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[2022] ZAECBHC 35
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Mayile v S (CA& R 12/2019) [2022] ZAECBHC 35 (2 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BISHO)
NOT
REPORTABLE
Case
no:
CA& R 12/2019
In
the matter between:
VUYOLWETHU
MAYILE
Appellant
and
THE
STATE
Respondent
EX-TEMPORE
JUDGMENT
Govindjee
J
Background
[1]
The
appellant
was
found
guilty of the following counts:
Count 1: Robbery with
aggravating circumstances;
Count 3: Possession of a
prohibited firearm.
[2]
The convictions relate to an incident that
occurred on 2 February 2014, in which the owner of a store was robbed
by three persons.
The appellant was found to have wielded a firearm
and inflicted grievous bodily harm during the commission of the
robbery, constituting
aggravating circumstances. The serial number of
the firearm in question had been removed without authorisation, in
contravention
of the Firearms Control Act, 2000 (Act 60 of 2000),
resulting in the conviction on count 3.
[3]
The appellant
was sentenced to 12
years imprisonment in respect of the
robbery
conviction
and
to 15
years
i
mprisonment in respect of the possession of the
prohibited firearm, ten years of which was to run concurrently with
the other sentence.
[4]
The conviction was attacked on various
grounds. It was argued, for example, that the state had failed to
show that the evidence
of the appellant was ‘completely false
and misleading’. The evidence of the main state witness,
Constable White, was
analysed without appreciating that he was a
single witness to the possession of the firearm. That evidence was in
any event not
satisfactory in all material respects and there were
discrepancies in the recording of the firearm in the SAP 13 register.
The
court a quo had failed to appreciate that Sergeant Zono had made
a statement indicating that the firearm had been found in the shop
where the robbery took place. The state ought to have been criticised
for failing to send the firearm for fingerprint analysis.
It had also
omitted to conduct gunpowder tests or test the blood found on the
money bag. The magistrate had furthermore erred in
permitting video
footage of the robbery to be aired in court and had not questioned
why the constable who had accompanied Constable
White had not been
called as a witness. No witness could identify the appellant as one
of the armed robbers. The court a quo had
failed to provide reasons
for the conviction. The sentence was criticised for inducing a sense
of shock and for being inappropriate.
Conviction
[5]
There
is a presumption that the trial court’s evaluation of the
evidence is correct. It will only be disregarded if it is
clearly
wrong.
[1]
The mere fact that a
trial court has not commented on the demeanour of the witness can
hardly ever place the appeal court in as
good position as that court.
It is accepted that the trial court might well be in a better
position than an appellate court in
drawing inferences, or in
estimating what is probable or improbable in relation to the
witnesses that have been observed during
the trial.
[6]
Nevertheless, where a court of appeal is
satisfied that the trial court has made a wrong finding of fact it
must rectify this. This
may result either from the reasons provided
being unsatisfactory on their face, or where the record shows them to
be such or where
other facts or probabilities have been overlooked.
In that case it is open to the appellate court to disregard the
findings on
fact according to the nature of the misdirection and the
circumstances of the particular case, and to come to its own
conclusion
on the matter.
[7]
On occasion an appellate court may be in as
good a position as the court a quo to draw inferences, where they are
either drawn from
admitted facts or from the facts as they have been
found by the presiding magistrate.
[8]
Where there has been no misdirection on
fact by the trial court, the presumption is that their conclusion is
correct and the appellate
court will only reverse it where it is
convinced that it is wrong. In such a case, if the appellate court is
merely left in doubt
as to the correctness of the conclusion, that
conclusion will be upheld. An appellate court should not seek
anxiously to discover
reasons adverse to the conclusions of the trial
court. Judgments frequently omit certain information, which does not
necessarily
imply that that material was erroneously ignored.
[9]
The magistrate’s judgment provides a
summary of the evidence led, as well as the magistrate’s
observations of the video
evidence led. The magistrate adds the
conclusion that ‘… there is overwhelming [evidence]
against the accused’
before the appellant is convicted. There
is little explanation for the reasons for this conclusion, no
appreciation that the convictions
are based on circumstantial
evidence, no real engagement with the appellant’s version or
application of the correct approach
to the contradictions between the
appellant’s version and White’s version. No overt
credibility assessment is offered,
although it is apparent that the
appellant’s version is ultimately rejected.
[10]
The
Court a quo’s approach conflicts with the proper manner in
which the Court must assess the evidence and provide a reasoned
conclusion. As De Villiers JP held in
Schoonwinkel
v Swart’s Trustee
:
[2]
‘
This
Court, as a court of appeal, expects the court below not only to give
its findings on the facts, but also its reasons for those
findings.
It is not sufficient for a magistrate to say, “I believed
this
witness, and I did not believe
that
witness”. The Court of appeal expects the magistrate when he
finds that he cannot believe a witness, to state his reasons
why he
does not believe him. If the reasons are because of inherent
probabilities, or because of contradictions in the evidence
of the
witness, or because of his being contradicted by more trustworthy
witnesses, the Court expects the magistrate to say so…’
[11]
The
judgment ought to have reflected the merits and demerits of the State
witnesses and the appellant’s testimony, in the
context of the
probabilities of the case before arriving at a conclusion whether the
appellant’s guilt was established beyond
reasonable doubt. All
of this should have been apparent from the reasons for judgment
provided, including the reasons for the acceptance
and the rejection
of the respective witnesses’ testimony.
[3]
In the circumstances it is open for this Court to revisit the factual
findings and conclusion of the court
a
quo
,
based on the available record of proceedings.
[12]
White’s testimony is a convenient
starting point. He and Monde had been patrolling when they observed
Mohammed. He was known
to White, carrying a firearm and bleeding
profusely. He pointed in a direction and White observed ‘a
certain young man who
was carrying a money bag or sack. And on the
other hand he was also carrying a firearm’. This individual,
who was walking
away from the direction of the shop, was continuously
observed until he stopped walking, placed the firearm a distance away
from
him and put the money bag down, before laying on his stomach. He
was searched, the firearm was taken, he was placed under arrest
and
taken to the police station. White, who was 40 to 50 paces away from
the man when he first observed him, was able to describe
the manner
in which the firearm had been carried, and had noticed that the man
had been limping. White identified the man as the
appellant. He had
observed him at close quarters at the time of his arrest, and asked
him his name, which matched that of the appellant.
[13]
At the police station, White tried to read
the serial number of the firearm to Yozi and noticed that it had been
erased. Mazomba,
the standby detective, was present. When Mazomba and
White took the appellant to the shop, the owners had identified the
money
bag as their property and indicated that the appellant had been
one of the people that had robbed them.
[14]
The version put to White was that the
accused would deny that he was arrested carrying money or a firearm.
Other than minor issues
related to the written statements he had
made, his evidence was left unchallenged.
[15]
Mazomba confirmed that Monde had since
resigned. He had been called to the police station after the
appellant’s arrest, shown
the firearm and a white ABSA money
bag. He confirmed White’s testimony that they had proceeded to
the shop with the accused,
who had been identified by the owner as
one of the robbers. The money bag had also been identified as the
property of the shop
owners. When Zono was taken to the shop sometime
later, Mazomba viewed the video footage and identified the appellant
as one of
the men in the video. Zono later took the various exhibits
for analysis, including the firearm and money bag. Ballistics results
linked the firearm to a projectile found on the scene.
[16]
Yosi testified that he had given Zono the
items that had been brought by Monde and White and which he had
booked into the records
under SAP 33/2014. This included the firearm
and money bag. Zono had brought additional items when he returned
from the scene.
Yosi confirmed that the serial number of the firearm
was scratched and not visible.
[17]
Madinda testified that he had been called
to the scene and had downloaded the relevant video footage onto a
flash drive. Two DVD
videos and photographs were then made from this
download. No tampering had occurred and the footage observed in the
court
a quo
emanated from one of the DVDs that had been downloaded by Madinda.
Mazomba was recalled and confirmed that two DVD disks had been
made
from the flash drive, one had been given to the prosecutor and the
other kept in a safe at the police station as an Investigating
Officer’s ‘original copy’, containing the CAS
number. It was this DVD, which had been kept in the safe and had
not
been sent away for any form of analysis, or handled by other persons,
that had been viewed in the court
a quo
.
[18]
Zono testified that he had collected
various exhibits at the scene. He had observed on the SAP 13 that the
firearm without the serial
number had already been booked in. He
booked out the firearm, four empty cartridge cases, one bullet
fragment and the money bag,
which contained traces of blood, for this
to be sent for analysis, together with another firearm Mazomba had
brought to him the
following day. He confirmed, despite an initial
written statement to the contrary, that he had not personally found
any firearm
on the scene. A second written statement, made a few days
after the original statement, had clarified the point. Had he found
it
on the scene he would have photographed it. The firearm had been
at the police station and not yet on the SAP 13 upon his arrival.
[19]
The appellant’s version was that he
had been an innocent bystander who had been arrested without reason.
A bakkie had been
parked with its rear towards the shop, preventing
his entry. He heard gunshots from inside the shop and walked towards
the garage.
He then noticed that his leg was numb and that he was
bleeding. He then heard a car behind him and saw that he had been
pointed
with a firearm by a person inside a moving bakkie. He waited,
and could still hear gunshots at a distance. He denied that he had
been found in possession of a firearm or money bag, or that he had
been taken to the shop after his arrest, where the money bag
had been
identified. The appellant could not explain why he had not run from
the shop when he had heard the gunshots.
[20]
The presiding officer accepted, also based
on statements from the shop owners accepted into evidence, that a
robbery had taken place
at the shop, and that White had recovered the
money bag and firearm from the appellant close to the scene of the
robbery. The firearm
was proved to have been used in the shop, and
the shop owner identified the bag. The court
a
quo
placed little reliance on the video
footage or the testimony of Mohammed in arriving at its findings.
[21]
The court
a
quo
unhelpfully concluded that there
was ‘overwhelming evidence’ against the appellant. In
respect of the robbery, it ought
instead to have considered that it
was basing its conclusion on circumstantial evidence, drawing a
justifiable inference of guilt
from facts that had been objectively
established, with due allowance made for reasons why the appellant
may have dishonestly denied
certain facts. The objective facts are
that a robbery took place, that the appellant was found near the
scene, that a firearm had
been recovered and linked to shots fired
inside the shop.
[22]
The
court
a
quo
was faced with two mutually destructive accounts as to whether the
appellant was found by White in possession of the firearm and
money
bag. As the SCA confirmed in
Kotze
v S
,
[4]
where a trial court is faced with two mutually destructive accounts,
logic dictates that both cannot be true. In order to determine
the
objective truth of the one version and the falsity of the other, it
is important to consider not only the credibility of the
witnesses,
but also the reliability of such witness. Evidence that is reliable
should be weighed against the evidence that is found
to be false and,
in the process, measured against the probabilities. In the final
analysis the court must determine whether the
State has mustered the
required threshold proof beyond reasonable doubt.
[23]
Although the court
a
quo
failed to reflect its application
of this process in the reasons for its decision, it must be accepted
that it arrived at the conclusion
that the appellant’s version
was false. It is trite that the trial court enjoys the substantial
advantage of seeing and hearing
the witnesses, and in being steeped
in the atmosphere of the trial. The presiding magistrate had the
opportunity to observe the
demeanour of the witnesses and a court on
appeal will always be reluctant to upset factual findings. It is
well-known that the
mere fact that a presiding officer has not
commented on the demeanour of the witnesses can hardly ever place the
appeal court in
as good a position to resolve issues of fact. Even in
drawing inferences, it must be accepted that it is the trial court
that is
likely to be in a better position than the appellate court to
estimate the probabilities in relation to the testimony of witnesses
who have been observed during the trial. On occasion, however, the
appellate court may be in as good a position as the trial court
to
draw inferences, where they are either drawn from admitted facts or
from the facts as found.
[24]
Although the trial court provided
insufficient substantiation of the reasons for its decision,
particularly in respect of the manner
in which it resolved the
mutually inconsistent version of White and the appellant, it cannot
be said that the court
a quo
committed
a misdirection of fact, or that it overlooked other facts or
probabilities. For example, there is no suggestion that reliance
was
placed on Zono’s testimony, or that the video footage accepted
into evidence skewed the outcome. Mohammed’s testimony
too,
correctly carried little weight. It must be accepted that no judgment
can ever be all-embracing and that merely because various
matters
have not been mentioned implies that those factors had not been
considered. Appeal courts have been cautioned not to seek
anxiously
to discover reasons adverse to the conclusions of the trial court.
[25]
There appears to be no basis for
disregarding the trial courts conclusions on fact, even though those
conclusions may have been
articulated more fully. As a result, the
presumption is that the conclusion of the court
a
quo
is correct, and an appellate court
will only reverse it where convinced that the conclusion was wrong.
This case does not warrant
such a reversal. White’s testimony
was compelling and his identification of the appellant as the person
arrested close to
the scene unchallenged. His version as to his
handling of the firearm is corroborated to an extent by Mazomba and
Yozi. Their testimony
supports the finding that there was one firearm
recovered by White and his partner when they apprehended the
appellant. This had
been taken to the police station where it was
discovered that that firearm’s serial number had been scratched
off. That firearm
was later linked to shots fired inside the shop at
the time of the robbery. While the conviction relating to the firearm
was based
on the evidence of a single competent witness, I am
satisfied from the record that White’s testimony, while
containing minor
deficiencies of the kind that might be expected, was
trustworthy and truthful so that the conviction must stand. It would
not be
in the interests of justice for the presiding officer’s
mere failure to articulate this to warrant overturning the
conviction.
[26]
The totality of available evidence supports
the inference that the appellant was guilty of robbery with
aggravating circumstances,
as charged. That inference is consistent
with all the proved facts and those facts are such that they exclude
any other reasonable
inference. It must be accepted that the
appellant had participated in the robbery and that he had wielded the
firearm found in
his possession while doing so. The appellant failed
to put material aspects of his version, including the reversed bakkie
and the
distant gunshots to White. He failed to challenge any of the
witnesses who testified that he had been taken back to the shop after
his arrest, where the money bag had been identified. Analysing the
available evidence, including various apparent improbabilities
in the
appellant’s version of events, results in the conclusion that
the appellant’s guilt was established beyond reasonable
doubt,
and his version was not reasonably possibly true. Neither the failure
to conduct additional fingerprinting-, blood- or gunpowder
tests, nor
the decision not to draw an adverse inference from the failure to
call Monde, alters that conclusion. If anything, and
as an aside
given the absence of a cross-appeal, the appellant may consider
himself fortunate not to have been convicted of the
remaining count
as well.
Sentence
[27]
It
is trite that the imposition of sentence is pre-eminently a matter
for the discretion of the trial court. This means that the
trial
court is free to impose whatever sentence it deems appropriate
provided that it exercises its discretion judicially and properly.
Accordingly, the trial court must impose a sentence on the correct
facts and must take the correct legal position into account.
The test
in a criminal appeal is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate.
As the
Court held in
S
v Pillay
:
[5]
‘
As
the essential enquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong but whether the
Court in
imposing it exercised its discretion properly or judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence: it must be of such a nature, degree
or seriousness that it shows, directly or
inferentially, that the
court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such a misdirection
is usually and
conveniently termed one that vitiates the court’s decision on
sentence.’
[28]
It
remains open for a Court of appeal to interfere with a sentence that
is excessive or disturbingly inappropriate. The manner in
which the
Court evaluates this possibility is to consider all the relevant
circumstances as to the nature of the offence committed
and the
person of the accused, before determining what a proper sentence
ought to be. If the difference between that sentence and
the sentence
actually imposed is so great that the inference can be made that the
trial court acted unreasonably, and therefore
improperly, the Court
of appeal will alter the sentence.
[6]
If the cumulative effect of a sentence is too severe, that will also
constitute a sentence that is disturbingly inappropriate.
[7]
[29]
The appellant was convicted of being in
possession of a prohibited firearm.
Section 4(1)
(f)
(iv)
of the
Firearms Control Act, 2000
, prohibits the possession or
licensing of any firearm where the serial number or any other
identifying mark has been changed or
removed without the permission
of the Registrar of Firearms. This is an offence in terms of that Act
with a maximum period of imprisonment
of 25 years.
[30]
The court
a
quo
correctly considered the act of
possession of the prohibited firearm to be an independent offence,
but ordered part of the fifteen-year
sentence imposed for that
offence to run concurrently with the sentence for the crime of
robbery with aggravating circumstances.
That was the proper approach
to adopt when considering the cumulative effect of the sentence.
There is no basis for concluding
that the presiding officer’s
sentence is vitiated by irregularity or misdirection or that the
sentence imposed is disturbingly
inappropriate when considering the
nature of the offences, the appellant’s circumstances and the
interests of society.
Order
[31]
The appeal is dismissed.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
I
agree, it is so ordered
M.
CHITHI
ACTING
JUDGE OF THE HIGH COURT
Heard
:02
November 2022
Delivered
:02
November 2022
Appearances:
For
the Appellant:
Mr AH Giqwa
Legal Aid South Africa
King William’s Town
043 604 6600
For
the Respondent:
Adv N Ntelwa
National Prosecuting
Authority
Bisho
040 608 6815
[1]
S
v Francis
[1991]
2 All SA 9 (C); 1991 (1) SACR 198 (A).
[2]
Schoonwinkel
v Swart’s Trustee
1911
TPD 397
at 401.
[3]
S
v Singh
1975
(1) SA 227
(N) at 228.
[4]
Kotze
v S
[2017]
ZASCA 27
para 17.
[5]
S
v Pillay
[1977]
4 All SA 713
(A) at 717;
1977 (4) SA 531
(A) at 535F-G.
[6]
S
v Salzwedel
[2000]
1 All SA 229
(A) para 10.
[7]
S
v Whitehead
[1970]
4 All SA 340
(A).