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[2017] ZASCA 74
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Ramoba v S (1301/2016) [2017] ZASCA 74; 2017 (2) SACR 353 (SCA) (1 June 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1301/2016
In
the matter between:
SOLLY
RAMOBA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Ramoba v The State
(1301/2016) ZASCA 74 (1 June 2017)
Coram:
Shongwe ADP and Mbha and Van Der Merwe
JJA and Molemela and Coppin AJJA
Heard:
2 May 2017
Delivered:
1 June 2017
Summary
:
Criminal Law and Procedure: appeal against conviction and sentence:
principles of joint possession of firearms applied:
appeal
against conviction for unlawful possession of firearms upheld in
part: cumulative effect of sentence appropriate.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Tolmay and Fabricius JJ sitting as court of
appeal):
1 The appeal against conviction on
count 11 is upheld.
2 The appeal against conviction on
counts 12 and 13 is dismissed.
3 The sentence imposed by the trial
court on the appellant on 21 July 2004 is set aside in its entirety,
and substituted with the
following:
'(a)
On counts 1, 2 and 7 of robbery committed with aggravating
circumstances, the appellant is sentenced to 15 years' imprisonment
on each count.
(b)
On counts 3, 4, 5, 6, 8 and 9 of attempted murder, the appellant is
sentenced to eight years' imprisonment on each count.
(c)
On counts 12 and 13 of illegal possession of automatic firearms, the
appellant is sentenced to 15 years' imprisonment on each
count.
(d)
The sentences imposed in respect of counts 1, 2 and 7 shall run
concurrently with each other.
(e)
The sentences imposed in respect of counts 3, 4, 5, 6 and 8 shall run
concurrently with the sentence imposed on count 9; and
(f)
The sentences imposed on counts 12 and 13 shall run concurrently –
however 10 years of the effective sentence of 15 years’
imprisonment shall run concurrently with the sentence imposed on
count 1.The appellant will thus serve five years’ imprisonment
in respect of both counts 12 and 13. Effectively, the appellant is
sentenced to a term of 28 years’ imprisonment.'
4. The sentences are antedated to 21
July 2004.
JUDGMENT
Mbha
JA (Shongwe ADP and Van Der Merwe JA and Molemela and Coppin AJJA
concurring):
[1]
The appellant was accused No 1 of three accused, who appeared before
the regional court, Tzaneen (the trial court) on three
counts of
robbery committed with aggravating circumstances (counts 1, 2 and 7),
one count of attempted robbery committed with aggravating
circumstances (count 5), six counts of attempted murder (counts 3, 4,
6, 8, 9 and 10), and three counts of unlawful possession
of automatic
and semi-automatic firearms (counts 11, 12 and 13). At the conclusion
of the trial proceedings on 21 July 2004, the
appellant and accused
No 2 were convicted on all the counts save for count 10. Accused No 3
was discharged at the close of the
State’s case in terms of s
174 of the Criminal Procedure Act 51 of 1977 (the Act).
[2]
The appellant and accused No 2 were sentenced as follows: on counts
1, 2 and 7 to 15 years' imprisonment on each count; on counts
3, 4,
5, 6, 8 and 9 to eight years' imprisonment on each count and on
counts 11, 12 and 13 to 15 years' imprisonment on each count.
In
order to ameliorate the cumulative effect of the sentence of 138
years' imprisonment, the trial court ordered that the sentences
imposed in respect of certain counts would run concurrently with the
others. The appellant and his co-accused were thus sentenced
to
an effective term of 52 years' imprisonment.
[3]
Aggrieved by the conviction and sentence imposed by the trial court,
the appellant appealed to the Gauteng Division of the high
court,
Pretoria. The matter served before Tolmay and Fabricius JJ (the court
a quo) who, on 11 March 2008, dismissed the appeal
against both
conviction and sentence. On 4 August 2015 this court granted the
appellant special leave which was limited to conviction
and sentence
in respect of counts 11, 12 and 13, and to a consideration of the
cumulative effect of a sentence of 52 years' imprisonment.
[4]
The issue to be decided in this appeal on conviction, is whether
there was sufficient evidence to sustain a conviction based
on joint
possession of firearms on counts 11,12 and 13 as the court a quo
found. Count 11 relates to the unlawful possession of
a Norinco
semi-automatic 9 mm pistol with serial number 462313 (the Norinco
pistol), whilst counts 12 and 13 relate to the unlawful
possession of
an R4 and R5 automatic machine guns (the rifles), respectively. The
appellant contends that as there was no evidence
to the effect that
he was seen at any stage with a firearm in his hands, the conviction
on these counts should be set aside. The
appellant contends further
that the court a quo was wrong in its application of the principles
relating to joint possession and
by relying on the decision of
S
v Khambule
[1]
as a basis
to uphold the conviction. Before considering the principles of joint
possession and its applicability to this case, it
is apposite to
first consider the evidence that was placed before the trial court.
The background facts, which are common cause,
are summarised
hereunder.
[5]
On 6
January 2003 a robbery – with aggravating
circumstances – took place when a security vehicle collecting
and transporting
money from various businesses at Oasis Mall in
Tzaneen, was robbed. The security vehicle, which was occupied by Mr
Lebepe and Mr
Hlungwane at the time, was shot at during the robbery.
This robbery was carried out by a gang consisting of at least three
males
who were travelling in a silver coloured Volkswagen Golf sedan.
Two of the men were carrying rifles whilst the third male had a
handgun. Three money containers containing a large amount of cash
were taken from the security van and Mr Hlungwane was shot at
and
injured. In consequence he later lost his hand. Mr Lebepe was also
robbed of his service firearm, the Norinco pistol. These
events form
the basis of counts 1 to 4.
[6]
Shortly after the robbery of the security vehicle, the same
assailants attempted to rob Mr Christo Antonie Fochville of his
Volkswagen motor vehicle. Clearly, the assailants were looking for a
getaway vehicle as their Golf motor vehicle, used during the
robbery
of the security vehicle, had stalled. During this attempted robbery,
Mr Fochville was shot at and sustained a gunshot wound
to his chest.
But he managed to drive away from the assailants. These events formed
the basis of counts 5 and 6 to wit, the attempted
robbery and
attempted murder of Mr Fochville. After the failed attempt to rob Mr
Fochville of his car, Mr Aboo Abu and his children
happened to be
driving in the vicinity in his Isuzu double cab bakkie (the Isuzu
bakkie). The same assailants stopped him and robbed
him of his
vehicle. The Isuzu bakkie was later found abandoned in a farming area
called Agatha approximately 10 kilometres outside
of Tzaneen. This
event formed the basis of count 7. I shall return to this aspect as
the evidence led in respect of this count
is relevant to the
determination of this appeal.
[7]
As the counts pertaining to the unlawful possession of firearms form
the subject matter of the appeal against conviction, I
consider it
prudent to set out the evidence that was led in this respect in a
fair amount of detail. Inspector Trevor John Vorster
testified that
he was in the company of two other police officers, Piet Pieters and
Conrad Scheepers. After receiving information
of a robbery that took
place at Oasis Mall, they drove to the scene. While on their way they
received further information on the
police radio about the
whereabouts of the assailants who were involved in the robbery.
Through the information received on the
radio, they were able to
drive to the exact spot where the robbers were. They immediately
noticed the Isuzu bakkie which was parked
on a farm road. Inspector
Vorster said they parked their vehicle approximately 25-30 metres
from the Isuzu bakkie and then observed
three men who were walking
away from the parked bakkie. He observed that the men were walking in
a row. The first man in the row,
who was wearing a blue overall top,
was in possession of a long firearm, the man who was walking in the
middle and who was wearing
a checkered jacket was carrying a money
container, and the man at the end of the row, who was wearing a
yellowish long sleeved
shirt, was armed with a long firearm and
holding a money container as well. When the three suspects saw the
policemen they started
to run. The man in the middle and the last one
in the row, both threw away the money containers they were carrying.
At the same
time, the last man in the row took aim at the police with
the long firearm he was carrying and fired several shots at them.
Inspector
Vorster said he returned fire and pursued the suspects
along a foot path. Whilst pursuing the suspects, he noticed some
movements
in the long grass and he observed a yellowish shirt. He
then screamed at the person to come out from under the bush in the
long
grass and placed him under arrest. He identified this person as
the suspect who was at the end of the row who shot at them with
a
long firearm. He recovered an R4 rifle next to where he arrested this
suspect, who appeared as accused No 2 at the trial.
[8]
After the arrest of accused No 2, the police went searching for the
other suspects. Inspector Vorster and Captain Botha were
both called
by a domestic worker who informed them that she had heard something
in the garage. Upon approaching this garage, the
appellant emerged
suddenly from the garage with his hands in the air. Inspector Vorster
testified that he recognised the appellant
as the person who was
walking in the middle between the other two suspects and who was
holding a money container. No weapon was
found in the appellant's
possession. After Inspector Vorster had arrested the appellant, he
took him back to where the Isuzu bakkie
was, where other members of
the police had gathered.
[9]
Inspector Vorster then searched the Isuzu bakkie where he found the
Norinco pistol stuck between the two front seats of the
vehicle. It
is common cause that this was the firearm that was robbed from Mr
Lebepe during the robbery of the security vehicle.
[10]
Inspector Scheepers corroborated the evidence of Inspector Vorster in
every material respect, in particular the sequence of
movements when
the appellant and the two suspects walked away from the Isuzu bakkie,
their manner of clothing and what each suspect
was carrying at the
time. Importantly, Inspector Scheepers was involved in chasing after
the suspect who was walking in front of
the other two and who was
wearing a blue overall top. He witnessed Captain Botha firing a shot
at this suspect, who then dropped
his long firearm as he ran. This
later turned out to be an R5 rifle forming the basis of count 13
against the accused.
[11]
The principles of joint possession in relation to the crime of
unlawful possession of firearms in instances of robbery committed
by
a group of people, as in this case are trite. They were aptly
explained by Marais J in
S
v Nkosi
[2]
who, after
finding in that case that there was actual physical possession
(corpus) of the three guns by the three robbers individually,
stated
that the only question to be decided was whether there was the
necessary mental intention or
animus
to render their physical possession of the guns, possession by the
group as a whole. The learned judge then said that the question
of
whether the group (and hence the appellant) possessed the guns had to
be decided with reference to the issue of whether the
State had
established, on the facts from which it could be inferred by a court,
firstly, that the group had the intention
(animus)
to exercise possession of the guns through the actual detentor and
secondly, the actual detentors had the intention to hold the
guns on
behalf of the group. Marais J applied the principles set out in
R
v Blom
[3]
for drawing
an inference from proven facts, namely:
‘
1.
The inference sought to be drawn must be consistent with all proved
facts. If it is not, then the inference cannot be drawn.
2.
The proved facts should be such that they exclude every reasonable
inference from them save the one to be drawn. If they do not
exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.’
[12]
In convicting the appellant for (unlawful) joint possession of the
Norinco pistol and the R4 and R5 rifles, the court a quo
relied on
S
v Khambule
[4]
where it was
held, incorrectly in my view, that there was no reason why in
appropriate situations and if the doctrine of common
purpose was
applied, the common intention to possess the firearms jointly could
not be inferred. The court a quo then concluded
that if it was the
intention of the members of the group to use firearms in the
execution of a robbery or murder to the advantage
of them all, they
associated themselves with the possession of firearms. Possession of
the firearms accordingly had to be taken
by one or more members of
the gang and on behalf of and to the advantage of the group. In
S
v Khambule
it was reasoned thus: the only and sole inference that can be drawn
from the proven or established fact of common purpose, is that
there
was joint possession of firearms used in the commission of the
robbery.
[13]
S
v Khambule
was correctly critised in
S
v Mbuli
[5]
where Nugent
JA, stated that while he agreed that there is no reason in principle
why a common intention to possess firearms jointly
could not be
established by inference, he could not agree with the further
suggestion that a mere intention on the part of
the group to use the
weapons for the benefit of them all would suffice for a conviction
for unlawful joint possession of firearms.
He then concluded that on
the facts of that case, it could not be said that the only reasonable
inference from the evidence was
that the accused possessed the hand
grenade jointly. Importantly, Nugent JA said that mere knowledge by
the others that one of
their own was in possession of a hand grenade
and even acquiescence by them in its use for fulfilling their common
purpose to commit
robbery, was not sufficient to make them joint
possessors of the hand grenade. As there was no evidence which showed
which of the
accused there was in possession of the hand grenade,
Nugent JA set aside that appellant’s conviction of unlawful
possession
of a hand grenade.
[14]
Having set out the principles of joint possession, I now turn to the
conviction of the appellant in relation to the three firearms.
I
start with count 11 dealing with the illegal possession of the
Norinco pistol. It is common cause that neither Mr Lebepe nor
Mr
Hlungwane could identify the person who robbed Mr Lebepe of that
firearm. The evidence merely shows that the security vehicle
was
attacked by three males who had alighted from a Volkswagen Golf motor
vehicle, two of whom were carrying long firearms, while
the third one
only had a handgun. It is so that the Norinco pistol was conveyed in
Mr Abu’s Isuzu bakkie up to the point
where this vehicle was
abandoned by the appellant and his co-accused. It is also important
to note that, according to Mr Isak Johannes
Meyer, who testified for
the State and whose evidence I will deal with in fuller detail
shortly, there were four assailants who
robbed Mr Abu of his Isuzu
bakkie. It appears that this fourth person managed to evade arrest.
Inspector Vorster’s undisputed
testimony is to the effect that
upon searching the Isuzu bakkie, he discovered the
Norinco
pistol stuck (and presumably hidden away) between the two front seats
inside the vehicle.
[15]
There is no evidence that shows who actually put the Norinco pistol
inside the Isuzu bakkie. Importantly, there is no evidence
showing
whether or not the appellant was aware of its presence inside the
Isuzu bakkie. Accordingly, there are no facts from which
it can be
inferred that the appellant had the intention to possess the Norinco
pistol through the actual detentor thereof, who
is in any case
unknown, and whether or not the person who put it inside the Isuzu
bakkie intended holding it on behalf of the group,
including the
appellant. In the circumstances, the appellant’s conviction on
count 11 on the basis of the principles of joint
possession is
unsustainable and falls to be set aside.
[16]
I now turn to consider the appellant’s conviction on counts 12
and 13. Mr Isak Johannes Meyer, a member of the community
and who, in
my view, was an independent witness, testified about the incident
when Mr Abu was robbed of his Isuzu bakkie. He said
he was in his
office when he heard gunshots emanating from the Oasis Mall. He then
got into his car with a colleague, Mr Leon van
Veenhuizen, and they
decided to go and investigate. As he was driving to the mall in
Maritz Street, Tzaneen, he found himself driving
behind Mr Abu’s
Isuzu bakkie. As the Isuzu bakkie reduced speed at a speed hump, it
was stopped by a male person who appeared
to be talking on a cellular
phone. This man pulled the driver out of the Isuzu bakkie. At the
same time two males approached the
Isuzu bakkie from the left. One of
the males was carrying two money containers and a long firearm which
was hanging over one of
his shoulders. The second male was only
carrying a long firearm. These two men got into the Isuzu bakkie. A
fourth male appeared
who, after he had dragged Mr Abu’s
children out of the Isuzu bakkie, also got in and the assailants
drove away in the Isuzu
bakkie.
[17]
Mr Meyer testified that he drove at a safe distance behind the Isuzu
bakkie until it stopped at a farming area in Agatha. He
observed as
the four suspects got out of the vehicle. Members of the SAPS arrived
shortly thereafter and there was an exchange
of gunfire between them
and the suspects. Thereafter the police chased after the suspects.
Later he saw the first suspect (accused
No 2) being arrested and
lying on the ground. Later on Inspector Vorster arrived with the
second suspect who he had arrested. Mr
Meyer said he immediately
recognised this person as one of the two men who had
approached Mr Abu’s Isuzu bakkie when it was
robbed and that he was the one who was carrying two money containers
and a long
firearm. I deem it apposite to quote Mr Meyer’s
testimony in this regard. He stated as follows:
‘
. . . . Daar het een verdagte
op die grond gelê wat hulle alreeds geboei gehad het op daardie
stadium. En daar het twee geldtrommels
gelê aan die linkerkant
van die pad . . .
Ongeveer ʼn paar minute later het inspekteur
Vorster met n tweede verdagte aangekom wat ek herken het as die ou
wat met die
geldtrommels in die bakkie geklim het
.’(My
emphasis.)
It
is common cause that the second suspect that was arrested by
Inspector Vorster and brought back to the Isuzu bakkie, was the
appellant.
[18]
Significantly, Mr Meyer’s testimony that he witnessed the
appellant carrying either an R4 or R5 rifle and two money containers
when he entered the Isuzu vehicle when it was hijacked, was neither
disputed nor challenged. Mr Lekgodi, appearing for the appellant
in
the trial court, did not even cross-examine Mr Meyer. In those
circumstances, Mr Meyer’s testimony can be accepted as
factually correct.
[19]
There is thus undisputed direct evidence to the effect that at the
time Mr Abu was robbed of his Isuzu bakkie, the appellant
was in
possession of one of the automatic rifles that were used in the
entire episode. It is so that when the appellant and the
other two
males were seen walking in a row away from the bakkie, he was not
carrying any firearm but was only carrying a money
container. The
only reasonable inference that can be drawn from the proven facts is
that the suspects, along the way, had taken
turns carrying the
rifles. Further, I do not have the slightest doubt that at the time
they were seen walking in a line, the two
suspects who were armed
were protecting the appellant who was unarmed and was carrying the
stolen loot. The fully automatic weapons
were clearly possessed by
the robbers for themselves and for each other. I am accordingly
satisfied that the appellant was correctly
convicted on both counts
12 and 13 on the basis of joint possession. The appeal against
conviction on these counts must accordingly,
fail.
[20]
I now consider the appeal against sentence. This appeal is limited to
the issue whether or not the cumulative effect of the
imposed
sentence of 52 years’ imprisonment warrants interference on
appeal.
[21]
It is trite law that a court of appeal may only interfere with the
sentence imposed where it induces a sense of shock or is
tainted by
misdirection. In
S
v Salzwedel & others
[6]
it was held that:
'An appeal court is entitled to
interfere with a sentence imposed by a trial court in a case where
the sentence is "disturbingly
inappropriate" or totally out
of proportion to the gravity or magnitude of the offence, or
sufficiently disparate, or vitiated
by misdirections of a nature
which shows that the trial court did not exercise its direction
reasonably .'
[22]
Ex facie the record, the trial court took into account the personal
circumstances of the appellant, the nature and seriousness
of the
offences that the appellant had been convicted of, and the interests
of society. The trial court also held that there was
a duty upon the
court to protect the community and to punish serious offences as in
this case. Importantly, it considered the applicability
of the
provisions of
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
in respect of counts 1, 2, 7, 11, 12 and 13 and came to the
conclusion that there were no substantial and compelling
circumstances
justifying a deviation from the prescribed minimum
sentences.
[23]
Whilst the trial court's reasoning and approach to the individual
sentences cannot be faulted, an effective sentence of 52
years'
imprisonment is shockingly inappropriate and warrants interference by
this court. My reasons for this conclusion are as
follows.
[24]
The appellant was 33 years of age at the time of sentencing,
entailing that he will be 85 years old when he has completed his
sentence. It is generally accepted that a sentence designed to
surpass the natural lifespan of an offender, which might happen
in
this case, ought not to be imposed.
[25]
Although the appellant was convicted of a number of serious offences,
properly viewed, these were all part of a singular event,
namely, the
robbery of the security vehicle at Oasis Mall in Tzaneen. The
remainder of the offences, without attempting to minimize
their
seriousness in any way, were all sequels to this robbery. It is so
that after the silver coloured Golf motor vehicle which
was used by
the robbers stalled, they went about looking for an alternative
get-away vehicle, hence the subsequent attempted robbery
of Mr
Fochville’s vehicle and the robbery of Mr Abu’s Isuzu
bakkie respectively.
[26]
All of the stolen items, specifically the Isuzu bakkie, the cash
inside the money containers, and Mr Lebepe’s Norinco
pistol,
were all recovered whilst still intact. No loss whatsoever was
suffered flowing from the incidents that gave rise to this
case.
[27]
As the appellant’s conviction on count 11 has to be set aside,
I consider it appropriate that the sentence that was imposed
on this
count, should have an effect on the re-determination of the effective
sentence to be imposed.
[28]
I accordingly make the following order.
1 The appeal against conviction on
count 11 is upheld.
2 The appeal against conviction on
counts 12 and 13 is dismissed.
3 The sentence imposed by the trial
court on the appellant on 21 July 2004 is set aside in its entirety,
and substituted with the
following:
'(a)
On counts 1, 2 and 7 of robbery committed with aggravating
circumstances, the appellant is sentenced to 15 years' imprisonment
on each count.
(b)
On counts 3, 4, 5, 6, 8 and 9 of attempted murder, the appellant is
sentenced to eight years' imprisonment on each count.
(c)
On counts 12 and 13 of illegal possession of automatic firearms, the
appellant is sentenced to 15 years' imprisonment on each
count.
(d)
The sentences imposed in respect of counts 1, 2 and 7 shall run
concurrently with each other.
(e)
The sentences imposed in respect of counts 3, 4, 5, 6 and 8 shall run
concurrently with the sentence imposed in count 9; and
(f)
The sentences imposed on counts 12 and 13 shall run concurrently –
however 10 years of the effective sentence of 15 years’
imprisonment shall run concurrently with the sentence imposed on
count 1.The appellant will thus serve five years’ imprisonment
in respect of both counts 12 and 13. Effectively, the appellant is
sentenced to a term of 28 years’ imprisonment.'
4. The sentences are antedated
to 21 July 2004.
_______________
B H Mbha
Judge of Appeal
APPEARANCES:
For
the Appellant: J M Mojuto
Instructed
by Pretoria Justice Centre
Bloemfontein
Justice Centre
For
the Respondent: P W Coetzer
Instructed
by Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
S
v Khambule
2001 (1)
SACR 501 (SCA).
[2]
S v
Nkosi
1998 (1) SACR 284 (W).
[3]
R v Blom
1939 AD 188
at 202.
[4]
S v Khambule
2001 (1) SACR 501 (SCA).
[5]
S v Mbuli
2003 (1) SACR 97
(SCA) at 115A-D.
[6]
S v
Salzwedel & others
1999
(2) SACR 586
(SCA) at 591F-G.