- S v Van Schalkwyk Appeal Case no A145/2020, dated 6 May 2021, High Court Cape Town (WCC)
On 31 March 2017, Mr Nolan van Schalkwyk, the accused, and another man (hereinafter referred to as “the second assailant”) attempted to rob the complainant, who was walking towards the Rentech Station in the Belhar area in the Cape Peninsula at around 06:15, while on his way to work. It was still completely dark.
The accused approached the complainant with a small, greyish, imitation toy gun (Afrikaans: “nagemaakte speelgoedgeweer”) in his hand. The imitation toy gun was pointed at the complainant’s body and the accused demanded that the complainant hand the bag that he had on his back, to the person behind him (the second assailant) who was pulling at the bag.
While the accused was pointing the imitation toy gun at the complainant, Const Grant David Abrahams, approaching from his front, behind the accused, stopped the attempted robbery and arrested the accused.
The second assailant who was behind the person pulling at the bag and demanding that the complainant hand it over, also saw Const Abrahams coming whereupon he ran away. It was, however, too late for the accused to run away whereupon he was arrested by Const Abrahams.
The trial before the trial court
In due course the accused was charged before the regional court (“the trial court”) of attempted robbery with aggravating circumstances (Afrikaans: “met verswarende omstandighede”).
In section 1 of the Criminal Procedure Act 51 of 1977, aggravating circumstances is defined as meaning that -
“in relation to -
(b) robbery or attempted robbery, means -
(i) the wielding of a firearm or any other dangerous weapon;
(ii) the infliction of grievous bodily harm; or
(iii) a threat to inflict grievous bodily harm, by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence”.
(Emphasis added by Pollex.)
In the trial court, Const Abrahams testified that he acted upon information gained of robberies in that area referred to, whereupon he stood in the dark in the yard of a house when he saw the three men approaching. When he (Abrahams) heard a scream, he reacted whereupon the accused was subsequently arrested. As stated supra, the second assailant ran away.
According to the accused, in the trial court, he stated that his intentions and actions on that particular morning was to rob people in the area referred to and that he and the second assailant on that particular morning had already robbed someone. The accused had, according to the evidence of both the complainant and Const Abrahams an imitation toy gun on him upon his arrest.