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[2021] ZAKZPHC 46
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Ndlovu v S (59/2020) [2021] ZAKZPHC 46 (30 July 2021)
IN
THE HIGH
COURT OF SOUTH
AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
AR
No:
59/2020
In
the matter between:
DELANI
TANOZI
NDLOVU
APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal
from:
The Regional Court
,
Estcourt
(H
.B
.
Visagie
sitting
as court of first instance)
1.
The appeal against conviction on the
charge of murder
is
upheld.
2.
The
convict
ion
and sentence in
the charge of murder are set aside.
3.
The
appeal
against
sentence
on
the
charge
of
unlawful
possession
of
firearm
i
s
upheld.
4.
The
sentence
of fifteen (15)
years imprisonment
on the charge
of unlawful possession of a firearm is
set aside and it is substituted for a sentence of
eight
(8)
years imprisonment.
5.
The
sentence
imposed on count 3 is ordered
to
be served concurrently with the sentence
of e
i
ght
(8
)
years
imprisonment. The effective sentence
i
s
eight (8) years imprisonment.
6.
The sentence
is ante-dated to 02 August 2017
.
7.
No otherwise determination is made in
terms of section 103 (1) of Act 60 of 2000.
JUDGMENT
Delivered
on:
Mngadi
J (Mnguni J concurring):
[1]
The appellant with the
l
eave
of the trial court appeals against conviction on a
charge of murder and against sentence
on a charge of unlawful possession of a
firearm
.
[2]
The appellant was charged before the regional
court with three (3) counts
,
namely
;
one
(
1)
count
of
murder
(count
1)
,
one
count
of
unlawful possession
of
a firearm (count 2)
and one (1) count of
unlawful possession of ammunition,
namely
;
six
rounds of live ammunition (count 3).
[3]
The appellant who legally represented
,
when the charges were
put to him
,
pleaded
not
guilty
.
As
basis
of
defence in terms
of
the
provisions of
s115
of
the Criminal Procedure Act 51 of 1977 (CPA)
,
the appellant denied
committing
the
offences
and
,
in
particular, he
denied
that he was found
in
possession
of the firearm.
[4]
The learned regional magistrate after
hearing evidence convicted the appellant on
all the charges. He sentenced the
appellant to fifteen (15) years
impri
sonment
on the charge of murder; to fifteen
(15)
years imprisonment on the charge of
unlawful possession
of
a firearm and to one
(1)
year
imprisonment on the charge of unlawful possession of ammunition
.
In
terms of
s280
(2)
of
the CPA it was ordered that the sentence imposed on count 3 and ten
(10) years of the sentence imposed on count 2 be served concurrently
with the sentence on count 1. It
resulted
in
a
total effective sentence of twenty
(20)
years
imprisonment.
[5]
The charge of murder alleged that:
'
The
accused are guilty of the crime of murder
(read
with the provisions of Section 51
(2)
of
the
Criminal Law Amendment Act
105/1997.
In
that upon or about
13
July
2013 and at
or near Wembezi
in
the
Regional
Division
of
KZN
the accused unlawfully
and
intentional kill
Siyabonga
Kheswa
a
male person
.'
The
charge of possession of a firearm stated:
'
That
the accused is guilty of
the
offence
of contravening the provisions of Section 3
read
with Sections 1
,
103, 117
,
120(1)(a)
,
Section
121
read
with
Schedule 4 and Section
151
of
the
Firearms Control Act,
60
of 2000
,
and
further read
with
Section 250 of the Criminal Procedure Act 51 of
1977-Possession
of firearm.
In
that on or about 30 December
2013
and
at or near Estcourt
in
the
Regional Division of KZN,
the
accused
,
did
unlawfully
have in
his
possession
the
following
firearm
,
to
wit 9mm pistol without holding a licence
,
permit
authorisation
issued in terms of the Act to possess
that
firearm
'.
[6]
The evidence aga
i
nst
the appellant adduced by the State and accepted by the
trial
court
was the evidence of the police
witnesses. They testified that they searched the room of
the
appellant
in the
presence of the appellant
and found the
firearm
under the pil
low
of
the
bed
the
appellant
had
been
sleeping
on.
It had a magazine in it with
s
ix
(6)
live
rounds of ammunition.
[7]
The State in relation to the murder
charge
relied
on circumstantial
evidence
.
It was common cause that the deceased
was killed
on
13
July
2013
when
he was
shot
from
the
back
of
his neck. He was shot with 9mm pistol
calibre firearm determined on ballistic examination of two spent
cartridges recovered from the
scene. It was established ballistically
that the firearm
found
in
possession of the
appellant
on
30 December 2013 was
the
firearm used
in
the
murder
of the deceased.
The
appellant resided approximately 50 metres from the tavern
in
which the deceased was shot and killed.
[8]
The appellant testified. He denied that
the firearm was found
in
his
possession. He admitted that the
police
searched his room but he stated that they did not find any firearm.
He
stated
that
on the
same
date
he was arrested with was one Mlambo, h
i
s
neighbour and that
the
firearm was found
in
possession of Mlambo
.
The rebuttal evidence accepted
by the trial court
showed
that the police arrested Mlambo
for a different firearm
.
[9]
The trial court in assessing the
circumstantial evidence stated that evidence must be considered in
its totality
.
Further
,
that it must apply the two rules found
in
R v Blom
1939
AD 188 namely
;
that the inference sought to be drawn
must be consistent with all the proved facts
.
Secondly
,
the proved facts
should
be
such
that they exclude every reasonable
inference from them save the one
sought
to be drawn
.
The learned regional magistrate reasoned
that the proved facts taken together with the fact that
the
appellant belatedly raised an
alibi
he rejected and the appellant
'
s
false claim that Mlambo was arrested for the
firearm
are to the effect that there is no
other
reasonable
inference
that can be drawn but that the appellant
was the shooter.
[10]
In my view
,
the
facts that the appellant denied being found in possession of the
firearm
and
contended
that the firearm was found in possession of Mlambo
,
and the fact
that he belatedly raised an
alibi
which the trial court rejected are
not part of the proved
facts
envisaged in
R v Blom
from
which to draw an adverse inference
.
The said factors are
confined to be
considered in rejecting the
appellants
defence to the charge of unlawful
possession
of
a firearm and to the charge of murder.
They
add
nothing
to State case against
the
appellant.
In
S v Mtsweni
1985
(1)
SA 590
(A)
at
595E-F the following is stated
:
'Voordat
'
n
skuldigbevinding aan moord kan geskied
moet daar bewese feite wees wat by wyse van afleiding die appellant
aan did dood van die oorledene
koppel. By ontstentenis daarvan
bestaan daar nie
'
n
prima facie
saak
teen die appellant nie
,
en
kan sy
leuenagtige
getuinis
,
net soos
in
die geval waar hy nie getuig nie
,
nie
leemtes
in
die
Staat
se
saak
aanvul en
'
n
gevolgtrekking van skuld regverdig nie
...
'
It
is
common cause that an unlawfully
possessed
handgun
may
change
hands
easily.
It
circulates
with ease amongst criminals.
It
may
change hands within days. There was no evidence that in this case it
could not have changed hands in a period of six
(6)
months. In the absence of any other
implicating evidence
,
it
merely constituted a suspicion against the appellant. Therefore, the
conviction of the appellant on the charge of murder is unsustainable.
[11]
The learned regional magistrate, acting
in terms of the provisions of the
s51
of the
Criminal Law Amendment Act 105 of 1997
,
sentenced the appellant to
15
years'
imprisonment
for
the
unlawful possession of a firearm.
Section 51
(2)
Part II
Schedule
2
of
the CLAA provides that if no substantial and compelling circumstances
exist
,
the
court
shall impose a sentence of
imprisonment for a
period
not less
than
15 years for an offence relating to the possession of an automatic or
semi-automatic firearm.
[12]
The regional
magistrate
took into consideration that the
appellant was a
first
offender
,
he
had
three minor children aged
12
,
eight and six years respectively
,
he
had
grade
1
0
level
of
education
,
he
was doing
casual
jobs.
Further,
he
took
into
consideration the purposes of
punishment
,
namely
;
deterrence
,
prevention
,
retribution and rehabilitation. The
regional magistrate found
in
respect
of both
the
Murder
charge
and
the
charge
of unlawful possession of a firearm that
there
were no substantial and compelling
circumstances for the court
to
impose
a sentence less than
the
prescribed
m
i
nimum
sentence in
respect
of each
crime.
[13]
It is contended on behalf of the appellant in
relation to the appeal against sentence
for
the
unlawful
possession
of
a
firearm
as
follows
,
namely;
that
he
personal circumstances of the appellant
were not taken into account
;
that
the trial court over emphasised the seriousness and prevalence
of the offence
,
lastly,
that the court imposed
a
harsh sentence in view of the sentences imposed in previous cases
ranging from the sentence of five (5) years imprisonment.
[14]
It is trite that imposition of sentence is
primarily in the discretion of the tr
i
al
court
.
The
appeal court can
only
interfere with sentence in limited circumstances
,
namely
;
where
the
imposition of the sentence is vitiated by a material misdirection or
the sentence imposed is disturbingly inappropriate or it
is so severe
that it induces a sense of shock
.
In
S v Malgas
2001(1) SACR 469(SCA) at 478d-e it was held:
'A court exercising appellate
jurisdiction cannot
,
in
the absence of material misdirection by the trial court
,
approach the question of sentence as if
it were a trial court and then substitute the sentence arrived at by
it simp
l
e
because it prefers
i
t.
To do so would be to usurp the sentencing discretion of the trial
cour
t
.
Where material
misdirection
by
the
trial court
vitiates
its exercise
of
that
discretio
n
,
an appellate Court is of course entitled
to consider the question of sentence afresh
.'
[15]
The first issue for determination is
whether the sentencing on the conviction for unlawful possession of a
firearm ought to have been
within the purview of the provisions of
the CLAA. It would fall within the purview of the provisions of the
CLAA if the nature of
the offence falls within the said provisions
and the provisions are invoked at the commencement of the trial.
[16]
In the course of the trial the State
introduced an affidavit in terms of
section 212
of the Crim
i
nal
Procedure Act 51 of 1977 by Warrant Officer Thulebona Moses
Ncwane(Ncwane)
.
Ncwane
was employed by the South African Police Service and attached to the
Ballistic Unit of the Forensic Science Laboratory as a
Forensic
Analyst. Ncwane stated that he examined the firearm in question. He
found it to be self-loading
,
but
not capable of discharging more than one shot with a single
depression of the tr
i
gger.
The effect of Ncwane
'
s
evidence is that the firearm was a semi-automatic firearm.
[17]
In
the judgment on
sentence the regional magistrate stated as follows:
'
Mr
Ndlovu,
you
will
recall
that
at
the
onset of this case, I informed you and explained to you that should
you
be
convicted on a charge of murder and unlawful possession of a
prohibited firearm that it will attract prescribed minimum sentences
of 15 years. The sentences are prescribed by an Act of Parliament
and may not be deviated from, unless
there substantial
and
compelling circumstances which justify a deviation from the
prescribed sentence.' The legal representative of the appellant when
addressing the trial court on sentence he stated that it was the
count of murder which attracted the minimum sentence and he sought
to
persuade the court that there were substantial and compelling
circumstances for the
court to impose a
sentence less that
the
prescribed
minimum
sentence
of
fifteen (15)
years
imprisonment. The
learned
regional
magistrate
did
not invite
the
legal representative
of
the appellant to address him whether
there
were substantial and compelling
circumstances in relation
to the
charge
of
unlawful
possession of a
firearm
.
[18]
The
charge
for unlawful possession of the
firearm
as
quoted
above did
not
refer to the provisions
of the CLAA.
Further, it did not allege that
the
firearm was a semi automatic
firearm
.
The charge
sheet
on 22
August
2016
before another magistrate
records
the
following:
'minimum
sentence
of fifteen
(15) years imprisonment
explained
'.
It is not known
what
explanation
was
given and
in
relation
to which charge
.
The
trial
commenced on 10 November
2016.
The
record does not show that any
explanation relating to
applicable
prescribed minimum sentence was
given
.
The regional magistrate
stated
in the
judgment
on sentence that the
explanation
was
given at
the
onset
of the case
.
It
was not
possible
at
that
stage
for
the
appellant
to
indicate
whether
there
was such explanation given
or
not.
If the
explanation was given,
it
should be reflected
on
the record
.
In the circumstances
,
i
t must
be
accepted that
no
explanation
either
in the charge
or
at
the commencement of the trial
was given
that
the
charge of
unlawful possession
of
the
firearm attracted
a
prescribed
minimum
sentence of
fifteen (15) years
imprisonment.
[19]
In
S v
Ndlovu
2017 (2)
SACR
305
(CC) the court
held
that a
court
could
not
sentence
an accused
in terms of
a
sentencing
jurisdiction
the
court is
not
clothed with
.
Section 35(3)
of
the
Constitution
provides
that every accused
person
has a right
to a fair trial
which
,
inter alia
,
includes
the
right
to
be
informed
of
the
charge
with
sufficient
detail to
answer
it. It infringes the accused
'
s
right to a fair trial to sentence an accused in terms of the
provisions of the law not invoked against him
,
even if the proved charge falls within
the ambit of the law in terms of which he has been sentenced
.
See
S v
Makatu
2006(2) SACR 582 (SCA) para 3
and 7.
It
follows that
the
learned
regional
magistrate misdirected himself to sentence the appellant in terms of
the provisions of the CLAA. The sentencing of the appellant
on the
conviction on the charge of unlawful possession of the firearm is
vitiated by a material misdirection
and
it falls to be set aside.
[20]
The personal circumstances of the
appellant are stated above as well as the purposes of punishment and
the nature of the offence for
which the appellant was convicted.
Unlawful possession of a firearm is a
serious offence.
The
issue of licenses for possession of firearms is strictly regulated.
It
i
s
important that firearms be possessed by responsible individuals
.
A person possessing a firearm unlawfully
is not accepting accountability for the use of such a firearm.
Persons commit most crimes
by unlawfully possessed firearms
.
One firearm may be used to commit many
crimes over a period of time
.
The
element of deterrence must be a factor in determining an appropriate
sentence for the crime of unlawful possession of a firearm.
In my
view
,
the
appropriate sentence
,
taking
into account the personal c
i
rcumstances
of the appellant and the circumstances of the crime for which he was
convicted
,
is
eight (8) years imprisonment.
[21]
I propose the following order.
1.
The appeal against conv
i
ction
on the charge
of
murder
is
upheld
.
2.
The conviction
and sentence in the charge
of murder are set aside
.
3.
The
appeal
against
sentence
on
the
charge
of unlawful
possession of firearm is upheld.
4.
The sentence of fifteen
(15)
years
imprisonment
on the charge of
unlawful
possession of a firearm is set aside and
it is substituted for a sentence of eight
(8)
years
imprisonment.
5.
The sentence
imposed
on count 3
is
ordered
to
be served concurrently
with
the sentence of eight
(8)
years imprisonment.
The
effective sentence
is
eight
(8)
years
imprisonment.
6.
The sentence
is
ante-dated to 02 August 2017
.
7.
No
otherwise
determination
is made
in
terms of section
103 (1
)
of Act 60 of 2000
.
Mngadi, J
I
agree
,
it
is
so
ordered
.
Mnguni, J
APPEARANCES
Case
Number AR
: 59/20
For
the Appellant
: Mr. X.
Sindane
Instructed
by
:
Pietermaritzburg Justice Centre
PIETERMARITZBURG
For
the respondent
: Mr R.
Xaba
Instructed
by
: Deputy
Director of Public Prosecutions
PIETERMARITZBURG
Matter
enrolled for hearing
:
21 July
2021
With
the consent of the parties, the matter disposed of without oral
arguments.
Judgment
delivered on
:
30 July
2021