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[2011] ZAGPJHC 239
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S v Motsema (A420/2003) [2011] ZAGPJHC 239; 2012 (2) SACR 96 (GSJ) (23 November 2011)
REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO: A420/2003
DATE: 23/11/2011
In the matter between:
LUCAS KGOMOTSO MOTSEMA
...................................
Appellant
And
THE
STATE
...................................................................................
Respondent
JUDGMENT
JOFFE J:
This is said to be an appeal by Mr Lucas Kgomotso
Mosema, the appellant, against his conviction on 27 September 2001
in the Regional
Court for Southern Transvaal held at Germiston on
each of four counts arising out of two related incidents on 22
August 2000.
The appellant also appeals against the severity of the
sentences imposed upon him.
The first count was of armed robbery for which he was
sentenced to fifteen years’ imprisonment. Particulars alleged
in the
charge was that on 22 August 2000 and at or near Edenvale the
appellant had assaulted Gareth Manson and Candice Seoukas, and had
then and there attempted to rob them of a Colt bakkie with
registration number KNF 385 GP and of some unspecified jewellery and
an unstated number of cell phones. It was alleged that aggravated
circumstances were present and that the appellant used firearms.
The second count was that of the attempted murder of
two policemen for which he was sentenced to ten years’
imprisonment.
Particulars alleged in the charge was that on 22
August 2000 and at or near Ivory Park the appellant had attempted to
kill Sergeant
Ferdi Gobe and Inspector Bernard Bastian Mars, both of
North Rand Flying Squad of the South African Police Service, by
shooting
at them.
The third count was of the unlawful possession of two
pistols in contravention of section 2, read with other sections of
the Arms
and Ammunition Act 75 of 1969 for which he was sentenced to
four years’ imprisonment. The particulars alleged were that at
the time and place mentioned in count 2 the appellant had unlawfully
possessed a nine millimetre Glock pistol and a 7.65 millimetre
pistol, both of which were alleged to be semi-automatic weapons. The
magistrate did not find the allegation that they were semi-automatic
weapons to have been proved.
The fourth count was of the unlawful possession of
ammunition in contravention of section 36, read with other sections
of Act
75 of 1969 for which he was sentenced to one year
imprisonment. The charge contained the allegation that the
prosecutor was unaware
of the number of rounds of ammunition that
had been in each of the two pistols.
The total of the sentences was therefore an effective
period of imprisonment of thirty years.
At the trial the appellant was represented by Ms
Swiegelaar. For purposes of the appeal Mr Jacobs appeared on his
behalf. The
appeal was opposed on behalf of the State by Ms Bell.
The notice of appeal was drawn by the appellant
himself. It is apparent that he is not a person with any legal
training and that
he did not understand the purposes of a notice of
appeal. He has merely used the notice of appeal as an opportunity to
restate
his version of the facts, a version that was rejected by the
trial court as false beyond reasonable doubt. The notice of appeal
contains no grounds for the suggestion that the magistrate’s
findings of fact were incorrect and no grounds upon which
the
magistrate’s reasons for his findings of fact could be brought
into question.
In Mr Jacobs’ heads of argument he has briefly
revealed the evidence on the magistrate’s findings and neither
there
nor in his submissions this morning has he been able to put
forward any substantial grounds of appeal. In these circumstances
there is no valid appeal against the convictions before us.
Nevertheless, I have read the record and it appears to
me that there is a point that this court should take up in the
exercise
of its review jurisdiction in terms of section 304(4) of
Act 51 of 1977. It relates to count 3 in which it was alleged that
the
appellant had been in unlawful possession of each of two
pistols.
In addition, consideration must be given to the appeal
against the severity of the sentences.
As a preliminary before dealing with those questions I
shall summarise the facts as found by the magistrate:
During the evening of 22 August 2000 at about 19:45 Mr
Gareth Manson drove his silver coloured Colt bakkie bearing
registration
number KNF 385 GP to his house in Edenvale. With him
in the cab of the bakkie was his girlfriend, Ms Candice Seoukas, in
the
passenger’s seat.
Manson turned into his driveway and stopped there so
that Ms Seoukas could get out and open the garage door. At that
moment
two black men appeared, each with a firearm in his hand, one
at the driver’s door and one at the passenger’s door.
Manson was robbed of the bakkie, said to be worth R210
000.00 and of a gold chain, a gold watch, a ring, a Motorola V388
cell
phone, and his wallet, altogether worth some R20 000.00.
The two black men drove off with the bakkie. Neither
Manson nor Ms Seoukas could identify either of them afterwards.
Manson went inside the house and telephoned
immediately to Vodacom 112 and reported the incident.
That same evening at about 19:45 Sergeant Ferdi Gobe
and Inspector B. B. Mars of the North Rand Flying Squad were out on
patrol
in a police vehicle. They received a radio message broadcast
on the police frequency to keep a lookout for a silver coloured
Colt bakkie with registration number KNF 385 GP that had just been
taken in the course of a robbery in Edenvale.
Within a short while and at about 20:00 when they were
at Ivory Park near Modderfontein Road, some fifteen or twenty
kilometres
from Edenvale, they saw a silver coloured bakkie ahead
of them. Sergeant Gobe drove up close behind it until he could see
that
the registration number was indeed KNF 385 GP. He confirmed
with radio control that this was the vehicle they had been told to
look out for.
Having had the confirmation Sergeant Gobe switched on
the blue light and the siren of the police vehicle he was driving
as an
indication to the driver of the silver Colt bakkie to draw
over to the side of the road and stop. Instead the Colt bakkie
accelerated
away in an obvious attempt to escape. Sergeant Gobe and
Inspector Mars gave chase.
After a pursuit of about 800 metres, the Colt bakkie
came to an intersection controlled by a stop sign and made a sharp
left
turn. Whilst the two vehicles were travelling at right angles
to each other, separated by a distance of about 100 metres, the
passenger side window of the Colt bakkie opened and the passenger
began to fire shots at Sergeant Gobe and Inspector Mars in
the
police vehicle. This was the start of the shooting which is the
basis of the charge of attempted murder in count 2. Inspector
Mars
observed that the passenger was wearing a dark coloured shirt with
white or light coloured stripes.
Sergeant Gobe closed the distance between the police
vehicle and the Colt bakkie. The Colt bakkie crossed over to the
right-hand
side of the road. About 200 metres from the intersection
the Colt bakkie had some sort of glancing collision with an
oncoming
Nissan Sentra. Sergeant Gobe began to return the fire that
had been coming from the Colt bakkie.
The Colt bakkie swung to its left across the road
ahead of the pursuing police vehice. It left the road and came to
rest in
a ditch on the left-hand side of the road. Sergeant Gobe
brought the police vehicle up on the driver’s side of the
Colt
bakkie and stopped about 20 metres from it.
Two black men emerged from the cab of the Colt bakkie,
both through the driver’s door and the two policemen got out
of
their vehicle. Each of the two men from the Colt bakkie had a
handgun and both of them began to fire at Sergeant Gobe and
Inspector
Mars. This continuation of the murderous attack also
formed part of the basis of the charge of attempted murder made in
count
2.
The two policemen returned the fire and the two
suspects dropped to the ground no more than about five metres from
the Colt
bakkie. The firing stopped. The policemen radioed for
further police support and for an ambulance.
When Sergeant Gobe and Inspector Mars approached the
two suspects, it was apparent that both had been hit. Beside the
suspect
in the dark shirt with light stripes, who had been in the
passenger seat, they found a 7.65 millimetre pistol. Upon the
arrival
of the paramedics this suspect was found to have died on
the scene of the shooting.
The other suspect was wearing a plain dark coloured
shirt without stripes. He had been the driver of the Colt bakkie.
Beside
him Sergeant Gobe and Inspector Mark found a 9 millimetre
Glock pistol with two live rounds of ammunition remaining in it.
The latter suspect had been wounded in one leg. He was
taken to Thembisa hospital. He was the accused at the trial and is
today
the appellant.
The version put up by the appellant was that he at
that day paid a visit to a friend named Brian in Rabi Ridge.
Another friend,
named Willie, had given him a lift part of the way
home to Thembisa, but as Willie’s destination had been
Alexandra,
he had dropped the appellant by the roadside. Before the
appellant had walked far and at about 20:00 hours, he had been
overtaken
by an acquaintance of his named Tshepo, driving the
silver coloured bakkie. Tshepo had offered him a lift to Thembisa
and he
had gratefully accepted. After that a police car came up
behind them and for no good reason that the appellant could see,
the
police started to shoot at them. The bakkie had been involved
in a collision and had left the road. The next that the appellant
knew was that he was outside the bakkie lying on the ground and he
had a wound in one leg. An ambulance arrived and took him
to
hospital. He claim to know nothing whatsoever of the robbery or of
any firing at the police. He had not taken part either
in a robbery
or in any shooting at the police, nor had he possessed a pistol or
ammunition.
The appellant’s version was duly tested by
cross-examination. The magistrate held that it could not reasonably
possibly
be true and he rejected it.
The convictions of the appellant on counts 1, 2 and 4
need no further discussion nor does his conviction on count 3,
insofar as
his unlawful possession of the 9 millimetre Glock pistol
is concerned. What must be queried, however, is the magistrate’s
finding that the appellant was in unlawful possession of both the 9
millimetre Glock pistol, used by himself, and also the 7.65
millimetre pistol used by his passenger, who died as a result of the
shooting.
The magistrate stated:
“
Op aanklag 3, die besit van die twee vuurwapens,
dit is so volgens S v Nkosi
1998 (1) SACR 284
(W) dat die beskuldigde
kan wel skuldig bevind word van die besit van nog ‘n vuurwapen
wat hy nie besit het, wat die passasier
besit het. Hy het geweet dat
sy vriend die vuurwapen gedra het, dit gebruik gaan word op die
pleging van die misdryf. Die beskuldigde
het ook daardie vuurwapen
besit…Op aanklag 3 word die beskuldigde skuldig bevind op
besit van die 9 millimeter vuurwapen
sowel as die 7.65 pistool.”
It is apparent that the magistrate has misapplied the
decision in S v Nkosi
1998 (1) SACR 284
(W). The majority of the
court, which judgment was delivered by Mr Justice Marais, held that
where two or more armed robbers
commit a robbery with a common
purpose and use their respective weapons in the course of giving
effect to the common purpose,
it cannot necessarily be inferred that
each robber is a joint possessor of the weapon used by every other
robber. Sometimes and
perhaps often that will not be the position.
However, as the learned judge pointed out further, that
is not to say that there can never be a case of joint possession of
a
firearm by two or more persons. On the contrary, there can be. But
to establish it, the facts to establish joint possession must
be
proved. It must be shown first that the person A having the physical
detention of the weapon had the intention to possess
it, not only
for himself but that he also had the intention to possess it on
behalf of the alleged joint possessor B. Secondly
it must also be
shown that the alleged joint possessor B had the intention that the
person with physical detention A should possess
it on behalf of him,
B.
Those facts cannot automatically be inferred from the
fact of a common purpose to commit an armed robbery using two or
more weapons.
This is so because such a common purpose is equally
consistent with an intention on the part of each robber who has a
weapon,
to possess it for himself alone, even though he may have
agreed to use it in furtherance of the common purposes to commit the
robbery.
Consider for example a case in which an armed robbery
is committed by two or more persons, each of whom is a duly licensed
holder
of a particular handgun, with a common purpose to rob and to
use their respective weapons for the robbery and the getaway. It is
relatively improbable, even if it is not altogether impossible, that
the licensed holder of a firearm, when joining with other
licensed
firearm holders in a common purpose to rob would truly intend to
acquire joint possession of the weapons of his accomplices
which he
had no licence to possess.
He would thereby needlessly expose himself to
prosecution for unlawful joint possession of the firearms, lawfully
carried by the
other robbers, when the true common purpose to rob
and escape could equally well be accomplished without that added
complication.
There have been a number of cases in which the question
of joint possession in the circumstances of the execution of a
common
purpose has been considered. See for example S v Fibi and
Others 1990 (2) PH 379, Molemane and Others v The State, an
unreported
judgment by Swart J, Roos J concurring in the Transvaal
Provincial Division, referred to in S v Nkosi above at 287f –
i,
Jan Bosch and Others v The State, an unreported judgment by
Streicher J (as he then was), with MacArthur J concurring in the
Transvaal Provincial Division, also referred to in S v Nkosi above
at 289b – d.
S v Khambule
2001 (1) SACR 501
(SCA) at 507e –
509b: This was a case with interesting facts. A group of robbers had
formed a common purpose to disarm
certain security guards of their
weapons in order to pre-empt resistance against an armed robbery
that was aimed principally
at stealing a large sum of money being
delivered in a vehicle.
When by joint efforts of the group the security guards
had been disarmed and their weapons were physically held by certain
of
the robbers, the inference that some of the robbers had taken and
had thereafter illegally possessed the weapons of the security
guards on behalf of all of the members of the group of robbers, was
held to be justified.
The common purpose to disarm the guards plainly
embraced the intention on the part of each member of the group of
robbers that
the particular robbers who were to take possession of
the guards’ weapons were to do so on behalf of all members of
the
group of robbers.
I comment, with respect, that the decision seems
plainly to be correct. However, Olivier JA in commenting at 508b on
the decision
in Jan Bosch and Others v The State above said:
“
[10] Ek kan in beginsel nie sien waarom, in
gepaste situasies en indien die leerstuk van gemeenskaplike oogmerk
toegepas word, die
gemeenskaplike animus om die vuurwapens
gesamentlik te besit, afgelei kan word nie. Indien dit die bedoeling
van die lede van die
groep is om die vuurwapens ter uitvoering van ‘n
roof of moord te gebruik tot hul almal se voordeel, vereenselwig
hulle hul
immers met die besit van die vuurwapens.”
This proposition is entitled to the respect to be given
to an opinion of a learned judge of appeal. Nevertheless, the second
sentence
was not necessary for the decision of Khambule. It was an
obiter dictum. Moreover, it has been disapproved of by three other
learned judges of appeal. In S v Mbuli
2003 (1) SACR 97
(SCA) at
115b Nugent JA with Marais JA and Zulman JA concurring, agreed with
the proposition in Khambule that there is no reason
in principle why
a common intention to possess firearms jointly could not be
established by inference.
However, Nugent JA went on to say with regard to the
second sentence of the passage quoted above from the judgment of
Olivier
JA:
“…
but I do not agree with the further
suggestion that a mere intention on the part of the group to use the
weapons for the benefit
of all of them will suffice for a
conviction.”
The learned judge of appeal upheld the correctness of
the analysis of Marais J in S v Nkosi above.
The question in S v Mbuli was whether the appellant had
been proved to be an unlawful joint possessor of a hand grenade when
he
and two others in the execution of a common purpose had robbed a
bank. The hand grenade had been carried by only one of them. Nugent
JA said at 115f:
“
I do not agree that the only reasonable inference
from the evidence is that the accused possessed the hand grenade
jointly. It is
equally possible that, like the pistols, the hand
grenade was possessed by only one of the accused. Mere knowledge by
the others
that he was in possession of a hand grenade, and even
acquiescence by them in its use for fulfilling their common purpose
to commit
robbery, is not sufficient to make them joint possessors
for purposes of the Act.”
In my judgment the disapproval in Mbuli of the obiter
dictum in Khambule was indeed necessary for the decision and
constitutes
a part of the ratio decidendi. I therefore conclude that
on the basis of S v Nkosi and S v Mbuli the law may now be stated as
follows:
There is no rule of law to the effect that when an
armed robbery is committed by two or more persons with a common
purpose to
commit the armed robbery joint possession of the weapons
used in the robbery is to be inferred.
Joint possession of the weapons can only be inferred
if the facts proved leaves no room for any reasonable inference
other than
that,
Each participant in the common purpose to rob who had
physical control of a weapon intended not merely to use it but
also
to possess it, both for himself and also on behalf of one or
more other participants; and
Each alleged joint possessor who did not himself have
physical control of a weapon intended that one or more of the
weapons
should not merely be used but should also be possessed by
another participant on his behalf.
In the present matter the evidence clearly pointed to a
common purpose between the appellant and the deceased robber to
commit
an armed robbery of the Colt bakkie from Manson, each robbery
using a pistol in furtherance of the common purpose. The common
purpose also extended to the use of their respective pistols to make
good their escape from the police.
The appellant’s possession of the 9 millimetre
Glock pistol was duly proved. However, there was nothing in the
evidence
to justify the magistrate’s conclusion that the
appellant had also possessed a 7.65 millimetre pistol that the
deceased
robber was seen to use and that was found lying beside his
body. The appellant’s conviction of the unlawful possession of
the latter pistol must therefore be set aside.
As regards sentence, Parliament has decreed the
imposition of a minimum sentence of fifteen years’
imprisonment for robbery,
if it involves the taking of a motor
vehicle and a similar minimum sentence for robbery if it is
accompanied by aggravating circumstances.
Aggravating circumstances
include the wielding of a firearm by the robber or by an accomplice
on the occasion of the robbery,
whether before, during, or after the
commission of the offence.
The only exception that could be applicable in the case
of the appellant, who was 24 when he committed the offence, was if
there
were “substantial and compelling circumstances” to
justify a departure from the minimum sentence decreed by Parliament.
In the present case, if there are no substantial and
compelling circumstances, the minimum sentence or a heavier sentence
had
to be imposed, both because firearms were wielded at the time of
the robbery and because a motor vehicle had been taken.
Count 2 was in substance two counts of attempted murder
rolled into one. By firing a number of shots at both Sergeant Gobe
and
Inspector Mars, the accused made an attempt to kill each of
them. The magistrate’s sentence of ten years’
imprisonment
on this count may notionally be seen as two consecutive
sentences of five years each relating to each of the two attempts
respectively,
or it may be seen as two sentences, each of ten years’
imprisonment for two attempts, but running concurrently.
In whichever way the magistrate may have arrived at
this sentence of ten years’ imprisonment for count 2, it does
not appear
to me to be disproportionate to the gravity of the
offence.
In respect of count 3 the magistrate sentenced the
appellant to four years’ imprisonment on the basis that he had
been in
unlawful possession of two pistols. I have indicated that
this was an error. The evidence justified no more than a verdict of
guilty of the unlawful possession of one pistol.
For that offence the sentence laid down in the Arms and
Ammunition Act is a maximum fine of R12 000.00 or three years’
imprisonment
or both such fine and imprisonment. On behalf of the
appellant, Mr Jacobs submitted that the cumulative effect of the
sentences,
even allowing for the reduction of the magistrate’s
sentence of four years’ imprisonment, remained excessive and
this court should intervene and should reduce the sentences.
Ms Bell submitted that it was an extremely serious
offence or serious offences and that there was no room for
interference with
these sentences, apart from what might be
necessary, having regard to this court’s approach to the
question of joint possession
of the pistols.
In my judgment there were no substantial or compelling
circumstances sufficient to justify a departure of the minimum
sentence
prescribed for count 1, nor, as I have indicated, is there
any reason to interfere with the imposition of the ten year sentence
for the attempted murder count, count 2.
With regard to count 3, it is true that the weapons
possessed were used in counts 1 and 2 and that there is therefore a
certain
measure of duplication of the punishment in punishing them
for possession as well as for using them in counts 1 and 2.
Nevertheless,
I regard the offence, and in particular the attempted
murder count, i.e. count 2, as of such a serious nature that no
further
interference with the magistrate’s sentence would be
appropriate than the reduction of the sentence of four years’
imprisonment for possession to the maximum sentence prescribed in
the Arms and Ammunition Act of three years’ imprisonment.
The sentence of one year imprisonment for possession of
ammunition remains appropriate, but, in my view, it should run
concurrently
with the three year sentence on count 3. For these
reasons I would make the following orders:
The appeal against the conviction of the appellant on
counts 1, 2 and 4 is dismissed.
The appeal against the conviction of the appellant on
count 3 is upheld to the extent of the deletion from the
magistrate’s
verdict of the words “sowel as die 7.65
pistool.”
The appeal against the sentences imposed by the
magistrate on 27 September 2001 is upheld to the extent that, with
effect, retrospective
to 27 September 2001, the sentences are
amended to read as follows:
On count 1 the appellant is sentenced to fifteen
years’ imprisonment.
On count 2 the appellant is sentenced to ten years’
imprisonment.
On count 3 the appellant is sentenced to three years’
imprisonment.
On count 4 the appellant is sentenced to one year
imprisonment.
The sentence on count 4 is to run concurrently with
the sentence on count 3.
Effectively, the appellant is sent to prison for 28
years.
DATED THE 23rd DAY OF November 2011 AT JOHANNESBURG
______________________
C. J. CLAASSEN J
ON BEHALF OF JOFFE J