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[2017] ZAGPJHC 34
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Fanameva and Another v S (A270/2016) [2017] ZAGPJHC 34 (23 February 2017)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: A270/2016
DPP
REF NO
: 10/2/5/1-(2016/0420)
DATE
:
23
rd
February 2017
Reportable:
NO
Of
interest to other judges: NO
Revised.
23
February 2017
In
the matter between:
FANAMEVA
,
LESEDI
First
Appellant
SITHEMBE
,
SIBUSISO
Second
Appellant
and
THE
STATE
Respondent
JUDGMENT
ADAMS
J
:
[1].
The appellants, who were legally
represented, were charged in the Regional Court of Orlando, with 4
(four) counts, namely 1 (one)
count of unlawful possession of a
9mm
Vector
semi – automatic pistol
firearm
(‘the Vector pistol’)
,
1 (one) count of unlawful possession of 8 live rounds of ammunition,
1 (one) count of unlawful possession of a
Norinco
9mm
semi – automatic pistol
firearm
(‘the Norinco pistol’)
and 1 (one) count of unlawful possession of 8 live rounds of
ammunition. The appellants pleaded not guilty to all of the charges
and elected not to give any statements and / or plea explanations in
terms of the provisions of
section 115
of the
Criminal Procedure Act
51 of 1977
(“the CPA”).
[2].
On the 20
th
July 2011 the first appellant was convicted on counts 1 and 2, and on
the 23
rd
November 2011 he was sentenced as follows:
2.1
Count 1 (unlawful possession of the
Vector
pistol): 15 years’ imprisonment;
and
2.2
Count 2 (unlawful possession of
ammunition): 2 years imprisonment;
The
sentences on counts 1 and 2 were ordered to run concurrently,
resulting in an effective sentence of 15 years direct imprisonment.
In terms of
section 276B(2)
of the CPA the court
a
quo
fixed a non – parole period of 8 (eight) years with respect to
the effective period of incarceration.
[3].
On the 20
th
July 2011 the second appellant was convicted on counts 3 and 4, and
on the 23
rd
November 2011 he was sentenced as follows:
3.1
Count 3 (unlawful possession of the
Norinco
pistol): 15 years’ imprisonment;
and
3.2
Count 4 (unlawful possession of ammunition:
2 years imprisonment;
The
sentences on counts 3 and 4 were ordered to run concurrently,
resulting in an effective sentence of 15 years direct imprisonment.
In terms of
section 276B(2)
of the CPA, the court
a
quo
fixed a non – parole period of 8 (eight) years with respect to
the effective period of incarceration.
[4].
This is an appeal by the appellants against
the convictions and sentences in relation to counts 2 and 4, and is
with the leave of
this court after a petition by the appellants. The
appellants had also petitioned this court for Leave to Appeal against
their
convictions and sentences on counts 1 and 3, but such leave was
refused.
[5].
I interpose here to mention that at the
commencement of the hearing of the appeal, Ms Brits, who appeared on
behalf of the appellants,
applied for a postponement of the hearing
of the appeal. The application for a postponement was premised on the
grounds that certain
portions of the record were missing as they had
seemingly not been transcribed. It was submitted by Ms Brits that the
missing portions
of the record are vital to the adjudication of the
appeal.
[6].
In
S v
Chabedi,
2005 (1) SACR 415
(SCA) Brandt
JA set out the applicable principles relating to incomplete appeal
records as follows:
‘
[5]
On appeal, the record of the proceedings in the trial court is of
cardinal importance. After all, that record forms the whole
basis of
the rehearing by the court of appeal. If the record is inadequate for
a proper consideration of the appeal, it will, as
a rule, lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate for proper
consideration of the
appeal; not that it must be a perfect recordal of everything that was
said at the trial. As has been pointed
out in previous cases, records
of proceedings are often still kept by hand, in which event a
verbatim record is impossible (see
eg
S
v Collier,
1976
(2) SA 378
(C) 379A-D and
S
v S,
1995
(2) SACR 420
(T) 423b-f).
[6]
The question whether defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be
answered in
the abstract. It depends,
inter
alia
,
on the nature of the defects in the particular record and on the
nature of the issues to be decided on appeal.’
[7].
The contention on behalf of appellants that
the shortcomings in the record rendered a proper consideration of the
appeal difficult,
if possible at all, was based on the submission
that the evidence of a State witness, one Ruth Sebolai, which was not
transcribed
at all, would play an important role in the outcome of
this appeal. An assessment and an evaluation of her evidence, so it
was
submitted, would be of assistance to us in deciding the appeal.
We do not agree with this submission for the simple reason that
it is
factually incorrect. It appears from a perusal of the transcript of
the record that the evidence of the said witness was
in fact
transcribed in its totality, inclusive of her evidence in chief and
her evidence under cross – examination.
[8].
As indicated and expounded on below the
nature of the issues to be decided on appeal is fairly crisp and in
the main based on facts
which are not in dispute. These issues can,
in our view, be determined on the record as it stands, and the
defects in the record
will have no effect on a proper adjudication of
the disputes in this appeal. Furthermore, the matter in the court
a
quo
was finalised during 2011, and it
is unlikely that it would be possible to reconstruct and rectify the
appeal record at this stage.
The interest of justice would
accordingly not have been served by a postponement of the appeal.
[9].
In these circumstances we held that the
appellants’ request for a postponement should be refused.
[10].
The appeal turns on the very limited issue
relating to whether or not the state had proven beyond a reasonable
doubt that the appellants
were in possession of the ammunition. It
was submitted on behalf of the appellants that if regard is had to a
number of discrepancies
in the evidence of the arresting metro police
officers relating to the alleged possession of the ammunition,
coupled with the fact
that the said police officers were relatively
inexperienced as far as firearms and ammunition go and no ballistics
reports were
produced to prove that the bullets were ‘
ammunition’
as defined, it cannot be said beyond a
reasonable doubt that the appellants were guilty of unlawful
possession of ammunition.
[11].
The discrepancies complained of on behalf
of the appellants are the following: one of the metro police officers
who confiscated
the firearms from the appellants at some point during
his evidence said that there were 9 rounds of ammunition in the gun
he booked
in, whilst at some stage he alleged that there were 8
rounds. The investigating officer found that the one gun had 8 rounds
of
ammunition and the other 7 rounds, when he booked the firearms out
on the 24
th
February 2009. This accords with the testimony of the arresting metro
police officers, except for the evidence in chief of the
first
officer, who said that there were 9 rounds of ammunition in the
firearm he took from one of the appellants. This discrepancy,
in my
view, is not material and should not detract from the uncontested
versions of the two metro police officers. In any event,
the evidence
of the one police officer clearly points to a
bona
fide
mistake in his evidence, which in
chief went as follows: ‘
There were
like 9 rounds in the firearm, 7 rounds in the magazine and one in the
chamber, which we counted out in front of the suspect’.
This, as I said, is clearly a slip of the tongue, and I do not read
anything into it. This same officer explains under cross examination
that what he meant was that the 8 rounds he referred to was in fact
that ‘
all and all’
there
were 8 rounds, with one of those 8 in the chamber.
[12].
Ms Brits, Counsel for the appellants, also
argued that the whole process by which the bullets were removed and
checked at the police
station was flawed in that the bag or bags were
not properly sealed and marked. This resulted in a break in the link
between the
bullets produced at the police station on the night of
the crime and subsequently when they were removed by the
investigating officer.
Her argument is strengthened, so it was
submitted by her, by the evidence of Warrant Officer Mathebula, who
was the investigating
officer in the matter, to the effect that, when
he booked the firearms out at the Diepkloof Police Station on the
24
th
February 2009, the crimes having been committed on the 29
th
December 2008, he found that the one pistol had 7 rounds and the
other one 8. He then packaged, sealed and marked separately, as
required by proper procedure, each of the two firearms, without its
ammunition, in 2 separate exhibit bags, which were each allocated
its
own seal number. He confirmed that when he booked out the guns and
the ammo it had not been sealed, and was supposed just lying
loose in
the ‘
SAP13’
store
in Diepkloof.
[13].
His intention on the 24
th
February 2009 was to take the firearms to Pretoria for a ballistics
investigation. The ammunition was not taken to Pretoria, as
they
(being the police) ‘
do not usually
send ammunition’
for ballistic
assessment. He was subsequently provided with a Ballistics Report in
the form of an affidavit in terms of
section 212
of the
Criminal
Procedure Act 51 of 1977
. There was no Ballistics Report relating to
the ammunition, and, so the argument goes, there cannot be certainty
that the ‘
bullets’
found
in the guns were in fact ‘
ammunition’
as defined in the Firearms Control Act
60 of 2000
(‘the Act’)
.
Also, so it was submitted, the fact that the ammunition was not
bagged and sealed separately on or about the 29
th
December 2008, gives rise to doubt whether the ammunition found by
him on the 24
th
February 2009 was the same as the bullets found in the possession of
the appellants.
[14].
The uncontested and unchallenged evidence
by the two Metro Police officers was that the first and the second
appellants were each
found in possession of a number (ranging between
7 and 9) of rounds of ammunition. At no stage was it suggested to
them that what
was found by them was not ‘
ammunition’
as defined in the
Firearms Control Act.
Their
evidence is corroborated by the Investigating Officer, who
confirmed that approximately 2 months later he uplifted from the
SAP13
storeroom the firearms and the 15 rounds of ammunition. He too
was not challenged on his testimony that the bullets were
‘
ammunition’
as
defined. The ammunition was found in the two firearms, which, as per
the
section 212
affidavit, were in good and proper working condition.
The affidavit read as follows:
‘
5.1
The pistols mentioned in 3.1 & 3.2 functions (sic)
normally without any obvious defects’.
[15].
In
S v
Sehoole
,
2015 (2) SACR 196
(SCA), the
SCA had this to say in relation to the proof of a charge of unlawful
possession of ammunition:
‘
[19]
The State adduced ballistics evidence in the form of an affidavit in
terms of
section 212
of the CPA concerning the firearm in question.
It will be recalled that Kladie had testified about the ammunition he
had found
in the firearm. Whilst it is undoubtedly so that a
ballistic report would provide proof that a specific object is indeed
ammunition,
there is no authority compelling the State to produce
such evidence in every case. Where there is acceptable evidence
disclosing
that ammunition was found inside a properly working
firearm, it can, in the absence of any countervailing evidence be
deduced to
be ammunition related to the firearm. Needless to say,
each case must be judged on its own particular facts and
circumstances.
[20]
In the light of what I have stated above, it follows that the high
court erred in finding that a ballistic report was the only
manner of
proving that the offence was committed’.
[16].
Applying these principles
in
casu
I am satisfied that the State had
proven beyond a reasonable doubt that the appellants were guilty of
contravening the provisions
of
section 90
of the
Firearms Control Act
in
that they were in unlawful possession of ammunition as defined in
the Act. I regard the evidence of the two Metro Police Officers,
together with the testimony of the Investigating Officer and the
section 212 Affidavit, as ‘
acceptable
evidence disclosing that ammunition was found inside a properly
working firearm’.
Furthermore,
there most certainly is no countervailing evidence. Therefore, it can
safely be deduced that the bullets were ammunition
which related to
the two firearms.
[17].
What is important is the overall picture. The version of the State
and the facts as testified to by its witnesses have been
accepted. On
that version, the State has proven, in my view, that the appellants
were in possession of ammunition as defined. I
am of the view that
the Regional Magistrate, after considering all the probabilities and
improbabilities and particularly the fact
that there is no onus on
the appellants to convince the court of the truth of their
explanation, correctly held that the evidence
of the appellants was
inherently improbable and false beyond a reasonable doubt.
[18].
I am accordingly unable to find any reason
for disturbing any of the factual findings made by the court
a
quo
. The case against the appellants
was overwhelming and they were accordingly correctly convicted. It
follows that the appeal against
the convictions must fail.
[19].
I now turn to deal with sentence. It is
trite that an appeal court can interfere with sentence only where the
sentence is affected
by an irregularity or misdirection entitling
this court to interfere.
[20].
The court below had regard to the personal
circumstances of the appellants, who both had previous convictions of
crimes of a violent
nature. The first appellant had previously been
convicted of two counts of robbery and attempted murder. The second
appellant was
previously convicted of robbery, possession of an
unlicensed firearm and unlawful possession of ammunition.
[21].
The first appellant was 33 years old at the
time when the sentence was imposed on him. He is married, but does
not have any children.
Two of siblings are alleged to be dependent on
him. His highest level of education is grade 11. The second appellant
was 33 years
old when he was sentenced and he also does not have any
children. His elderly father and his siblings are dependent on him.
[22].
The offences committed by the appellants
are of a serious nature, and are regarded as prevalent in the area of
jurisdiction of the
court a quo. The appellants appear to have shown
no remorse for their actions.
[23].
I am satisfied that the learned regional
court magistrate properly considered the triad of factors relevant to
sentencing, namely
the nature of the offence, the personal
circumstances of the appellants, including their moral
blameworthiness and the interests
of society. The appeal against
sentence therefore stands to be dismissed.
[24].
There is one other aspect, although not
before us, in respect of which we feel obligated to express our
disquiet. That relates to
the order which the Learned Magistrate made
in terms of section 276B(2) of the CPA to the effect that a ‘
non
– parole period’
of 8
(eight) years was fixed in relation to the effective period of
incarceration. The 8 year non – parole period obviously
related
to the sentence of 15 years imprisonment imposed on each of the
appellants in respect their convictions on the charges
of unlawful
possession of firearms. The difficulty we have with the order is that
the fixing of a non-parole period was part of
the criminal trial and
the court
a quo,
in accordance with the dictates of a fair trial, ought to have given
the appellants notice of the court's intention to invoke s
276B of
the CPA. The appellants had to be heard before such non-parole period
was fixed, and the failure on the part of the Magistrate
to do so
amounted to a misdirection by that court. In that regard, see
S
v
Gcwal
a,
2014 (2) SACR 337
(SCA)
,
S v
Mthimkhul
u,
2013 (2) SACR 89
(SCA)
,
S v
Stander
,
2012
(1) SACR 537
(SCA)
.
In
Jimmale and Another v S,
[2016] ZACC 27
(30
August 2016), the Constitutional Court held that a non – parole
period should only be ordered in exceptional circumstances.
[25].
Furthermore, the failure by the Magistrates
Court to give reasons for its judgment on sentence in respect of the
invocation of s
276B was highly prejudicial to the accused. We are
therefore of the view that the dictates of a fair trial require that
order to
be set aside and the matter remitted to the court
a
quo
to afford the parties an
opportunity to address it. Unfortunately, since the non –
parole period relates to the sentences
of 15 years imprisonment in
respect of which Leave to Appeal was refused by this Court, we are
not at liberty to intervene.
[26].
The aforegoing is of concern to us.
[27].
In the circumstances, I make the following
order:
1.
The first and second appellants’
appeal against their convictions and sentences is dismissed.
__________________________
L R ADAMS J
Judge of the High Court
Gauteng
Local Division, Johannesburg
I agree,
__________________________
T V RATSHIBVUMO AJ
Acting Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD
ON:
21
st
February 2017
JUDGMENT
DATE:
FOR
THE APPELLANT:
23
rd
February 2017
Ms
Y J Britz
INSTRUCTED
BY:
Legal
Aid South Africa, Johannesburg
FOR
THE RESPONDENT:
Adv
E N Makua
INSTRUCTED
BY:
Office
of the Director of Public Prosecutions