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2021
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[2021] ZAGPPHC 72
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Sibiya v S (A49/2020) [2021] ZAGPPHC 72 (22 January 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NO: A49/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE
22 January 2021
In the appeal of:
TSHWARELO
SIBIYA
Appellant
and
THE
STATE
respondent
T.A.N. Makhubele J and
G.T. Avvakoumides AJ
JUDGMENT
AVVAKOUMIDES AJ
1.
The appellant was convicted in the Regional Court, sitting at
Oberholzer, on a charge
of possession of a firearm together with a
charge of possession of ammunition. The appellant was sentenced to 12
years imprisonment
on count 1-, and 3-years imprisonment on count 2
and the Trial Court ordered that the two sentences must run
concurrently. The
appeal lies against the convictions and sentences.
2.
The charges emanate from an incident on 5 April 2018. A security
officer, Olwethu Magwanya,
testified that on 5 April 2018 he was on
duty with a security officer, Mr Nkolisi. At approximately 10h00 that
morning they were
in the vicinity of a slime dam behind the New
Village residential area when Mr Magwanya and his colleague noticed
smoke around
the slime dam. The two security officers approached the
slime dam and noticed four men in the process of burning industrial
pipes.
When the four men noticed the two security officers they
dispersed and started to run away but were successfully apprehended
by
the two security officers. One of the four, wearing a white
T-shirt, threw a firearm to the ground. Mr Magwanya testified that
the person who threw down the firearm was the appellant. The four men
were arrested and taken to the police station.
3.
Warrant Officer Botha testified that he was on duty when Mr Magwanya
brought in the
four men to the police station. An unlicensed firearm
was handed to him and the firearm was documented in the SAP13
register with
number SAP13A 532/2018. At the conclusion of Warrant
Officer Botha’s evidence, the State handed in a ballistic
report on
the firearm and then closed its case.
4.
The appellant testified that he was arrested on 5 April 2018 being in
possession of
iron pipes which belonged to the mine. He and the three
other men were in the process of burning the pipes when the two
security
officers arrived at the scene and fired shots at the four
men. The four men were made to lie down on the ground and photos were
taken of them at the scene by the security officers. The four men
were searched and money together with cell phones were found
in their
possession. The appellant denied that any firearm was dropped to the
ground by him and testified that he first saw the
firearm when the
four men were taken the police station. He further testified that
when the security officer was requested to point
out the person who
was in possession of the firearm, he took some time while looking at
the four men before he pointed to the appellant.
The appellant
immediately denied that he was in possession of the firearm. He also
testified that there were several other people
at the dam who were
picking up scrap metal and denied that it was only the four of them
at the slime dam.
5.
The appellant submitted that the learned Magistrate erred in
convicting him on the
count of possession of firearm and ammunition.
The State only called Mr Magwanya who, under cross-examination,
testified that the
other security officer was his manager. He
admitted that photographs were taken by one of the managers at the
mine and that this
manager should still have the footage. The
photographs were not produced at the trial. According to Mr Magwanya,
his manager was
no longer working the area of Carletonville and his
whereabouts are unknown. The State did not attempt to locate the
manager neither
was the person who took the photographs called to
testify.
6.
The appellant denied that he was dressed in a white T-shirt and
maintained that he
saw the firearm for the first time at the police
station. The appellant thus argued that the State was duty bound to
locate and
call Mr Magwanya’s manager who would corroborate the
evidence of Mr Magwanya regarding the firearm and whether the
appellant
was wearing a white shirt, and further that it was he who
dropped the firearm to the ground. The appellant further argued that
the State could and should have called the manager who physically
took photographs of the four men. This would at least show what
the
appellant was wearing on the particular date.
7.
The appellant argued that a negative inference should be drawn
from the failure by the State to call any of these witnesses to
corroborate
the evidence of a single witness, namely Mr Magwanya. In
this regard the appellant relied on S v Teixeira
1980 (3) SA 755
(A).
In S v Teixeira the court held that in similar circumstances, the
failure by the State to call the other witness to testify
justified
an inference that in State counsel’s opinion his evidence might
possibly had given rise to contradictions which
could have reflected
adversely on the credibility and reliability of the single witness.
The court went on further to state that
“
the Court
a
quo
had erred in concluding that the evidence of the single witness had
been satisfactory in every material respect, and that it
was safe to
convict appellant of murder on the strength of her uncorroborated
evidence, notwithstanding
the improbability inherent in
her version”.
8.
The evidence of Warrant Officer Botha, so argued the appellant, does
not assist the
State’s case. Warrant Officer Botha did not make
a statement and could not remember any details. He could not remember
what
clothing the appellant was wearing and could not remember
whether the security officer hesitated before pointing out the
appellant
as the person in possession of the firearm. Although the
firearm was registered in the SAP13 file under Warrant Officer
Botha’s
name, he denied that it was his handwriting. There was
also no link between the firearm which was examined by Warrant
Officer Goertzen
in Exhibit B and the firearm handed in and
registered in the SAP13 register.
9.
The State did not produce any evidence of the exhibit bag number or
any evidence as
to who conveyed the firearm to the laboratory. The
appellant submitted that although the defence had agreed to the
handing in of
the ballistic report, no admissions were made in
respect thereof or as to the correctness thereof. The appellant
submitted that
even if it were to be accepted that the firearm was
handed in by Mr Magwanya, it does not mean that the State is absolved
from
its duty to prove that the appellant was in possession of the
firearm.
10.
The appellant referred to S v Sithole
1999 (1) SACR 585
(W) in
which Nugent and Schwartzman JJ, held as follows:
“
There is only
one test in
a
criminal
case,
and that is whether the
evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary is that accused is
entitled to be acquitted if
there is
a
reasonable possibility that an innocent explanation
which he has proffered might be true. These are not two independent
tests, but
rather the statement of one test, viewed from two
perspectives. In order to convict, there must be no reasonable doubt
that the
evidence implicating the accused is true, which can only be
so
if there is at the same no reasonable possibility that the
evidence exculpating his is not true. The two conclusions go hand in
hand, each one being the corollary of the other Thus in order for
there to be
a
reasonable possibility that an innocent
explanation which has been proffered by
the accused
might be true, there must be at the same time
a
reasonable
possibility that the evidence which implicates him might be false or
mistaken”.
11.
Consequently, the appellant submitted that the State has failed to
prove that the appellant was in possession
of the firearm. The
appellant was, in separate proceedings, convicted of theft and
sentenced to two years imprisonment. The Trial
Court did not take
this into account and no order was made that the effective sentence
of 12 years would run concurrently with
the 2 years imprisonment for
the theft. The appellant thus submitted that the learned Magistrate
misdirected himself when considering
the sentence. According to the
record the Magistrate emphasized the murder rate and violent crimes,
including sexual offences and
xenophobia in South Africa. In doing
so, the appellant argued that the learned Magistrate had lost sight
of the fact that the appellant
had not been charged of any violent
crime except for being convicted for possession of a firearm and
ammunition there was no other
evidence produced by the State of any
violent crime committed by the appellant. Consequently, and
particularly in the light that
the appellant did not have any
previous convictions for violent crimes, the appellant submitted that
the sentence is shockingly
disproportionate with the facts of the
case.
12.
The State submitted that the evidence of Mr Magwanya was satisfactory
in every material respect. It
was submitted that the Trial Court had
regard to the cautionary rule applicable and that the Trial Court was
aware of the fact
that the evidence of a single witness would have to
be satisfactory in every material respect. This is unfortunately not
borne
out by the record and the evidence before the Trial Court. On
the conviction the State did not make any meaningful submissions
regarding the conviction. I am not persuaded that the State
discharged the onus resting upon it to show that it was indeed the
appellant who was in possession of the firearm and the ammunition.
For the aforesaid reasons it is unnecessary for me to consider
the
submissions made about sentence. In my view the appeal has merit and
must accordingly succeed.
13.
I make the following order:
13.1
The appeal against the conviction and sentence is set aside.
G.T
AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I agree
T.A.N.
MAKHUBELE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date of hearing: 01
September 2020
Date of judgment: 22
January 2021
Delivered:
This
judgment was prepared and authored by the Judge(s) whose name(s)
is/are reflected and is handed down electronically by circulation
to
the parties/their legal representatives by e-mail and by uploading it
to the electronic file of this matter on Caselines. The
date for
hand-down is deemed to be 22 January 2021.
Appearances:
Counsel for the
Appellant: Adv. L Augustyn -
leanaa@legal-aid.co.za
Counsel for the
Respondent: Adv. L Williams -
lwilliams@npa.gov
za