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[2010] ZAWCHC 577
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Rinquest and Another v S (A242/2010) [2010] ZAWCHC 577 (26 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
CASE NO:
A242/2010
In
the matter between:
I
RINQUEST
…..................................................................................................................
First
Appellant
A SUMMERS
…............................................................................................................................
Second
Appellant
and
THE
STATE
…........................................................................................................................................
Respondent
Judgment
handed down on 26 November 2010
1.
The two appellants appeal against their conviction on three charges
of robbery with aggravating circumstances, one charge of
housebreaking and, in respect of the first appellant, one charge of
possession
of a Glock 9mm pistol without having the necessary
licence, and a further conviction of being in possession of three
magazines
for a firearm and 34 rounds of live ammunition.
2.
The robberies took place from 11 December 2002 to 10 April 2003. The
appellants were arrested on 14 April 2003. The trial commenced on 15
August 2005 and was only completed on 5 March 2008 when the
appellants were convicted and sentenced. During the trial there were
changes of prosecutors and legal representatives for the appellants.
3.
At the close of the State's case, both appellants were found not
guilty and discharged in terms of section 174 of the Criminal
Procedure Act, Act 51 of 1977, in respect of five counts of robbery,
and the second appellant was found not guilty and discharged in
respect of the charges of possession of the firearm and ammunition.
4.
The appellants did not lead any evidence and closed their cases.
5.
With regard to the remaining three counts of robbery with aggravating
circumstances and the one count of housebreaking, the evidence
adduced by the State was largely uncontested and may be summarised
as
follows.
6.
In respect of count 2 which arises from a robbery which took place
on
11 December 2002 in the afternoon at a residence in Table View, Mrs
van Reenen testified that upon her return to her home with
her
daughter she was accosted by two persons who had pantyhose over their
faces. They tied her up, took her jewellery, emptied
her handbag,
from which they took keys to the safes. They thereafter stole various
items including two pistols and a shotgun, magazines
and rounds of
ammunition. Mrs van Reenen was unable to identify her assailants
although she stated that they were people of colour.
One was short
and stout and dark in complexion, and the other taller and light in
complexion.
7.
Her husband, on 17 April 2003, identified one of the firearms, a
Glock 40 and three magazines. It is these that form the subject
matter of the related charges on which the first appellant was
convicted.
8.
Captain H F Meyer of the South African Police Services testified that
he had found the firearm, three magazines and 34 rounds of ammunition
on the morning of 14 April 2003 in a hidden compartment in
a cupboard
in the main bedroom of a house which was occupied by the first
appellant and the girlfriend or wife of the first appellant.
9.
The weapon was found pursuant to the execution of a search warrant.
I
shall return to the execution of the search warrant herein below.
10. Count 6
pertains to the hojsebreaking which took place at 9 Eyton Road,
Claremont, on 7 February 2003. Mrs Baxter testified
that she had left
her premises 8.
in the early evening and had returned
just after midnight. She found
the padlock on the front gate broken and the burglar bars on a window
forced open. Nobody was at
home at the time and various items were
stolen. On 14 April 2003 she identified some of these items, namely a
television set, a
portable radio, a camera bag and compact discs, to
the police. The defence legal teams had admitted that some of these
items were
recovered from both the appellants' premises on 14 April
2003.
11.
With regard to count 8, Mr Hewitt testified that on 20 March 2003
and
at 25 Oxford Street, Hout Bay, at approximately 1 a.m. and after he
had finished watching television, he went to lock the main
door. He
opened a locked trellidoor to gain access to the main door when he
was attacked by three people and tied up. One of them
went to his
wife who was asleep in the bedroom. His assailants took various
items. He, as was Mrs van Reenen, was unable to identify
his
assailants. He, however, on 3 July 2003 identified various goods. The
defence legal teams have similarly admitted that some
of these items
were recovered on 14 April 2003 from premises occupied by appellant
one and two.
1
12.
With regard to the 9
th
count, Mr Munitz testified that
on 10 April 2003 and at 1 Bedburn Street, Camps EBay, at
approximately 8 p.m. in the evening and
whilst he was at home with
his wife watching television in the bedroom, three men came into the
room through the sliding door which
led onto a balcony on the third
floor. They had black stockings over their heads. He and his wife
were tied up whereafter the men
ransacked the house and took various
goods. He was also unable to identify his assailants although they
were definitely coloured
and spoke Afrikaans. On 16 April 2003, that
is, six days later, he identified some of the stolen goods, namely
two Cartier watches,
two distinctive sunglasses, one pair of
zirconium earrings, one leather pouch with old coins, a Russian
wedding ring and a pair
of diamond earrings. The evidence, largely
undisputed, was that some of these items were recovered from the
second appellant's
premises and others were recovered from the first
appellant's premises.
13.
The evidence of the police officers, Captain van Wyk and Captain
Meyer, as well as
Inspector Linda and Inspector Rosslee was that on
14 April 2003 they were tasked with searching the premises at 3
Chukker Road,
Kenwyn, and 7 Rod Lane, Lotus R ver. The Chukker Road
premises were occupied by the first appellant and his female
companion, whilst
the premises at 7 Rod Lane were occupied by the
second appellant and his wife. The various itemswhich were seized at
these premises
were recorded and the recordals introduced as exhibits
at the trial. The appellants admitted, in terms of section 220 of the
Criminal
Procedure Act, that the items reflected in exhibits B and C
were recovered from the premises occupied by them and that some of
the items were identified by the complainants who had testified.
14.
As already stated at the conclusion of the State's case, there was an
application
for the discharge of the appellants which, in respect of
certain charges, was granted. Thereafter the appellants closed their
case
without adducing further evidence.
15.
As the learned Magistrate had found, and as was common cause in
argument before us,
there was only one factual aspect which was in
dispute. This was the testimony by Captain Meyer that the first
appellant had told
him at the time when the search was executed and
the Glock found, that "it's my firearm. I bought the firearm,"
2
as he did not want his wife to
be arrested.
3
Appellant one would not disclose from whom he bought it.
4
I pause to point out that Captain Meyer did not mention this incident
in his written statement. It was put to him by Mr Morgan,
who at that
stage represented the first appellant, that the first appellant would
deny this when he testified. The learned Magistrate
accepted Captain
Meyer's evidence. There is no basis for us on appeal to interfere
with this acceptance by the learned Magistrate,
who had the benefit
of observing the witness and who, in my view, had correctly pointed
out that there was no evidence to gainsay
what Captain Meyer had
testified to.
16.
The learned Magistrate further found that there was no material
challenge to any other State witness. He accordingly found the
following to have been proved beyond reasonable doubt:
(a)
That during the period December 2002 to 10 April 2003, over a period
of four months, the premises of the complainants in respect
of counts
2, 6, 8 and 9 were broken and entered into. In respect of counts 2, 8
and 9, the complainants, who were at home at the
time, were tied up
by persons (a)
wearing black stockings over their
faces and various items of value
were taken from their houses. In respect of count 6, the premises
were broken into;
(b)
The modus operandi most certainly in respect of counts 2, 8 and 9
were all the same. The same pattern of conduct was followed by the
assailants in all the incidents, that is, the assailants wore
black
stockings over their faces, they would break into and enter the
premises and would tie up the occupants in a similar fashion,
normally with telephone cords and, in one instance, with ties, demand
keys for safes and firearms and remove items of value. It
appears
that there was a predilection for jewellery, expensive perfumes,
sunglasses, cameras and electrical appliances. The complainants
all
described their assailants as coloured males;
(c)
Some of the goods stolen from the various complainants (in addition
to
other goods which were suspected to be stolen) were recovered from
premises occupied by the appellants. In respect of count 2 the
goods
were recovered approximately four months later, in respect of count 9
the goods were recovered four days later, in respect
of count 8 the
goods were recovered three weeks later, and in respect of count 6 the
goods were recovered two months later;
(d)
In all instances the complainants were unable to identify the
assailants
- obviously because of the stockings over their heads -but
they all described their assailants as being coloured males;
(e)
The two appellants are both coloured males who were found on and
occupied
the premises where the stolen goods were recovered, with
their respective partners who were female;
(f)
A cut stocking similar to the one used by the assailants in covering
their
heads at the time of the robberies was one of the items which
was recovered in a vehicle owned by the second appellant
5
at his premises.
17.
The learned Magistrate concluded as follows:
"It is clear from these
proved facts that there is no direct evidence that both the accused
were the perpetrators or the assailants
as none of the complainants
were able to identify them as such. The evidence linking the accused
to the crime is pure circumstantial
and the State asked the court to
infer from the evidence that the accused are the
culprits. It
is trite when reasoning by inference that the court must satisfy
itself firstly that the inference sought to be drawn
is consistent
with the proved facts and secondly the proved facts are such that
they exclude every reasonable inference save the
one sought to be
drawn. As stated the accused did not testify and the court must weigh
the cumulative effect of all the circumstantial
evidence against the
accused together when drawing inferences.
When one considers the proven
facts that the
modus operandi
in
all these incidents were the same and the stolen goods were recovered
soon after the incidents from the premises occupied by
the accused,
the fact that the complainants who saw the assailants said that they
were all males and that a stocking fitting the
description of that
used by the assailants was found in accused 2's vehicle, the court
finds that all of them comoined to paint
a very persuasive picture
against the accused that they were in fact the assailants or the
perpetrators and in this court's view
it became incumbent on the
accused to give an explanation. Both the accused chose not to testify
or call witnesses and it has been
argued by the defence that the
premises where the stolen goods were recovered were not only occupied
by the accused, but by their
female partners and that they could have
possessed the goods, not the accused. However this is not the
evidence on record and the
defence chose not to take the court into
its confidence with regard on (to) this aspect and the court cannot
speculate with regard
to the defence on behalf of the accused. In any
case this argument - the court finds that this argument flies in the
face of the
evidence of the complainants who all stated - who, the
complainants who in fact had seen their assailants all described the
assailants
as being males and not females. Further the court cannot
believe and no evidence has been placed on record that both the
accused
were unaware that the stolen goods were on the premises
occupied by them. The court finds as proof beyond reasonable doubt
that
the recently stolen goods were found in the possession of both
the accused and they have failed to give an explanation of such
possession.
The only
reasonable inference to be drawn from this in the absence of any
explanation by the accused is that they possessed same
with puiltv
knowledge
. This
applies also to accused 1 with regard to his possession of the
firearm and the ammunition. The accused - court finds that
the
accused's failure to testify in the face of this considerable
evidence against them tends only to strengthen the inference
that
they were the persons who broke into the premises of the various
complainants and robbed and stole from them."
The
Court accordingly convicted the appellants as aforesaid.
18.
The question before us was whether he was correct in doing so. and in
particular, whether the inference could be drawn that
the appellants
were the perpetrators of the robberies and breaking-in given the time
that elapsed between the respective robberies
and breaking-in and the
recovery of some of the property in their 18.
possession.
Mr Mihalik who appeared for the first appellant submitted
that at best convictions of receipt or possession of stolen property,
a permissible conviction, should have been made.
19.
It is common cause that the robberies occurred on 11 December 2002 at
4 Belloy
Street, Table View, at which stage the Glbck pistol was also
stolen; on 11 December 2002 at No. 29 Glen Crescent, Oranjezicht; on
3 January 2003 at 3 Nahoon Road, Constantia; on 24 January 2003 at 8
Salisbury Avenue, Bishops Court; on 7 February 2003 at 9 Eyton
Road,
Newlands; between 7 and 10 March 2003 at Upper Orange Street,
Oranjezicht; on 20 March 2003 at 25 Oxford Street, Hout Bay;
and on
10 April 2003 at 1 Medburn Street, Camps Bay. The appellants were
found in possession of property stolen from these premises
when the
raids on 14 April 2003 at 3 Chukker Road, Kenwyn, and at 7 Rodlane
Road, Lotus River took place. That is within four days
after the
commission of the last robbery on 10 April 2003.
20.
Can the inference properly be drawn from this timeline, the fact of
the consistent
modus operandi, the vague - but matching descriptions
of the assailants, together with possession of some of the stolen
goods,
the black stocking found in the motor-vehicle of the appellant
two, and the failure by the appellants to adduce evidence, that they
were the perpetrators of the robberies and the breaking-in?
21. In
S
v Manamela & Another (Director - General of Justice intervening
)
2000 (3) SA 1
(CC) O'Regan J and Cameron AJ in a minority judgment
6
summarised the legal
position as follows at paragraph [86]:
"Where an accused is caught
in possession of stolen goods, their mere possession may, by itself,
give rise to an inference
that the accused is criminally connected
with the unlawful removal or receipt of the goods. If the accused is
caught soon after
the goods are stolen, common sense may lead to the
conclusion that the only reasonable inference is that he or she stole
them or
participated in their theft.
7
If the period between theft and
apprehension is longer, in the absence of a satisfactory explanation
the approphate inference may
be that the accused is guilty of the
common-law offence of receiving stolen property knowing it to be
stolen,
8
the closer the proximity in time
between theft and possession, the more easily the State will be able
to rely upon an inference
of criminal conduct on the part of the
accused. In all these cases, however, the conviction of theft or
criminal receiving depends
upon the State being able to establish the
requisites of the crime beyond reasonable doubt: an inferential
probability does not
suffice. Where the time lapse is so great that
an inference of theft or related criminal conduct or knowing receipt
cannot be drawn
at all, the State's predicament is great. The accused
can in these cases with relative ease advance a trumped up story
relating
to the acquisition of the goods with little risk that the
State will be able to rebut it to the requisite degree of proof."
22.
In
R v Maseko
,
cited in
R v Morgan
1961 (2) SA 377
(T) at 378 B –
D, Broome J stated as follows
'If the property is such that it
would ordinarily change hands rapidly, a very short period only would
suffice. If the property
is not of a negotiable character, the period
would be longer. Furthermore the class of person to which the
possessor belongs must
also be taken into account. It is impossible
to lay down precise rules, and even the giving of examples may be
dangerous."
23.
In the instant case in respect
of count 9 the goods were recovered four days after the crime had
been perpetrated. As Holmes JA
pointed out in
S_y
Parrow
, supra, at
604C
"On proof of possession by
the accused of recently stolen property, the court may (not must)
convict him of theft in the absence
of an innocent explanation which
might reasonably be true. This is an epigrammatic way of saying that
the court should think its
way through the totality of the facts of
each particular case, and must acquit the accused unless it can
infer, as the only reasonable
inference, that he stole the property."
24.
In my view, the short period of
time between the last robbery and the raid, permits the inference to
be drawn that the appellants
had participated in that robbery. Mr
Munitz testified that the robbers wore black stockings over their
faces. A similar stocking
was found in the vehicle of second
appellant. Stolen items from the Munitz house were found in the
possession of both appellants
4 days after the robbery. The
appellants failed to adduce evidence in rebuttal of these facts. The
appellants' convictions on count
9 should accordingly remain.
25. The
question which then arises is whether, if in respect of the remainder
of the charges the elapse of time is too long for
the inference to be
drawn in respect of each such individual charge, can the conspectus
of facts nonetheless permit the inference
to be drawn. Regard should
be had to the totality of the evidence, 25.
including the
fact of the other robberies and that the goods robbed
were also found in the possession of the appellants.
26.
The Supreme Court of Appeal has recently, in
Naude
& another v S
(488/10)
[2010] ZASCA 138
(16 November 2010) affirmed
9
S v Van der Meyden
1999 (1) SACR 447
(W) at
449j-450b, where the following was stated by Nugent J (as he then
was):
The proper test is that an
accused is bound to be convicted if the evidence establishes his
guilt beyond reasonable doubt, and the
logical corollary is that he
must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning
which is approphate to the
application of that test in any particular case will depend on the
nature of the evidence which the
court has before it. What must be
borne in mind, however, is that the conclusion which is reached
(whether it be to convict or
to acquit) must account for all the
evidence. Some of the evidence might be found to be false; some of it
might be found to be
unreliable; and some of it might be found to be
only possibly false or unreliable; but none of it may simply be
ignored.'
27. Navsa JA
continued as follows at paragraph [29]
"Importantly,
in that case Nugent J warned against separating evidence into
compartments and to examine either the defence
or State case in
isolation.
10
See also S v Van Aswegen
2001 (2) SACR 97
(SCA) at 101a-e, S v
Trainor
2003 (1) SACR 35
(SCA) at 40f-41c and S v Crossberg
[2008] ZASCA 13
;
2008 (2)
SACR 317
(SCA) at 349N and 354b-g."
28.
The appellants were found, not only with goods from a single robbery,
but from
three robberies and in addition one housebreaking. In
respect of the first robbery (count 2) it had taken place four months
earlier,
but one of the items stolen was the Gldck pistol. The court
in
R v Maseko
, supra, qualified its example that if the
property was not of a negotiable character, a longer period could
still lead to an inference
of theft, by saying that it is impossible
to lay down precise rules. In South Africa in 2010, we have learned
that firearms possessed
illegally can change possession fairly quick
so it is not realistic to suggest that first appellant's possession
of the Gldck pistol
places him on the scene of the robbery in count
2.
29.
The first appellant made a statement at the time to the investigating
officer
that he had bought the pistol. During the trial it was put by
his legal representative that he would deny this. He, however, failed
to testify, as was presaged in the cross-examination of captain
Meyer. Neither of the appellants put up any explanation for their
possession of the stolen goods and chose not to testify.
30.
The failure to testify has its
own set of consequences. On the one hand an accused is presumed to be
innocent. Section 35(3)(h)
of the Constitution accords to every
accused person the right to a fair trial, which includes the right to
be presumed innocent.
In
S
v Bhulwana: S v Gwadiso
[1995] ZACC 11
;
1996
(1) SA 388
(C) O'Regan J, speaking for the Court, held that:
11
'(T)he
presumption of innocence is an established principle of South African
law which places the burden of proof squarely on the
prosecution. The
entrenchment of the presumption of innocence in s 25(3)(c) must be
interpreted in this context. It requires that
tne prosecution bear
the burden of proving all the elements of a criminal charge. A
presumption which relieves the prosecution
of part of that burden
could result in the
conviction of an accused person despite the
existence of a reasonable doubt as to his or her guilt. Such a
presumption is in breach
of the presumption of innocence and
therefore offends s 25(3)(c).'
31.
Moreover, an accused is entitled
to exercise a right to silence, which is inextricably linked to the
right against self-incrimination
and the principle of
non-compellability at his or her trial. In
S
v Manamela
, supra,
the Constitutional Court affirmed that:
"'(T)he right to silence, like the presumption
of innocence, is firmly rooted in both our common law and statute",
and
"is
inextricably linked to the right against self-incrimination and the
principle of non-compellability of an accused person
as a witness at
his or her trial".'
32.
A decision not to testify,
however, is not without risk and carries its own consequences. In
Osman and Another v
Attorney-General. Transvaal
1998
(4) SA 1224
(CC) Madala J held that at par [22]
'Our legal system is an
adversarial one. Once the prosecution has produced evidence
sufficient to establish a
prima facie
case,
an accused who fails to produce evidence to rebut that case is at
risk. The failure to testify does not relieve the prosecution
of its
duty to prove guilt beyond reasonable doubt. An accused, however,
always runs the risk that, absent any rebuttal, the prosecution's
case may be sufficient to prove the elements of the offence. The fact
that an accused has to make such an election is not a breach
of the
right to silence. If the right to silence were to be so interpreted,
it would destroy the fundamental nature of adversarial
system of
criminal justice.'
33.
In
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA
912
(CC) Langa DP, speaking for the Court, pointed out that the right
to remain silent has different applications at different stages
of a
criminal prosecution. On arrest a person cannot be
compelled to
make any confession or admission that may be used against her or him;
later at trial there is no obligation to testify.
The fact that she
or he is not obliged to testify does not mean that no consequences
arise as a result. If there is evidence that
requires a response and
if no response is forthcoming, that is, if the accused chooses to
exercise her or his right to remain silent
in the face of such
evidence, the Court may, in the circumstances, be justified in
concluding that the evidence is sufficient,
in the absence of an
explanation, to prove the guilt of the accused. This will, of course,
depend on the quality of the evidence
and the weight given to that
evidence by the Court.
34.
In
S
v Naude
, supra, Navsa
held at paragraph [37]
[37] The
court below stated that the State produced 'weighty' evidence against
all of the accused which called for an answer. I
agree. Two months
ago this court reiterated that a court is unlikely to reject credible
evidence which an accused has chosen not
to deny.
12
In such instances an
accused's failure to testify is almost bound to strengthen the
prosecution's case. In S v Chabalala
2003 (1) SACR 134
(SCA) para 21
the following was stated:
'The appellant was faced with direct and apparently
credible evidence which made him the prime mover in the offence. He
was also
called on to answer evidence of a similar nature relating to
the parade. Both attacks were those of a single witness and capable
of being neutralised by an honest rebuttal. There can be no
acceptable explanation for him not rising to the challenge. If he was
innocent appellant must have ascertained his own whereabouts and
activities on 29 May and be able to vouch for his non-participation.
. . . To have remained silent in the face of the evidence was
damning. He thereby left the prima facie case to speak for itself.
One is bound to conclude that the totality of the evidence taken in
conjunction with his silence excluded any reasonable doubt
about his
guilt. '
See also S v
Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) para 24."
35.
We were referred to
S
v Mavinini
2009 (1)
SACR 523
(SCA) and it is apposite to repeat in full what Cameron JA
had there held
"[26]
It is sometimes said that proof beyond reasonable doubt requires the
decision-maker to have 'moral certainty' of the
guilt of the accused.
Though the notion of 'moral certainty' has been criticised as
importing potential confusion in jury trials,
13
it may be helpful in providing a
contrast with mathematical or logical or 'complete' certainty. It
comes down to this: even if there
is some measure of doubt, the
decision-maker must be prepared not only to take moral responsibility
on the evidence und inferences
for convicting the accused, but to
vouch that the integrity of the system that has produced the
conviction - in our case, the rules
of evidence interpreted within
the precepts of the Bill of Rights - remains intact. Differently put,
subjective moral satisfaction
of guilt is not enough: it must be
subjective satisfaction attained through proper application of the
rules of the system."
14
36.
S v Parrow
,
supra, makes it clear that the accused's "absence of an innocent
explanation" may lead to a conviction of theft if the
totality
of the evidence supports that conclusion. In casu, the totality of
the evidence on counts 2, 6 and 8 supports a conviction
of receiving
stolen goods knowing them to have been stolen, but not robbery,
because the appellants were not identified by any
of the complainants
nor were they connected to the crime scene by DNA or any other
evidence. The fact of the robberies and the
fact that the goods
stolen were found in the possession of the appellants can equally
lead to the conclusion that the appellants
were illegally in
possession of the goods.
37.
It can accordingly not be concluded that the state has proved the
appellants'
complicity in counts 2, 6 and 8 beyond reasonable doubt.
The state'sevidence, albeit credible, is insufficient to sustain a
conviction
on the offences in question.
36.
I would accordingly set aside the convictions on counts 2, 6 and 8
and replace
them with convictions on the competent verdict, of
possession of stolen property knowing them to have been stolen.
37.
In view of this conclusion, I would set aside the sentences imposed
on counts
2, 6 and 8 and I would replaced them with the following
sentences:
(a)
On count 2, 5 years imprisonment.
(b)
On count 6, 5 years imprisonment.
(c)
On count 8, 5 years imprisonment.
40.
The first appellant was also convicted on the charge of the
possession of a
firearm (the Gldck pistol) (count ten) and the
ammunition (count eleven) in contravention of section 2 read with
section 1,12,
39(1 )(h), 39(2) and 40 of the Arms and Ammunition Act,
75 of 1969.
41.
He had pleaded not guilty to this charge on 15 August 2005.
15
42.
The date of commencement of the
Firearms Control Act, 60 of 2000
was
1 July 2004. It repealed the Arms and Ammunition Act, 75 of 1969 with
effect from 1 July 2004 in terms of
section 153
of the
Firearms
Control Act, read
with Schedule 3 and subject to Schedule 1 of the
Firearms Control Act.
43.
In
the circumstances it is necessary to set out in full the
provisions of
section 8
of Schedule 1 which provide as follows
"8. Matters pending under
previous Act- (1) Subject to subitems (2) and (3), this Act does not
affect any proceedings instituted
in terms of the previous Act which
were pending in a court of law immediately before the date of
commencement of this Act, and
such proceedings must be disposed of in
the court in question as if this Act had not been passed.
(2)
Proceedings contemplated in subitem (1) must be regarded as having
been pending if the person concerned had pleaded
to the charge in
question.
(3) No proceedings
may continue against any person in respect of any contravention of a
provision of the previous Act
if the alleged act or omission
constituting the offence would not have constituted an offence if
this Act had been in force at
the time when the act or omission took
place.
(4)
(a) Despite the repeal of the previous Act, any person who, before
such repeal, committed an act or omission which
constituted an
offence under that Act and which constitutes an offence under this
Act, may after this Act takes effect be prosecuted
under the relevant
provisions of this Act.
(b) Despite the retrospective
application of this Act as contemplated in paragraph (a), any penalty
imposed in terms of this Act
in respect of an act or omission which
took place before this Act came into operation may not exceed the
maximum penalty which
could have been imposed on the date when the
act or omission took place."
44. The first appellant only
pleaded on 15 August 2005, more than a year after the
Firearms
Control Act came
into operation and repealed the act under which the
appellants were charged. It is moreover clear that the
Firearms
Control Act contemplates
, in
section 8(4)
of Schedule 1, that any
prosecution may (not should) take place in terms of the
Firearms
Control Act.
45.
It
is apparent from the record that both the learned Magistrate and
the various prosecutors were aware of the repeal of the Act.
16
They proceeded on the basis that
a formal amendment to the charge sheet would be made.
17
Mr Morgan adopted the
stance that the charge was "null and void' but did not, himself,
raise any further objection,
18
]
]
contending that that
"there is no need to object."
19
Later Mr Borchards, for
appellant two contended that all that was required was reference to
the new Act.
20
This amendment was never sought.
46.
The governing principle is that where a charge substantially follows
the wording
of the prohibition under which the prosecution claims the
penalty, and where no prejudice was occasioned to the accused by the
misquotation, the charge may be amended on review or appeal.
21
47.
More importantly, the mere fact that a statutory provision which the
accused
person is alleged to have contravened had been repealed at
the time when he was charged with the offence in question does not
debar
the State from prosecuting him in respect of his alleged
offence (
S v Kruper
1968 (1) SA 507
(T);
R
v Wotoert
1918 TPD
45
;
S v Theledi
1978 (1) SA 563
(T) at 565G).
48.
In terms of the section 12(2)(d)
22
of the Interpretation Act, 33 of 1957 any offence in terms of the
Arms and Ammunition Act is to be adjudicated as if the
Firearms
Control Act had
not been enacted (see also
S
v Thebe; S v Mere
1979
(3) SA 1181
(O) at 1188G en fin;
R
v Mazibuko
1958 (4)
SA 353
(A) at 357E - G; ).
49.
In
Chagi and Others v
Special Investigating Unit
2009
(2) SA 1
(CC) Yacoob J held as follows at paragraph [31]
"[31]
Section 12(2)
applies when one law repeals another law. The purpose
of the provision is to control the consequences of the repeal of a
law so
as to ensure that the dislocation and unfairness that might
follow upon the repeal would, if not altogether avoided, be kept to
an absolute minimum
23
Section 12(2)
is of
application here because the 1997 proclamation has been repealed and
replaced by the 2001 proclamation."
24
50.
Despite Mr Mihalik's submission
to the contrary, the charges in respect of counts 10 and 11 were
correctly framed in terms of the
provisions of the Arms and
Ammunition Act.
51.
It is a requirement for the convictions in respect of counts 10 and
11 that
evidence be adduced that the weapon found in the possession
of appellant 1 was in working order and that the ammunition was live.
The evidence adduced was that the Glock was licensed to the owner and
that the live ammunition was clearly marked. This evidence
was not
challenged.
52.
In the premises the first appellant was correctly convicted in
respect of counts
10 and 11.
53. The
learned Magistrate had already in his judgment expressed his
dissatisfaction with the failure of the State to lead the evidence
it
ought to have done. I add to this the following: it appears from
reading the record that after the discharge of the appellants
on some
of the charges, the State had applied to reopen its case. It is clear
from reading the record that that application was
brought as a result
of one of the complainants making enquiry, it seems on a regular
basis, as to the progress in the matter. She
was described as one Mrs
le Roux, an old lady whose husband was 51.
robbed in her
presence.
25
This particular complainant had
not been called as a witness though he or she was clearly willing and
able to testify. No justice
was done to the wrong inflicted upon
those victims by the failure of the State to prosecute that charge.
Not only are the accused
entitled to a fair trial, but so also are
complainants. They are entitled to have their complaints adjudicated
by a court. They
were deprived of this by a failure of the
prosecution.
54.
In summary, and in respect cf
the convictions, I would order as follows
(a)
the conviction of both appellants on count 9 is confirmed;
(b)
the conviction of the first appellant on counts 10 and 11 are
confirmed
(c)
the convictions of both appellants on counts 2, 6 and 8 are set aside
and replaced with convictions on the possession of stolen property
knowing them to have been stolen.
55.
In summary, and in respect of
the sentences, I would order as follows
(a)
First appellant is sentenced,
with regard to
(i)
count two, five years
imprisonment
(ii)
count six, five years
imprisonment.
(iii)
count eight, five years
imprisonment.
(iv)
count nine, fifteen years
imprisonment.
(v)
counts ten and eleven, two years
imprisonment.
(vi)
The above sentences run concurrently with each other.
(b)
Second appellant is sentenced,
with regard to
(i)
count two, five years
imprisonment
(ii)count
six, five years imprisonment.
(iii)
count eight, five years imprisonment.
(iv)
count nine, fifteen years imprisonment.
(v)
The above sentences are to run concurrently with each other.
OLIVIER,
AJ
I
agree and it is so ordered
ALLIE, J
1
Record
p 132:25; record p 136:16 - 19
2
Record
p 32: 22 - 25
3
Record
p 41: 10-14 (though Mr Morgan put it to captain Meyer that this was
his testimony, and Captain Meyer confirmed this, the
record does not
reflect that captain Meyer had in fact stated that the reason,
namely to prevent the arrest of the wife was given)
4
Record
p 38: 22
5
Record
p 116
6
The
majority did not disagree with the summary of the applicable
principles.
7
"
S
v Parrow
1973 (1) SA
603
(A) at 604B-F:
S v
Skweviva
[1984] ZASCA 96
;
1984 (4) SA
712
(AD) at 715-716"; see also Schmidt and Rademeyer, L
aw
of Evidence
, loose
leaf, Lexis Nexis at 5-36;
S
v Screech
1967 (2) SA
407
(E) See also
S v
Jantjies
1999 (1)
SACR 32
(C) in which the court correctly declined to follow
S
v
Tandimali
1998 (1) SACR 119
(C), wherein
it was found that the doctrine of recent possession only applied in
respect of the crime of theft, and not also
to housebreaking with
the intent to commit a crime. In
S
v Nkomo
1966 (1) SA
831
(A), 833B-C, the presumption was so widely applied that the
joint possession of stolen goods was taken a prima facie proof of a
common intent not only to commit housebreaking and theft, but to
commit the murder which had been perpetrated during the
housebreaking
and theft.
8
As
the court inferred in
S
v Skweviva
, supra.
9
at
paragraph [29] per Navsa JA
10
"At
449g-i and see also D T Zeffertt. A P Paizes, A St Q Skeen The South
African Law of Evidence (2003) pp 151-152."
11
at
paragraph [15], 394G - I
12
Mapande
v
S
(046/10)
[2010] ZASCA 119
(29
September 2010).
13
"See
the decision of the Supreme Court of the United States of America in
Victor v Nebraska (92-8894).
511 US 1
(1994), accessed on 27
November 2008 at
http.llwww.law.cornell.edulsupct/html/
http.llwww.law.cornell.edulsupct/html/
92-8894
ZO.html."
14
See
also
S v Tandwa
2008 (1) SACR 613
(SCA) at para
53
15
Record
p 5:1
16
The
learned Magistrate first pointed this out R 29: 16 - 23
17
At
record p 134: 21 - 135: 11
18
At
record p 30: 2
19
At
record p 30: 19
20
Record
p 135: 14-18
21
Landsdowne
and Campbell South African Criminal Law and Procedure, Vol V, at
193, citing
R v
Robinson
1954 (3) SA
449
(O),
S v Dhludhla
1968 (1) 459 SA (N),
R
v Alexander and others
1936
AD 445
at 461;
Rv
Brand
1952
(2) SA 131
(T),
S v
Burger
1969 (4) SA
292
(SWA)
22
"
12.
Effect of repeal of a law. - (1) Where a law repeals and re-enacts
with or without modifications, any provision of a former
law.
references in any other law to the provision so repealed shall,
unless the contrary intention appears, be construed as references
to
the provision so re-enacted.
(2)
Where a law repeals any other law, then unless the contrary
intention appears, the repeal shall not
…
.
(d)
affect any penalty, forfeiture
or punishment incurred in respect of any offence committed against
any law so repealed; or
(e)
affect any investigation, legal
proceeding or remedy in respect of any such right, privilege,
obligation, liability, forfeiture
or punishment as is in this
subsection mentioned.
and
any such investigation, legal proceeding or remedy may be
instituted, continued or enforced, and any such penalty, forfeiture
or punishment may be imposed, as if the repealing law had not been
passed."
23
"See
Oudebaaskraal (Edms)
Bpk en Andere v Jansen Van Vuuren en Andere
2001
(2) SA 806
(SeA) at 811 G-Hand
R
v Sillas
1959 (4) SA
305
CA) at 309H."
24
See
also
Transnet Ltd v
Ngcezula
[1994] ZASCA 192
;
1995 (3) SA
538
(A)
25
Record
p 153 5-8