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[2017] ZAGPPHC 168
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Mlangeni v S (A736/2015) [2017] ZAGPPHC 168 (9 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number: A736/2015
Date: 9/2/2017
Not Reportable
Not
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 66861/1
OB, 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
h
was committed on the 16
th
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 reasonable
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).