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[2013] ZASCA 197
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Slinger v S (233/13) [2013] ZASCA 197 (2 December 2013)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case No: 233/13
Not Reportable
In the matter between:
BOY WILKEN
‘WILLEM’
SLINGER
.......................................................
Appellant
and
THE
STATE
..............................................................................................
Respondent
Neutral citation
: Slinger v The State
(233/13)
[2013] ZASCA 197
(2 December 2013)
Coram:
Lewis, Leach, Theron, Pillay and
Petse JJA
Heard
:
22 November 2013
Delivered
:
02 December 2013
Summary: Criminal procedure - appeal against decision of high
court refusing leave to appeal on petition to it following
magistrate’s
refusal of leave - merits of magistrate’s
decision to convict and sentence applicant not an issue before SCA -
appeal to
SCA limited to whether high court had correctly refused
applicant’s petition.
Robbery - several persons robbed - possibility of duplication of
charges raised but not decided.
Unlawful possession of firearm - joint possession - approach in S
v Mbuli
2003 (1) SACR 97
(SCA) para 71 affirmed.
ORDER
On appeal from:
North
Gauteng
High court, Pretoria (Botha J and Mabuse AJ sitting as court of
appeal):
1
The
appeal is upheld.
2
The
order of the high court of 5 May 2008 dismissing the appellant’s
application for leave to appeal is set aside and replaced
with the
following:
'The application for leave to appeal to the
North Gauteng High Court against both convictions and sentences is
granted.’
JUDGMENT
LEACH JA (LEWIS, THERON, PILLAY AND PETSE JJA
CONCURRING)
[1]
Arising
out of events that occurred at Eldorado Park on 22 July 1998, the
appellant and two others were arraigned in the Vereeniging
Regional
Court on four counts of robbery with aggravating circumstances, three
counts of the illegal possession of a firearm, two
counts of
kidnapping and a single count of the illegal possession of
ammunition. The appellant denied his guilt on all charges
and the
trial which followed dragged on for years. During the course of the
proceedings, both of the appellant’s co-accused
passed away
and, by the time judgment was delivered in May 2002, only his guilt
was still in issue. The trial court convicted him
on three of the
four counts of robbery as well as on both counts of kidnapping and a
single count of having been in illegal possession
of a firearm. The
appellant immediately absconded and it took 4% years before he was
rearrested and brought back to court. As a
result it was only on 28
November 2006 that he was sentenced, an effective term of 23 years’
imprisonment having been imposed.
[2]
The
appellant proceeded to apply to the trial court for leave to appeal
against both his convictions and sentences. His application
failed,
and a petition to the high court for such leave was similarly
dismissed on 5 May 2008. More than three years later, on
17 October
2011, the appellant appeared in person before the high court and
persuaded it to grant leave to appeal to this court
‘against
the dismissal of his petition, both in respect of the conviction and
sentence’.
[3]
In his heads of argument the attorney
then representing the appellant (who did not appear in the appeal)
suggested that this court
ought to interfere by either setting aside
the appellant’s convictions or by reducing his sentences. This
overlooked that
the present appeal lies against the high court’s
refusal of the appellant’s application for leave to appeal, and
it
is well established that the issue to be determined at this stage
is therefore not the merits of the appeal against conviction and
sentence but whether the high court should have granted leave to
appeal against the magistrate’s judgment.
[1]
Indeed the attorney who ultimately appeared for the appellant
conceded this to be the case and limited his argument to the refusal
of leave to appeal in May 2008.
[4]
In order to succeed, the appellant has
to show not that the trial court erred either in convicting or
imposing sentence but that
there are reasonable prospects of the
appeal succeeding in respect of those issues. In that regard more is
required than establishing
the existence of the possibility of
success or that the appellant’s case is arguable and not
hopeless; instead it must be
shown that there is a sound and rational
basis justifying the conclusion that an appeal court could reasonably
arrive at a different
decision to that reached by the trial court.
[2]
[5]
The
appellant’s case is that he was in no way involved in the
incidents that gave rise to the charges levied against him.
The trial
court concluded otherwise. As this is a question of fact, it is
necessary to deal with the evidence implicating the appellant.
[6]
The evidence of the State may be
summarised as follows. On the morning in question a Nedbank employee,
Mr Bevin Kyde,
[3]
and a security officer, Mr Schalk van der Merwe, travelled in a
Nedbank motor vehicle to service a number of the bank’s ATM
machines. They stopped on the way in order to get something to eat.
While seated in their vehicle eating their meal, they were
approached
by three or four armed men, at least one of whom was a co-accused of
the appellant, who held them up at gunpoint. Kyde
was dispossessed of
a panic button while Van der Merwe was robbed of his watch and
service pistol. Another motor vehicle drew up
nearby, into which Van
der Merwe was forced and taken to a house where he was interrogated
for several hours about his employer’s
methods of operation. He
was released later that afternoon.
[7]
Meanwhile, several members of the armed
gang used the Nedbank vehicle to take Kyde to a house at Orange Farm.
There a white Nissan
Sentra motor vehicle arrived in which, according
to Kyde, the appellant was a passenger. Kyde alleged that the
appellant and several
other members of the gang proceeded to threaten
him and told him that if he did not do what he was told, he would be
shot. He was
then taken to a Nedbank ATM at Walkerville which he was
forced to empty of money which he handed over to his abductors. He
was
then taken to Ennerdale where the process was repeated at another
Nedbank ATM. According to Kyde, at that stage he again saw the
appellant close to the ATM cubicle while he emptied it. Kyde was then
taken to another place where his cellphone, his wallet containing
R120, a pager and his keys were taken from him. He was then left in
the Nedbank vehicle, the keys of which had also been removed.
[8]
The
trial court accepted Kyde’s identification of the appellant.
This finding was attacked on appeal, particularly as Kyde
had been a
single witness. Indeed, leave to appeal was granted to this court
pre-eminently on the basis that the identification
may have not been
reliable. However, for the reasons that follow, the matter can be
disposed of in favour of the appellant even
on the assumption that
Kyde’s identification of the appellant can be accepted.
[9]
The four counts of robbery levied
against the appellant as a result of these events related to the
following: on count 1, the theft
of Kyde’s keys, his pager, the
cash in his wallet and his cellphone; on count 2, the theft of Van
der Merwe’s CZ pistol
and watch; on count 3, the money taken
from the Walkerville ATM; and count 4, the money stolen from the
Ennerdale ATM. The trial
court concluded that the last two counts in
fact amounted to a single count of robbery involving the theft of
money from Nedbank
and that it would amount to an impermissible
duplication of convictions to find the appellant guilty on both such
counts. However,
it further concluded that the theft by force of the
items I have mentioned were separate individual offences, and that
the appellant
had formed part of a crime syndicate which had acted
with a common purpose to rob Kyde, Van der Merwe and Nedbank. On the
strength
of these findings, the appellant was convicted of three
counts of robbery.
[10]
In my view, as the appellant appeared on
the scene only after Kyde had been taken to Orange Farm, there is a
more than reasonable
prospect of another court finding that the State
had failed to show that he had been associated in any way with the
events that
occurred before then. There is also nothing to show that
the appellant was present when Kyde was dispossessed of the various
items
I have mentioned after the second ATM had been robbed. That
being so, there appears to be a reasonable prospect of the appellant
succeeding on appeal in respect of his convictions of having robbed
both Kyde and Van der Merwe. Moreover, as there is nothing
to show
that the appellant was even aware of Van der Merwe’s abduction
let alone in any way associated therewith, there is
a more than
reasonable prospect of his conviction on the charge of kidnapping Van
der Merwe being set aside on appeal.
[11]
In
addition, even if at the end of the day it is held that the appellant
had indeed acted in association with the actual perpetrators
of the
robberies throughout, there appears to be a reasonable prospect of
another court finding that the facts showed there to
have been a
continuous stream of events involving the theft by violence from
Nedbank and its employees and that, as a matter of
‘common
sense’ there was in truth only one robbery involving Kyde, Van
der Merwe and Nedbank.
[4]
[12]
Then
there is the question of whether it was shown that the appellant was
in unlawful possession of a firearm. His conviction on
this count was
based upon the finding that Van der Merwe had been dispossessed of
his firearm; that one of the robbers had therefore
been in the
unlawful possession of that firearm; and that as the appellant had
acted with common purpose with the robber who had
possessed it he,
too, was guilty of its unlawful possession. In reasoning in this way,
the trial court relied upon the reasoning
of this court in
Khambule
[5]
that the mere intention of members of a group of robbers to use their
weapons during a robbery will suffice to show joint possession
justifying a conviction. However on that issue Khambule was
disapproved by this court in Mbuli
[6]
and can no longer be regarded as a correct reflection of our law.
[7]
In these circumstances the appellant’s conviction on this count
can almost undoubtedly not stand.
[13]
In
these circumstances, irrespective of whether the appellant was
reliably identified as being a member of the gang (about which
it
would be best not to express any view at this stage, given that the
matter will be fully argued in later proceedings), it is
clear from
what I have said that the appellant has a reasonable prospect of
success in respect of various convictions. Accordingly,
both the
trial court and the high court erred in refusing the appellant leave
to appeal against his convictions, and counsel for
the respondent
correctly conceded that to have been the case.
[14]
It
is unnecessary to say much in regard to sentence. It may well be that
if the appellant succeeds in respect of certain of his
convictions,
but not others, the entire question of what is an appropriate
sentence will have to be reconsidered afresh. In these
circumstances,
it would be inappropriate to limit the appeal solely to the
appellant’s convictions.
[15]
The
following order is issued:
1
The appeal is
upheld.
2
The order of
the high court of 5 May 2008 dismissing the appellant’s
application for leave to appeal is set aside and replaced
with the
following:
The application for leave to appeal to the
North Gauteng High Court against both convictions and sentences is
granted.’
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: H L Alberts (Attorney)
Pretoria
Justice Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For Respondent: P W Coetzer
Instructed by:
The Director of Public Prosecutions, Pretoria
The Director of Public Prosecutions,
Bloemfontein
[1]
See Matshona v S
[2008]
4 All SA 68
(SCA), S v Smith
2012
(1) SACR 567
(SCA) and S v De Sousa
also
referred to as AD v The State
(334/2011)
[2011] ZASCA 215.
[2]
See Smith
para
7 and S v Mabena
2007
(1) SACR 482
(SCA) para 22.
[3]
He was also referred to in the papers as being B van
Hyde and Bevan Hyde — whatever his correct name may be, I
intend to
refer to him as Kyde for purposes of this judgment.
[4]
Compare R v Kuzwayo
1960
(1) SA 340
(A); but see contra S v Dlamini
2012
(2) SACR 1 (SCA).
[5]
Sv Khambule
2001
(1) SACR 501
(SCA) para 10.
[6]
S v Mbuli
2003
(1) SACR 97
(SCA) para 71.
[7]
See further: S v Kwanda
2013 (1) SACR 137
(SCA) para 5
and S v Molimi and another
[2006] ZASCA 43
;
2006
(2) SACR 8
(SCA) paras 37-38.