (2) SACR 172 (E) MULLINS J provided a useful
exposition of the important authorities regarding the difference between
cases of so-called bag-snatching and pickpocketing. It is useful because
it also serves to clarify why pickpocketing is considered to be theft and
not robbery. He said at p173 - 174:
“At one time bag-snatching was regarded as theft and not robbery. R v
Matshaba 1961 (3) SA 78 (T). More recently, however, a distinction has
been made between cases of bag-snatching where the bag or other article
is being physically held by the complainant, and cases of pickpocketing.
In the former type of case it has been held to be robbery, even if there is
no actual resistance by the complainant. In the case of S v Sithole 1981
(1) SA 1186 (N), reference was made to the 'traditional view' that bagsnatching was theft and not robbery, and the Court referred to the obiter
dictum of Rumpff CJ in S v Mogala en 'n Ander 1978 (2) SA 412 (A) at
415H, in which he questioned this 'traditional view' in the following
terms:
'Ek vind dit moeilik om te verstaan waarom 'n persoon wat met
geweld 'n handsak uit 'n vrou se hand ruk, nie geweld pleeg nie (al
hoef dit gering te wees) met die doel om die handsak te ontneem.
Dit skyn my haarklowery te wees om te sê dat die geweld
"toevallig" is, of dat die geweld die slagoffer nie in 'n toestand van
onmag plaas nie. Die gryper weet goed dat hy alleen deur 'n
onverwagte vinnige en harde ruk die handsak kan kry. Hy weet
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dat sy slagoffer weerstand sou bied indien hy dit gewoonweg sou
probeer vat. Daarom moet hy die slagoffer se greep en verdere
weerstand by voorbaat uitskakel deur 'n vinnige handeling wat uit
geweld bestaan. Die verskil tussen die sakkeroller en die grypdief
lê juis daarin dat eersgenoemde met behendigheid my beurs of
portefeulje verkry, terwyl die grypdief alleen met geweld kan slaag.
Hoewel by die gryp van 'n handsak gewoonlik die ontneming van
die handsak saam met die pleeg van die geweld gaan, is die geweld
'n sine qua non vir die gevolg.'
(a free translation follows:)
“I find it difficult to understand why a person who snatches a
handbag with violence from a woman’s hand does not commit
violence (even if it needs to be slight) with the purpose to take
away the handbag. It seems to me to be a splitting of hairs to say
that the violence is “coincidental”, or that the violence does not
place the victim in a condition of powerlessness. The snatcher
knows well that he can only obtain the handbag by an unexpected
quick and forceful grab. He knows that his victim would offer
resistance if he should try to take it normally. For that reason he
must eliminate the victim’s grip and further resistance in advance
by a quick act which consists of violence. The difference between
the pickpocket and the bag-snatcher lies precisely therein that the
first mentioned obtains my purse or wallet with skill, whereas the
bag-snatcher can only succeed with violence. Although in the case
of the snatching of a handbag the taking of the handbag usually
goes with the commission of the violence, the violence is a sine
qua non for the result."
A distinction was therefore clearly drawn between bag-snatching, which
he regarded as robbery, and pickpocketing, which he regarded as theft.
In Sithole's case, at 1188C-E, Thirion J sought to analyse this distinction
as follows:
'Perhaps the problem of ascertaining the nature of the violence
required for a theftuous taking to become robbery can best be
approached by having regard to specific instances of violence
which have come to be accepted as the kind of violence which
either is or is not that required for robbery. The culprit who
stealthily cuts the strap by which a handbag is suspended from a
woman's shoulder in order to clandestinely remove and steal the
handbag and who achieves his purpose in that manner is not
guilty of robbery but of theft. Similarly the culprit who succeeds in
deftly opening a handbag hanging from a woman's arm and who
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thereafter surreptitiously removes and steals the contents of the
bag is guilty of theft only.'
Later, at 1189A-B, the judgment continues:
'Although theft is usually committed stealthily and clandestinely,
secrecy is not an essential element of theft. Although violence is
an essential element of robbery it does not mean that a robbery
may not be accompanied by a measure of stealth. Essentially,
however, the difference between robbery and theft remains the
element of violence in robbery.
From the aforegoing examples I would conclude that the intention
with which and the purpose for which the violence is used in
committing a theft are all-important considerations in determining
whether the taking amounts to robbery. For a taking of property to
amount to robbery the violence must not be directed against the
person of the victim and with the intention of overcoming,
preventing or forestalling resistance from the victim to the taking
of his property.'
Finally, at 1190B-C, the principles are summed up as follows:
'In my view, for handbag snatching to amount to robbery it is
sufficient if the culprit intentionally uses force in order to
overcome the hold which the victim has on the bag for the purpose
of ordinarily carrying or holding it, or if the culprit intentionally
uses force to prevent or forestall resistance which he thinks might
be offered to the taking if the victim were to become aware of his
intentions. It is not necessary that the victim should actually have
offered resistance to the taking or that she should have held on to
the bag with the specific intention of denying the culprit
possession of it.'
Sithole's case was followed in S v Mofokeng 1982 (4) SA 147 (T) and in S v
Witbooi 1984 (1) SA 242 (C). The headnote to the latter case reads:
'For robbery, a handbag snatcher must have used force or a threat
of force with the intention of thereby eliminating his victim's will to
resist, either by overcoming her resistance or preventing
resistance by her so as to take the victim's goods. It is thus not
necessary that the victim must offer resistance. The handbag
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snatcher who snatches his victim's handbag from her suddenly
and quickly indeed intends to obviate resistance. He knows that
his victim would resist should he ordinarily attempt to take it.
Therefore he must eliminate his victim's grip and further
resistance at the outset by a sudden movement which constitutes
a force. The handbag snatcher who employs force in order to
release his victim's handbag from her grip or to prevent his victim
offering resistance, thus taking the handbag from his victim, is
accordingly guilty of robbery.'
It is clear from these authorities that the mere fact that the complainant
is dispossessed of an article carried on his person does not per se
amount to robbery. Obviously, in every case, if the complainant were
aware of the removal of such article, eg from his pocket, by stealth, he
would seek to prevent such removal. Theft of goods from a house is not
robbery, however, merely because the complainant would notionally offer
resistance to such removal if he were aware thereof.
The distinction between bag-snatching, which will usually amount to
robbery, and pickpocketing, which is theft, may be a fine one, but the
distinction must not be allowed to be so blurred as to eliminate such
distinction altogether. The facts of each case must be carefully
examined.”
On the facts of the matter before me the accused in response to the
magistrate's question at first admitted that he grabbed cash by force
from the complainant. When he was asked how much force he used, he
replied that he “entered into” the victim's pocket and took out the money.
He said that the victim was not aware that the accused was taking the
money.
The learned magistrate says she should have asked more
questions, presumably to clear up the contradictions in the accused's
first mentioned admission and the other responses.
I agree that she
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should have clarified the matter.
However, in the end the prosecutor
accepted the version of the accused that no amount of force was used.
In the circumstances the matter must be dealt with on the basis that the
accused used no force, but that he used stealth, as the complainant was
not aware of the action. I agree with the magistrate that the elements of
theft have been proved.
I have considered the magistrate's suggestion that the sentence should
remain the same. The offence of robbery is generally considered to be
graver than theft because of the elements of violence or threats of
violence.
I think the sentence should reflect this. The sentence as
originally proposed by the prosecutor seems to me to be in order.
The resulting order is:
1.
The conviction of robbery is set aside and substituted with a
conviction of theft.
2.
The sentence of 7 (seven) months imprisonment is set aside and
substituted with a sentence of N$400.00 (Four hundred Namibia
Dollars) or 4 (four) months imprisonment.
backdated to 29 March 2005.
The sentence is
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___________________________
VAN NIEKERK, J
I agree
____________________________
HOFF, J
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