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[2010] ZAGPJHC 147
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Nene and Others v S (A129/2010) [2010] ZAGPJHC 147 (23 November 2010)
REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT OF
SOUTH AFRICA
JOHANNESBURG
CASE NO: A129/2010
DATE: 2010-11-23
In the matter between
THEMBA GODFREY NENE AND
OTHERS
................................................
Appellants
and
THE
STATE
.....................................................................................................
Respondent
J U D G M E N T
WILLIS J:
[1] The prosecution of the appeal in
this matter has had a torrid history. There have been considerable
difficulties in obtaining
a proper record. The record has been
voluminous, and there has, in the meantime, been much confusion.
[2] On 19 August 2010 my learned
brother, Mr Acting Justice Hoffman and I made the following order:
"1. The appeals of all the
appellants (save for Godfrey Nene and Amos Shange accused 1 and 2 in
the trial) are postponed sine
die.
2. The appeals of Godfrey Nene and
Amos Shange are struck from the roll.
3. The appeals of Godfrey Nene and
Amos Shange are not to be reinstated without a substantive
application for reinstatement.
4. The applications for reinstatement
are to be filed by no later than 30 September 2010, failing which
their rights to apply for
reinstatement of the appeal of Godfrey Nene
and Amos Shange would fall away (i.e lapse).
5. The appeals of all the appellants
are not to be enrolled for hearing until the application referred to
in paragraph 4 had finally
been disposed of.
6. The bail of Godfrey Nene and all
other appellants currently on bail is revoked.
7. Godfrey Nene is to report to the
Orlando Police Station in Soweto by no later than 30 September 2010
for the purpose of commencing
his jail sentence.
8. The applications for reinstatement
for Godfrey Nene and Amos Shange and the appeals of all appellants
shall be heard jointly
by Willis J and Hoffman AJ on dates to be
arranged."
[3] The arranged date, referred to
above, is today, the 23 November 2010. The applications for
reinstatement were indeed filed by
30 September 2010. In order to
avoid confusion further, rather than referring to the appellants by
number, I shall refer to them
by name. It would appear that the only
appellants before us today are Bongani Makhoba, Sylvester Mosetsi,
Livingstone Mncube and
Stephen Ramagaga.
[4] In summary, the appellants were
convicted on various counts of unlawful possession of some 18
different firearms and vast quantities
of ammunition. One of the
items found by the police in a raid that occurred consequence of on a
tip off was a toy firearm. These
firearms include AK47's, AK54
assault rifles, Norinco semi-automatic pistols, Beretta semi
automatic pistols, a Victor semi-automatic
pistol, C2 model 75 semi
automatic pistols, a Victor model
788 semi-automatic pistol. There were
also Norincos, another type of model of a Beretta pistol and a 9
millimeter parabellum calibre
firearm, model B.
[5] In addition, there were vast
quantities of ammunition to be used in the respective firearms. The
appellants, save for Godfrey
Nene, did not testify in their defence.
They were all found at the premises where the arms and ammunitions
were found in various
places in the building, including being
concealed behind furniture and in the ceiling of the home occupied
Godfrey Nene at the
time.
[6] Each of the accused in the trial
received an effective sentence of 13 years imprisonment, even though
they were liable to a
minimum sentence of 15 years for each count of
unlawful possession of arms and ammunition. It seems that the
learned magistrate
decided to impose less than the compulsory minimum
sentence required by the Criminal Law Amendment Act, precisely
because the appellants
had spent a long time awaiting trial.
[7] Only Godfrey Nene and Amos Shange
were granted leave to appeal against both conviction and sentence.
The others were granted
leave to appeal against sentence only.
[8] The appellants were fortunate to
have received such a lenient sentence. In effect, what was found was
an arms cache could arm
a small army with firearms. We all know what
a scourge the unlawful possession of firearms in this country is. We
are all aware
of the fact that the high rates of murder and robbery
that take place in South Africa is result of unlawful possession of
arms
and ammunition of this kind.
[9] The consequences of crime are dire
indeed, not only for the immediate victims, namely those who are
murdered and robbed, but
for everyone else in the society. Unlawful
possession of arms and ammunition used in crimes like murder and
robbery deters billions,
literally billions of rands worth of
investment away from the country. It keeps literally hundreds of
thousands if not millions
of people out of work. We have all had a
vivid example of how dangerous unlawful possession of arms and
ammunition is, with the
recent murder of a tourist visiting this
country. The news has spread all around the world. Vast numbers of
tourists have cancelled
their plans to visit South Africa at massive
cost for all of us. Just think, for example, of the immediate
implications for the
hotel industry and indeed the tourism industry
as a whole.
[10] I have no hesitation whatsoever
in emphasising that in my respectful opinion these appellants were
fortunate in receiving a
reduced sentence of 13 years. There is, in
my view, no merit whatsoever in the appeal on sentence. It is clear
that the learned
Magistrate carefully considered the factual
circumstances, including the personal circumstances of each accused.
There was no
misdirection. In the circumstances of this particular
crime, it would not have made sense to individualise sentence. The
reason
is to be found precisely in the fact that they were all caught
in the same circumstances and failed to testify in mitigation of
sentence. Ex facie the record there are no strikingly variances in
the individual circumstances of the accused to justify an
individuation
of sentence.
[11] Insofar as the appeal against
conviction of Amos Shange is concerned, it needs to be pointed
out that he did not testify
in his defence and his circumstances were
no different from those of any of the others. There is no merit in
the appeal against
conviction.
[12] Insofar as Godfrey Nene is
concerned, his defence was that he was a sangoma administering muti
in his house at the time when
this raid took place. The difficulty
for him is that, as I have already indicated, various of the arms and
ammunition found were
found in the ceiling and concealed in various
parts of his house. Moreover, the record of his evidence is such
that he is most
unconvincing witness.
[13] The applications for
re-instatement do not aver that Godfrey Nene and Amos Shange have
reasonable prospects of success in the
event of an appeal, but even
if this omission is overlooked, both of us as judges have considered
the matter carefully. We are
satisfied that there are no reasonable
prospects of success for them in any appeal.
[14] Accordingly, I propose that the
following order be made:
1. The applications for the appeals
of Godfrey Nene and Amos Shange to be reinstated are
dismissed.
2. The appeals of Bongani Makhoba,
Sylvester Mosetsi, Livingstone Mncube and Stephen Ramagaga against
sentence are dismissed.
HOFFMAN AJ:
[1] I agree. There are just three main
points upon which I wish to comment. The first is that there is some
confusion in the documents
in our possession as to the name of one of
the appellants. He is referred to variously as Moses Sylvester Molemi
and Moses Sylvester
Mosetsi. It appears that he is one and the same
person and he (Moses Sylvester Mosetsi aka Moses Sylvester Molemi) is
the person
that my learned brother has referred to in his judgment.
[2] The second is that insofar as the
application for reinstatement of the appeal is concerned, I would
also dismiss it. I will
dismiss it on two bases. The first is by
reference to the fact of its own terms. The appellants do not even
deal with the merits
of the convictions in the application for
reinstatement. I believe is fatal to the application but, in any
event, as my learned
brother has just pointed out, I believe there is
absolutely no prospect of success of appeal on the question of the
convictions
of the two appellants Godfrey Nene and Amos Shange.
[3] The third is that I think the
appellants can consider themselves very fortunate that the State did
not cross-appeal on the question
of sentence. Had it done so I for
one would be very hard pressed to avoid coming to the conclusion that
the sentence substantially
in excess of 15 years was not justified.
[4] In the circumstances, I agree with
the order proposed by my learned brother.
WILLIS J:
The order proposed by me a short
while ago is the order of the court.
THE COURT ADJOURNS