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2014
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[2014] ZAGPJHC 156
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Kubheka v S (A38/2014) [2014] ZAGPJHC 156 (7 August 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case
No: A38/2014
Appeal
Date: 4 August 2014
DATE:
07 AUGUST 2014
In the matter
between:
MDUDUZI
KHUBHEKA
............................................
Appellant
And
THE
STATE
.............................................................
Respondent
JUDGMENT
[1] The appellant
was accused 1 in the court a quo where he was convicted together with
his co-accused, accused 2, by the Regional
Magistrate, Johannesburg
on a number of charges.
[2] On count 1 he
was convicted of robbery with aggravating circumstances having robbed
the complainant of R400 cash and a cell
phone after hitting the
complainant over the head with a firearm. He was sentenced to ten
years’ direct imprisonment.
[3] On count 2 he
was charged with robbery of a firearm, but was only found guilty of a
contravention of section 36 of Act 52 of
1956, being in possession of
suspected stolen property i.e. a firearm without being able to supply
a reasonable explanation for
such possession. On this charge he was
sentenced to five years’ imprisonment.
[4] On count 3 he
was convicted of possessing an unlicensed firearm being a Norinco
pistol with serial number 47002233. This is
the firearm mentioned in
count 2 that was found in his possession and which was licensed in
the name of Mr More. He was sentenced
to five years’
imprisonment on this charge.
[5] On count 4 he
was found guilty of the unlawful possession of ammunition, being
three live rounds. He was sentenced to four years’
direct
imprisonment on this charge.
[6] The court a quo
ordered that the sentences imposed on counts 3 and 4 were to be
served concurrently which meant that the appellant
was effectively
sentenced to a term of twenty years’ imprisonment.
[7] With leave, the
appellant now appeals both the convictions and the sentences. He was
legally represented throughout his trial.
COUNT 1
[8] The State
offered the testimony of three eyewitnesses to the assault and
robbery of the complainant which occurred on 14 February
2006 in Bree
Street in front of the entrance to a tavern by the name of “Abangane”
at about 16:45 in the afternoon.
The complainant, Mr Ncube and his
girlfriend Portia walked down the pavement in Bree Street past the
aforesaid tavern. As they
passed its entrance, they were surrounded
by five men who demanded money and his cell phone. One of them had a
firearm which was
pointed at the complainant. A fight broke out
between the five assailants and the complainant which was witnessed
by two policemen,
Messrs Mabotja and Matjeke who both testified for
the state. The assailant in possession of a firearm hit the
complainant over
the head with the firearm causing blood to be
spilled on the assailant’s white T-shirt.
[9] The two
policemen ran to the scene to break up the fight. Four of the
assailants fled in one direction and another fled back
into the
tavern at the approach of the policemen. The complainant followed the
assailant who went back into the tavern and found
him hiding in the
toilet. He returned to the street and told the police that one of his
assailants was hiding in the toilet in
the tavern. The police then
arrested that assailant, who was accused 2 in the court a quo.
[10] Mabotja saw the
complainant being assaulted with a firearm while trying to remove the
complainant’s cellphone and cash.
When the assailants fled,
Mabotja followed the assailant armed with a firearm but lost sight of
him when he disappeared into a
taxi rank. He discontinued the chase
and returned to Bree Street and the tavern. There he was told by the
complainant that one
of the assailants is hiding in the tavern where
he then arrested accused 2. Accused 2 was told that he would be
released if he
could lead them to the assailant who was in possession
of the firearm and who assaulted the complainant. As a result accused
2
led them to his own flat where they found the girlfriend of accused
2 as well as a white T-shirt with blood marks on it. Accused
2 and
his girlfriend then, according to Mabotja, led them to a flat in
Hillbrow. While there, the police received a phone call
that led them
to another flat where they found the appellant. The appellant was not
wearing a shirt. The police arrested the appellant
and brought him to
their car where the complainant immediately indicated to them that
the appellant is the person who assaulted
him with a firearm. The
appellant also was found in possession of the stolen firearm
containing three live rounds belonging to
Mr More stashed away in a
laundry bag.
[11] The
complainant’s girlfriend Portia indicated the appellant as the
complainant’s attacker who hit him over the
head with a
firearm. Her evidence amounted to a dock identification. She did,
however, confirm the complainant’s evidence
that the person who
attacked him with a firearm was of a dark complexion.
[12] The complainant
gave a description of the appellant as follows:
“He was dark
in complexion and then he had shaved hair. And then he was wearing a
white T-shirt and with red eyes.”
When the police
brought the appellant to him, he immediately identified the appellant
as the assailant who attacked him with a firearm.
In the light
thereof there was no point in holding an identification parade as the
complainant had already identified soon after
the event the attacker
who robbed him and assaulted him with a firearm.
[13] The effect of
this evidence is that three State witnesses namely the complainant,
his girlfriend Portia and the policeman Mabotja
identified the
appellant as the assailant who pointed the firearm at the
complainant, demanding money and the cell phone and eventually
assaulting him by hitting the complainant over the head with the
firearm. Furthermore on the evidence of the police and the
complainant,
accused 2 led them to the appellant. Absent in the
evidence of accused 2 is any indication at any stage that he told the
police
that they had apprehended the wrong person and that the
appellant is not his “friend”. In addition, the charge
sheet
indicates the same address for both the appellant and the
second accused. They must have known one another.
[14] The appellant’s
version amounts to an alibi. He denied having been involved in the
incident. He also denies knowing accused
2 although both of them hail
from Zimbabwe. In this regard he is contradicted by the evidence of
accused 2 who said that he told
the police his “friend, in
whose company he was”, stayed in Hillbrow. They drove to a
particular flat, entered the
flat and reappeared with the appellant.
The only reasonable inference to be drawn from these facts is that
accused 2 indeed led
the police to the appellant, because they were
friends and known to one another.
[15] Much was made
by counsel for the appellant of a contradiction in the state’s
case. The complainant said the firearm was
silver whereas Mabotja
said it was black. In my view, nothing turns on this. The state’s
case is not that the robbery was
committed with a specific firearm.
For all we know, it could have been a toygun. The specificity of a
firearm is only relevant
to counts 2 and 3 and not count 1.
[16] In my view the
evidence against the appellant on count 1 is overwhelming and for
that reason his alibi was correctly dismissed
as not reasonably
possibly true.
1
[17] For the reasons
aforesaid the appeal against the conviction on count 1 cannot
succeed.
COUNT 2
[18] The evidence of
Mr More was unchallenged. He testified to be the licence holder of
the firearm found in the flat where the
appellant was found. This
firearm was proved to be a semi-automatic pistol in working order
together with the three live rounds
also found with the firearm by an
expert.
2
[19] In the light of
the aforesaid evidence, it is clear that the weapon found in
possession of the appellant was stolen and since
he was unable to
give any reasonable explanation for his possession thereof, he was
correctly convicted for a contravention of
section 36. For this
reason the appeal against the conviction on count 2 can also not
succeed.
COUNTS 3 AND 4
[20] The evidence of
the unlawful possession of the firearm mentioned in count 2 and the
ammunition found in the appellant’s
possession is in my view
sufficient to warrant the convictions on counts 3 and 4. In my view,
there is therefore no merit in the
appeal against the convictions on
counts 3 and 4.
SENTENCE
[21] In my view, the
court a quo took into account all relevant factors and did not commit
any misdirection, material or otherwise,
in sentencing the appellant
on count 1. There is no basis for this court of appeal to interfere
with the discretionary order issued
by the court a quo in regard to
that sentence. However, it is correct that counts 2, 3 and 4 all
arise from the same set of facts,
i.e. the appellant having been
found in possession of Mr More’s firearm and live rounds. In my
view, the court a quo should
have ordered the sentences on these
counts to run concurrently. Its failure to do so, in my view,
amounted to a misdirection, entitling
this court of appeal to
interfere with a portion of the order on sentence imposed by the
court a quo.
CONCLUSION
[22] I therefore
make the following order:
1. The appeal
against the convictions is dismissed.
2. The appeal
against the sentence on count 1 is dismissed.
3. The appeal
against the sentences imposed on counts 2, 3 and 4 is upheld and
those sentences are set aside and substituted with
the following:
“Accused 1 is
sentenced to five years’ imprisonment on count 2, five years’
imprisonment on count 3 and four years’
imprisonment on count
4. It is ordered that the sentences on counts 3 and 4 are to be
served concurrently with the sentence on
count 2. The accused is
effectively sentenced to fifteen years’ imprisonment.”
4. The amended
sentence is antedated to the date of sentence, i.e. 28 July 2006.
DATED THE 7th DAY
OF AUGUST 2014
AT JOHANNESBURG
C. J. CLAASSEN
JUDGE OF THE HIGH
COURT
I agree
PP
M. A. MAKUME
JUDGE OF THE HIGH
COURT
It is so ordered.
Counsel for the
Appellant: Attorney J. Penton
Instructed by:
Johannesburg Justice Centre
Counsel for the
Respondent: Adv P. Schutte
Instructed by:
The Director of Public Prosecutions
Argument was
heard on 4 August 2014
Judgment is
delivered on 7 August 2014
1
See
S v Van Eck en ‘n Ander
1996 (1) SACR 130
(A) at 135d –
e
2
See
Affidavit by Johannes van Rooyen handed in as an exhibit pp. 44 –
47 of the Record