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[2017] ZAGPPHC 37
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Mlangeni v S (A736/2015) [2017] ZAGPPHC 37 (9 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
09/02/2017
CASE
NO: A736/2015
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
TSHEPO MLANGENI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MDALANA-MA
YISELA AJ.
(1)
The appellant, Mr Tshepo Mlangeni was charged in the Regional
Magistrate's Court, Benoni, with three counts of robbery
with
aggravating circumstances, two counts of attempted murder and one
count of possession of an unlicensed firearm and one count
of murder.
The appellant was found guilty on all counts. He was sentenced to an
effective term of life imprisonment and sixty five
(65) years'
imprisonment. The appellant was granted leave to appeal against the
conviction and sentence on count seven, murder
and leave to appeal
against the sentences on counts one to seven. The appellant was
legally represented throughout the trial proceedings
in the Regional
Court.
(2)
The seventh count relates to the murder of James Aldo Monaco who was
killed in the morning between 05h00 and 06h00 on the 3rd
of April
2010. The deceased was the owner of Aldo's Lounge situated in MC
Botha Drive, Vosloorus. At the time of his murder, he
was in the
company of his bodyguard, Mr Simon Mvubu and two other people and
they were travelling in a BMW driven by the deceased.
The deceased
and his company were exiting the BP garage nearby Aldo's Lounge when
a white Polo motor vehicle crashed into the right-hand
side of his
BMW. Two people alighted from the white Polo and fired shots at the
deceased's BMW. Mr Mvubu in retaliation fired shots
at the
perpetrators using his 9mm Norinco firearm. The deceased was shot by
the perpetrators and died on the scene of the crime.
(3)
It is common cause that the
deceased died as a result of gunshot wounds and that he did not
suffer any injuries from the scene until
a post-mortem was conducted.
The identity of the perpetrators that killed the deceased is in
dispute. The respondent relied on
circumstantial evidence to prove
that the appellant killed the deceased.
(4)
In
assessing circumstantial evidence WATERMEYER JA in R v Blom
[1]
referred to two cardinal rules of logic:
(i) The inference sought
to be drawn must be consistent with all the proved facts. If it is
not, then the inference cannot be drawn.
(ii) 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.
(5) The trial court
concluded that the only, reasonable inference to be drawn is that the
appellant was the person that fired shots
at the scene of murder in
Vosloorus on the 3rd of April 2010. In doing so, the trial court
relied on the evidence of Mr Mvubu that
at midnight on the 2nd of
April 2010 he saw the appellant inside the Aldo's Lounge in Vosloorus
and the appellant told the witness
that
"he wanted to work
with this white man".
The trial court also relied on the
undisputed evidence of Captain Hendriena Johanna Blignaut who
examined the fired cartridge cases,
one 9mm Parabellum Calibre test
marked 942TC1, Daveyton CS 31/11/10, and one 9mm Parabellum Calibre
marked 66861/1OB, Vosloorus
CAS 74/04/10 and concluded that the
mentioned cartridge cases were fired from the same firearm. The trial
court found that the
firearm, a Norinco 9mm found in possession of
the appellant on the 3rd of November 2010 was used at the scene of
murder on the
3rd of April 2010. The trial court also relied on the
evidence that in the commission of the offences in count one, three,
four,
five and seven that the appellant had been charged with, a
firearm or an object resembling a firearm was used.
(6)
The court, in assessing circumstantial evidence should avoid
overlooking the possibility of other inferences which are equally
probable
or at least reasonably possible, or assuming the existence
of facts which have not been proved and cannot legitimately be
inferred.
The evidence of Mr Mvubu that he saw the appellant in the
midnight inside Aldo's Lounge telling the witness that "he
wanted
to work with this white man" cannot be regarded as an
unlawful conduct on the part of the appellant, and does not place the
appellant on the scene of the murder committed between 05h00 and
06h00 in the morning. The respondent's counsel conceded during
the
argument in the appeal hearing that that evidence is irrelevant to
the commission of the murder. The trial court misdirected
itself by
relying on irrelevant evidence in assessing circumstantial evidence.
(7)
The trial court relied on the evidence that the appellant used
a firearm or an object that resembled a firearm in the commission
of
the offence in counts one, three, four, five and seven. The offence
in count one was committed on the 16 of September 2010.
The offences
in counts three and four were committed on the 2nd of November 2010
and the offences in count five and six were committed
on the 3rd of
November 2010. The offence of murder in count seven was committed on
the 3rd of April 2010. Five months lapsed between
the commission of
the offence in count seven and the commission of the offence in count
one. Seven months lapsed between the commission
of the offence in
count seven and the commission of the offences in counts five and
six. The time that had lapsed between the commission
of the said
offences was too long for the trial court to infer that the appellant
shot and killed the deceased.
(8)
Captain Blignaut
testified that she compared cartridge cases found on the scene, where
Mr Xaba, complainant in counts three and
four, was shot and the
cartridge cases found on the scene where the deceased was shot. Her
findings were that the said cartridge
cases were fired from the same
firearm. A 9mm Parabellum Calibre Norinco Model WP17 semi-automatic
pistol was found in possession
of the appellant on the 3rd of
November 2010. The examined cartridge cases were found to have been
fired from the said firearm.
The trial court also relied on this
ballistic evidence in concluding that the only reasonable inference
to be drawn is that the
appellant shot and killed the deceased. The
question is whether the evidence as a whole furnishes sufficient
proof of guilt.
(9)
What is
sufficient according to MALAN JA in R v Mlambo
[2]
,
is that the respondent should:
"produce evidence
by means of which such a high degree of probability is raised that
the ordinary reasonable man, after mature
consideration, comes to the
conclusion that there exists no reasonable doubt that the accused has
committed the crime charged.
He must, in other words, be morally
certain of the guilt of the accused"
(10) In order for
the respondent to succeed on count seven, murder, it must establish
that the conduct of the appellant caused the
death of the deceased.
The respondent must prove that the appellant intentionally and
unlawfully killed the deceased. The eye witness
to murder, Mr Mvubu,
testified that on the scene of the murder at the time of shooting, it
was dark and as a result he could not
identify the perpetrators. All
that he could see was that two perpetrators shot at the deceased's
BMW motor vehicle. One of the
perpetrators was wearing a white cap
and the other one was covering his face with something. Both the
perpetrators were firing
shots using 9mm Parabellum firearms. Mr
Mvubu also fired shots at the perpetrators in retaliation using a
Norinco 9mm Parabellum
firearm. When he saw the appellant at midnight
on the 2nd of April 2010 his head and face were not covered. He could
not identify
the appellant or the young man he spoke to inside Aldo's
Lounge as one of the perpetrators, who killed the deceased. The
ballistic
evidence alone on the fired cartridge cases is not
sufficient to prove the guilt of the appellant beyond reasonable
doubt.
(11)
The
appellant testified in his defence. He denied that he murdered the
deceased. He denied any knowledge of the shooting incident
that
occurred on the 3rd of April 2010, in Vosloorus at the BP garage. The
trial court rejected the version of the appellant on
the basis that
it was not reasonably possibly true. In S v V
[3]
the Supreme Court of Appeal held that the trial court in evaluating
the evidence of the accused should adopt the following approach:
"It
is trite that there is no obligation upon an accused person, where
the State bears the onus, 'to convince the court'. If
his version is
reasonably possibly true he is entitled to his acquittal even though
his explanation is improbable
.
A court is not
entitled to convict unless it is satisfied not only that the
explanation is improbable but that beyond any re
a
sonable
doubt it is false. It is permissible to look at the
probabilities of the case to determine whether the accused's version
is reasonably possibly true but whether one subjectively believes him
is not the test. As pointed out in many judgments of this
court and
other courts the test is whether there is a reasonable possibility
that the accused's evidence may be true."
(12)
The trial court was wrong in rejecting the version of the appellant
on count seven.The respondent failed to prove beyond a
reasonable
doubt that the appellant unlawfully and intentionally killed the
deceased on the 3
rd
of April 2010. The appellant should be acquitted on count seven,
murder.
(13)
In all the circumstances I believe that the trial court was
incorrect in convicting the appellant on count seven. In the result
the appeal is upheld and the conviction and sentence on count seven
are set aside.
(14)
The appellant was sentenced to an effective period of life
imprisonment and sixty five (65) years' imprisonment. The sentences
were
not ordered to run concurrently because the trial court had
already reduced the sentence on some of the counts. However, the
trial
court failed to take into account the cumulative effect of the
sentences.
(15)
Firstly, on
sentencing I wish to deal with a sentence imposed on count six. The
appellant was convicted on count six with possession
of an unlicensed
firearm to wit a 9mm Parabellum Calibre Norinco Model WP17
semi-automatic pistol. He was sentenced to fifteen
(15) years'
imprisonment in terms of the Criminal Law Amendment Act
[4]
.
The appellant was not warned by the trial court of the application of
section 51(1) or 51(2) of the Act
[5]
and the consequences thereof, at the outset of the trial. In S v
Motloung
[6]
the Supreme Court of
Appeal discussed the co-existence of the Firearms Control Act
[7]
and the Criminal Law Amendment Act
[8]
. The Supreme Court of Appeal held that because the appellant was not
warned that a sentence could be imposed as prescribed by
the Criminal
Law Amendment Act
[9]
, such a
sentence will be an injustice. In the present case the charge sheet
did not make mention of Criminal Law Amendment
Act
[10]
. The respondent has conceded in its heads of
argument that the minimum sentence of fifteen (15) years'
imprisonment
imposed by the trial court on count six is inappropriate
and should be substituted with a suitable sentence. In the
circumstances
a sentence of fifteen (15) years' imprisonment on count
six is set aside and substituted with a sentence of five (5) years'
imprisonment.
(16)
In
considering the cumulative effect of the sentences imposed on count
one, two, three, four, five and six, I still find an effective
sentence of fifty five (55) years' imprisonment to be excessive. In S
v Moswathupa
[11]
, it was held
that where multiple offences need to be punished, the court has to
seek an appropriate sentence for all offences
taken together. When
dealing with multiple offences a court must not lose sight of the
fact that the aggregate penalty must not
be unduly severe.
(17)
The respondent in its heads of argument has conceded that the
trial court misdirected itself by not taking into account the
cumulative
effect of the sentences imposed and ordering the sentences
to run concurrently. I have considered all the personal circumstances
of the appellant as stated in the record including the period of two
years spent in prison awaiting trial. I have also considered
the
seriousness of the offences the appellant is convicted of and the
interests of society. I found the sentences imposed by the
trial
court on counts one, two, three, four and five to be fair and just.
(18)
In the circumstances I make the following order:
a)
The appeal on both conviction and sentence on count seven
succeeds.The conviction and sentence on count seven
are set aside;
b)
The sentences imposed by the trial court on counts one, two, three,
four and five are confirmed;
c) The
sentence imposed by the trial court on count six of fifteen (15)
years' imprisonment is set aside and substituted
with a sentence of
five (5) years' imprisonment;
d) The
sentences imposed by the trial court on counts one, two and three of
ten (10) years' imprisonment on each
count, are ordered to run
concurrently with the sentence of fifteen (15) years' imprisonment
imposed on count four;
e) The
sentence of five (5) years' imprisonment imposed on count six is
ordered to run concurrently with the sentence
of fifteen (15) years'
imprisonment imposed on count four.
f)
The effective sentence imposed on the appellant is twenty (20) years'
imprisonment.
____________________________
Acting
Judge MP Mdalana-Mayisela
I
agree and it is so ordered.
____________________________
Judge
L Windell
Case
number
: A736/2015
Matter
heard on
: 7 February 2017
For
the Appellant :
Adv MMP Masete
Instructed
by
: Legal Aid Board
For
the Respondent :
Adv A Roos
Instructed
by
: Director of Public Prosecutions
Date
of Judgment
: 9 February 2017
[1]
1939 AD
288
ad 202 - 203
[2]
1957(4)
SA 727 (A) ad 738 A
[3]
2000(1)
SACR 453 (SCA) at paragraph 3
[4]
Act 105
of 1997
[5]
Supra
[6]
2016(2)
SACR 243 (SCA).
[7]
Act 60
of 2000
[8]
Supra
[9]
Supra
[10]
Supra
[11]
2012(1)
SACR 259 (SCA)