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[2016] ZAGPPHC 301
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Seloma v S (A658/14) [2016] ZAGPPHC 301 (28 April 2016)
IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH
AFRICA)
28/4/2016
CASE NUMBER: A658 / 14
NGHC CASE No CC215/01
Reportable
Of interest to other
judges
Revised.
STEVEN MASWI
SELOMA APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
MAVUNDLA J,
[1] The appellant
together with two others were arraigned, charged, convicted and
sentenced on the 3 August 2001 at the Local and
Circuit Division for
the Northern Circuit District held at Lydenburg before Spoelstra J
on count 1 of murder and sentenced
to life imprisonment; on counts 2,
robbery with aggravating circumstances as intended in s1 of Act 51 of
1977, and sentenced to
15 years imprisonment; count 3 assault on Ms
Mawela and sentenced to 1 year imprisonment, count 4 unlawful
possession of unlicensed
firearm to wit Norinco NP20 Parabellum; on
count 5 unlawful possession of ammunition, and for purposes of
sentence counts 4 and
5 were taken as one and he was sentenced to 2
years imprisonment. He was further declared unfit to possess a
firearm.
[2] The appellant now
appeals against both the conviction and sentence with the leave
having been granted by this Court on the 20
March 2013. Inasmuch as
the saying goes that the wheels of justices grind slow but with
certainty. It is unfortunate, however,
that in the instance of the
appellant, the wheels certainly were too slow, for various reasons,
including the fact that the presiding
officer who initially tried the
matter retired. It is not clear from the record why the matter was
delayed. This Court can do no
more than to apologize to the
appellant, in so far as there was any delay on its part in delivering
this judgment.
[3] The appellant was
duly legally represented at the trial. He pleaded not guilty to all
the counts and exercised his right of
silence. The appellant in his
defence raised an
alibi
and also denied that he was found in
possession of a firearm and ammunition.
[4] The appellant made
admissions in terms of s220 of Act 51 of 1977 of the following facts:
That the identity of the deceased was
Hermanus Kitshoff; That Bhanwar
Lal Bhootra conducted on 21 July 1999 the post mortem examination on
the body of the deceased mentioned
in the indictment; that the facts
and findings recorded in the postmortem report are correct; that the
cause of death as recorded
in the post mortem report as "Gunshot
Wound of Chest" is correct; That the post mortem report is
handed in by agreement;
that the photo album of the scene and the
deceased are handed in by agreement as exhibit C. It does not appear
from the record
that the correctness of other exhibits was admitted
in terms of s220. In this regard I refer in particular to the
findings and
results of the DNA blood sample and the blood stains on
the R20. 00 note which were not admitted.
[5] The conviction of the
appellant is primarily premised on the DNA results on the test
conducted on the blood sample on a R20.
00 note found on the
appellant, to match the blood sample of the deceased
[1]
,
as well as the ballistic test results conducted on the spent 9mm
cartridge and a projectile found at the scene and firearm which
was
found on the appellant
[2]
. I
will in due course revert to these exhibits (D and N). The issue to
be determined is whether the State had proven its case against
the
appellant beyond reasonable doubt.
[6] The State called the
following witnesses: sergeant Makhurana; Mrs Rebiditswe Mawela; Mrs
MH Kltshoff; Mr Bennet Letsepe Mogoru;
inspector Phineas Mchale who
was a sergeant at the time of the incident in issue; Inspector
Thobela Mogadime; inspector Frans Matsheke;
Mr Mathekgane Seanego who
is a member of the SAPS attached to the Local Criminal Record Center
Lebowakhomo.
[7] The appellant
testified in his own defence and did not call any witness. For
whatever it is worth it may be mentioned that the
appellant was
accused 1in the court
a quo.
He was charged together with
accused 2 and accused 3. However, the appeal of the other two
co-accused is not before us and as a
result not much would be said
about them save where it is relevant.
[8] It is common cause
that on the 19 July 1999 Mrs. Rebiditswe Mawela, the complainant in
count 3, was offered a lift by the deceased,
who was travelling in
his light delivery vehicle with a trailer on it. She was seated in
front with the deceased driving. When
they reached Makgane village
the deceased stopped to sell eggs and milk to some people. Suddenly
Mawela's passenger door was wrenched
open and she was thrown out of
the vehicle. She rolled and crawled for a distance of about 12 to 15
meters and stood up and ran
to the nearest house. She also heard two
gun shots but did not see who fired these shots.
[9] The evidence of Mrs.
Hendrika Kisthoff, the wife of the deceased is not disputed.
According to her evidence the deceased left
on the morning of 19 July
1999 in his light delivery vehicle to go sell milk, chicken and eggs.
He usually left having an amount
of about R2000. 00. The deceased did
not return home and she reported this to the police, who subsequently
informed her that he
was shot and killed. She subsequently identified
a golden Citizen Wrist watch as that of the deceased.
[10] It is not in dispute
that Sergeant Nathaniel Matubane Makhurana, attended the scene of
crime and found the deceased slumped
in the front driver's seat with
a bullet wound on his chest. He also found a spent 9 mm cartridge
about six meters from the motor
vehicle. He also found a projectile
on the floor inside the vehicle. He also found the deceased's
identity document inside the
vehicle which revealed the deceased as
Kitshoff from Dullstroom. He alerted some of the members of the
police force who,
inter alia,
sergeant Seanego came to the
scene. Although he showed the projectile and the cartridge to Seanego
he does not know who picked these
up. He also does not know who took
the photos at the scene of crime.
[11] It is common cause
that inspector Mogoru on the 20 July 1999 stopped a maroon Venture
travelling from Steelpoort to Sekhukhune.
The appellant and his
co-accused 2 were also travelling in this maroon vehicle. Mogoru,
arrested the appellant and his co-accused
2. The accepted version of
Mogoru was that he found an unlicensed Norinco 9mm firearm tucked on
the appellant's hip. The appellant
ran away but with the assistance
of some of his colleagues they managed to pursue and apprehend him.
The appellant informed him
that he was holding the firearm on behalf
of a friend who he pointed out to him. It is common cause that the
said friend was the
co- accused 2. Mogoru went to search this person
pointed out by the appellant and found a schoolbag on him, which
contained a skipper
with black stripes and tekkies called Hi-Tech
which tekkies had drops of blood on them. He also found on the
appellant money which
had blood stains but gave it back to him. He
disputed the version of the appellant put to him that the firearm was
not found on
him but only heard mention being made that a firearm was
found in the vehicle. He further said that he arrested the appellant
for
possession of the firearm and Mr Mabuza (appellant's co-accused
2) on the basis of what was said by the appellant. In his written
statement Mogoru said that he arrested Mabuza for the fact that he
had tekkies which had blood.
[12] Sergeant Phineas
Thosago Mchale was on duty at Sekhukhune police station on the 20
July 1999. Sergeant Mogoru and his colleague
brought the appellant
and accused 2 to the police station for being in possession of a
firearm. Just before placing the appellant
into the cells, he found
on him some money of which a R20. 00 note had blood stains on it. He
wrote in the SAP 13 of this blood
stained note and informed the
investigating office thereof. Both the appellant and accused 2 did
not have any blood stains on them.
[13] Seargent Thobela
Thobias Mogadime arrested accused 2 at his home after his room was
pointed out by his mother. In his room
he found in the wardrobe a
brown jacket inside which he found money: R200. 00, R5.00 coin and 20
X R2. 00 coins totaling R40. 00,
a golden Citizen watch, number
659983. On searching further accused 2's room he found a .38 special
revolver; one lethal round
of a as well as two empty cartridges in
the chamber of that firearm. He confiscated all the items found on
accused 2 and registered
them in the SAP 13 register.
[14] Inspector Frans
Matsheke testified,
inter
alia,
that
he spoke with sergeant Rauphala to arrange with a doctor to extract
from the deceased a blood sample. He later received from
inspector
Rauphala of the government mortuary the blood sample already sealed
which he sent together with the R20 note to the forensic
laboratory.
[3]
He also received
the blood samples of the deceased. He also booked out the R20 note
from SAP 13 and forwarded those exhibits to
the Forensic Science
Laboratory and the results were positive. He also forwarded the
firearm to the ballistic unit through inspector
Seanego.
[4]
[15] Inspector Mathekgane
Seanego is a member of the SAPS attached to the Local Criminal Record
Centre 'Lebowakgomo. On the 19 July
1999 he attended the scene of
crime where he found Sergeant Makhurana who pointed the scene to him.
He took photos of the scene,
also uplifted exhibits on the scene, and
amongst them was a fired cartridge case and a projectile. He put
these in separate plastic
containers, marked exhibit A and B
respectively. On the 22 July 1999 he received a Norinco pistol with
its numbers (filed) off
and a damaged revolver with three cartridges
inside, from sergeant Matsheke. The pistol and the revolver were
packed in transparent
plastic bags, marked Exhibit E and D
respectively. All the exhibits were packed in one parcel and sealed
with seal stamp number
10 and forwarded to Forensic Laboratory,
Ballistic Unit for further investigation.
[5]
APPELLANT'S CASE
[16] It is common cause
that the appellant was caught after he tried to run away. He denied
that a firearm was found in his possession.
His explanation for
running away was that he was informed that he was suspected of
robbery. He said that during 1998 police officers
accused him of
having pointed someone with a firearm. He conceded that he had an
amount of R270 at the time of his arrest. He said
that he had;
inter
alia,
R50 note and two R l0 00 notes. He denied involvement in
the commission of the crime and said that he was at his grandmother's
place.
He did not call any witness and closed his case. Needless to
state that his version was rejected by the trial court and that of
the State was accepted, thus his conviction as charged.
[17] On appeal the
conviction of the appellant was assailed on the ground that there was
a broken chain in respect of the extraction,
of the blood sample of
the deceased and remittance thereof for analysis. Equally so too
there was also a broken chain in respect
of the collection of the
cartridge and the projectile, and the remittance thereof to the
laboratory for analysis. It was submitted
that bearing in mind that
the appellant had raised a defence of
an alibi,
the State has
not succeeded in refuting the unreasonableness of the version of the
appellant and therefore failed to prove beyond
reasonable doubt the
guilt of the appellant.
[18] It is trite that in
a criminal trial the state bears the
onus
to prove its case
beyond reasonable doubt. In 5
v Chabalala
2003(1)SACR 134 AT
139 i-140b it was held that the correct approach in criminal trials
is to weigh up all the elements which point
towards the guilt of the
accused against all those that are indicative of his innocence,
taking proper account of inherent strength
and weaknesses,
probabilities on both sides and, having done so, to decide whether
the balance weighs so heavily in favour of the
State as to exclude
any doubt about the accused's guilt.
[19]
In casu
the
appellant raised an
alibi.
In the matter of
S v Khumalo
[1991] ZASCA 70
;
1991 (4) SA 310
AD at 327 G-H the Appellate Court held that where
the accused has raised the defence of an
alibi,
the
onus
rest on the State to negate the alibi. If there exist a
possibility that the
alibi
might be reasonably possibly true
then the State has not acquitted itself of its
onus;
Vide
(R
v Biya
1952 (4) SA 514
(A) at 5210-E). The correct approach in
this regard is to consider the
alibi
on the basis of the
totality of the evidence relating thereto, and the Court's impression
of the witnesses; vide
(R v
Hlongwane
1959 (3) SA 337
(A) at 341 A.
[20] It is common cause
that Matsheke requested sergeant Rauphala to arrange with the doctor
at the mortuary to extract blood from
the deceased. Matsheke received
the blood sample which had already been sealed from sergeant
Rauphala. Matheke was personally not
present when the blood was
extracted; vide page 54 line 9- 15. He was also unable to assist the
court with regard to the seal number
on the blood sample holder; page
55 lines 1-10. His evidence that it was the blood sample of the
deceased is therefore hearsay
evidence, more so because Rauphala was
not called to testify. There was also no s212 affidavit of the person
who extracted the
blood sample from the deceased. I am of the view
that the chain in respect of the blood sample upon which the State
relied was
not intact, but broken
[21] In the matter of
5
v Van Der Westhuizen
1989 (1) SA 468
(TPD) at 473 the Court held
that the State tried to prove its case beyond reasonable doubt by
means of
prima facie
evidence, about the blood sample which
was extracted from the accused. Where the statutory provisions had
not been complied with
due to the break of the chain in regard to the
certificate, it cannot be said that the state had proven its case
beyond reasonable
doubt.
[22] The version of the
appellant was that he was on the day in question at his home. After
his arrest and that of his erstwhile
accused 2, both their respective
homes were searched. Nothing was found at the appellant's place. On
the other hand, the deceased's
watch was found at accused 2's place.
The appellant said that he was holding the firearm from which the
spent cartridge and the
projectile were fired from on behalf of
accused 2. Taking these facts into consideration, I am of the view
that the State has failed
to negate the
alibi
of the
appellant. Even if the court does not believe the version of the
appellant, if it is reasonably possibly true, then the Court
must
give him the benefit of doubt. In regard to the offences that were
committed on the 19 July 1999, I am of the view that the
court
a
quo
erred in finding the appellant guilty on those charges but
should have acquitted him on those charges. I am therefore of the
view
that the appeal in respect of the charges of the 19th July 1999
should succeed. Needless to say, the appeal on sentences in respect
of these charges must also succeed.
[23] In respect of the
possession of the firearm and the ammunition the appellant was on his
own admission in possession of these.
It is immaterial that he held
the firearm on account of his friend. He made himself guilty on those
charges because he had no license
to hold such firearms which the
relevant ammunition could have been fired from. In respect of these
charges he was quite correctly
found guilty and therefore the appeal
on these charges should fail.
[24] In respect count 4,
unlawful possession of unlicensed firearm, to wit Norinco NP20
Parabellum, and count 5, unlawful possession
of ammunition, and for
purposes of sentence these counts were taken as one and he was
sentenced to 2 years imprisonment. He was
further declared unfit to
possess a firearm. I am of the view that nothing justifies that this
court should intervene in respect
of the sentence imposed for these
charges and the sentence of 2 years is accordingly confirmed.
Needless to state that the effect
of life imprisonment sentence is
that the other imprisonment sentences run concurrently with such life
imprisonment sentence. The
appellant has been in prison for a
considerable period and has therefore effectively served more than
the two years imprisonment
for counts 4 and 5 and should therefore be
immediately released.
[25] In the result the
following order is made:
1. That the appeal on
conviction and sentence in respect of all the charges, save in
respect of both count 4 and 5, is upheld and
both conviction and
sentences are set aside.
2. That the appeal on
both conviction and sentence in respect of counts 4 and 5 is
dismissed and the conviction and sentence is
confirmed.
3. That the sentence in
respect of counts 4 and 5 is ante-dated to the 3rd August 2001.
________________________
N.M. MAVUNDLA
JUDGE OF THE HIGH COURT
I agree and it is so
ordered.
________________________
W.R.C PRINSLOO
JUDGE OF THE HIGH COURT
I agree and it is so
ordered
________________________
K.E MATOJANE
JUDGE OF THE HIGH COURT
DATE OF JUDGMENT :
I
04
I
2016
APPELLANT'S ATT :
PRETORIA JUSTICE CENTRE
APPELLANT'S ADV : ADV M.
B. KGAGARA
RESPONDENT'S ATI :
DIRECTOR OF PUBLIC PROSECUTION RESPONDENT'S ADV : ADV E. V. SIHLANGU
[1]
Exhibit D page 150:" 5.1 The DNA-STR profile of the genetic
material from the twenty rand note (B) (Par 3.2) matches the
DNA-STR
profile of the control blood sample 9Lyk 229/99) (par 3.1)".
[2]
Exhibit N at pages 163 -166.
[3]
Paginated page 53 lines 6-12; pagainated pag 54
[4]
NB projectile and cartridge were inserted in plastic containers
marked exhibit a and b page 67.
[5]
Paginated p68 line25-p67 lines 1-25.