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[2021] ZAGPPHC 400
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Lebaloa v S (A583/17) [2021] ZAGPPHC 400 (17 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE
NO: A583/17
In
the matter between:
RETSHIDISITSE
LEBALOA
Appellant
and
THE
STATE
Respondent
J U D G M E N T
The judgment and order are accordingly published and
distributed electronically. The date and time of hand down is
deemed
to be 10:00 on 17 June 2021.
TEFFO, J
:
[1]
The appellant was
arraigned in the Oberholzer Regional Court where he faced charges of
robbery with aggravating circumstances, unlawful
possession of a
firearm and ammunition, pointing of a firearm, two counts of assault
with intent to do grievous bodily harm and
possession of a dangerous
weapon. The charges of robbery with aggravating circumstances
and unlawful possession of a firearm
(semi-automatic) were read with
the provisions of section 51(2) of Act 105 of 1997, the Criminal Law
Amendment Act (“the
CLAA”) and Part II of Schedule 2.
The section provides that a first offender who is convicted of the
said offences
is liable to be sentenced to a minimum period of 15
years’ imprisonment unless, in terms of section 51(3) thereof,
the court
is satisfied that “
substantial
and compelling circumstances
”
exist which justify the imposition of a lesser sentence.
[2]
He pleaded not guilty but
was ultimately convicted on all counts save for the count of robbery
with aggravating circumstances. However,
he was convicted of theft on
that count. He was sentenced to twelve years’
imprisonment on the charge of unlawful possession
of a firearm and
two years’ imprisonment on each of the other charges. The
sentences imposed in all other counts were ordered
to run
concurrently with the sentence imposed in the count of the unlawful
possession of a firearm.
[3]
He appeals against his
conviction and sentence with the leave of the
court
a quo.
The
facts
[4]
On 15 September 2015 at
approximately 05:00 the complainants, Messrs Antonia Sekwela
(Antonia), Sergio Mayite (Serge), Thabo Ngwenya
(Thabo) and one Zito
were at the Western Deep Mine to mine illegally. As they were
walking, they spotted the appellant behind them
who was bending at
the time. He approached them and pointed them with a firearm.
They ran away. Thabo and Serge had buckets
in their possession at the
time. The bucket that Thabo was carrying was empty while the small
one carried by Serge had gold bearing
material. The appellant
followed Thabo and caught him. After noticing that the bucket
he was carrying was empty, he left
him and pursued Serge. He could
not catch Serge.
[5]
The group met again at a
spot where they changed clothes. The appellant emerged and pointed
them with a firearm again as he was
looking for the small bucket that
Serge was carrying earlier when they first met him. They ran
away again to another spot.
Serge and one gentleman who was with the
group left them. The appellant emerged again and asked them why
they were running
away and the whereabouts of Serge. After he
was informed that Serge had already left, he demanded Serge’s
contact numbers
and also told them to inform him to come back with
his work referring to the soil that Serge was carrying.
[6]
Serge, Thabo and the
appellant met again at the hiking spot. They boarded the same
taxi. The appellant threatened them
with a firearm. A struggle
broke out and the firearm fell. The appellant took out a knife
and stabbed Serge and Thabo.
He still followed them after they
had alighted from the taxi. Police were called and the
appellant was arrested.
[7]
The State also called two
police officers, Constables Mosiyaleng and Gharejane who gave
evidence about the arrest of the appellant
and where the firearm and
the knife which were used in the commission of the offences were
found.
The
appeal against conviction
[8]
The conviction of the
appellant was criticised on the basis that the evidence of the state
witnesses did not prove beyond a reasonable
doubt that the appellant
committed the offences. In his heads of argument, Mr M Botha on
behalf of the appellant submitted that
the Magistrate misdirected
himself by convicting the appellant of theft when he found that the
appellant had the intention to deprive
Antonia of his clothes
permanently.
[9]
With regard to the
unlawful possession of a firearm, the unlawful possession of
ammunition and possession of a dangerous weapon,
Mr Botha submitted
that the State relied on circumstantial evidence. Relying on
the case of
R v Blom
[1]
and
S v Cooper
[2]
,
he submitted that circumstantial evidence alone does not prove the
guilt of the appellant and his involvement is not the only reasonable
inference that can be drawn from all the proven facts. Further,
that it does not exclude all other reasonable inferences
and
specifically the appellant’s version. He further submitted that
the magistrate erred in convicting the appellant on count
of
possession of a dangerous weapon.
Applicable
legal principles
[10]
A court of appeal is not
at liberty to depart from the trial court’s findings of fact
and credibility, unless they are vitiated
by irregularity, or unless
an examination of the record of the evidence reveals that those
findings are patently wrong. The
trial court’s findings
of fact and credibility are presumed to be correct, because the trial
court, and not the court of
appeal, has had the advantage of seeing
and hearing the witnesses, and is in the best position to determine
where the truth lies
[3]
.
Count
1 - Theft
[11]
Further submissions on
this count were that the evidence of the complainant, Antonia was
that he did not see the appellant taking
the bag that was carrying
his clothes. He subsequently asked the appellant about the
whereabouts of his clothes and the appellant
mentioned that he had
placed them nearby, indicating a particular spot. Mr Botha
argued that the moving of the complainant’s
bag does not
constitute theft of the items.
[12]
This argument is not of
assistance to the appellant’s case if one takes into account
the following evidence: Antonia
testified that the appellant
robbed him of his clothes, a brown trouser valued at R180,00 which
was inside a purple bag.
He never recovered it. He left the
trouser inside the bag at the spot where he and the others changed
their clothes on the day
of the incident. When he went to get
it, he did not find it. He took someone else’s clothes.
He asked the
appellant about his clothes and the appellant said he
threw them somewhere.
[13]
Although the
complainant did not see the appellant taking or removing his clothes
where he had left them, the appellant admitted
that he threw the
clothes somewhere else. It does not appear from the evidence
that the complainant was shown where the clothes
were thrown and that
he was able to recover them. It can, therefore, not be correct to say
that there was no intention to deprive
him of his clothes
permanently. In my view the court below correctly convicted the
appellant of theft.
Counts
2, 3 and 7 – Unlawful possession of a firearm, ammunition and
possession of a dangerous weapon
[14]
Mr Botha for the appellant
further submitted that the only evidence linking the appellant to the
firearm, the ammunition and the
knife, was the allegation by the
state witnesses that the items were found near a spot where the
appellant had passed when he was
chased. He argued that the items
were found by the complainants as per the evidence and they pointed
the items to the police officers.
He submitted that no DNA of
the appellant was found on the firearm, and the police officers
testified that they did not see the
appellant carrying any of the
items when they were chasing him. Furthermore, that the appellant
testified that it was in fact the
members of the complainant’s
group who were in possession of the firearm and the knife.
[15]
It is not correct that the
only evidence linking the appellant to the firearm, the ammunition
and the knife, was the allegation
by the state witnesses that the
items were found near the spot where the appellant passed when he was
being chased after.
Antonia testified that during their first
encounter with the appellant, he pointed them with a firearm and they
ran away.
Their second encounter with him was when they were at
a spot where they changed their clothes. The appellant again pointed
them
with a firearm and they all ran away. Serge and Thabo
further testified that the appellant who later boarded the same taxi
with them, threatened them with the firearm inside the taxi, a
struggle broke out and the firearm fell. The appellant took out
the
knife and stabbed the two complainants. He followed them even
after they had alighted from the taxi.
[16]
The two police officers,
who were not with the complainants and the appellant at the time of
the incidents, testified that they
overheard from the radio about a
robbery that had just taken place where a firearm was involved.
They immediately rushed
to the scene. As they were driving in P111
Road, they saw a group of people in an open veld towards the bush
chasing after a certain
man. When the man saw them, he changed
the direction and stopped at a tree as if he was looking for a place
to hide himself.
He continued running until they managed to
catch him after they alighted from the vehicle. They looked around
and at the tree where
the man stopped earlier, they found a black
jacket with green stripes. Inside the jacket, they found a firearm
and a knife.
The undisputed evidence was that no one else went
past that tree.
[17]
The information that was
given to them about the suspect in the robbery was that he was in
possession of a firearm and was wearing
a black jacket with stripes.
Some people in the group who were there identified the appellant as
the person who had robbed
them with a firearm.
[18]
Constable Gharejane
testified that the appellant was running in an open veld. They
never lost sight of him. They saw him dropping
something where he was
running. The group confirmed that the appellant was wearing the same
lumber jacket wherein the firearm and
the knife were found wrapped,
earlier.
[19]
The appellant also
admitted that the jacket was his. This was also confirmed by DNA
evidence.
[20]
The fact that Thabo
testified that he was the person who pointed the firearm and the
knife to the police is of no consequence taking
into account that the
items were found in the presence of the police. Constable Mosiyaleng
never mentioned that the items were
pointed to him by any member of
the group. This fact does not assist the appellant’s case in
that the appellant testified
that when he fought with Serge, Thabo
was not there. The lumber jacket remained with Serge when he
got loose from him when
they were fighting. There is no evidence that
Serge or Thabo also went past the tree where the jacket was found
prior to it being
found. The only person who went past that
tree was the appellant. It can only have been the appellant who
had left
the jacket under the tree as he was the only person who was
seen running and stopping past that tree prior to the jacket being
found there.
[21]
The
court
a quo
correctly found that it was not probable that the complainants would
have called the police if they were the robbers as the appellant
had
testified. Further that it was strange that if the knife
belonged to the complainants, only them were stabbed and injured
and
the appellant was not. It also was strange that if the
complainants and the appellant were fighting over the golden
concentrate as the appellant had testified, the complainants, Serge
and Thabo would have continued to pursue him to a point where
Serge
would fire a shot in the air and also stab him with a knife when
golden concentrate was in their possession.
[22]
The appellant could not
explain why the firearm and the knife were found wrapped in his
lumber jacket. The firearm had ammunition
and was functional.
It could not have been a coincidence that it was the appellant who
had been pointing the complainants with
a firearm, stabbed them with
a knife, and then the firearm and knife were later found wrapped in a
jacket that belonged to him
and which he was wearing on the day in
question.
[23]
Having regard to the
totality of the evidence presented in the court
a
quo
, I am of the view
that the
court
a quo
correctly rejected the appellant’s evidence as not reasonably
possibly true. It correctly found corroboration and logic in
the
evidence of the state witnesses. It was not only circumstantial
evidence that led to the conviction of the appellant on those
counts. There was also direct evidence that I referred to
above. The convictions thereof cannot be faulted.
[24]
Mr Botha also submitted
that the State did not lead evidence that the firearm in question was
a semi-automatic firearm, and the
intention of the appellant to
possess that firearm. He argued that by so doing, the State had
failed to prove all the requirements
for the minimum sentence to be
applied. Reliance thereof was placed on the case of
S
v Mokwevho
[4]
.
[25]
Ms Scheepers for the State
submitted that the issue was not raised as a ground of appeal.
[26]
The issue raised is very
important and the court cannot be precluded from dealing with it
merely because it was not included as
a ground of appeal.
[27]
In the
Mokwevho
matter
[5]
,
Willis J as he then was said the following:
“
In
s 1
of the
Firearms Control Act 60 of 2000
, ‘semi-automatic’
is defined as meaning ‘self-loading but not capable of
discharging more than one shot with
a single depression of the
trigger’. No evidence was led in this regard. The
appellant was at risk of receiving a minimum
sentence if convicted as
charged. In S v Nziyane
[6]
Botha J, with Du
Plessis concurring, held, when referring to the provisions of
s 51
of
the
Criminal Law Amendment Act 105 of 1997
, in so far as they relate
to the minimum sentence for possession of an unlicensed
semi-automatic firearm, that:
‘
Die woorde dra na my mening die betekenis oor die feite wat
aanwesig moet wees om die minimum vonnis verpligtend te maak by
skuldigbevinding
moet vasstaan in die sin dat dit inbegrepe moet wees
in die feite waarop die skuldigbevinding gegrond is.’
In other words, in order to
attract the prescribed minimum sentence, all the necessary elements
must be proven at the stage of conviction,
including the fact that
the weapon in question was a semi-automatic one. In this case,
questions arise not only whether the appellant
was in unlicensed
possession of a firearm and ammunition, but also whether the firearm
was the one described in the charge and
whether it was a
semi-automatic one. There is also the question of mens rea to which I
shall refer separately at a later stage.
”
[28]
At paragraph 10 of the
Mokwevho
judgment
[7]
,
the judge proceeded to say the following:
“
Although Botha and Du Plessis JJ were not, in the Nziyane
case, dealing pertinently with the question of mens rea, it seems to
me
that the fact that the firearm in question was a ‘semi-automatic’
one (and, by definition, ‘self-loading but not
capable of
discharging more than one shot with a single depression of the
trigger’) is not merely part of the narrative or
description of
the facts in the charge-sheet: it constitutes an essential
element of the alleged offence. Guided by
the Nziyane case, by
which I am in any event bound, I come to this conclusion that the
semi-automatic offence, precisely by reason
of the fact that it is
the possession of this very type of firearm that brings a severe
minimum sentence into operation.
Moreover, it is not good
enough to prove that an accused person possessed a firearm which so
happens to be a semi-automatic one.
With the Tshwape and De Blom
cases as my guide, it seems to me that it must be proven, at least by
necessary inference, that the
accused person must have known (dolus)
or ought to have been aware of the relevant facts (culpa) which give
rise to that prescribed
minimum sentence for such possession –
and assumed the risks attached thereto. Ordinarily, when it comes to
possession of
a firearm, it will be a matter of ready inference that
a person found in actual physical possession thereof must have known
or
ought to have known that it was a firearm. When it comes to
possession of a semi-automatic firearm, that inference is not quite
so easily drawn. Nevertheless, the issue of whether such an
inference may be drawn, should not generally, be unduly problematic
for the prosecution. Ordinarily, the inference can readily be drawn
that a person proven to have discharged a semi-automatic firearm
either knew or ought to have known that it was ‘self-loading
but not capable of discharging more than one shot with a single
depression of the trigger’.
Furthermore, cross-examination
of an accused person should assist in determining how credible the
denial by the accused person of
the absence of either dolus or culpa
in regard to its semi-automatic quality may be. In the present
case before us, even
if it was accepted that it has been proven that
he was in possession of the firearm, there is nothing to justify the
necessary
inference that the appellant must have been aware or ought
to have been aware of the fact that it was a semi-automatic firearm.
”
[29]
The case of
Mokwevho
[8]
is distinguishable from the case before us. In the case before us the
charge-sheet explains that the fire arm was a semi-automatic
fire
arm. The ballistic report was handed in by consent. The appellant
consented that the fire arm was a semi-automatic fire arm.
Mr Botha
did not go through the record. Had he gone through the record, he
would have realised that there was sufficient evidence
to prove that
the fire arm was a semi-automatic fire arm. Under the
circumstances I am not persuaded that the
court
a quo
misdirected itself by finding the appellant guilty of unlawful
possession of a semi-automatic firearm.
[30]
Mr Botha further submitted
that the evidence tendered by the State does not support a conviction
of contravening section 3(1) of
the Dangerous Weapons Act
[9]
.
He argued after referring to the section that the evidence by the
State does not prove a further intention to use the knife
as provided
for in the section of the Act. Instead it proves that he had
abandoned the knife.
[31]
I do not find any merit in
this argument. Serge and Thabo testified that the appellant stabbed
them with a knife inside the taxi
after the firearm fell. They never
knew that he was in possession of a knife until he produced it and
stabbed them with it. The
fact that the firearm and the knife were
found wrapped inside the jacket the appellant was wearing earlier
under a tree, is an
indication that when he was being chased by the
group and the police he still had the weapons in his possession and
only left them
where they were found upon realising that he was going
to be caught and the police were involved. I am therefore satisfied
that
the appellant was correctly convicted on this count.
The
assault charges
[32]
Mr Botha argued that the
injuries sustained by the complainants were not supported by the J88
medical reports. Serge testified that
the appellant stabbed him on
his back with a knife once. The J88 medical report which was
completed a week later states that
he had a superficial laceration of
± 2 cm on his forehead and that the laceration could have been
caused by a sharp object.
No other injuries were noted on the
J88 medical report. He could not explain why the injury at the
back was not noted on
the J88 medical report. However, his
further evidence under re-examination was to the effect that he still
had a 5 cm scar
that was visible on his back.
[33]
Thabo testified that he
was stabbed with a knife on his shoulder and the different parts of
his body. The J88 medical report
which was completed two days
after the incident, stated that his right eye was swollen and he had
an abrasion and laceration above
the right eye and the suturing was
done.
[34]
It is my view that the
conviction of the appellant on the two counts of assault with intent
to do grievous bodily harm cannot be
faulted. I am not persuaded that
the trial court misdirected itself.
The
appeal against sentence
[35]
The following personal
circumstances of the appellant were placed on record in mitigation of
sentence: He was 36 years old
at the time of sentence. He is
married and had 2 children aged 15 and 2 years. He was
unemployed however, he survived on
odd jobs whenever they were
available. He also did part-time building work. He also worked
at the dumping site at the mine.
He passed standard 4 (grade 6)
at school. He spent 22 months in prison while awaiting trial.
[36]
In his heads of argument,
Mr Botha for the appellant submitted that the charge-sheet in the
Regional Court did not make reference
to the provisions of section
51(2) of the CLAA and the provisions were not referred to when the
charges were put to the appellant.
Further that the record does
not show that the appellant was made aware of the minimum sentence of
15 years’ imprisonment
before the commencement of the trial and
that reference thereof was only made during argument and sentence.
[37]
Mr Botha further argued
that the judgment on sentence was too short and curt. It does not
demonstrate any proper reflection of the
factors relevant to
sentencing.
[38]
Furthermore, it was
submitted that the trial court erred in not properly applying its
mind to inquiring into the proportionality
between the offence and
the period of imprisonment.
[39]
Further submissions were
that the sentence was too long. The magistrate did not take into
account the period that the appellant
spent in custody while awaiting
trial. He did not call for more information in the form of a
pre-sentence report before passing
sentence and he misdirected
himself in not taking sufficient cognisance of, or overlooking the
appellant’s personal circumstances
and not giving more weight
to the mitigating factors.
[40]
In aggravation of
sentence, the State made the following submissions: That the
offences that the appellant was convicted of
were serious. They
were prevalent and the appellant did not show any remorse. Weapons
were used in the commission of the
offences and the appellant had
previous convictions.
[41]
The appellant has the
following previous convictions: On 12 June 2009, he was
convicted of contravening section 1(A) of the
Immigration Act
[10]
and sentenced to R600 or 90 days imprisonment. On 22 July 2010,
he was convicted of stock theft and sentenced to a fine of
R3 600 or
6 months’ imprisonment plus two and half years’
imprisonment suspended for a period of three years conditionally.
On 15 August 2011, he was convicted of contravening section 3(A) of
the Precious Metals Act
[11]
and sentenced to a fine of R3 000 or 6 months’ imprisonment
wholly suspended for 5 years conditionally. He was also declared
unfit to possess a firearm. On 2 May 2015, he was convicted of
contravening the Immigration Act and sentenced to a fine of R1 800
or
3 months’ imprisonment.
[42]
The State did not agree
with the submissions made on behalf of the appellant. It submitted
that the sentence was fair and appropriate
to the offences committed.
[43]
The basic approach in
every appeal against sentence was set out in
S
v Rabie
[12]
to be the following:
“
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 be altered if the discretion
has not been
‘judicially and properly exercised’
.”
The
test under (b) is whether the sentence is vitiated by any
irregularity or misdirection or is disturbingly inappropriate (see
also
S v
Giannoulis
[13]
,
S v Barnard
[14]
,
S v Mayisela
[15]
)
.
[44]
The court in
Malgas
[16]
held that the appeal court can only interfere with the sentence
imposed by the trial court where it is vitiated by a material
misdirection or where the disparity between the sentence that the
appellate court would have imposed had it been the trial court,
is so
marked that it can be described as “
shocking
”,
“
startling
”,
or “
disturbingly
inappropriate
”
(see also
Madiba v
S
[17]
)
.
[45]
The purpose of referring
to the provisions of the CLAA is to warn the accused of the CLAA and
the consequences thereof. Although
the charge-sheet did not refer to
the provisions of s 51(2) of the CLAA in respect of the count of
unlawful possession of a firearm,
the charge clearly describes the
firearm as a semi-automatic pistol. The record shows that after the
charges were put to the appellant
and before he could plead, the
magistrate explained the provisions of the CLAA and the prescribed
minimum sentence. This is what
the Magistrate said:
“
Let
us explain the prescribed sentences for the robbery and possession of
the semi-automatic firearm. They fall under Part II of
Schedule 2 of
Act 105 of 1997. In other words, the prescribed sentence may be
between 15 and 20 years’ imprisonment.”
[18]
In this instance, the appellant knew before he pleaded that upon
conviction, the provisions of the CLAA would be applicable and
that
he was facing a minimum sentence of 15 years’ imprisonment.
The argument on behalf of the appellant that the provisions
of the
CLAA were only referred to during argument and sentence is therefore
without merit.
[46]
I agree that the judgment
on sentence is too short. However, it cannot be argued that there was
no sufficient information placed
before the magistrate to enable him
to properly apply his mind on sentence. For the reasons that
will be advanced later in
the judgment, the sentence cannot be
faulted.
[47]
In
S
v Malgas
[19]
endorsed in
S v
Dodo
[20]
it was held that it is incumbent upon a court in every case before it
imposes a prescribed sentence to assess upon a consideration
of all
the circumstances of a particular case, whether the prescribed
sentence is indeed proportionate to the particular offence.
The
Constitutional Court made it clear that what was meant by the offence
in that context consists of all factors relevant to the
nature and
seriousness of the criminal act itself, as well as all relevant
personal and other circumstances relating to the offender
which could
have a bearing on the seriousness of the offence and the culpability
of the offender. If the court is satisfied that
a lesser sentence is
called for in a particular case, thus justifying a departure from the
prescribed sentence, then the court
is bound to impose that lesser
sentence.
[48]
After considering all the
mitigating and aggravating factors, the
court
a quo
correctly
regarded the period spent by the appellant in custody while awaiting
trial as a substantial and compelling circumstance.
It then deviated
from imposing the prescribed minimum sentence of 15 years’
imprisonment in respect of the count of unlawful
possession of the
semi-automatic firearm and imposed a sentence of 12 years’
imprisonment. Furthermore, the court ordered
that the sentence in all
the other counts run concurrently with the sentence of 12 years’
imprisonment.
[49]
It is
my view that sentence imposed is proportionate to the offences
committed. There was therefore no misdirection by the
court
a
quo
.
Accordingly, the appeal against conviction falls to fail.
[50]
In the
result I make the following order:
52.1 The appeal against
conviction and sentence is dismissed.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree:
A K RAMLAL
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
Appearances
For
the appellant
M Botha
Instructed
by
Pretoria Justice Centre
For
the respondent
S Scheepers
Instructed
by
The Director of Public Prosecutions
Date
heard
10 February 2021
Date handed
down
17 June 2021
[1]
1939
AD 288
[2]
1996
(2) SA 875 (T)
[3]
Supra
[4]
S
v Mokwevho
2010 (1) SACR 349
par 5
[5]
Supra
[6]
2000
(1) SACR 605
(T) at 609c-d
[7]
Supra
[8]
Supra
[9]
S
v Francis
1991 (1) SACR 198
(A) at 198J-199A,
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645E-F
[10]
Act
13 of 2002
[11]
Act
37 of 2005
[12]
1975
SA 855
(A) at 857 D-F
[13]
1975
(4) SA 869 (A)
[14]
2004
(1) SACR 191
(SCA) at 194C-D
[15]
2013
(2) SACR 129
(GNP) at [13]
[16]
2001
(1) SACR 469
(SCA) at 478E-H
[17]
2015
[JOL] 33686 (SCA)
[18]
Record
page 4 line 20
[19]
2001
(1) SACR 469 (SCA)
[20]
[2001] ZACC 16
;
2001
(3) SA 382
(CC)