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[2014] ZAGPJHC 103
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Ncube v S (A246/2020) [2014] ZAGPJHC 103 (28 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A246/2020
DATE:
28 MARCH 2014
In
the matter between:
SIPHATHENGANE
NCUBE
.......................................
Appellant
And
THE
STATE
..............................................................
Respondent
JUDGMENT
MONAMA,
J
[1]
This is a full court appeal, with leave of the trial court, against
both the conviction
and sentence. On 24 May 2010 the appellant was
convicted by a single Judge on six counts. These are murder read with
the provisions
of Section 51(1) of the Criminal Law Amendment Act 105
of 1997 (the Amendment Act) [
Count 1
];
attempted robbery with aggravating circumstances [
Count
2
]; the unlawful possession of firearm
[C
ount 3
];
unlawful possession of ammunition [
Count
4
]; attempted murder read with the
provisions of Section 51(1) of amendment Act [
Count
5
]; and unlawful possession of firearm
[
Count 6
].
[2]
The appellant was sentenced on 25 May 2010. Count 1 attracted a
prescribed sentence
of life imprisonment in terms of Section 51(1) of
the Amendment Act. The court is entitled to deviate from that
sentence if it
found to exist, substantial and compelling
circumstances. The trial court found such circumstances, and
sentenced the appellant
to
22 years’
imprisonment. On
count 2, (attempted robbery) he was sentenced to
18 years
imprisonment, on count 3 (possession of firearm) he was sentenced to
3 years
imprisonment, on the count 4 (unlawful possession of
ammunition) he was sentenced to
6 months
imprisonment, on
count 5 (attempted murder) he was sentenced to
12 years
imprisonment; and on count 6 (unlawful possession of firearm) he was
sentenced to
3 years
imprisonment. The sentence in counts 2,
3, 4 were ordered to run concurrently with the sentence of 22 years
imposed in count 1.
Finally, the trial court ordered half of 12 years
imposed in respect of count 5 to run concurrently with the sentence
of 22 years
imposed in count 1. He was sentenced to an effective
period of 31 years imprisonment.
[3]
The appeal on the conviction is based on two grounds – the
sufficiency of the
identification evidence and the
admissibility of a statement made to a police officer. As regards the
sentence the appellant
contends that the sentence imposed is
shockingly inappropriate.
[4]
The facts which led to the appellant’s conviction may be
summarised as follows. On
16 September 2007 there was an attempted
robbery in the centre of Johannesburg. It was carried out by an armed
group. The deceased
in count 1, Mr Ismael Patel was shot dead inside
his shop during the attempted robbery. The robbers then fled. During
their escape,
three police officers on foot patrol happened to be in
the vicinity. A shootout with the police ensued during which
Constable Passmore
Morgan Molefe was shot and injured. On 11 February
2008 Inspector Martin Mashao, Captains Timothy Mngomezulu and Lekgowa
Sydney
Magampa arrested the appellant in Hillbrow, Johannesburg.
During the arrest a firearm without serial numbers was recovered.
After
the arrest he was interviewed and allegedly indicated that he
wanted to make a statement. The necessary arrangements were made and
a statement was taken by Lieutenant Colonel Moses Sebastian Khumalo.
Eventually, he was identified by Constables Molefe and Mabe
at the
identification parade on 22 January 2009. During the trial the
admissibility of the statement referred to above, was challenged
and
a trial within a trial was held. The trial court found that the
statement was admissible as a confession.
[5]
During the trial the State led evidence of seven witnesses. The
appellant testified
in his defence and did not call any witnesses. In
addition thereto the court exercised its powers in terms of Section
186 of the
Criminal Procedure Act as amended and recalled two
witnesses to clarify certain issues.
[6]
Constable Molefe and his colleague Constable Mabe testified that on
16 September 2007 they
were in the center of Johannesburg. It was
during the day. They heard a sound of gunshot. They became alert and
observed the appellant
and others running towards them. The appellant
and his companions were armed, and shot at them. Constable Molefe was
shot in the
leg. They never attended any court proceeding in the
magistrate’s court where the appellant appeared. They only
attended
an identity parade and identified the appellant.
[7]
As consequence of the alleged assault in the procurement of the
statement a trial
within a trial was held. Mngomezulu, Khumalo and
Masithela testified for the State and the appellant for himself.
[1]
In essence these witnesses denied assault and the allegations of
coercion. The appellant testified that he was assaulted by various
unknown and known police officers. The assault also included
electrocution. The court evaluated the evidence and found that the
statement was indeed a confession and rejected the allegations of
assault and coercion. The evaluation was thorough. I am
satisfied that there is no misdirection. The contents of the
confession put the appellant on the scene. He was in possession of
a
loaded hand gun and they robbed the patrons of the hair salon, during
which they also shot Mr Patel.
[8]
I now turn to the main trial. In this regard the court relied on the
testimony of
Constables Molefe and Mabe.
[2]
These two officers were eyewitnesses to the shooting. The evidence of
Captains Magampa, Khumalo, Mngomezulu and Inspector Samuel
Masithela
concerned the arrest of the appellant, the interview, the taking down
of the confession and the holding of the identification
parade. The
appellant did not challenge the outcomes of the identification parade
nor it process. Constables Molefe and Mabe
were recalled by the
trial court.
[3]
[9]
I have already summarized the evidence of the eye witnesses to the
shooting. The appellant
denies that he was part of the robbers. He
denies the knowledge of the death of Mr Patel. He challenged the
evidence of Molefe
and Mabe regarding the identification. These
witnesses gave reasons why they identified the appellant at the
identification parade
even though it was held approximately 16 month
after the shooting. It is so that they did not give any specific
feature of the
appellant.
[10]
The approach regarding the evidence of identity is well settled. It
is trite that the court must
caution itself in dealing with such
evidence. In
S
v Mthetwa
[4]
it was stated that:
“
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must be tested”
Honesty
does not automatically translate into reliability because the
accuracy of a witness depends on various factors. These include
the
observation , recollection and narration. Sometime the magnitude of
the event play a significant part in the process
of identification .
The event may be such as to leave within the memory of the witness an
indelible mark which cannot be tested
by mathematical equation.
However, it is paramount that the evidence of identification is
approached with caution.
.
[11]
The trial court was aware of the human fallibility. It applied the
guidelines rigorously. The
evidence of both eye-witnesses was
assessed and the reliability of their observations at the
identification parade corroborated
their identification. It took them
less than 30 seconds to point the appellant. The trial court also
invoked its power in terms
of Section 186 of the Criminal Procedure
Act, 51 of 1997, as amended. It recalled Constable Molefe to get more
evidence of how
he was able to identify the appellant. After careful
assessment of his evidence of how he remembered the appellant he was
found
credible. He gave answers as to why he identified the appellant
after a lapse of time. His answers were satisfactory and the
conclusion
of the court is without misdirection. The appellant’s
contention about proof of the identity is without merit and stand to
be dismissed.
[12]
Constables Mabe and Molefe corroborated each other about the shooting
and to some extent about the
identification. In this regard they took
about 20 – 30 seconds to point the appellant at the
identification parade whom they
had last seen some approximately 16
months ago before the parade. These witnesses testified how their
attention was drawn and how
they were confronted by the robbers. They
did not witness how Mr Patel was shot and killed. Therefore, on
that aspect, their
evidence is circumstantial. But as regard the
attempted murder they tendered direct evidence. In my view, the trial
court approached
their evidence properly and there is no misdirection
in that regard. Therefore the conviction on the basis of
dolus
eventualis
is well founded.
[13]
In its judgment the trial court criticised certain aspect of Captain
Mngomezulu’s conduct
during the process of the handling of the
gun. This is a gun which nwas found in the flat of the appellant.
This gun is subject
matter of count 6. Notwithstanding the said
criticism, the trial court was correct to find that there is no
reason to reject the
evidence
[5]
.
This criticism was not material. In any event, not every criticism
renders evidence inadmissible. The trial court was always conscious
that the appellant had to receive a fair trial.
[14]
In my view the conviction is proper on all counts.
[15]
I now turn to the appeal on sentence. It is trite that with regard to
sentence, the appeal court may
only interfere with the imposed
sentence on limited grounds. It will only interfere where there is
material misdirection or where
the sentence is vitiated by
irregularity or is disturbingly inappropriate (
S
v Rabie
1975 (4) SA 855
(A) at 857 D
–F). First, the trial court found the existence of the
substantial and compelling circumstances which enabled
it to deviate
from the prescribed sentences in terms of the Amendment Act as
regards the murder of Mr Patel. The court considered
the personal
circumstances and mitigatory factors. The appellant is a first
offender and had responsibilities. He was employed
and supported his
mother and two children. By the same token it also assessed the
aggravating circumstances. The murder of Mr Patel
was both heinous
and brutal. The shooting took place during the day in a busy and
crowded street. The gravity of the offences that
the accused have
been convicted of cannot be over emphasised. The illegal guns are
used daily to commit serious crimes. The culprits
must be
appropriately punished. The society demands protection from our
courts. The sentence of 22 years is, in my view appropriate
and so is
the sentence in respect of counts 3 and 4.
[16]
However, during the sentencing process the trial court materially
misdirected. Firstly, the offences
in Counts 2 (attempted robbery
with aggravating circumstances) and 5 (attempted murder) falls within
Part 4 of Schedule 2 of the
Amendment Act. This Act prescribes 5
years’ imprisonment in respect of a first offender, of which
the appellant is. The
sentences of 18 and 12 years respectively
are not sanctioned, and could therefore not competently be imposed.
[17]
Where an accused person is convicted of more than one offence, it is
salutary practise for a
sentencing court to consider the cumulative
effect of the respective sentences. In this regard, an order that the
sentences should
run concurrently may be used to prevent an accused
person from undergoing a severe and unjustifiably long effective term
of imprisonment
(
S v Whitehead
1970 (4) SA 424
(A)).
[18]
An order that sentences should run concurrently is called for where
the evidence shows that the
relevant offences are ‘inextricably
linked in terms of the locality, time, protagonists and, importantly,
the fact that they
were committed with one common intent’ (
S
v Mokela
2012 (1) SACR 431
(SCA) paragraph [11]. Put differently,
where there is a close link between offences, and where the element
of one are closely bound
up with the elements of another, the
concurrence of sentences in particular should be considered (
S v
Mate
2000 (1) SACR 552
(T).
[19]
In the present case, there was indeed an inextricable link between
the murder and attempted murder
in terms of the locality, time and
the protagonists. There was also substantial overlap in the overall
intent in respect of both
crime of rape. In my view, the failure of
the trial court to take these factors into consideration resulted in
the cumulative effect
of sentence being disturbingly inappropriate.
These factors justified an order of occurrence in the sentences. In
the light of
this, we are at large to interfere with the sentence and
impose what we consider to be an appropriate sentence in the
circumstances.
[20]
As regards count 6 it was committed under different circumstances,
and is unrelated to events
of September 2007. Accordingly, I find no
misdirection justifying interference.
This court is only entitled to interfere in respect of count 2 and 5.
The trial court has already ordered a portion to run concurrently
in
respect of count 5. In my view, the sentence of five years in respect
of each count is more appropriate. However, the sentence
in count 5
should be ordered to run concurrently with the sentence in count
1.The sentence in count 1 is, in my view, sufficient
punishment which
fits the crimes, the personal circumstances of the appellant and the
interest of society.
[21]
In the circumstances I make the following order: The appeal against
the sentence is upheld to
the extent reflected in this order: The
sentence of the trial court is set aside and the following is
substituted for it:
‘
The
accused is sentence as follows:
21.1
Count 1- 22 years
imprisonment;
21.2
Count 2 – 5 years
imprisonment;
21.3
Count 3- 3 years
imprisonment;
21.4
Count4 – 6
months imprisonment;
21.5
Count 5- 5 years
imprisonment
21.6
Count 6 – 3 years
imprisonment,
21.7
The sentence imposed in counts 2, 3, 4 and 5 are ordered to run
concurrently with the sentence in count
1;
21.8
The effective period of imprisonment is 25 years; and
21.9
The sentences are antedated to 25 May 2010
[22]
In terms of
Section 282
of the
Criminal Procedure Act 51 of 1977
, the
substituted sentences are antedated to 25 May 2010, being the date on
which the appellant was sentenced.
RE
MONAMA
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur
T
M MAKGOKA
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
T
D VILAKAZI
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for the Appellant:
Adv. E Tlake
Instructed
by:
Justice Center, Johannesburg
Counsel
for the State:
Adv. L Ngodwana
Instructed
by:
Director of Public Prosecutions, Johannesburg
Date
of hearing:
17 October 2013
Date
of judgment:
28 March 2014
[1]
Pages
94 – 176 of the Record.
[2]
See
the Summary in Paragraph 6 (above)
[3]
Section
186
of Act 51 of 1977, as amended. “the Act”
[4]
1972
(3) SA 766 (A).at 768.
[5]
S
v Mkhohle 1990(1) SACR 96 (A) at 98F