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[2017] ZAFSHC 245
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Jantjies v S (A70/2017) [2017] ZAFSHC 245 (14 September 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A70/2017
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
CRONIN-DENE
JANTJIES
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA,
J et CHESIWE, AJ
HEARD
ON:
21
AUGUST 2017
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
14
SEPTEMBER 2017
[1]
The appellant, a 37 year old man and police reservist at the time,
was arraigned on
a plethora of charges in the Regional Court, Welkom.
Despite his plea of not guilty, he was convicted of the crime of
theft of
the following items to wit, 1 x 9mm Parabellum Calibre
Semi-Automatic Pistol with serial number [....], 1 x R5 assault
Automatic
Rifle with serial number [....]x R5 rounds and 15 x 9 mm
rounds. He was sentenced to eight (8) years imprisonment of
which
two (2) years was suspended for a period of five (5) years on
condition that he is not convicted again of theft or attempted theft
during the period of the suspension. No order was made in terms
of section 103 of Act 60 of 2000. He is now approaching
this
court on appeal, with leave to appeal granted by the learned
magistrate, against both conviction and sentence.
[2]
The facts can be summarized as follows. On the 18
th
August 2013, Warrant Officers W[....] and F[....] together with the
appellant were part of a police contingent patrolling the area
around
the Welkom-Virginia Road. It was approximately 23H00 pm.
A light at the nearby substation attracted their attention
and they
headed there to investigate. They were confronted by Eskom
security personnel who informed them that they have been
robbed of
copper cable(s).
[3]
All three (3) of them decided to follow the drag marks in an effort
to locate the
suspects. They later split in different
directions trying to fine comb as much area as possible. On
their return to
where their motor vehicle was parked, they noticed
that the appellant was missing. They went to look for him and even
sounded the
hooter but without success. Warrant Officer F[....]
called him on his cell phone but that did not yield any positive
results
as well. They later found him next to the substation
with his jersey and the buttons of his shirt torn. His clothes
were full of grass and sand. He had no visible injuries.
The appellant informed them that he had been robbed of his
service R5
rifle and 9 mm pistol. They summoned a backup and despite a
thorough search of the area they could not find the
suspects and/or
firearms. The next day the torch and the cell phone belonging
to the appellant were recovered in the same
area.
[4]
On the 14
th
November 2013 at around 8H30 am, Warrant
Officers Scott and Cilliers proceeded to the residence of the
appellant situated at [...]
G. S., B., Welkom. They were armed
with a search warrant to search the premises. After exchanging
pleasantries with
the appellant, they proceeded to execute it going
from room to room. The appellant was always present and gave
his full co-operation.
[5]
In the bathroom he encountered a case which had a loose top.
Immediately he
discovered a R5 rifle. The circumstances with
the appellant quickly deteriorated when he suddenly became aggressive
and attempted
to wrestle it away from him. He was immediately
handcuffed and placed under arrest. The search continued and in
the
box containing clutter and placed outside the house, he found a 9
mm pistol with magazine and one (1) R5 magazine. He secured
the
safety of the firearms and summoned help from other members of the
police.
[6]
Warrant Officer De Bruin attended the scene and took the photographs
of the firearms,
seized the exhibits and packed them in the forensic
bag. The R5 magazine was packed in the forensic bag number
PW4000268735,
9 mm pistol with magazine in forensic bag number
PW4000268736, R5 rifle in forensic bag number PW4000268737 and police
radio battery
in forensic bag number PW4000268740. All the
exhibits were handed in at the police station and stored in the
commonly referred
SAP 13.
[7]
Around the 18
th
of the same month, he teared the forensic
bags in order to extract fingerprints from the firearms. He
then put the exhibits
in different bags with new numbers. These were
later delivered to the Forensic Laboratory in Pretoria for analysis.
[8]
The Station Commissioner of Bronville Police Station, Colonel
Sehlabaka was called
to identify and confirm that indeed those were
the same firearms reported to have been robbed from the appellant a
few months earlier.
According to her she compered the
registration numbers on the pocket book of the appellant and the
firearm register. There
is no evidence that she handled or
examined or tested them.
[9]
Counsel for the appellant submitted that there were apparent
contradictions in the
case of the respondent. He also made
heavy weather about the location of the clutter box which was
situated outside the house
and easily accessible to other members of
the household. He pointed out, given the amendment of the
recording of the exhibits
and unprocedural manner in dealing with
them, the chain of evidence had been broken. The State through
Mr Hoffman supported
the conviction and argued that the weapons were
positively identified in particular by Colonel Sehlabaka. He
conceded wisely
so, that the chain evidence was broken.
However, he submitted that the lapse was not of such magnitude that
will vitiate
the decision of the learned magistrate. I
respectfully differ with this submission and deem his approach to be
incorrect.
This aspect will be discussed in the following
paragraphs.
[10]
This appeal turns on the question whether the evidence of Colonel
Sehlabaka was correctly accepted
by the learned magistrate. The
appellant must show on adequate grounds that the trial court was
wrong in accepting her evidence.
The principles guiding a court
of appeal to interfere on appeal with the findings of fact of a trial
court were illuminatingly
dealt with in
R v Dlumayo and another
1948 (2) SA 677
(A).
[11]
The learned magistrate was correct in acquitting the appellant on
other charges on the basis
that the chain evidence had been broken
from the moment the exhibits were seized from the residence of the
appellant to the final
analysis. His reasons are eloquently
stated on
page 353 line 13 to 25 and 354 line 1 to 25
:-
“
And when I make the
evaluation of this contradictions and the criticism taking into
account their numbers and importance and their
bearing on the other
parts of the witnesses evidence I found that indeed these
contradictions and criticism are minors, they are
not such magnitude
that it can be said that the credibility of warrant officer Scott was
affected by these contradictions and criticism.
It is vital that the state bear the
onus to adduce evidence by each person who handed the exhibit from
the moment the exhibit were
discovered at the scene until presented
in Court especially where such chain is placed in dispute. I
have already outlined
the criticism in as far as the evidence of Ms
van Niekerk and Major Maqala is concern.” It is for this
reason that
I am not going to repeat the same. Safe to say that
indeed the two state witnesses made mistake in as far as the
recording
of the exhibit in the register and when the exhibits were
taken to Pretoria. When one consider how the state witnesses
handled
this exhibits I found that indeed there was a broken linage
which create a missing link in as far as chain evidence is
concerned.
To this end I agree with Mr Kruger that where the
defence dispute chain of evidence the onus rest with the prosecution
to prove
the same. The broken linage alluded to above create a
missing link of such magnitude that I found is detrimental to the
case
for the prosecution.
The broken linkage refer to above
is so overwhelming as to create doubt that warrant officer Magela who
works at forensic laboratory
Pretoria might have analyses same
exhibit related to this case before me. I agree with the
defence attorney’s contention
that the stat’s chain of
evidence regarding the exhibit was not properly presented before this
Court and therefore cannot
be found that the chain evidence has been
proved by the prosecution in as far as these exhibits are concern.
I am not satisfied
that the exhibits seized and collected from the
scene of crime at [...] G. S. were taken and handled properly from
the moment they
were discovered or collected until analysis by
warrant officer Magela”.
This
is in line with the decision of the court in
S v Sithole
2013 (1)
SACR 298
(GNP)
. In that matter the learned judge dealt with
the issues relating to the collection, marking and custody of
exhibits before
delivery or dispatching of the same to the
laboratory. In the court a quo the learned magistrate correctly
found that there
was no causal nexus and that the respondent has
failed to discharge the onus of proof.
[12]
The learned magistrate relied on the evidence of Colonel Sehlabaka to
return a verdict of guilty
on count number 2. The relevant part
of the transcribed record on
page 60 lines 1 – 21
reads
as follows:-
“
Die warrant officer Scott
waarvan u praat is die vorige staatsgetuie? --- Ja. Hy het aan
my gesê dat die vuurwapen wat
is geroof vanaf meneer J[....] is
daar op daardie adres gevind, en ek het hom gevra wie was die eienaar
van daardie plek, hy het
aan my gesê dat die huis behoort aan
meneer J[....]. Ek het in die huis ingestap, hulle was besig om
saam met hom te
praat maar ek kan nie onthou wat hy was besig om te
praat, hulle het my die vuurwapen gewys en my gevra om dit te
bevestig, en
ek het dit bevestig.
Hoe het u dit bevestig met ander
woorde hoe het u dit vergelyk dat u inderdaad … --- Dit was
Z88 R5, daar was ook ‘n
hand radio, van daar af daar was
polisieuniform.
Maar om seker te maak dat hierdie
R5 en hierdie Z88 is wat u s’n is hoe het u dit vergelyk?
--- Met die registrasienommers
want hy het hulle geboek op die
pocket boek sowel as die registrasieboek OB nommer firearm register,
dit is waar hy het dit geregistreer.
Ek wil u net iets toon hierso, die
register waarvan u sê hy het dit geboek ek toon u ‘n
dokument hierso dit is 5 bladsye,
my geleerde vriend ek dink hy het
dit, dit is ‘n A12 SAPS 110. --- Ja dit is.”
[13]
Under cross examination she conceded that she was not the author of
the document that she relied
upon in her evidence in chief. The
following is recorded on
pages 68 line 11 to 25 and 69 line 1 to
7
:-
“
You can keep it with you I’m
going to ask you questions on it later on. I first want to
return to this document that
you used in your evidence in chief the
occurrence book alright. You are not the author of the
inscriptions in this book?
-- Ja.
You also do not direct the person
who made these inscriptions on how to do them? -- Nee.
And apart from this document you
have no personal knowledge of if these inscriptions are correct or
not? -- Ek verstaan nie.
You were not the person who filled
in this document, you were not the person who authored what is said
in this document, so what
I’m asking you is you don’t
know if what stands here what’s written here is indeed correct
or not that would
be subject to the person who did that. --- Ek het
nie die dokumentasie geskryf maar ek weet alles wat verskyn hier is
die waarheid.
Madam I will put it to you then
that the truthfulness of these inscriptions are subject to the
credibility and reliability of the
person who made the inscriptions
which is not you. --- Dis korrek.
And in essence this whole document
and all your testimony based on it is hearsay if these persons don’t
come and back up what
you are saying or support corroborate what
you’re saying”
[14]
Further cross examination revealed the manner in which she vacillated
and equivocated in her
evidence. On
page 72 line 12 to 25
and 73 line 1 to 22
the record reads as follows:-
“
And you used this occurrence
book as the mechanism to confirm it. --- Dis korrek.
Now you see that is the problem
this book is lying at the SAPS, you have no idea why you are needed
yet somehow some magically somehow
you have the exact occurrence book
for the exact date when the robbery of Mr J[....] took place with the
exact alleged firearms
that you need to confirm at the scene when you
were called out without prior knowledge. --- Eintlik wat het gebeur
is dat ek het
nie die OB boek soontoe gevat nie, wat gebeur het is
toe ek arriveer daar ek was gevra deur die vuurwapen en gelukkig ek
was saam
met mevrou Sibert, en ek het haar gevra vir ‘n sekere
serial nommer of ken u van die vuurwapen, en sy het dit ook
bevestig.
En ook toe ek arriveer daar by die polisiestasie wat
het gebeur is dat ek het weer bevestig die vuurwapen register sowel
as die
ander OB boek en ek het gesien dat hulle was dieselfde.
Now ma’am you’ve now
substantially changed your version, you understand that, the story
that we are hearing now differs
materially from what you testified in
evidence in chief. This is the first time that we hear it was
Sibert who confirmed
not you, and that you did not have the OB with
you, the occurrence book with you. --- Die verduideliking wat ek gee
nou is dat
u sê dat ek het met die OB gevat by die toneel, so
wat ek sê is dat toe ek arriveer by die toneel wat het gebeur,
dit
is wat ek verskaf aan die Hof.
I put it to you that your version
is changed because you realised that there is a possibility after the
cross-examination, because
it is not I who said so it was your
evidence in chief, and if I was wrong the prosecutor would have made
an objection to my asking
you that. --- Die verduideliking wat ek gee
nou is dat niemand het my gevra dat ek die OB gevat by die toneel,
soos u het gesê
dat ek sou nie die OB boek gevat van die
polisiestasie af. So wat gebeur is dat ek het daar by die
toneel gevat sonder die
OB”.
[15]
In evaluating the evidence, the learned magistrate found that the
firearms shown to Colonel Sehlabaka
were the same that were booked
out by and robbed from the appellant. They belonged to the
South African Police Services.
He concluded that it was
impossible that the appellant could have been robbed by his family
members in particular those he was
living with. Further that
the appellant was confronted with overwhelming evidence and elected
to remain silent.
[16]
In his analysis the learned magistrate appears to have concentrated
on the evidence of Colonel
Sehlabaka relating to the identifying of
the firearms. He seemed to overlook the inconsistencies in her
evidence and the
unreliability of the document she was relying on.
The state did not lead any evidence that she examined the firearms in
order
to confirm the serial number(s). There was also no
evidence that she tested them that they were in a working condition.
In addition there was no evidence led pertaining to her knowledge of
the firearms and/or special qualities of the said firearms.
The
fact that these are well known firearms does not mean that proper
evidence must not be led about the identification.
[17]
The appellant did not tender any plea explanation but instead denied
everything. This compelled
the respondent to prove everything
including whether the exhibits seized from [...] G. S., B. were
indeed firearms. The learned
magistrate did not consider the
evidence in totality but did so in vacuum. All the charges
arose out of the same set of facts.
The evidence pertaining to
the other charges is inextricably linked to this charge.
[18]
The learned magistrate correctly found that the chain evidence has
been compromised and contaminated
through the conduct of the police.
The removal of the exhibits from the original forensic bag into a new
forensic bag was
conceded and deemed to be unprocedural by Major
Maqala. The outcome of the analysis of the forensic laboratory
could not
be relied upon to sustain any conviction. It is a
misdirection to find the chain evidence broken in the circumstances
and
accept such evidence contaminated as it is, admissible in the
very same circumstances only because it is a different charge. He
should have found then that a conviction could not be sustained in
these circumstances. To this extend the learned magistrate
committed a misdirection both on the facts and law.
[19]
I deem it unnecessary to deal with the decision of the learned
magistrate on the election of
the appellant to exercise his right to
remain silent. I do so not out of disrespect for the learned
magistrate. This
matter could have been sufficiently decided on
other evidence as illustrated in the preceding paragraphs.
Suffice to mention
that I have already found that the learned
magistrate was wrong to find that there was overwhelming evidence
against the appellant.
In
S v Masia
1962 (2) SA 541
at 546
E-F
the court held that the failure to testify can only be used
as a factor against the accused person if there is evidence that can
sustain a conviction. In this matter there is none.
[20]
The conviction can thus not stand on the accepted evidence and falls
to be set aside.
[21]
Accordingly I make the following order:
21.1 The
appeal is upheld
21.2
Both conviction and sentence are set aside.
MA
MATHEBULA, J
I
concur
CHESIWE,
AJ
On behalf of
appellant: Adv.
L Tshabalala
Instructed
by: Bloemfontein
Justice Centre
Bloemfontein
On behalf of
respondent:
Adv. R Hoffman
Instructed
by:
Director of Public Prosecutions
Bloemfontein