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[2017] ZAGPPHC 483
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Sekgapane and Another v S (A765/2015) [2017] ZAGPPHC 483 (31 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A765/2015
DATE
OF APPEAL: 31 JANUARY 2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between
AARON
DINTWE
SEKGAPANE
First
Appellant
KAGISO
DUIKER
Second
Appellant
and
THE
STATE
Respondent
JUDGMENT
MADIMA,
AJ
[1]
The appellants were charged with three counts in the Pretoria
Regional Court. The first count was one of housebreaking with
intent
to steal and theft of two R4
Rifles.
The rifles were the property of the South African National Defence
Force ("SANDF"). The second count related to
the
contravention of the Firearms Control Act, Act No. 60 of 2000, more
specifically trading in the two R4 Rifles without a licence
or
authority to do so. The third count relat d to housebreaking with
intent to steal and the theft of a Nissan bakkie. The bakkie
was also
the property of the SANOF.
[2]
The appellants
were
legally
represented. They pleaded not guilty to the charges,
but were convicted and sentenced
on
12
September
2007
to terms
of four, fifteen and five years
imprisonment in respect of counts one (1),
two
(2) and three (3)
respectively. The sentences
were
ordered to
run
concurrently.
On 22 October 2007 the
appellants
were
granted
leave to
appeal
against
both conviction
and
sentence.
Only
the
first appellant
is
before
us
on
appeal.
The
second
appellant has
since
abandoned his
appeal.
Brief
background
[3]
On 1 February 2004, two R4 rifles went missing from the armory of the
SANDF in Pretoria. A year prior to the disappearance of
these rifles,
the SANDF authorized, in terms of the provisions of s 252A of Act 51
of 1977, an underground operation named "Operation
Rifleman".
Operation Rifleman "' as headed by Thokolo Mokoena ("Mokoena").
Its main function was to investigate
an< curb thefts of armory.
Parallel to Operation Rifleman was Operation Violet, another
authorized underground structure which
focused mainly on vehicle
theft syndicates.
[4]
Albert Mabutane ("Mabutane") was on duty c n 1 February
2004 at the SANDF in Pretoria. He was the person responsible
for the
safekeeping of the inventory of firearms that are stored in a safe on
the premises. The keys to the safe are kept by the
officer on duty,
which on the day in question, as Mabutane himself. Mabutane went off
duty at 24:00 on 1 February 2004. He handed
over the keys to the safe
to one Sergeant Molegale ("Molegale"). The following
morning Molegale was nowhere to be found.
Upon inspection of the safe
and its contelnts, Mabutane to his amazement, discovered that two R4
rifles were missing. Molegale
has since died.
[5]
As at 1 February 2004, the first and second appellants were employees
of the SANDF. The first appellant was employed in th capacity
of a
receptionist. The second was a sentry. Only the first appellant was
on duty on the night of 1 February 2004.
[6]
The evidence of Mokoena is that he was an Inspector working in the
Organised Crime Unit. During 2003 he was involved in Operation
Rifleman. This unit specialized in investigation of syndicates and
persons involved in the unlawful dealing in unlicensed firearms.
Mokoena registered an undercover agent, one Sergeant Malambe
(Malambe). On 7 February 2004 Malambe telephoned Mokoena and advised
him about a transaction that was to take place in Soshanguve.
[7]
Mokoena handed Malambe a sum of R4 000 00 sourced from the project
funds of Operation Rifleman. This was the amount that Malambe
was
advised would be the required as the purchase price for the two R4
rifles. As arranged, Mokoena followed Malambe in a separate
vehicle
to a BP filing station in Soshanguve. At the filing
station
Mokoena observed Malambe talking to the first appellant. Malambe and
the first appellant walked towards a Golf VR6 motor
vehicle that was
parked close by. The first appellant then retrieved a plastic bag
from the Golf VR6 and put it into the vehicle
driven by Malambe, a
blue Hyundai. The first appellant then took off.
[8]
Malambe then showed Mokoena the two rifles whose serial numbers
matched those of the stolen R4 rifles of the SANDF. It transpired
also that during the course of the sale of the R4 to Malambe, first
appellant advised him that he could also sell him a bakkie
for R5
000.00. Arrangements were made between Malambe and the first
appellant that he, Malambe would purchase the bakkie from him.
Mokoena again gave Malambe money for the purchase, this time ar ound
the amount was R5 000.00. The meeting place was to be Soshanguve.
On
this occasion the first appellant was in the company of the second
appellant. The parties then proceeded to a Total Garage in
Rosslyn,
Pretoria. In Rosslyn, the second appellant handed over the keys of
the Nissan bakkie to Malambe. Malambe was given a R500.00
discount
because he was, as the first and second appellants claimed, their
customer.
[9]
Malambe's evidence largely corroborated that of Mokoena on both
occasions of the sale of the rifles and the bakkie. The same
goes for
that of Johannes Morane ("Morane"), also involved in
Operation Rifleman duri ng the sale of the Nissan bakkie.
Importantly
he confirmed that the second appellant was with the first appellant
during the bakkie transaction. Thomas Mokeana ("Mokeana"),
a member of the South African Police Services ("SAPS") also
testified about his partial involvement in Operation Rifleman.
His
placement was in Operation Violet, the vehicle theft unit. He
testified that he was in Soshanguve at a hangout o the vehicle
theft
syndicate. The second appellant was also present. During a conve
rsation with the second appellant he learned that the second
appellant and his friends were in possession of R4 rifles that they
were ready to sell them to anyone willin to buy. The first
appellant
then arrived with a plastic bag carrying the two R4 rifles. Mokeana
also confirmed that the appellants were prepared
to sell the rifles
for R4 000.00. Mokeana advised the appellants that he would connect
them with someone willing to buy the rifles
from them. Mokeana
contacted Malambe and passed on to Malambe, the information he had
become privy to. Malambe owned the operation
and ran with it.
Grounds
of appeal on conviction
[10]
I have already stated above only the first appellant is before the
Appeal Court. The first appellant submitted as a ground
of his appeal
that the Court a
quo
erred
in convicting him on the evidence that was obtained in terms of s
252A of Act 51 of 1977. His complaint is that the State
did not lead
any evidence that the trap laid out against him was in compliance
with the provisions of the Act. This fact alone,
so submitted the
first appellant, meant that he was conviction on evidence that was
unconstitutionally obtained.
[11]
Similarly, it is contended that Mokeana, an operative of Operation
Violet had no authority to act for or on behalf of Operation
Rifleman. Further, that his interactions with the appellants were not
sanctioned in terms of s 252A of the Act. Further, Mabutane's
evidence was that he did not know who had stolen the two R4 on the
night of 1 February 2004. There is no reference in the record
that
Mokeana took an active part in Operation Rifleman. Mokeana's only
recorded involvement was passing information about a likely
transaction to Malambe. Nothing in law bars Mokeana from sharing
information in the manner he did to a fellow law enforcer, Malambe.
[12]
The import of
s
252A
of
the
Act is
that
the
evidence obtained during an
undercover
operation
such as
in the
instant case is only
admissible
if the conduct
of
the operation
does
not go
beyond
providing
an
opportunity to commit
the
offence.
In
the
event
it did,
such
evidence
may
be
admitted
subject to
the
provisions
of
s
252A (3).
The
question then
is,
did
the actions of
the
operatives of both
Operations Rifleman and Violet go beyond providing an
opportunity to commit an offence?
[13]
The first and second appellants were not aided by any one of the
operatives of Operations Rifleman and Violet in the commission
of the
thefts. The two R4 rifles and the Nissan bakkie were stolen from the
SANDF long before either of the Operations was set
upon the
appellants. It is therefore inconceivable how either of the
operations could be faulted and found wanting with regards
to the s
252 A requisites.
[14]
On both occasions, the operatives were approached by the appellants
post the thefts. Importantly, the provisions of s 252A
(6) of the Act
are instructive in providing that "If at any stage of the
proceedings the question is raised whether evidence
should be
excluded in terms of subsection (3) the burden of proof to show, on a
balance of probabilities, that the evidence is
admissible, shall rest
on the prosecution: Provided that the accused shall furnish the
grounds on which the admissibility of the
evidence is challenged:
Provided further that if the accused is not represented the court
shall raise the question of admissibility
of the evidence."
Needless to say, no objection to the evidence of the operatives was
raised by the legal representatives
of the appellants.
[15]
The first appellant also offers no credible defence to the charges.
Nowhere does he deny being in possession of the stolen
R4 rifles.
There is similarly no rebuttal to the evidence regarding their
unlawful possession of the Nissan bakkie. A feeble attempt
is made in
defence that despite the disputed evidence of a telephonic
conversation between the appellants, Malambe and Mokoena,
same was
never proven by way of calling for evidence in that regard curing the
trial.
[16]
I do not think that much would have been achieved by calling in a
service provider to corroborate the evidence whether or not
there was
cellphone communication between the operatives and the appellants.
The appellants still need to go past their possession
of the R4
rifles and the Nissan bakkie. They are found seriously compromised in
this regard.
[17]
It is trite
law that the guilt of
the accused
must be proven
beyond
reasonable
doubt. The trial court
must weigh
up all the elements which
point
towards the guilt of
the accused against all
those that are indicative of his
innocence. The
court must take
proper account of inherent
strengths and weaknesses, probabilities and
improbabilities
on
both
sides.
The court then
must decide whether
the
balance weighs so
heavily
in favour
of the
state
as to
exclude
any
doubt
to the accused.
S
v
Chabalala
2003
SACR
134
(SCA)
140a-b.
I
have
little doubt that
the
court
a
quo
was correct
in finding
that
the
appellants
indeed were guilty as
charged.
I am
mindful
of
the fact that only the first appellant was on duty on the night of
1 February 2004 and not the
second
appellant.
I make
no
pronouncement with
regard
to
the
latter.
He is however
caught
later
in
the
chain
of
events
that
unfolded
leading
to the
sale
of the Nissan
bakkie,
and
his
prior
knowledge
of
the
intended
sale
of
the
R4
rifles
that
he
communicated
to
Mokeana.
[18]
I also am mindful of the restraint this court must exercise in not
interfering with the factual findings of the court below.
R
v
Dhlumayo
and
Another
1948 (2)
SA
677
(A).
The court
a quo,
I find, has not materially misdirected itself in so far as the
factual and credibility findings are concerned. In
S
v
Franci
1991 (1) SACR
198
(A)
the
court held thus "The powers of a Court of Appeal to interfere
with the findings of fact of a trial Court are limited.
In the
absence of any misdirection the trial Court's conclusion, including
its acceptance of a witness' evidence, is presumed to
be correct. In
order to succeed on appeal, the appellant must therefore convince the
Court of appeal on adequate grounds that the
trial Court was wrong in
accepting the witness' evidence - a reasonable doubt will not suffice
to justify interference with its
findings. Bearing in mind the
advantage which a trial Court has of seeing, hearing and appraising a
witness, it is only in
exceptional
cases
that the Court
of appeal will be entitled to interfere with a trial Court's
evaluation of oral testimony." (emphasis added).
Anc in
S
v
Radebe
and
Others
1997
(2) SACR 641
(SCA)
at 645e-f
the Court
emphasized that "...in the absence of
demonstrable
and
material
misdirection by the trial Court, its findings of fact
are presumed to be correct and will only be disregarded if the
recorded evidence
shows them to be clearly wrong" (emphasis
added). Apart from the feeble submission by the appellants about the
unled evidence
regarding the cellphone records, which evidence I have
already found to be of no real assistance to them, nothing of
substance
has been offered by the appellants to warrant the setting
aside of the finding: of the Court
a quo.
Sentence
[19]
The appellants were sentenced to an effective term of 15 years
imprisonment. Is
this sentence
justified
and appropriate
in
the circumstance?
I
am
mindful yet once
more
of
the
principle
that
punishment
is a
matter
for
the
discretion
of the trial
Court.
This
court
ought
not
to
erode
that
discretion
unless justified to
do so.
I am further
mindful
of the
fact
that
this
court
can
only
alter
the
trial
court's sentence
if,
for
example,
there
was
an
irregularity
that
occurred
during
the
trial,
or
if
the
trial
Court
misdirected
itself
in
the
imposition
of
the
sentence,
or
the sentence
imposed
by
the
trial
Court
is disturbingly or
shockingly
inappropriate.
S
v
De Jager
and Another
1965 (2) SA
616
(A)
,
S
v Rabie
1975 (4)
SA
855
(A)
and
S
v
Petkar
1988
(3)
SA
571
.
See
also
Rafatlema
v
The
State
Case
No.
A62712015,
Gauteng Division,
Pretoria,
at p11, para
21.
[20]
The
first
appellant
further
complains
that
the
charge
sheet
did
not
refer to
the
applicability
of
the
minimum
sentence
with
regard
to
count
2
which
falls squarely
within
the
ambit
of
Part
11
of
Schedule
2
of
Act 1205
of 1997.
He further submitted
that
he
was not
warned that
the
State
would be
seeking a minimum
sentence
with
regard to that
charge.
[21]
In mitigation of sentence the first appellant submitted that he was
40 years old, married with no children. His father has
died whilst in
he was in Standard 6 (Grade 4). He had to drop out of school. He was
earning R3 319.43 at the time of his arrest.
He has been HIV positive
since 2000. Importantly he is a first offender. The Court a
quo
is further criticized by the first appellant for over-emphasising the
interest of the community, the seriousness as well as the
prevalence
of the offences committed. In doing so, so the first appellant
submitted, the Court under-emphasised his personal circumstances.
It
was submitted that each case be treated according to its own merits
and sentencing should be blended with mercy. In .S
v
Phulwane
and
Others
2003
(1)
SACR
631
(T)
the Court
held that "The principle of sentencing is that each case be
treated on its own merits. A sentencing officer must
never allow the
seriousness of the offence and the interest of the community to
receive undue weight at the expense of the personal
circumstances of
the accused. This will lead to a sentence which is flawed. See also
S
v
Mhlakaza
1997
(1)
SACR 515
(SCA)
and
S
v
Vilakazi
2009
(1) SAC R
552 (SCA)
.
[22]
I agree with the submissions by the first appellant's counsel that
the minimum sentence provisions with regard to all counts,
do not
apply. The Court a quo erred in applying the minimum sentence
legislation. The penal provision set out in Schedule 4 of
the
Firearms Control Ac t, Act 60 of 2000 provides for a maximum period
of imprisonment of 25 years in respect of contravention
of section
31(1) of Act 60 of 2000. This Act applies the maximum sentence regime
which the Court a quo should have applied.
[23]
They appellants were employees of the SANDF. They
basically stole from their employer. It
does
not
get
more
serious
than
that.
The
first
appellant submitted
further
in
mitigation
that
the
firearms
and
the
motor
vehicle
were subsequently recovered.
He
has
also
lost
his
job. His
family
has
been
left destitute.
I
find this akin to killing one's
parents and lamenting the fact that one is
orphaned.
The first appellant is
of the view that he
still can be rehabilitated.
[24]
A sentencing court must take into account all of the personal
circumstances of the accused and blend that with elements of
mercy. S
v
Khumalo
1973
(3)
SA
697.
I agree. However this Court takes a dim view of the crimes committed
by the appellants. The R 4 rifles, had they not been recovered
could
have been used in robberies where life would likely be lost.
[25]
The
courts
have
on
numerous
occasions held that
the
imposition
of
a sentence
on
accused
persons
is
always
in the
discretion
of
the
trial
court.
A
Court
of
appeal may
only interfere if
it
finds
that
the sentence has
not
been judicially and
properly
exercised. See
S
v
Rabie
supra;
S
v
Salzwedel
and Others
1999
(2) SACR
586
(SCA)
.
[26]
I do not find the 15 years imprisonment sentence imposed on the first
appellant to be inducing a sense of shock, or disproportionate
to the
offences. I am equally satisfied that the Court
a
quo
took
all of the personal circumstances of the first appellant into account
when it imposed the sentence.
[27]
There
is no one size fits
all.
Each case
must
be evaluated
according
to its
own
peculiarities.
I
hold
the
view
that
the seriousness
of
the
offences
of
which
appellant
has
been
convicted;
still
makes
him
a
candidate
for
a
long sentence of imprisonment, even in this instance
where the minimum sentence legislation does not
apply.
[27]
I
therefore find that there was no misdirection
by the Court a
quo
regarding
conviction and sentence.
I
accordingly
make the following
order.
(a)
The appeal against conviction and sentence is refused.
TS
MADIMA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
Concur
S
P MOTHLE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
It
is so ordered
On
behalf of the Appellant: MB Moloi
Instructed
by: Pretoria Jus tice Centre
012
401 921 0
I
072 443
0328
On
behalf of the Respondent:
Adv K
Gemlishuis
Instructed
by: Office of the DPP
Pretoria
012
351 6773 / 084 520 0593
Dates
of Hearing:
31
January
2017
Date
of Judgment: