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[2021] ZAKZPHC 60
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Khumalo v S (AR503/2018) [2021] ZAKZPHC 60 (3 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR503/2018
In
the matter between:
MDUMISENI
THEMBINKOSI
KHUMALO APPELLANT
and
THE
STATE RESPONDENT
ORDER
Appeal
from:
Regional Court, Ladysmith
(Mr. P S Madida sitting as a court of first instance)
1. The
appeal against conviction on count 1 is dismissed.
2. The
appeal against sentence on count 1 is upheld
3. The
sentence of fifteen (15) years' imprisonment in count 1 is set aside.
It is replaced with
a sentence of eight (8) years imprisonment.
4. The
appeal against sentence in count 2 is upheld.
5. The
sentence of ten (10) years' imprisonment in count 2 is set aside. It
is replaced with
the sentence of five (5) years' imprisonment.
6. The
sentences imposed on count 2 and 3 are ordered to be served
concurrently. The effective
sentence is thirteen (13) years
imprisonment.
7. The
sentences are antedated to 28 August 2015.
8. No
otherwise determination is made in terms of s103 of Act 60 of 2000.
It means the appellant
remains unfit to possess a firearm.
JUDGMENT
Mngadi
J (Laing AJ concurring)
[1] The
appellant with leave granted on petition appeals against conviction
on count 1 and against sentences imposed
on count 1 and 2.
[2] The
appellant was charged before the regional court with three (3)
counts, namely, one (1) of robbery with
aggravating circumstances
(count 1), one (1) count of unlawful possession of a firearm (count
2) and one (1) count of unlawful
possession of one (1) live round of
ammunition (count 3). When the charges were put, the appellant who
was legally represented,
pleaded not guilty to all the charges. He
through his legal representative disclosed his basis of defense as
bare denial.
[3] The
learned regional magistrate after hearing evidence convicted the
appellant as charged on all the charges.
He sentenced the appellant
to fifteen (15) years imprisonment on count 1, to ten (10) years
imprisonment on count 2 and to one
(1) year imprisonment on count 3.
The court ordered that the sentences imposed on count 1 and 2 be
served concurrently. It resulted
in a total effective sentence of
sixteen (16) years imprisonment.
[4] The
State lead evidence of five (5) witnesses, namely; Elosn Tholumuzi
Mpanza (Mpanza); Slindiso Knowledge
Magubane (Magubane); Khulekani
Zikalala (Zikalala); Xolani Ntshangase (Ntshangase) and James Thwala
(Thwala). The appellant testified
for the defence and he did not call
any witnesses.
[5] The
charge In Count 1 alleged that on 13 May 2014 at or near eZakheni the
appellant did wrongfully and intentionally
and with force and
violence assault Alson Mpanza and did take from him a wallet
containing R450 cash and did attempt to take a
taxi a Toyota Hiace
NKR 14291 the property or in the lawful possession of Mpanza. The
aggravating circumstances being wielding
of a firearm. Count 2
alleged that on the date and place as in count 1 the appellant in c/s
4 (1) of the
Firearms Control Act 60 of 2000
possessed a prohibited
firearm to wit, a 9mm pistol being a semi-automatic firearm with its
serial number or identification mark
changed or removed without
permission. Both count 1 and 2 were read with the relevant provisions
of
section 51
and Schedule 2 of the Criminal Law Amendment Act No 105
of 1997 (the CLAA).
[6] Mpanza
testified as follows. On the date in question, he drove a taxi from
Ladysmith town to Nhlumayo area.
He left town in the afternoon before
it became dark. At about 7 pm at a turn off entering Nhlumayo a
person at the back in the
taxi asked to alight. He stopped the taxi,
that person got off and a tall young-man with dreadlocks followed
him. The young-man
had been sitting in front in the taxi next to him.
The tall young-man got off, turned and pointed a firearm at him.
Another person
opened the door on his side and he pushed Mpanza away
from the driver's seat to the passenger seat. That person got into
the vehicle
and he sat on the driver's seat.
[7] Mpanza
testified that he grabbed the firearm pointed at him and he struggled
with the young-man with dreadlocks
over the firearm. They fell to the
ground. The person who got into the driver's seat tried to turn
around the vehicle. The young-man
he struggled with called the person
driving the vehicle to come and assist him. That person came armed
with a firearm and he pointed
the firearm at Mpanza. Mpanza then
raised his hands to surrender. He was instructed to give the
assailants money. He took out his
wallet with R450 in it, an Edgars
card and the money constituting taxi takings for the day and he gave
it to the person who came
to assist the young-man with the
dreadlocks. The two men retreated and went to the bushes. He phoned
Silindiso a member of the
family owning the taxi. Silindiso was
nearby and he was driving a vehicle. He told Silindiso what happened.
Silindiso who was following
the taxi from town came to the scene. He
told him what happened and how the assailants looked like. He then
left to report at the
home of Silindiso. Whilst he was making a
report, Silindiso phoned him and told him that they have apprehended
the young-man with
dreadlocks but his companion escaped. He took a
vehicle and he drove where they had apprehended the young-man with
dreadlocks.
He found the young-man held and sitting down. It was at a
clinic called Kwamsain. He identified the young-man as the assailant
he struggled with. They took the young-man to the eZakheni police
station. The firearm found on the tall young-man with one round
of
ammunition was handed over to the police.
[8] Mpanza
testified when the young-man with dreadlocks got off the taxi, the
light in the vehicle above the front
seat was on. It provided some
light and he was busy giving change to the person who was alighting.
He noticed that the young-man
with dreadlocks was wearing a brown
jacket. The young-man with dreadlocks and his companions were
apprehended about half a kilometer
from the scene. It was after about
30 minutes when he saw the young-man having been apprehended at the
clinic. He was no longer
wearing the brown jacket he was wearing at
the time of the attack. There are many people who have dreadlocks. He
recognized him
by his face and the dreadlocks. He saw the firearm and
he held to it, it was the same firearm he saw at the clinic. From
town to
where he was attacked, it took him 45 minutes. The persons in
the taxi paid the taxi fare when they got off from the taxi. The
young-man paid and he was giving him change when he turned and
pointed a firearm at him. The taxi had about eight (8) passengers
at
the time. The young-man was the appellant.
[9] Magubane
testified as follows. He was driving home by the turn-off at
Mziwonke. One Mthembu told him that Mpanza
was hijacked. He drove to
the scene and he found Mpanza. Mpanza told him what happened and how
the assailants looked like. He then
came along the two assailants,
they tried to stop him but he did not stop. He proceeded and he met
with other people. The two assailants
approached. They asked for a
taxi to town. He directed them to board a bluish taxi; they boarded
the taxi and sat towards the back.
He and Khulekani pounced onto the
two assailants. They grabbed the one with dreadlocks and his
companion jumped out of the vehicle
through the window. He found a
small firearm on the young-man with dreadlocks. He asked for the name
of the young-man but he refused
to tell them his name. He phoned
Mpanza. Mpanza arrived and he looked at the person they had caught
and said it is he he struggled
with. The person and the firearm were
taken to Ezakheni Police Station.
[10] Zikalala
testified that he was in the vehicle stopped by two people. The
vehicle was greyish. They stopped
and the two people boarded the
vehicle. They phoned Mpanza. They grabbed the one with dreadlocks and
his companion escaped. He
searched him and he found a small firearm
on his waist. Mpanza came and identified the person they caught as
the assailant.
[11] Thwala
testified as follows: He was a constable stationed at Ezakheni police
station. On 15 May 2014, he searched
the appellant and he found on
him one round of live ammunition. He was searching him in order to
place him in the cells. Ntshangase
testified as follows. He was a
constable based at eZakheni Police Station. On 13 May 2014 at 21h00
the complainant Mpanza came
with other people, he opened a case of
attempted car hijacking. They came with the appellant and the small
firearm. The appellant
had bloodstains on him and he was not dressed
on top. He phoned an ambulance and the appellant was taken to
hospital.
[12] The
defense, as s220 of the Criminal Procedure Act 51 of 1977 (the CPA)
admissions, admitted that the firearm
in question was functioning
normally without any obvious defects; it was a 9x17mm caliber
semi-automatic firearm with an obliterated
serial number. The
ammunition referred to in count 3 was of 9x17mm caliber. The
documents relating that were admitted as exhibits.
[13] The
defense applied for discharge in terms of s174 of the CPA. The
regional magistrate refused the application.
The appellant took a
stand and testified as follows. He was at a stop at C Section
Ezakheni at about 18h30. He wanted a local taxi
to B Section. He was
alone. A powder blue taxi appeared. He stopped it. There was seven
(7) young-men in it, they moved for him
to sit in the middle. His
phone rang he took it out to answer. He felt a person grabbing him
from behind on his neck. The others
came to him. The person that
grabbed him asked him where the was the licence they had taken. He
was assaulted in the taxi with
hands, fist and spanners. The taxi
drove up and it passed with him where he was supposed to get off. It
stopped at the clinic.
They got off with him and they continued to
assault him. It was in a rural area. He cried and he was dragged with
a vehicle, he
was shocked with a certain machine. A certain person
intervened. He placed him on the boot of his car and took him to the
police
station. He was later arrested and charged. He had never seen
the firearm he was arrested for and he was not in possession of any
live ammunition.
[14] The
appellant denies that he was involved in the robbery of complainant.
He did not know as to which day the
incident took place and he did
not know where he was. He was with his girlfriend at C-section two
rooms. She left at 16h00 to B
Section to plait her sister's hair. He
left to meet with her, she was afraid to travel alone. She phoned him
at 18h30 to come and
meet with her.
[15] Under
cross-examination, the appellant testified as follows. He boarded the
taxi and it travelled for about
40 minutes before it reached the
KwaMyeni Clinic. The clinic is not at Ezakheni. He stopped the taxi
he boarded after he signaled
that he was going local. The occupants
were young men. He boarded the taxi alone. He could not recall the
cell number he used at
the time. His girlfriend is Thobeka Lamula. He
was with her from Monday until Tuesday. She was employed but if
requested through
employer she could come to court testify. He last
spoke to her the previous day. He was assaulted and no firearm was
produced.
He was in hospital for 3 days and his girlfriend visited
him. Police from Ladysmith took a statement from him relating to his
assault
but there was nothing further done relating to the case he
opened. The appellant showed to the court scars on his head from the
injuries sustained when he was assaulted. The clinic is near the turn
off from where the robbery took place. He did not know why
the people
would drive all the way to put him up at C Section Ezakheni.
[16] The
learned regional magistrate found that the state witnesses testified
in a satisfactory manner. He found
that their version accorded with
the probabilities. On the other hand, he found that the appellant was
generally a bad and an unreliable
witness. He gave evasive and
equivocal answers showing that he was a person who was economic with
the truth.
[17] In
my view, the State witnesses gave their evidence in a fairly good
manner, but I would differ from the trial
court with regard to the
appellant. The appellant's evidence on record shows that he gave his
evidence in a fairly straightforward
and confident manner. The
regional magistrate whilst accepting that the appellant was seriously
assaulted by the state witnesses
who arrested him, with which they
were not frank about, made no attempt to determine the impact of the
assault on the appellant
on the evidence of those that assaulted him.
However, the appellant has not appealed against the convictions on
count 2 and 3.
It means he is not challenging the version of the
state, which formed the basis of the convictions of those counts.
[18] The
version which formed the basis of the convictions on counts 2 and 3
is that, soon after the robbery in
count one and near the scene of
robbery in count 1 and in possession of a firearm fitting the
description of the firearm used in
count 1 and with the companion as
the assailant in count 1, the appellant was found. His companion
escaped by jumping out of the
window of a motor vehicle. In means,
the appellant gave false version relating to his presence and the
manner in which he was apprehended.
The said factors taken together
with the evidence of Mpanza identifying the appellant as the
perpetrator in count 1, in my view,
justify the rejection of
appellant's alibi as false and they justify a conclusion that the
State proved the guilt of the appellant
on count 1 beyond reasonable
doubt.
[19] It
is trite that the court is required to approach evidence relating to
identification with caution. In my
view, the following are
significant factors. The taxi left town before it became dark. The
assailant sat next to Mpanza whilst
Mpanza was driving the taxi.
Mpanza looked at the appellant when he was interacting with other
passengers in the taxi. The appellant
faced Mpanza during the attack.
The appellant and Mpanza struggled over the firearm and they both
fell down. Mpanza saw and identified
the appellant within an hour
from the time of the attack. In the circumstances, Mpanza's
identification of the appellant is reliable
and it can safely be
relied upon for a conviction. There are no grounds to interfere with
the factual findings of the learned regional
magistrate. See S
v
Francis
1991 (1) SACR 198
(A) at p204;
R v Dhlumayo and
another
1948 (2) SA 677
(A) at 706.
[20] The
imposition of sentence is primarily the function of the trial court.
The appellate court can interfere
with the sentence imposed in
limited circumstances, namely; if the sentence imposed is
disturbingly inappropriate, or it is vitiated
by a material
misdirection or it is so severe that it induces a sense of shock.
[21] The
personal circumstances of the appellant were as follows. He was a
first offender. He was 30 years old
and not married with two children
aged 5 and 2 years respectively. He passed grade 11. He was not
employed but work as a builder.
[22] The
trial court took into account the purposes of punishment, namely,
deterrence, prevention, retribution
and rehabilitation. Further, it
took into account the triard namely, interest of the offender,
interest of the society and the
nature of the offence.
[23] The
trial court pointed out that should it apply the minimum sentence
prescribed in the legislation, it was
looking at imprisonment of at
least 25 years for counts 1 and 2. It understood the legislation to
prescribe a minimum sentence
of 15 years imprisonment on count 1 and
of ten (10) years imprisonment on count 2. The court did not specify
in the judgment which
legislation prescribed a minimum sentence of
ten (10) years on count 2. I have not been able to find such
legislation. This constitute
a material misdirection by the trial
court which justify that the sentence imposed in count 2 be set aside
and the appellant be
sentenced afresh on count 2.
[24] On
count 1, the trial court did not take it into account that although
firearms were wielded they were not
used. The assailants abandoned
taking away the vehicle. The complainant was not injured. The
appellant was found in possession
of the firearm with no ammunition.
These factors taken together with the fact that the appellant was a
first offender is of significance.
The appellant was severely
assaulted resulting in him
sustaining injuries, which
necessitated admission in hospital for a period of three (3) days,
which left him with permanent scars.
The assault was an unlawful
punishment meted out to the appellant for committing the crime in
count 1. The appellant was arrested
on 13 May 2014 and he was
sentenced on 28 August 2015. He was in custody awaiting trial for a
period of fifteen (15) months.
[25] The
said factors property considered would justify a conclusion that in
relation to count 1 there are
substantial and compelling
circumstances for a court to impose a sentence less than the
prescribed minimum sentence of fifteen
(15) year's imprisonment.
[26] The
fact that the appellant was a first offender, taken together with the
manner in which the crime in count
one was committed, it shows that
the appellant is capable of being rehabilitated. He as a first
offender deserve a measure of mercy.
In my view in count 1 the
sentence of eight (8) years imprisonment is a fair, balanced and
appropriate sentence. In count 2 a sentence
of five (5) years
imprisonment is appropriate. I find no grounds or reasons to order
that the sentences imposed on counts 1 and
2 be served concurrently.
[27] I
propose the following order:
1. The
appeal against conviction on count 1 is dismissed.
2. The
appeal against sentence on count 1 is upheld
3. The
sentence of fifteen (15) years' imprisonment in count 1 is set aside.
It is replaced with
a sentence of eight (8) year; imprisonment.
4. The
appeal against sentence in count 2 is upheld.
5. The
sentence of ten (10) years' imprisonment in count 2 is set aside. It
is replaced with
the sentence of five (5) years' imprisonment.
6. The
sentences imposed on count 2 and 3 are ordered to be served
concurrently. The effective
sentence is thirteen (13) years
imprisonment.
7. The
sentences are antedate to 28 August 2015.
8. No
otherwise determination is made in terms of s103 of Act 60 of 2000.
It means the appellant
remains unfit to possess a firearm.
Mngadi,
J
I
agree, it is so ordered.
Laing,
AJ
APPEARANCES
Case
Number: AR
503/18
For
the Appellant: X
Sindane
Instructed
by: Legal
Aid South Africa
PIETERMARITZBURG
For
the respondents: SI
Sokhela
Instructed
by: Deputy
Director Public Prosecutions
PIETERMARITZBURG
Heard
on: 27
August 2021
Judgement
delivered on: 03
September 2021