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[2017] ZAGPPHC 114
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Ndlovu v S (A751/2015) [2017] ZAGPPHC 114 (24 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date:
24/03/2017
Case
Number: A751/2015
Reportable:
YES
Of
Interest to Other Judges:
NO
In
the matter between:
NKOSANA
NDLOVU
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
HUGHES
J
et
MANYATHI AJ
JUDGMENT
HUGHES
J
[1]
In this appeal the appellant seeks leave to appeal with the leave of
the court a quo against his conviction.
[2]
The charges that the appellant was arraigned set out below:
Count
1: Contravention of section 120 (6) (b) of the firearms control Act
60 of 2000;
Count
2: Assault with an intent to do grievous bodily harm; and
Count
3: Contravention of Section 63 (1) of the National Traffic Act 93 of
1996 together with two alternative counts.
[3]
Throughout the trial the appellant was legally represented by Mr
Ngubeni. He pleaded not guilty to all three counts and on 9
April
2015 he was acquitted in terms of Section 174 of the Criminal
Procedure Act 51 of 1977(the Act) on count 2 and count 3.
[4]
He was convicted on count 1 and sentenced to a fine of R2000.00
or six month imprisonment of which R1500.00 or 4 months
imprisonment
was suspended for 3 years on condition that he is not convicted
of the same offence committed during the period
of suspension.
[5]
The facts briefly, late evening of 17 December 2014 the
complainant, Clarence Hlope and his girlfriend Portia
Mngomezulu (Portia) were seated in his vehicle which was park
close to her home. The appellant was driving in his own vehicle
with
his girlfriend, Pasela Brown, in the same street. The appellant
stopped his vehicle, alighted and approach the complainants,
after he
saw the complainant point a finger at him. An altercation ensured
between the complainant and the appellant.
[6]
The two insulted each other and at some point the complainant
contends that the appellant produced a firearm. The appellant
attempted to cork this firearm but the bullets fell to the ground.
The appellant picked these from the ground, and whilst doing
so, he
in turn picked up a brick and hurled it at the complainant.
[7]
The altercation between the complainant and the appellant concerned
an old feud which centred around the appellant's girlfriend.
[8]
During the course of the altercation Portia called out
for her mother, Ms Martha Mngomezulu
who
existed their home and proceeded toward the vehicle of the
complainant.
[9]
Ms Martha Mngomezulu testified that she saw an unidentified man
pointing a firearm at the complainant. When she saw the firearm,
she
raised her hands and knelt down, and begged the unidentified man not
to shoot the complainant. The man yelled to the complainant
that he
would kill him, at the same time the complainant was yelling shoot
me. Eventually this man got into his vehicle and drove
off.
[10]
Portia testified that on the night in question she saw the appellant
wielding a firearm at the complainant. She confirmed that
the bullet
from this firearm fell to the ground and she saw appellant pick them
from the ground. Portia corroborated the evidence
of the complainant
that when the appellant picking up the bullets that had fallen he
also picked up a brick and threw it at the
complainant.
[11]
She testified that the lighting in the area was supplied by an Apollo
light. She saw the appellant go to his vehicle and from
the under the
seat he remove a firearm. When asked to describe the firearm she said
that
'it
was dark,
I did not
see it, but
if
a
person
cocks
you
hear'.
She was adamant that she saw the
bullets fall to the ground which the appellant picked up.
[12]
The appellant conceded that he was present at the time of the
altercation but denied he had a firearm. He testified that
'the
mother
clearly
say
do
not
shoot
him
and
whereas
by
then
I
was
not
in possession of
a
firearm'.
On enquiring why all the state's witnesses
would say he had a firearm when in fact according to him he did not,
his response was
that he would not speak for the other two witnesses,
but with regards to the complainant, as they worked together the
complainant
always charges him at work alleging that he is pointing a
firearm at him.
[13]
In its judgement the court a quo acknowledged with regards to count
1it was necessary for the state to prove that the item
which was
pointed at the complainant was such that it lead the complainant and
the witnesses to believe that it was in fact a firearm,
antique
firearm or an airgun.
[14]
The court a quo found that Ms Martha Mngaomezulu was an honest
witness and that
'she came
to court and
told
the court
exactly
how
she
thought
that what she saw
in
fact
a
firearm,
because
she
actually
went
down
on
her
knees
begging
this
person
to not shoot'.
[15]
The court a quo further concluded that from the evidence of Ms Martha
Mngomezulu,
'there was an item
that may have
lead
a
person
to believe
that it
was
a
firearm'.
[16]
It is prudent that one bears in mind the approach to be adopted by a
court of appeal when it deals with the factual findings
of a trial
court. That approach is informed by the collective principles laid
down in
R
v Dhlumayo
1948 (2) SA 677
(A).
A court of appeal will not disturb the factual findings of a trial
court unless the latter had committed a misdirection. Where
there has
been no misdirection on fact by the trial judge, the presumption is
that his conclusion is correct. The appeal court
will only reverse it
where it is convinced that it is wrong. In such a case, if the appeal
court is merely left in doubt as to
the correctness of the
conclusion, then it will uphold it. See also
OPP
v
S
2000 (2) SA 711
(T);
S
v
Leve
2011 (1) SAR 87 (ECG); and
Minister of
Safety
and Security and
Others v Graig
and Another
NNO
2011 (1) SACR 469
(SCA).
[17]
Section 120
(6) (a) and (b) of the
Firearms Control Act 60 of 2000
reads as follows:
"120
(6) It is an offence to point-
a)
Any
firearm,
an
antique
firearm
or
an
airgun,
whether
or
not
it
is
located
or capable of being
discharged,
at any other,
without
good
reason
to do so,· or
b)
Anything
which
is
likely
to
lead
a
person to
believe that
it
is
a
firearm, an antique
firearm
or
an
airgun
at
any
other
person, without
good
reason
to
do
so."
The
appellant's submissions
[18]
Adv. M van Wyngaard, counsel for the appellant, argued that the court
a quo found that the state had proven that a firearm
was pointed at
the complainant on the day in question. In doing so the charge that
the appellant was found guilty of, that is,
pointing a firearm, falls
under
section 120
(6) (a) and not
section 120
(6) (b) as charged.
[19]
Counsel further submitted that
section 120
(6) (a) and (b) constitute
two separate offences. That the appellant should have been charged
with either one of the charges, that
is
section 120
(6) (a) or
120
(6) (b) or both of the charges in the alternative.
[20]
It is further argued on behalf of the appellant that if it is found
that the court a quo was correct in accepting the evidence
of the
state witnesses then it is submitted by the appellant that these
witnesses all testified that the appellant pointed a firearm
at the
complainant. No evidence was adduced that the object pointed at the
complainant was not a firearm and as such it was likely
to lead a
person to believe that it was a firearm.
[21]
The appellant contends that he should have, in the circumstances set
out by the witnesses, been charged with
section 120
(6) (a) and not
section 120
(6) (b). The evidence being such that it proved the
elements necessary to establish the offence set out in
section 120
(6) (a). In conclusion, the appellant persist with its argument that
the state failed to prove the offence as set on in the charge
sheet
under
section 120
(6) (b).
The
states submissions
[22]
Adv. Germishuis, for the state, argued that the court a quo was alive
to the fact that the charge related to an object that
led the
complainant and witnesses to believe that it was a firearm that was
being pointed at the complainant, even though the court
a quo, in the
judgment, concluded that the appellant pointed a firearm. The state
contends that nothing turns on the latter if
one reads the judgement
as a whole.
[23]
Counsel for the state further pointed out that the appellant admitted
that he owned a firearm but denied that he had it in
his possession
on the day in question.
[24]
The testimony of all three witnesses is that the appellant pointed a
firearm at the complainant. They could not give a description
of the
firearm because it was dark. However, both the complainant and
Portia, testified that at some stage the bullets dropped
and the
appellant picked these up. They also both testified that they heard
the appellant cocked the firearm, thus they knew it
was a firearm.
The complaint was also aware that the appellant had a firearm, as
this was not the first time that the appellant
had pointed his
firearm at the complainant.
The
court a quo's findings
[25]
The court a quo in the judgement set out what was required of the
state to prove count 1 in the following terms:
'...
what
is
needed
to
be
proven by
the
state
and
as
I
pointed out
is
that
an
item
which, which
is firearm was
pointed
at the
complainant
and
it
led the
person
to believe
that
it
was
a
firearm,
antique
firearm or airgun.
'
[26]
The court a quo went on further to state that three witnesses saw the
appellant with what looked like a firearm. The appellant
did not give
any explanation as to what they could have seen. The conclusion court
a quo then makes the following conclusion
'therefore the court
is
convinced
that
the
state
did prove
beyond reasonable
doubt
on
the
day
in
question
a
firearm
was
then
pointed to
the
complainant.'
[27]
The court a quo found that the state had proven that a firearm been
pointed at the complainant and not an object resembling
a firearm.
The judgment when dealing with sentencing reflects that the court
found the appellant guilty for an offence involving
a firearm:
'being
found
guilty
of an
offence
where
there
is
a
firearm involved,
especially
in
pointing
the
firearm,
the
court
cannot
make
any
other
finding but
to find you
unfit to possess
that firearm'.
Discussion
[28]
In
S
v Hodgkinson
2010 (2) SACR 511
at
para [27] and [28] pages 514-515, Bertelsman J states, when
interpreting
section 120
(6) (b) it is clear that the legislature
required intent as the form of
mens
rea
as
its evidence from the words used
"without good
reason
to do so!"
He concluded that the section
clearly suggest a
"conscious decision
to point
an
object
resembling
a
firearm
in
the circumstances
that
would justify
the
inherent thread
this
would
constitute
against
the
person at
whom
such object is pointed."
[29]
The difference between section120 (6) (a) and (b) is that section120
(6) (a) would be the conscious decision to point a firearm
to instil
the threat upon the person pointed at, whilst
section 120
(6) (b)
will be the pointing of an object resembling a firearm instead.
[30]
In my view,
section 120
(6) creates two offences though they are
closely related. The one being the pointing of a firearm,
section 120
(6) (a) and the other being pointing of an object or
other specified article that lead a person to believe it is a
firearm, such
as a toy gun,
section 120
(6) (b). The elements of the
crimes are similar but for the difference I have just mentioned
above. These are the (a) pointing
of (b) a firearm or other specified
article (c) at any person (d) unlawfully and (e) intentionally. See
page 466 of
Criminal Law
Fifth
Edition
by
CR Snyman.
The
application of section 270 of the Act
[31]
Section 270 states:
"if
evidence on a charge for any offence not referred to in the preceding
sections of this Chapter does not prove the commission
of the offence
so charged but proves the commission of an offence which by reason of
the essential elements of that offence is
included in the offence
charged, the accused may be found guilty of the offence so proven."
[32]
In
S
v
Dikole
1982 (4) SA
731
(NC) it was held that section 270 could be invoked to convict the
accused of the contravention of an offence not charged with, but
were
the essential elements of that charge are embodied in the offence so
charged. In
Dikole
the state proved unlawful possession but
not intention to deal in dagga as charged. Section 270 was invoked to
convict for unlawful
possession. The qualifier is that section 270 is
applicable if all the essential elements of the alleged competent
verdict are
included in the original charge. See
S v Amas
1995 (2) SACR 735
(N);
S v Nkosi
1990 (1) SACR 653
(T).
[33]
The problem in this instances is though the essential element
embodied in the charges are similar, to my mind, the distinguishable
element and that which cause the creation of two offence is that the
one makes provision for the pointing of a firearm and the
other for a
specified article or object which would lead one to believe that it
was a firearm. The one or the other is not a competent
verdict of the
other as they are two separate charges altogether. This is case where
the state, on the evidence before it, should
have charged the
appellant with section 120 (6) (a) and in the alternative section 120
(6) (b). The fact that the state failed
to do so is a misfortunate on
their part. See
S v
Tshali
2007 (2) SACR 23
at
para [14] on page 28 where the court held that as the court a quo
failed to charge the appellant in that instance with the alternative
as there was no reference to possession in the charge of dealing,
which he was charged with, the appeal court could not substitute
a
conviction.
[34]
In
S
v
Daniels
&
Another
2012 (2) SACR 459
(SCA), the SCA went further
and pronounced that if one looks at section 322 of the Act
specifically section 322 (1) (a) an appeal
court may allow the appeal
if that judgment on conviction of the trial court was wrong in law or
there was a failure of justice.
[35]
The court a quo found that the state had proven that a firearm had
been pointed at the complainant and not an object resembling
a
firearm or a specified article was pointed at the complainant.
[36]
From the judgement dealing with sentencing it is clear that the court
a quo had found the appellant guilty for the offence
of pointing a
firearm. The court a quo stated " ..
.being found guilty of an
offence where there is a firearm involved
,
the court
cannot
make
any
other
finding
but
to
find
you
unfit
to
possess
that
firearm."
[37]
If it can be established that the conviction would have been
inevitable, that is of pointing a firearm, even in the face of
the
irregularity of the wrong charge being put to the accused, there
would not be failure of justice and if it a conviction would
not have
followed on the charge put to the appellant then there would be
failure of justice and thus the proceeding be set aside.
Refer to S
v
Carter
2007 (20 SACR 415
(SCA);
Daniels
supra
at para [14].
[38]
Against the merits of this conviction the appellant was wrongly
charged as the evidence before the court a quo and the conviction
made by the court a quo are contrary to the charge put to the
appellant.
[39]
In the circumstances the appeal must succeed and the conviction and
sentence falls to be set aside.
[40]
In the result I make the following order:
[a]
The conviction and sentence is set aside.
It
is so ordered
____________________________
W,
Hughes
Judge
of the High Court, Pretoria
I
concur
____________________________
Manyathi
Acting
Judge of the High Court Gauteng, Pretoria