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2022
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[2022] ZAFSHC 260
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Koepe v S (A79/2022) [2022] ZAFSHC 260 (17 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: A79/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THEMBINKOSI
SHADRACK KOEPE
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE,
DJP
et
REINDERS,
J
JUDGMENT
BY:
REINDERS,
J
HEARD
ON:
10
OCTOBER 2022
DELIVERED
ON:
17
OCTOBER 2022
[1]
The appellant was arraigned in the Regional Court in Welkom on two
counts. It was
firstly alleged that on 8 March 2018 near Bok Street
in Welkom he was in possession of a firearm, namely a 9mm Parabellum
Calibre
CZ Model 75 semi-automatic pistol, without being the holder
of a permit or license issued as envisaged in the Firearms Control
Act 60 of 2000 (count one). A second count of possession of
ammunition without a permit in terms of Act 60 of 2000 on the same
date, time and place was preferred against the appellant (count 2).
[2]
Appellant pleaded not guilty to both counts on 25 May 2021. Having
heard the evidence
of four police officers and after appellant
testified, he was found guilty on count one on 13 December 2021. He
was acquitted on
count two and thereafter sentenced to six years’
imprisonment on count one. The Regional Court granted appellant leave
to
appeal against the conviction.
[3]
A summary of the relevant evidence tendered at trial entails the
following:
Constable
Tie (also referred to as Letehe in the record) testified that on 8
March 2018 he was on duty patrolling Bok Street in
Welkom as part of
an operation, together with his two colleagues, Warrant Officer
Segalo and Sergeant (at the time a Constable)
Monyake. They spotted a
white Toyota Corolla motor vehicle, sounded the sirens and flashed
the lights of the police vehicle. The
vehicle was pulled over. On
approaching the vehicle, the appellant alighted and started running
away. Together with Warrant Officer
Segalo they gave chase after the
appellant, and whilst running the appellant took out the firearm
referred to in the charge sheet
and threw it under a stationary taxi.
He never lost sight of the appellant and eventually caught up with
him, whilst Warrant Officer
Segalo, after appellant had thrown the
firearm under the taxi, guarded the firearm until the appellant was
apprehended. The firearm
was retrieved by him from underneath the
taxi in the presence of the appellant, and he ensured that it was put
into a safe mode.
The appellant could not produce a license for the
firearm and was arrested. Warrant Officer Segalo and Seargent Monyake
in essence
corroborated the aforementioned witness’s evidence.
Of importance is the evidence of Warrant Officer Segalo that he
witnessed
the appellant taking out the retrieved firearm from his
pants (“his tummy”) whilst fleeing. Seargent Monyake
testified
that he booked the firearm (and three rounds of ammunition)
into the commonly known SAP13 Register. The testimony of the
Investigating
Officer, Warrant Officer Dlamini, revealed that he
received the firearm (and cartridges) sealed in an exhibit bag. He
opened the
bag, placed the firearm and the three cartridges in
separate bags, placed them all back in one bag and dispatched the bag
to the
Forensic Laboratory in Pretoria (hereafter the “chain
evidence”).
[4]
Appellant testified that at the time of the incident he was
travelling in a taxi on
his way to Home Affairs. As he alighted from
the taxi, a police vehicle stopped behind the taxi. The police
requested to search
him, but he ran away as he had an illegal
substance “dagga” in his possession. He discarded the
dagga whilst running.
The police, who never lost sight of him, caught
up with him. On retracing his footsteps, they averred that he had
thrown a firearm
under a stationary taxi. At the time of the incident
he was carrying a bag, containing only a lumbar jacket, over his
shoulder.
Contrary to what was put to a state witness, namely that
the dagga was in the appellant’s bag, the appellant testified
that
he took the dagga that he had thrown down, from his shirt’s
pocket.
[5]
The magistrate considered and evaluated the evidence, and found the
state witnesses
to be good and credible. The appellant’s
version was rejected as being false. On that basis she found the
state to have proven
its case in respect of count one beyond a
reasonable doubt. Mr Strauss, representing the state, submitted that
in the absence of
an irregularity or misdirection by the trial court,
a court of appeal is bound by credibility findings thereof, unless it
is convinced
that such findings are clearly incorrect.
See:
S v Francis
1991 (1) SACR 198
(A) at 204c-
J
v S
[1998]
2 All SA 267
(A) at 271c
[6]
Mr Mokoena, appearing on behalf of the appellant, summarised the
appellant’s
grounds of appeal against his conviction (as
contained in the appellant’s application for leave to appeal),
as follows:
“
(a)
The Court a quo erred in finding that the State proved its case
beyond reasonable doubt even though there
were contradictions on how
the firearm was handled;
(b)
The Court a quo erred in convicting the Appellant, not taking into
account that the chain evidence was
not proven beyond reasonable
doubt;
(c)
The Court a quo erred in accepting the evidence of Warrant Officer
Dlamini regarding the manner in which
the exhibits were handled;
(d)
The Court a quo erred in convicting the Appellant on count 1 but
acquitted him on count 2 on the very
same evidence;
(e)
The Court a quo erred in rejecting the version of the Appellant as
false;”
[7]
At the commencement of the proceedings Mr Mokoena submitted “the
bone of contention”
in this appeal to be the “chain
evidence” not being proven beyond a reasonable doubt by the
state. When prompted by
the court to indicate his view on the
magistrate’s rejection of the version tendered by the appellant
on all the evidence
before her, he responsibly did not attempt to
convince us that the learned magistrate was wrong in doing so.
Relying amongst
others on a judgment of this court,
Jantjies
v The State
A70/2017
(2017) ZAFSHC 156
, he however pressed
hard on us to find that the trial court erred in not finding that the
chain evidence had been compromised and
contaminated. Such a finding,
so the argument goes, should have led to the acquittal of the
appellant on count one.
[8]
Indeed, before us (and as is it appears from the record when the
application for leave
to appeal was heard) much was said and argued
on behalf of the appellant in respect of the evidence tendered by
Warrant Officer
Dlamini in that he ostensibly had tampered with the
evidence in opening the sealed exhibit bag and repacking same. In
Jantjies
supra
the conviction appealed against
related to a charge of theft of certain firearms. The chain evidence
in respect of those firearms
was accordingly of vital importance to
sustain a conviction. In the matter before us however, the exhibit
bag played no role in
the offence itself – it being
overwhelmingly proven by the accepted evidence on behalf of the state
that the appellant ran
away from the police officers and threw the
firearm referred to in the charge street, under a taxi. Save for
purposes of further
investigation (for example to determine whether
the firearm might have been used in other offences) it was strictly
speaking not
necessary for purposes of proving count one to send the
firearm to a forensic laboratory. Besides, the evidence shows that
the
firearm bearing serial number, M1485 which was booked by Sergeant
Monyake in the SAP 13 is the same firearm that was received by
the
Forensic Science Laboratory for investigation.
[9]
The magistrate was therefore correct in convicting the appellant as
she did. She did
not misdirect herself in respect of any relevant
evidence and she applied the legal principles in considering the
matter and the
appellant’s guilt, correctly. Despite the
valiant attempts by Mr Mokoena to convince us otherwise in relation
to the chain
evidence, there is therefore no basis upon which we
should interfere with the conviction. The result is that the appeal
should
be dismissed.
[10]
Although no appeal lies against the sentence imposed, I might mention
in passing that the learned
magistrate in her judgment both on
conviction and sentence made reference thereto that the firearm
mentioned in the charge sheet
as a semi-automatic firearm, should
have prompted the prosecution to include that the offence be read
with the provisions of the
Criminal Law Amendment Act 105 of 1997
(the CLAA), Part II of Schedule 2. A conviction on count one would
therefore have triggered
the applicability of the minimum mandatory
sentences as prescribed by the CLAA, namely imprisonment of not less
than respectively
15 years in respect of a first offender, 20 years
for a second offender and 25 years for a third or subsequent
offender. The learned
magistrate correctly indicated that since the
appellant was not charged as such, she did not sentence the appellant
in accordance
with the mandatory sentences prescribed by the
legislature.
[11]
The following order is made:
The appeal against the
conviction on count 1 is dismissed.
REINDERS,
J
I
concur.
MBHELE,
DJP
On
behalf of the Appellant:
Adv
P
Mokoena
Instructed
by: Legal
Aid South Africa
On
behalf of the Respondent:
Adv
M Strauss
Instructed
by: Director
of Public Prosecutions