About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 12
|
|
Director of Public Prosecutions, Northern Cape v Swart and Another (K19/16) [2018] ZANCHC 12; 2018 (2) SACR 211 (NCK) (26 February 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case No:
K19/16
Date
heard: 08-12-2017
Date
delivered: 26-02-2018
In the
matter between:
THE
DIRECTOR OF PUBLIC
PROSECUTIONS, Applicant
NORTHERN
CAPE
And
FRANK
SWART First
Respondent
FRANK
ITUMELENG
Second
Respondent
Coram:
Matlapeng AJ
JUDGMENT
MATLAPENG
AJ
[1] On 26 May 2016,
after a trial lasting several weeks, the two respondents, Messrs
Frank Swarts and Frank ltumeleng who were accused 1 and 2
respectively, were acquitted on all the charges that were preferred
against them. The applicant, being the state, represented by the
Director of Public Prosecutions, Northern Cape, felt aggrieved
by
this decision. As a result, it launched the present proceedings. For
convenience, the parties will be referred to as in the
trial.
[2] The application is
premised on the provisions of
s319
(1) of the
Criminal Procedure Act
51 of 1977
which reads as follows:
"
319
Reservation
of question of law
(1)
If any question of law arises on the trial in
a
superior court of any person for any offence, that court may of
its own motion or at the request either of the prosecutor or the
accused reserve that question for the consideration of the Appellate
Division, and thereupon the first-mentioned court shall state
the
question reserved and shall direct that it be specially entered in
the record and that
a
copy thereof be transmitted to the
registrar of the Appellate Division".
[3] According to the
state, following the acquittal of the accused, these three
questions
arose and should be reserved for consideration by the Supreme Court
of Appeal namely:
3.1
Whether the trial
court failed to properly consider and appreciate relevant, evidence
or erroneously approached or treated relevant
evidence presented by
the State against both Respondents.
3.2
Whether the trial
court correctly appreciated and applied the legal principles relating
to circumstantial evidence by not considering
these legal principles
in consideration to all the relevant evidence presented by the State.
3.3
Whether the
trial court completely disregarded the established legal principle of
liability, particularly the doctrine of common
purpose, by not
appreciating and applying such principles to the relevant and proven
evidence against the First Respondent.
[4] During the oral
submissions, the state rightfully conceded, that the third question
does not arise. This was after it was pointed out to the state that
as both accused were acquitted, it did not become necessary
for the
trial court to decide on whether the two accused acted in common
purpose in the commission of the offences or not. The
question simply
did not arise.
[5] The question that
has to be determined in this matter is whether the trial court
failed
to apply the applicable legal principles to the proven facts
presented to it. Once this is found to be the case, it would
constitute a question of law as a result, this court would not have
any discretion but would be obliged to reserve it for consideration
by the Supreme Court of Appeal in terms of
s319
(1) of the
Criminal
Procedure Act.
[6
] In the matter of
Director of Public Prosecutions, Gauteng Division, Pretoria v
Moloi
2017 (2) SACR 177
(SCA)
paragraph 18 the court stated that:
"it is trite that the term question of law relates to the
application of
a
legal principle to an
established
set of facts
and determination whether or not
a
crime
has been committed".
(my own emphasis).
[7] This is in
line with
Magmoed v Janse Van Rensburg and Others
[1992] ZASCA 208
;
1993 (1) SA 777
(AD)
where
Corbett CJ
stated the following at page 808A of
the report:
"As
the quotation from the judgment of Feetham
JA indicates, category (b) involves an enquiry
as
to the
essence and scope of the crime charged by asking whether
the
proven facts
in the particular
case
constitute the
commission of
a
crime. This is clearly
a
question of
law. But in my opinion,
a
question of law is not raised
by
asking whether the evidence establishes one or more of the factual
ingredients of
a
particular crime,
where
there is no doubt or dispute
as
to what those ingredients are"
(my own emphasis).
[8] In the two
passages referred to above, the emphasis is on the words "the
proven or established facts". My understanding of these passages
is that when one looks at the proven facts in a particular
case and
ask whether they constitute the commission of the offence, this
exercise would be a question of law. But where one still
has to
determine whether the evidence led is sufficient proof to constitute
a requirement of a particular crime, this would be
a question of
fact. This, to my mind, takes into account that evidence still has to
be evaluated before it can be accepted as a
proven fact. If it is
evaluated, but the conclusion reached is that it falls short of
proving the "ingredient" of a crime,
then that would
clearly be a factual question.
[9] Shorn of
its many words, the submission by the state is to the effect
that the
trial court failed to consider the evidence presented in its totality
to determine whether the essential elements of a
crime has been
proved. In this regard see
S v Libadzi and Another 2010(2) SACR
233 (SCA)
par 17.
[10] The state buttresses its
argument on what it terms the disregard by the trial court of
"Exhibit V"
namely, the pointing out done by accused
1. Had the court taken into account this evidence in conjunction with
other pieces of evidence
such as, the evidence of the shoe print led
by W/O Van Niekerk, the cap that was found on top of the garage as
testified to by
W/O Fortuin, the identification of the cap as per the
evidence of the Thebo siblings, the bullet trajectory as per W/O
Gerber and
cell phone records as per testimony of Mrs Heyneke, there
could have been no other conclusion other than that the state has
succeeded
in proving the guilt of the accused beyond reasonable
doubt.
[11] Both accused submitted that
the argument presented by the state bears no merit. Mr Mattee
for
accused No.2 reiterated what he submitted during the trial namely,
that the state has failed to present one iota of evidence
to link
accused 2 with the commission of the crime. He further submits that
all the evidence presented at the trial was dealt with
by the trial
court in its judgment. Mrs Victor for accused 1 submitted that the
trial court considered all the evidence presented
to it in its
entirety. The difference may lie in the details, but this does not
detract from the fact that all the evidence was
considered. The
conclusion reached by the legal representatives for the two accused
is that in the circumstances of the judgment
in question, no legal
question arises.
[12] The two accused were charged with
the following offences:
Count 1:
Unlawful
possession of a firearm in contravention of
s3(1)
read with
sections 1
,
103
,
120
(1) and
121
of Act 60 of 2000 and
s250(1)(f)
of
the
Criminal Procedure Act.
Count
2:
Unlawful
possession of ammunition in contravention of
s9
read with
sections 1
,
103
,
120
(1) and
121
of Act 60 of 2000 and
s250
(1)(c) of the
Criminal
Procedure Act
Count
3:
Murder
read with the provisions of
s51
(1) of Act 105 of 1997. The
allegations were that they used a firearm to unlawfully and
intentionally kill the deceased. It was
further alleged that they did
not have a licence or permission to possess the firearm or ammunition
in question.
[13] During the trial, the state
led evidence by the following witnesses: Mrs Kruger, Constable
Ntidi,
Warrant Officer Schoeman, Sergeant Burger, Warrant Fortuin, Warrant
Officer Van Niekerk, Warrant Officer Gerber, Mr Monnakgotla,
Ben
Thobo, Answer Thobo, Mrs Heyneke, Ms Thompson and Lt/Col Myburgh. All
these witnesses were called by the state in its effort
to prove the
guilt of the accused beyond reasonable doubt.
[14] It is not necessary to
repeat the evidence led at the trial except to highlight the
following:
14.1
There
was no direct evidence linking the accused to the commission of the
offences charged.
14.2
The
state's case was based on circumstantial evidence and this triggered
the rules of logic and inferential reasoning espoused in
the matter
of
R v Blom
1939 AD 188.
14.3
Of
all the evidence led by the state, the pivotal one in an attempt to
connect the two accused to the commission of the offence
was the
evidence of Ben Thebo, Answer Thobo, Captain Mabena, W/O Van Niekerk,
Mrs Heynecke, W/O Gerber and Lt/Col Myburgh.
[15] The Thebo siblings were
called to identify the cap that was found at the scene of the crime
as belonging to accused 2. The trial court found that their evidence,
in conjunction with that of Captain Mabena was not satisfactory.
They
could not explain the difference in the colour of the cap that was
handed in as evidence to the one depicted in photos 104
and 105. That
there was an unexplained difference in the colour of the cap was
self-evident. As a result, their evidence regarding
the
identification of the cap was not accepted. Ben Thobo was also
discredited in his testimony relating to the times he would
have made
calls to his own cell phone which he claims was in the possession of
accused 2.
[16] Warrant Officer Van Niekerk
could not with certainty state that the shoe print uplifted
at the
scene of crime belonged to accused 1. This notwithstanding that
accused 1 owned shoes with prints similar to the one uplifted
and
further that he placed himself at the scene of crime as testified by
Lt/Col Myburgh.
[17] Warrant Officer Gerber was
able to identify the serial number on the firearm and although
it was
filed off. However, of importance, he failed to connect the fired
bullet jacket that was found at the scene of crime with
the firearm
that was discovered as a result of the pointing out. This to my mind
was fatal to the state's case in its attempt to
link the firearm and
the murder. Crucially, no explanation was forthcoming from the state
as to why the link could not be made.
[18] The state forcefully
submitted that the trial court failed to properly evaluate
"Exhibit
V" and give it its proper place in the mosaic that the state
was attempting to build. What should be kept in mind however, is
that:
"Exhibit
V" is not a standalone piece of
evidence. Lt/Col Myburgh is the author of
"Exhibit
V".
He testified about how he drafted "Exhibit V" and how
accused 1 identified certain points to him. The trial court
expressed
itself on Exhibit V. It came to the conclusion that the testimony
contained in Exhibit V through Lt/Col Myburgh did not
amount to a
confession. It was a merely an admission by accused 1 to being at the
scene of the crime. It is silent on what he was
doing at the farm.
Although the accused admitted to being at the farm, it was still
incumbent upon the state to prove the guilt
of the accused.
[19] The state further submitted
that "Exhibit V" taken in conjunction with other
pieces of
evidence would have shown that the accused were guilty of the
offences charged. However, what the state fails to take
into account
is that such other evidence especially the evidence of the Thebo
siblings and W/O Fortuin in relation to the cap was
discredited, and
together with the evidence of W/O Van Niekerk in relation to the shoe
print was found not to be cogent to constitute
proven facts.
[20] In a criminal trial, the
state through the testimony of its witnesses, presents facts as
building blocks which, at the end of the trial must prove that the
accused are guilty of the offence that they are being accused
of. The
evidence presented at such a trial differs in its strength and
importance. When evaluating the evidence presented, it is
not
necessary for the trier of fact to pronounce on every minutiae of
such evidence. In this matter the trial court considered
the evidence
presented and accepted the evidence of certain witnesses, pointed out
the weakness in the testimony of the others,
rejected such portion in
relation to the testimony, and made a finding as to the credibility
and reliability of the testimony presented.
[21] It is axiomatic that all the
evidence led at the trial should be accounted for. When evaluating
the evidence, it stands free for the trial court to either accept or
reject such evidence. When accepting the evidence, it does
not
necessarily mean that such evidence is of such cogency as to amount
to the requisite standard of proof. It may be that such
evidence,
although accepted, is not of such weight as to amount to proof. By
way of example W/O Gerber testified about the trajectory
of the
bullet and that it was fired from the roof of the garage. According
to "Exhibit V", one Mabaso, who was not an
accused before
court climbed on a tree and a bullet went off. There was nothing in
this evidence that entitled the trial court
to reject it but even as
the evidence stood, it did not connect the accused 1 with the
commission of the crime.
[22] It is not only the quantity
of the evidence that the trial court looks at. It is also the
quality
and the cogency of such evidence that is material. It may happen, as
is the case of
"Exhibit V",
not to necessarily
reject a piece of evidence, but to make a finding that such evidence,
in conjunction with other evidential material
is not of such
probative value as to support a conclusion that an element of an
offence is present, which in turn would prove that
an accused is
guilty. Furthermore, the evidence led should connect the accused with
the commission of an offence. The trial court
expressed itself
regarding the failure by the state through its ballistic experts to
connect the fired bullet jacket with the firearm
that was
subsequently found.
[23] In the matter of
Director of
Public Prosecutions, Gauteng v Pistorius [2016]1 ALL SA 346 (SCA)
the
court reminds us what constitutes murder by stating the following at
paragraph 25:
"It is necessary to explain certain of the
issues that arises for consideration in
a
murder
case.
Over
the years jurists have developed what has been referred to
as
the grammar of criminal liability. As already
mentioned, murder is the unlawful and intentional killing of another
person. In order
to prove the guilt of an accused on
a
charge of murder, the State must therefore
establish that the perpetrator committed the act that led to the
death of the deceased
with the necessary intention to kill, known
as
do/us. Negligence, or culpa, on the part of
the perpetrator is insufficient".
In my mind, this passage means that the state must prove
all the elements that constitute the offence of murder. In the
present
case, the trial court found that the evidence led by the
state failed to prove that the two accused committed any act that led
to the killing of the deceased. Put differently, the accepted
evidence was not sufficient to prove the
actus reus.
[24] The law is clear on the issue
of joint possession of a firearm by co accused when committing
an
offence. Even though the finding was that the state has failed to
prove that both accused unlawfully possessed the firearm and
ammunition in question, it is, for completeness sake necessary to
refer to the law as propounded in
S v Zumani 2015 (1) SACR (GJ)
at
paragraph 4:
"The principles applicable to joint ownership
have authoritatively been dealt with, laid down and explained in
a
trilogy of cases: the ratio in
S
v Nkosi
1998 (1) SACR 284
(W)
was
approved in
S v Mbuli
2003 (1) SACR 97
(SCA)
[2002] ZASCA 78)
and thereafter
explained and summarised by Joffe J, in
S
v Motsema
2012 (2) SACR 96
(GSJ)
in
para [29], as follows:
"/
therefore
conclude that on the basis of
S
v
Nkosi and
S
v Mbuli
the Jaw may now stated as follows:
1.
There
is no rule of law to the effect that, when an armed robbery is
committed by two or more persons with a common purpose to commit
an
armed robbery, joint possession of the weapons used in the robbery is
to be inferred.
2.
Joint
possession of the weapons can only be inferred if the facts proved
leave no room for any reasonable inference other than that:
(a)
Each
participant in the common purpose to rob, who had physical control of
a
weapon,
intended not merely to use it, but also to possess it, both for
himself and also on behalf of one or more other participants;
and
(b)
Each
alleged joint possessor, who did not himself have physical control of
a
weapon,
intended that one or more of the weapons should not merely be used
but should also be
possessed
by another participant
on his behalf ".
[25] This is the approach that the
trial court adopted. All the evidence led by the state was
accounted
for and due weight was accorded to it. However, the conclusion to
which the trial court arrived, was that the evidence
was not
sufficient to establish a factual ingredient of the offences charged.
This, the trial court did by using inferential reasoning
and
supported its conclusion by referring to the well known case of
R vs De Villiers
1944 AD 493.
The evidence could not prove
that accused 1 and 2 are the perpetrators of this offence despite
accused 1 placing himself at the
scene of crime.
[26] For reasons set above, I have
come to the conclusion that the state has failed to raise
a question
of law but has rather raised a factual question.
[27]
Order
In the circumstances, the application for reservation of
a question of law is hereby dismissed.
DI MATLAPENG
ACTING JUDGE
Northern
Cape High Court, Kimberley
Appearances:
For the
Applicant:
Adv
J.J.D Rosenberg
Instructed
by: DPP.
Kimberly
For the 1
st
Respondent:
Adv
S.C Victor
Instructed
by: Legal
Aid SA, Kimberly
For the 2
nd
Respondent: Mr
K. Mattee
Instructed
by: Legal
Aid SA, Kimberly