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[2023] ZAKZPHC 61
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Ndaba and Another v Cebekhulu (AR 114/20) [2023] ZAKZPHC 61 (9 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL
NO:
AR 114/20
In
the matter between:
STHEMBISO
BONGANI NDABA
FIRST
APPELLANT
SIBONGAKONKE
PERCIVAL CEBEKHULU SECOND
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
M.
Sibisi AJ (Lopes J concurring)
[1]
On the 9
th
October 2018, the appellants pleaded not guilty
in the Esikhawini Regional Court on the following counts: robbery
with aggravating
circumstances (Count 1); kidnapping (Count 2);
attempted murder (Count 3); possession of a prohibited firearm (Count
4); the unlawful
possession of ammunition (Count 5); possession
of a firearm without holding a licence, permit or authorisation
issued in terms
of the Firearms Control Act 60 of 2000 (‘the
Act’) (Count 6); possession of ammunition without being the
holder of
a license in respect of the firearm capable of discharging
that ammunition, or a permit to possess the ammunition (Count 7).
[2]
On the 26
th
April 2019, the first appellant was convicted
on Counts 4 and 5, possession of a prohibited firearm and possession
of ammunition.
[3]
The second appellant was convicted in Counts 1, 2, 6 and 7, robbery
with aggravating
circumstances, kidnapping, possession of a firearm
and possession of ammunition.
[4]
The first appellant was sentenced to ten years’ imprisonment on
Count
4 and two years’ imprisonment on Count 5, with the
sentences imposed to run concurrently.
[5]
The second appellant was sentenced to 13 years on Count 1, five years
on Count
2 (both to run concurrently), eight years on Count 6 and two
years on Count 7 (both to run concurrently). The effective term of
imprisonment then, was 21 years.
[6]
The appellants applied for leave to appeal against the conviction and
sentence
from the court
a quo
and leave was granted.
[7]
In respect of the conviction, both appellants contend that the chain
of evidence
was broken, linking them to the firearms and ammunition
recovered at the scene because there was no proper description,
handling,
packaging and examination from seizure to final analysis.
[8]
According to the second appellant, the state witnesses could not have
been able
to identify him because his facial features could not have
been visible.
[9]
The second appellant contends that his photograph that appeared in
the 20
th
January 2017 Zululand Observer publication,
probably came to the attention of the state witnesses prior to the
identification parade.
[10]
Furthermore, the second appellant wants this court to draw an adverse
inference because Ms Ngema made
a short statement on the date of the
incident, and stated that she was unable to identify any of the
suspects. Three months’
later Ms Ngema made a detailed
statement in which she stated that she would be able to identify the
suspect that was guarding her.
[11]
According to both appellants, the sentences imposed were grossly
inappropriate as to induce a sense
of shock. They acknowledge that
the court
a quo
found that there were substantial and
compelling circumstances justifying a departure from the prescribed
statutory norm.
[12]
The second appellant contends that the court
a quo
did not
adequately consider his personal circumstances; there was an
overemphasis on the manner in which the offences were committed,
and
it was ignored that no injuries were afflicted on the complainant and
her witnesses. Further, that the court
a quo
neglected the
principle that any sentence should be coupled with mercy and that it
should have realised that 21 years’ imprisonment
was harsh and
shocking. Further, that the period already spent in custody should
have been taken into consideration, and the personal
circumstances of
the second appellant constituted strong substantial and compelling
circumstances which justified the imposition
of a lesser sentence.
The court
a quo
should have considered that the second
appellant was a first offender, 31 years’ old at the time and
could be rehabilitated.
The court
a quo
placed more emphasis
on the offence than the offender, whose personal circumstances needed
to be balanced with the surrounding
factors to be considered during
sentencing. This court should accordingly interfere with the
sentences.
[13]
According
to the appellants, the discrepancy regarding the identification of
one of the firearms in the charge sheet as a ‘Luger’
is
material. The firearms that were recovered at the scene were entered
into an SAP13 register (exhibit ‘D’). On the
19
th
January 2017, Warrant Officer S E Nkosi found a pistol with 8 rounds
of ammunition; a pistol with 5 rounds of ammunition; another
pistol
with serial number B1894 with 3 rounds of ammunition; a hunting rifle
and a shotgun. These were packed in an exhibit bag
with reference
number PAB000213971 which was delivered to the Forensic Science
Laboratory in Amanzimtoti.
[1]
[14]
On the 23
rd
February 2017 Warrant Officer Mahesh, the
forensic analyst attached to the Forensic Science Laboratory at
Amanzimtoti, received
a sealed evidence bag with serial number
PAB000213971. Mahesh tested the firearms and found that they were all
functioning normally
without any obvious defects. None of the pistols
was described as a Luger.
[15]
The firearms were identified at the scene and there is nothing
suggesting that there was any interference
with them. We were not
shown how the evidential chain was broken, which could have allowed
the substitution of another firearm
in the chain of evidence leading
to the testing of the firearms.
[16]
According
to Warrant Officer Thabethe, the first appellant was arrested by him.
At the time of arrest he had a ‘small’
firearm on his
waist which did not have a serial number and Thabethe took the
firearm
[2]
and put it next to
the first appellant.
[3]
[17]
Even
if a firearm was incorrectly described in the charge sheet, the
totality of the evidence must be looked at, and the misdescription
alone cannot constitute a defence for the appellants. The State led
evidence that the firearms recovered matched the description
in the
evidence.
[4]
[18]
The
firearms were tested, contrary to the contention by the
appellants.
[5]
[19]
We
were not directed to anything that suggests that the appellants could
have been prejudiced if the charge sheet was amended to
reflect the
correct description of the firearm.
[6]
[20]
The contention by the second appellant that, since his photograph was
published in the Zululand Observer
before the identification parade,
an inference should be drawn that the outcome of the identification
parade cannot be credible,
is without substance. Both Ms Ngema and Mr
Zikhali testified that the Zululand Observer publication of the 20
th
January 2017 and the internet images thereof, did not come to their
attention, and there is nothing to gainsay that. Their evidence
was
accepted by the learned magistrate, and there is no basis upon which
this court could interfere with his conclusions.
[21]
Ms Ngema testified that when she made the statement on the date of
the incident, the 10
th
August 2016, she was still in shock
and was not able to give a detailed statement. On the 25
th
November 2016 when she made the second statement, she was in a
position to give a detailed explanation as to the events that had
transpired on the 10
th
August 2016.
[22]
It
is trite that the circumstances in which a court of appeal may
interfere with the sentencing discretion of a lower court are
limited.
[7]
The findings are
presumed to be correct and will only be disregarded if the recorded
evidence shows them to be clearly wrong.
[8]
There must be either a material misdirection by the trial court or a
marked disparity between the sentence of the trial court and
the
sentence which the appellate court would have imposed.
[9]
[23]
In
S v Rabie
1975 (4) SA 855
(A) at 857D–E, the court
stated the following:
‘
In
any appeal against sentence, whether imposed by a magistrate or a
Judge, the Court hearing the appeal –
(a)
should be guided by the principle that punishment is “pre-eminently
a matter
for the discretion of the trial Court” and;
(b)
should be careful not to erode such discretion: hence the further
principle that the
sentence should only be altered if the discretion
has not been “judicially and properly exercised”.
The
test under (b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate.’
[24]
In
S v Malgas
2001
(1) SACR 469
(SCA)
para 12, the court stated the following in
applying a broadened scope for the interference:
‘
.
. . However, even in the absence of material misdirection, an
appellate court may yet be justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence of the trial court and the sentence which the
appellate
Court would have imposed had it been the trial court is so marked
that it can properly be described as “shocking”,
“startling” or “disturbingly inappropriate”.
It must be emphasised that in the latter situation the appellate
court is not large in the sense in which it is at large in the
former. In the latter situation it may not substitute the sentence
which it thinks appropriate merely because it does not accord with
the sentence imposed by the trial court or because it prefers
it to
that sentence. It may do so only where the difference is so
substantial that it attracts epithets of the kind I have mentioned.
.
. .’
[25]
We are satisfied that the court
a quo
properly took into
account all the relevant factors that needed to be taken into account
when determining whether there were substantial
and compelling
circumstances present. The trial court deviated and imposed lesser
sentences and we find no justification in interfering
with the
sentences imposed
a quo
.
[26]
In the result, the following order is proposed:
(a)
The appeal against conviction and sentence is dismissed.
M.
Sibisi AJ
Lopes
J
Date
of hearing: 5
th
May 2023.
Date
of hearing: 9
th
June 2023.
For
the appellants: Ms
Z. Fareed (instructed by Legal Aid SA)
For
respondent: Ms
N. Moosa (instructed by the Deputy
Director
of
Public Prosecutions).
[1]
Firearms were in protective custody. See pages 136, 142 and 143 of
volume 2 of the record and also exhibit ‘G’.
[2]
Bottom of page 81 of volume 1 of the record.
[3]
See pages 81 to 83 of volume 1 of the record. Evidence of handover
of the scene was also led.
[4]
Firearms and ammunition as per the evidence of Mahesh, pages 176 to
181 of volume 2 of the record.
[5]
See examination-in-chief and cross-examination of Warrant Officer
Mahesh, pages 176 to 184 of volume 2 of the record.
[6]
See
S
v Kruger
1989 (1) 785 (AD) 796A-E;
S
v Mdunge
1962 (2) SA 500
(N);
S
v Nel
1989
(4) SA 845
(AD) 851G-H;
S
v Barketts Transport
(
EDMS)
BPK En ‘N Ander
1988 (1) SA 157
(AD) and
S
v Magwaza
1972 (2) 781 (N).
[7]
S
v Monyane and Others
2008
(1) SACR 543 (SCA).
[8]
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) and
S
v Francis
1991
(1) SACR 198 (A).
[9]
S
v Malgas
2001
(1) SACR 469
(SCA) at 478D-G.