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[2019] ZAKZPHC 57
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Williams and Others v S (AR 548/2018) [2019] ZAKZPHC 57 (12 August 2019)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not Reportable
Case No: AR 548/2018
In
the matter between:
THABISO ERNEST
WILLIAMS
First Appellant
SIFISO VICTOR
NZAMA
Second Appellant
PRINCE MZIKAYISE
LUPHAHLA
Third Appellant
and
THE STATE
Respondent
JUDGMENT
Gorven J
(Chetty and Bezuidenhout JJ concurring):
[1]
All three appellants, along with a fourth who was
accused 2 in the court
a quo
(accused 2), were convicted and sentenced by Gyanda J as follows:
a)
Count 1, robbery with aggravating circumstances, 20 years’
imprisonment;
b)
Counts 2 and 4, attempted murder, ten years’ imprisonment on
each count. The sentences on
these counts were ordered to run
concurrently with each other and five years of the sentence was
ordered to run concurrently with
that imposed on count 1;
c)
Counts 5, 6 and 7, theft, 5 years’ imprisonment on each count.
The sentences on these
counts were ordered to run concurrently with
each other and with those imposed on all the other counts;
d)
Counts 8 and 9, unlawful possession of firearms, and count 10,
unlawful possession of ammunition,
fifteen years’ imprisonment
on each count. The sentences on these counts were ordered to run
concurrently with each other
and ten years of the sentence was
ordered to run concurrently with that imposed on the other counts
and, in particular, count 1.
This
amounted to an effective sentence of 30 years’ imprisonment
each. In addition, the court imposed a non-parole period
in terms of
s 276B of the Criminal Procedure Act 51 of 1977 (the Act). All of the
offences were alleged to have taken place on
30 August 2007 in the
vicinity of Newcastle.
[2]
Leave to appeal to this court was granted by the
Supreme Court of Appeal to all three of the appellants. It was
granted to the first
appellant against his convictions on counts 5
and 7, excluding the conviction relating to the Mercedes Benz motor
vehicle, and
on count 8. It was refused on all other counts. He was
also given leave to appeal against the sentences imposed on all of
the counts.
[3]
It was granted to the second appellant against
his convictions and sentences on counts 8, 9 and 10. Leave to appeal
was also granted
against the imposition of the non-parole period. It
was refused on all other counts.
[4]
It was granted to the third appellant against his
convictions on counts 5 and 7, excluding the conviction relating to
the Mercedes
Benz motor vehicle, and on counts 8, 9 and 10. It was
refused on all other counts. He was also given leave to appeal
against the
sentences imposed on all of the counts.
[5]
Count 5 concerns the theft of a Ford Bantam motor
vehicle (the Bantam). Count 7 relates to the theft of a VW Golf (the
Golf). Count
8 relates to the possession of an AK47 automatic firearm
(the AK47), without the requisite licence to do so, and count 10 to
the
ammunition found in its magazine. Count 9 relates to the
possession of a pistol (the pistol), without the requisite licence to
do so.
[6]
This means that the appeal concerns the theft by
the first and third appellants of the Ford Bantam and VW Golf. It
concerns the
possession by the first, second and third appellants of
the AK47, its ammunition and the pistol. It also concerns the
sentences
imposed on the first and third appellants on all counts and
those imposed on the second appellant on counts 8 to 10, if his
appeal
on the merits is dismissed. As regards all three appellants,
the appeal concerns the imposition of the non-parole period under
s 276B of the Act.
[7]
The established facts which bear on this appeal
are as follows. Vehicles described as a Mercedes [….], a Ford
Bantam [….]
and a VW Golf [….] had been stolen
prior to 29 August 2007. On 29 August 2007, the first appellant
received a
text message on his cellphone from one Themba (the first
name of the erstwhile accused 2). It read as follows: ‘Cambry
[….],
Golf [….], Mercedes Benz [….], Ford
Bangtom [….], Track [….].’
[1]
[8]
On 30 August 2007, the three appellants and
accused 2 were involved in an armed robbery of Nedbank in Newcastle.
The first appellant
was said to have pointed at bank employees with
what was referred to as a handgun. The pistol forming an exhibit was
not identified
by the witness as being that item. Thereafter, all
four of them drove in a silver Mercedes vehicle towards Osizweni. At
an intersection
leading to Madadeni en route to Osizweni, they were
all involved in the attempted murders of Inspectors Mbatha and
Khubekha. They
thereafter abandoned the Mercedes, leaving all four
doors open, at an area known as Dry Cut. The second and third
appellants were
arrested in a pathless veld about half a kilometre
from the Mercedes. The first appellant was arrested separately from
them. In
retracing their course through the veld, members of the
South African Police Service came across a sports bag containing the
AK47
with its magazine containing ammunition. In a different place on
the same course of travel, they came across the pistol. Both of
the
firearms in question were linked by ballistics to cartridges found
inside the Mercedes. The Mercedes recovered at Dry Cut was
one of the
stolen vehicles. The Ford Bantam and VW Golf were subsequently
recovered. The VW Golf bore a print of the second appellant.
The
three vehicles recovered bore the registration numbers and letters
reflected in the text message.
[9]
The
State clearly relied on the doctrine of common purpose, which was
found to be present in the charges of robbery, attempted murder
and
theft of the Mercedes. At issue is whether it can be said that the
first and third appellants were correctly convicted, on
this
evidence, of the theft of the Ford Bantam and VW Golf and whether all
three of the appellants were correctly convicted of
possession of the
firearms and ammunition.
[10]
As regards the theft of the vehicles, the issue
is whether the circumstantial evidence, and in particular the text
message to the
first appellant, is sufficient to convict the two of
them. The only other evidence is that they were involved in the
enterprise
on 30 August 2007 with accused 2 and the second
appellant. The test for convictions based solely on inference from
proved
facts is long standing and notorious:
[2]
‘In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If
it is not, the inference cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from
them save the one sought 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.’
[11]
There is no evidence that the appellants ever saw
the vehicles. Nor that they knew that all the vehicles mentioned in
the text message
were stolen. Nor that the third appellant became
aware of the text message. If the State intends to rely on the
doctrine of common
purpose, there is no evidence of any agreement
between the four perpetrators to steal the vehicles. Neither does it
show that either
of these two appellants joined in to the theft
committed by others. In my view, there are other possible inferences
to draw from
the proved facts. The text message to the first
appellant might simply have been to communicate that one of those
vehicles would
be available to them to escape from Nedbank. This need
not mean that they would have realised, beyond reasonable doubt, that
the
vehicles were stolen. Since the vehicle used was the stolen
Mercedes, the inference that the first and third appellants were
involved
in the theft of that vehicle is a good one. That does not,
however, apply to the Ford Bantam and VW Golf. In my respectful view,
the court a quo erred in coming to that conclusion. As a result, the
convictions of the first and third appellants on counts 5
and 7 must
be set aside.
[12]
What of the firearms and ammunition? The court
a
quo
reasoned that:
‘[W]e
are satisfied that the robbers possessed forearms for their joint
venture and for their joint purpose. It would be illogical
and unjust
to hold that because we cannot say which of the robbers in particular
had actual possession of the firearms in question
that all of them
should therefore be acquitted. We find that all four accused jointly
possessed the two firearms . . . and the
ammunition contained
therein.
It would
be absurd in the extreme for the accused to be jointly liable for the
conduct of the perpetrator using the illegal firearms
and weapons but
be excluded from liability for the possession of the self-same
illegal weapons. In this regard reference is made
to the case of
S
v Mbuli
2003 (1) SACR 97
(SCA).’
It
is worth first considering the basis on which the appellants were
held liable for the attempted murder charges. The approach
to
mens
rea
relating to common purpose convictions has been said to be:
‘If
the prosecution relies on common purpose, it must prove beyond a
reasonable doubt that each accused had the requisite
mens rea
concerning the unlawful outcome at the time the offence was
committed. That means that he or she must have intended that criminal
result or must have foreseen the possibility of the criminal result
ensuing and nonetheless actively associated himself or herself
reckless as to whether the result was to ensue.’
[3]
[13]
The facts in this matter bear more than passing
resemblance to those in
S v Makhabela &
another
,
[4]
where this issue was dealt with:
‘The applicants may not have intended the criminal result of
murder, but they must have “foreseen the possibility of
the
criminal result [of murder] ensuing”. This is by virtue of the
fact that the other perpetrators were carrying firearms,
which they
must have known would be used if the plan went awry, yet they
nonetheless actively associated themselves with the criminal
acts.’
[5]
In the present matter, the conviction for attempted
murder was based on the fact that, at the robbery, all four were
aware that
firearms were brandished. They then together entered the
Mercedes, knowing that the firearms were in the possession of at
least
two of them and might be used if attempts were made to prevent
their escape. When the firearms were used against the two
complainants
on the attempted murder count, they had associated
themselves with the enterprise. They were thus appropriately
convicted on the
basis of common purpose.
[6]
[14]
The approach to joint possession differs
markedly. The Constitutional Court
[7]
has upheld the
dictum
in
S v Nkosi
:
[8]
‘The
issues which arise in deciding whether the group (and hence the
appellant) possessed the guns must be decided with reference
to the
answer to the question whether the State has established facts from
which it can properly be inferred by a Court that:
(a)
the group had the intention (
animus
) to exercise possession of
the guns through the actual detentor and
(b)
the actual detentors had the intention to hold the guns on behalf of
the group.
Only if
both requirements are fulfilled can there be joint possession
involving the group as a whole and the detentors, or common
purpose
between the members of the group to possess all the guns.’
[9]
The
Constitutional Court has adopted the distinction drawn by
Burchell
[10]
in the approach to common purpose regarding ‘consequence
crimes’ like murder and ‘circumstance crimes’
like
possession.
[11]
In
Makhabela
, the
Constitutional Court went on to hold:
‘These
cases show that there would be very few factual scenarios which meet
the requirements to establish joint possession
set out in
Nkosi
.
This is because of the difficulty inherent in proving that the
possessor had the intention of possessing a firearm on behalf of
a
group. It is clear that, according to established precedent,
awareness alone is not sufficient to establish intention of jointly
possessing a firearm or the intention of holding a firearm on behalf
of another in our law.’
[12]
[15]
I see no basis to distinguish the present matter
from that of
Makhabela
.
The State confronted not only the difficulties adverted to there, but
the difficulty of proving which two of the four were the
physical
detentors of the firearms and ammunition in question. On the facts of
this matter, it is my view that the court
a
quo
erred in the finding that the three
appellants jointly possessed the two firearms and the ammunition. As
a result, the convictions
of the second and third appellants on
counts 8 to 10 must be set aside and that of the first appellant on
count 8 (being the only
one of those three counts on which he was
granted leave) must be set aside.
[16]
This then leaves the issue of the sentences. In
the light of the outcome of the appeals against their convictions,
the sentences
of the appellants on those counts fall away. That
disposes of the appeal against the sentences of the second appellant,
other than
the issue of the non-parole period which will be addressed
below. As regards the first and third appellants, I see no basis for
interfering on appeal in the duration of the sentences imposed on any
other counts. I can find no misdirections as to duration.
Nor could
counsel for the appellants point to any. The sentences do not induce
a sense of shock due to disproportionality. The
court
a
quo
took into account that the offences all
took place within a short period of time and formed part of a single
tableau. Gyanda J
also took account of the cumulative effect of the
sentences and ordered that some would run concurrently with others.
[17]
Given the counts which will be set aside,
the sentences for the first appellant will be as follows:
a)
Count 1, 20 years’ imprisonment;
b)
Counts 2 and 4, 10 years imprisonment on each count, which sentences
are to run concurrently with
each other and five years of which are
to run concurrently with that imposed on count 1.
c)
Count 6, 5 years’ imprisonment, which sentence is to run
concurrently with that imposed
on all other counts.
d)
Counts 9 and 10, fifteen years’ imprisonment on each count,
which sentences are to run concurrently
with each other and ten years
of which is to run concurrently with that imposed on the other counts
and, in particular, count 1.
The
effective sentence is thus one of 30 years’ imprisonment.
[18]
Given the counts which will be set aside,
the sentences for the second appellant will be as follows:
a)
Count 1, 20 years’ imprisonment;
b)
Counts 2 and 4, 10 years imprisonment on each count, which sentences
are to run concurrently with
each other and five years of which are
to run concurrently with that imposed on count 1.
c)
Counts 5, 6 and 7, 5 years’ imprisonment on each count, which
sentences are to run
concurrently with each other and with those
imposed on all other counts.
The
effective sentence is thus one of 25 years’ imprisonment.
[19]
Given the counts which will be set aside,
the sentences for the third appellant will be as follows:
a)
Count 1, 20 years’ imprisonment;
b)
Counts 2 and 4, 10 years imprisonment on each count, which sentences
are to run concurrently with
each other and five years of which are
to run concurrently with that imposed on count 1.
The
effective sentence is thus one of 25 years’ imprisonment.
[20]
The second appellant was specifically granted
leave to appeal against the application of the non-parole period. The
other two appellants,
as part of the general leave to appeal granted
to them regarding all of the sentences, also have leave on this
issue. This much
was correctly conceded by the State in argument
before us.
[21]
Sentence in this matter was passed on 28 October
2010. The law on the use of s 276B of the Act was first
clarified in the matter
of
S v Stander
.
[13]
It was there recognised that, prior to the introduction of s 276B
of the Act, the question of parole rested solely on the
discretion of
the Department of Correctional Services. As a result, the empowering
of a court to direct a non-parole period amounted
to an incursion of
the judiciary into the executive sphere.
[14]
As a result, the provisions must be strictly construed and applied
only in exceptional circumstances. The underlying rationale
for this
is that decisions affecting parole turn on a wide range of factors
and a court cannot in advance determine many of these.
The approach
there set out was:
‘[A]
court, before making a non-parole order, should carefully consider
whether exceptional circumstances exist. It also found,
correctly in
my view, that exceptional circumstances cannot be spelled out in
advance in general terms, but should be determined
on the facts of
each case. These should be circumstances that are relevant to parole
and not only aggravating factors of the crime
committed, and a proper
evidential basis should be laid for a finding that such circumstances
exist.’
[15]
In
S v Mthimkulu
,
[16]
the Supreme Court of Appeal emphasised the finding in
Stander
that a failure to allow parties to address the court on the
applicability of S 276B in the circumstances of that matter
amounts
to a misdirection.
[17]
This approach has found favour with the Constitutional Court.
[18]
[22]
As appears from what I have said above, the court
a quo
did not have the
benefit of the guidance derived from this learning. It did not deal
at all with the need for exceptional circumstances,
or any
circumstances bearing on the question of parole. It did not afford
counsel the opportunity to address it on the appropriateness
of
imposing a non-parole period. In this, it erred. In argument before
us, the State candidly conceded that there was no warrant
for
retaining this aspect of the sentence of any of the three appellants.
This concession was well made. The non-parole period
should be set
aside in respect of all of the appellants.
[23]
In the result:
1.
The appeal of the first appellant against his convictions on counts
5, 7 and 8 is upheld
and these convictions and sentences are set
aside.
2.
The appeal of the second appellant against his convictions on counts
8, 9 and 10 are upheld
and these convictions and sentences are set
aside.
3.
The appeal of the third appellant against his convictions on counts
5, 7, 8, 9 and 10 is
upheld and those convictions and sentences are
set aside.
4.
The appeals of all three appellants against the imposition of a
non-parole period in terms
of
s 276B
of the
Criminal Procedure
Act 51 of 1977
is upheld and the non-parole period is set aside.
5.
The appeals of the first and third appellants against their sentences
is refused. Accordingly,
the sentences of the three appellants are as
set out below.
6.
The sentences of the first appellant which remain are:
a)
Count 1, 20 years’ imprisonment;
b)
Counts 2 and 4, 10 years imprisonment on each count, which sentences
are to run concurrently with
each other and five years of which are
to run concurrently with that imposed on count 1.
c)
Count 6, 5 years’ imprisonment, which sentence is to run
concurrently with that imposed
on all other counts.
d)
Counts 9 and 10, fifteen years’ imprisonment on each count,
which sentences are to run concurrently
with each other and ten years
of which is to run concurrently with that imposed on the other counts
and, in particular, count 1.
The
effective sentence is thus one of 30 years’ imprisonment.
7.
The sentences of the second appellant which remain are:
a)
Count 1, 20 years’ imprisonment;
b)
Counts 2 and 4, 10 years imprisonment on each count, which sentences
are to run concurrently with
each other and five years of which are
to run concurrently with that imposed on count 1.
c)
Counts 5, 6 and 7, 5 years’ imprisonment on each count, which
sentences are to run
concurrently with each other and with those
imposed on all other counts.
The
effective sentence is thus one of 25 years’ imprisonment.
8.
The sentences of the third appellant which remain are:
a)
Count 1, 20 years’ imprisonment;
b)
Counts 2 and 4, 10 years imprisonment on each count, which sentences
are to run concurrently with
each other and five years of which are
to run concurrently with that imposed on count 1.
The
effective sentence is thus one of 25 years’ imprisonment.
GORVEN
J
CHETTY
J
BEZUIDENHOUT
J
DATE
OF HEARING:
2 August 2019
DATE
OF JUDGMENT: 12 August
2019
FOR
THE APPELLANTS: B Mbatha instructed by the
Legal Aid Board.
FOR
THE RESPONDENT: DA Paver instructed by The Director
of Public
Prosecutions.
[1]
Original spelling retained.
[2]
R v Blom
1939 AD 188
at 202-3.
[3]
S v Thebus & another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) para 49.
[4]
S v Makhabela & another
2017 (2) SACR 665 (CC).
[5]
Makhabela
para 44. References omitted.
[6]
S v Mgedezi
1989 (1) SA 687 (A).
[7]
Makhabela
para 46.
[8]
S v Nkosi
1998 (1) SACR 284
(W) at 286
h-i
.
[9]
This test was approved in
S v Mbuli
2003 (1) SACR 97
(SCA)
para 10.
[10]
Burchell
Principles of Criminal Law
5 ed (Juta & Co Ltd,
Cape Town 2016) at 483.
[11]
Makhabela
para 47.
[12]
Makhabela
para 55.
[13]
S v Stander
2012 (1) SACR 537 (SCA).
[14]
Stander
para 12.
[15]
Stander
para 20.
[16]
S v Mthimkulu
2013 (2) SACR 89 (SCA).
[17]
Mthimkulu
paras 20&21.
[18]
Jimmale & another v The State
2016 (2) SACR 691
(CC) para
20.