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[2010] ZAGPPHC 604
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Ndlovu v S (A646/2007) [2010] ZAGPPHC 604 (27 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT, PRETORIA)
CASE NO:
A646/2007
DATE: 27 MAY 2010
In the matter
between:
TH03ENI GATSHENI
NDLOVU
......................................................................................................
Appellant
And
THE
STATE
......................................................................................................................................
Respondent
JUDGMENT
LEDWABA. J
[1]
This is an appeal against conviction and sentence of the Benoni
Regional court. The appellant was convicted on 23 April 2009
for
murder (count 1), 3 counts of attempted murder (counts 2-4) and
contravention of
section
3 of Act 60 of 2000,
unlawful
possession of a firearm (count 5). On count one he was sentenced to
life imprisonment on counts 2-4 he was sentenced to
5 years
imprisonment on each count and on count 5 he was sentenced to 15
years imprisonment. The sentences on counts 2-4 and the
10 years of
the sentence on count 5 were ordered to run concurrently with the
sentence on count 1. The appellant was further in
terms of
Act
103 of Act 60 of 2000
ordered
to remain unfit to possess a firearm. The appellant was legally
represented at the court a
quo.
I
need to mention that despite the order of the court a quo that
certain sentences and portions thereof were to run concurrently
with
the sentence on count 1 in terms of
section
32(2) of
the
Act
8
of 1959
the
other sentence will automatically be served concurrently with the
life sentence imprisonment..
[2] In the criminal
trial the state called 6 witnesses to prove its case and thereafter
closed its case. The Appellant testified
and closed his case without
calling any witness.
[3] Boy Samson Madi
(Mr. Madi) and Phillip Lodge (Mr. Lodge) testified that on 21 March
2008 at about 18h00 they together with Tnemba
Ephraim Shongwe (the
deceased) and Mandia Thango were in a restaurant at Watvilie Hostel
in Benoni having some drinks together
after they just had their
supper. Mr. Lodge said he noticed Rose, the lady working in the
restaurant scream and running out of
the restaurant. Mr. Madi and Mr.
Lodge further testified that they saw the appellant wearing an
overall entering into the restaurant
having a firearm and shooting in
the direction of the deceased. Appellant approached the deceased,
fired further, shot him and
insulted him. In the first shooting
incident they took cover, however, Mr Madi was struck by a bullet
that wsnt through his left
arm and penetrated his stomach. He had to
undergo an ooeration for the bullet to be removed. Mr. Lodge was
struck by one of the
bullets on the right leg.
[4] Appellant denied
to have been involved in the shooting incident. Jeremiah Mlangeni and
Jabuiani Buthelezi (5
,n
& 6
tr
state
witnesses) testified that they are police officers in the SAPS and
Metro, respectively. On 5 April 2008, they were on duty
and they saw
appellant, whom they were tracing, gambling at Motloasi Street in
Wattville. When appellant noticed them he ran away.
They chased him
and managed to arrest him after he fell. They handcuffed him, a 9mm
NZ firearm, and 13 bullets were found in his
possession. Constable
Buthelezi described the firearm found in the appellant's possession
as a Norinko NM 75mm. Appellant was thereafter
taken to the police
station. The firearm found in appellant’s possession was booked
in the SAP 13 under reference number
SAP 13/129/08. A new docket for
the firearm and bullets was opened at Actonville Police Station.
[5] Appellant
disputed that he ran away when he saw the police and that the firearm
and ammunition were found in his possession.
Actually he said that he
does not know where the firearm came from. In his evidence he also
said after he was arrested by the police
they only found a cell phone
in his possession. Thereafter he was taken to the hostel where the
police told the residents that
he is the person who shoots at people.
He further said he was assaulted by the police.
[6]
During the trial the defence made some forma! admissions in terms of
Section 220 of Act
51 of 1977.
see
exhibit C. in relation to
(i) the identity of
the deceased;
(ii) the correctness
of the post mortem report;
(iii) the cause of
death;
(iv) the correctness
of the identification parade when the parade was held;
(v) that the six
spent cartridges were collected at the scene of the shoot by
constabie Mqubidu put in a bag and properly sealed
with seal number
FSB 983993 and disputed; and
(vi)
an affidavit by Inspector Roelofse was admitted as evidence in terms
of
Section 212 of
Act 51 of 1977.
[7]
Sergeant Matlala in his affidavit that was handed in as evidence in
terms of
section
212,
stated that he received a 99mm Parabelia Calibre Norrinco Model NZ75
semi automatic pistol, serial number obliterated in a
sealed exhibit
bag with seal number FSB 351779;
[8] Appellant's
legal representative on appeal, Mr. Tsatsi argued vigorously that:
(i) Seargeant
Matiala marked the fired bullets [two] 315 Ti and 315 T2
respectively, Record p114 para 5.2,
(ii) She never
marked one[1] 9mm parabelium caiibre fired test cartridge case,
(iii)
she disposed the test marked
315
T1
on 27 May 2008 in a sealed exhibit bag with number FSCC-858783 and
were filed in case file LAB 61315/08
[9]
However, the appellant in the Regional Court formally admitted that
the fire-arm mentioned in paragraph 3.1 of the sergeant
Matlala’s
affidavit in terms of
section
212 of Act 51 of 1977
is
the same fire-arm referred by constable Butheiezi and inspector
Mlangeni. The results as mentioned in paragraph 6.1 of inspector
Roelofse’s affidavit are also formally admitted, that is, that
the cartridges and fired bullet collected by constable Mgubedu,
as
per his testimony, was fired from the same fire-arm that Inspector
Mlangeni and Constable Buthelezi testified about. (Exhibit
‘C’).
[10]
The appellant in clause 12 of the formal admission in Exhibit C
further admitted that his attorney consulted with Inspector
Roelofse
and Sergeant Matlala to clarify any uncertainty, in my view the
uncertainty raised by Mr. Tsatsi could have been clarified
with
appellant’s attorney in the proceedings of the court a
quo
hence
the record does not raise as an issue the point raised by Mr. Tsatsi.
Furthermore in an appeal an appellant is not allowed
to raise new
issues not raised in the notice of appeal.
[11]
Mr. Tsatsi further argued that the person who fired the shot was not
properly identified by Mr. Madi and Lodge. He submitted
that there
were material contradictions in their evidence. It is very clear from
the evidence of Mr. Madi and Mr. Lodge that the
kitchen or restaurant
where the incident occurred had enough light which made visibility
clear. Mir. Madi said he knew the appellant
by sight because he is
well known at the hostel and he used to see him when he visited the
hostel on previous occasions. He also
said despite the horrific
incident he experienced he managed to see the appellant in the room
because of the light and the appellant
was aboui 4-5 metres away from
him when he fired the shots.
[12] The
perpetrator's face was not hidden and the witnesses had enough time
to see him. The appellant was identified by the witnesses
at a
properly held identity parade.
[13] The
contradictions about hew the first two state witnesses and others
were seated in relation to the door and the colour of
the overall are
not in my view material. Further, the state's failure to call Rose,
restaurant employee, as a witness does not
weaken the strong evidence
of the state. Appellant does not dispute that he is well known and he
just made a bare denial concerning
the incident. Appellant’s
version that Mr. Madi and Lodge saw him at the hostel after his
arrest is not substantiated and
is rejected. I am satisfied that the
appellant was properly identified and the identification of the
witnesses is reliable.
[14] Mr. Tsatsi
further argued in the alternative that if the court finds that the
appellant was properly identified, the state
did not prove beyond
reasonable doubt that the appellant had the legal intention to murder
the victims in counts 2-4.
[15]
In
casu.
it
is clear that the aopellant wanted to kill the deceased; as a
consequence other people in the deceased's company were hit by
bullets, but not killed. Appellant will only be criminally
responsible if he had foreseen the possibility that he could either
seriously injure the people who were in the deceased's company, or
that they could even die, and yet persisted in his deed.
[16]
In
S v Mavhungu
1981 (1) SA 56
(AD) at 67 G-H,
by
mouth of Troliip AJ:
“
The
State did not prove the initial, fundamental requirement that the
appellant subjectively foresaw the possibility that Ndou.
in carrying
out the agreed common purpose of kiliing the mother-in-law
,
would instead kill
someone else...Although the relevant dicta there appear in minority
judgments in the sense that the other Judges
concerned pursued
different approaches. I think that those dicta relating to aberration
ictus accord with modem thought and the
trend of recent decisions of
this Court generally on the need for the abovementioned subjective
test to be always satisfied before
any accused can be convicted of
murder."
[17]
See Jonathan Burchell,
‘
Principles
of Criminal Law’,
Third
edition., on page 511:
“
...A
intends to kill B but misses him and kills C. As intention is
‘directed at one whom he knows and recognizes to be 3.
It is
through unforeseen and unintended factors that the blow falls upon C.
It follows that A has intention in respect of C only
if he foresaw
the possibility of C's death
,
or, for the
culpable homicide, if C's death
was
reasonably
foreseeable.
”
[18]
As tne four men were sitting around the tabie. In my view appellant
must have foreseen the possibility that he could strike
the other
complainants as well. It was clear that the deceased was not sitting
alone and appellant fired several shots. Thus, the
appellant is
criminally responsible, having
dolus,
in
the form of
dolus
eventualis.
[19] From the
information on the charge sheet, Count 4, it seems that the fourth
person who was sitting at the tabie was Mandla
Tango. Mr. Tango was
seated next to the deceased. In annexure ‘E’ appellant
submitted that there were people who sustained
injuries. Mr. Madi and
Mr. Lodge testified that the deceased was in the company of three
people Mr Madi, Mr. Lodge and Mandla Tango
who died before the matter
was heard and it seems the death has nothing to do with this
incident.
[20]
However, even without these factors known, the evidence is of such a
nature that it can safely be concluded that the appellant
has
dolus
eventualis,
also
in respect of Mr. Mandla Tango.
[21]
It was 3rgued on behalf of the appellant that as it was not explained
to the appellant that there was a possibility that life
sentence
imprisonment may be imposed, a serious irregularity occurred. Counsel
for the respondent, on the contrary, argued that
the appellant nad a
legal representative and appelian: was not prejudiced by the alleged
failure 10 explain.
[22]
The charge sheet only refers to the provisions of
section
51(2) of the Criminal Law Amendment Act, 105 of 19S7
(the
Act)
and
it does not refer to the provisions of
section
51(1) of the Act
which
deals with the imposition of life imprisonment.
[23]
In the case of
S
v
Ndlovu
2003 (1)
SACR 331
SCA
,
the
court held that where the State intends to rely upon the sentencing
regime created by the Act a fair trial will generally demand
that its
intention be pertinently brought to the attention of the accused at
the outset of the trial if not in the charge sheet
then in some other
form, so that the accused is placed in a position to properly
appreciate in good time the charge that she or
he faces as well as
its possible consequences. What will at least be required is that the
accused be given sufficient notice of
the State’s intention to
enable the accused to properly conduct his or her defence.
[24]
In the case of
S v
Chowe
2010 (1) SACR 141GNP
,
Mavundla
J, correctly, in my view, said that the fact the accused is legally
represented at his criminal trial does not take away
the need to
inform the accused that the minimum sentencing dispensation provided
for in
section 51
of the Act
will
be relied upon for sentencing.
[25]
The fact that appellant was not oertinently informed about the
provision of
section
51(1)
of the Act
in
respect of count 1,and the provisions of
section
51(2) of the Act,
in
respect of count 5. it is, in my view, justified to interfere with
the sentences imposed by the court a
quo.
[26]
I therefore make
the following order:
(1) Appeal
against the conviction is dismissed and the conviction on all the
counts are confirmed.
(2) Appeal
against sentence is upheld. The sentences are set aside and replaced
with the following sentences:
2.1
On count 1, the appeilant is sentenced to 20
years imprisonment
2.2 Counts 2,
3 and 4 are taken together for sentencing purposes, the appellant is
sentenced to 5 years imprisonment.
2.3 On count 5
the appellant is sentenced to 3 years imprisonment. ”
(3)
It is ordered that the sentences in count 2, 3, 4 and 5 are to run
concurrently with the sentence on count 1. Effectively the
appellant
is sentenced to 20 years imprisonment, which sentence is
antedated
to 23 April 2009.
A. P. LEDWABA
JUDGE OF THE HIGH
COURT
I agree,
N P
MNGQIBISA-THUSI
JUDGE OF THE
HIGH COURT