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2015
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[2015] ZAGPPHC 415
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Dlamini v S (A713/2014) [2015] ZAGPPHC 415 (25 May 2015)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A713/2014
DATE
OF HEARING: 25 MAY 2015
In
the matter between:
LAMARK
DLAMINI
APPELLANT
and
THE
STATE
RESPONDENT
J U D G M E N T
AVVAKOUMIDES,
AJ
1.
On
22 August 2013 the appellant (second accused in the trial) was
charged with, and convicted of, one count of robbery with aggravating
circumstances, one count of possession of an unlicensed firearm and
one count of unlawful possession of ammunition in contravention
of
the
Firearms Control Act 2000
, Act No. 60 of 2000. He was represented
throughout the trial and was informed of the minimum sentences
applicable and the competent
verdicts, if convicted.
2.
On
22 August 2013 he was sentenced to 15 years imprisonment on count
one, fifteen years imprisonment on count two and 5 years imprisonment
on count three. In terms of
section 280
of the
Criminal Procedure Act
1977
, Act N. 51 of 1977 the trial court ordered that ten years
sentence imposed for count two would run concurrently with the
sentence
in respect of count one and the sentence on count three is
to run concurrently with count one as well. The cumulative effect is
that the appellant will serve a total of 20 years. He was also
declared unfit to possess a firearm.
3.
The
complainant testified that the third accused worked for her. On 28
April 2010 she returned home after visiting friends and she
was
apprehended by two unknown armed men. The third accused fell to the
ground screaming while one of the men pushed a firearm
in the
complainant’s mouth. She was forced to open the safe where
money and a firearm were taken. The men left and the complainant
went
looking for the third accused. The third accused could not be found
and never returned to work. She did not answer any telephone
calls.
The complainant could only describe the two men as dark skinned and
the one was shorter than the other. The shorter
one was approximately
40 years old and the other was taller but very young. Aside
from the description the complainant was
unable to shed any further
light on the identity of the robbers.
4.
Warrant
Officer Edward le Grange testified that he arrested the appellant on
10 June 2010 after receiving information. He found
the appellant and
a major female in a shack and upon searching the shack he found a
firearm in a plastic bag behind a pressed wood
standing out.
The appellant apparently told him that the firearm belonged to him
and that he did not have a license for the
firearm. W/O Le Grange did
not know who the shack belonged to.
5.
Warrant
Officer Maharela testified that he arrested accused one and three for
a robbery that occurred in the Lyttleton area. Constable
Bosch
testified that on 10 June 2010 he accompanied Warrant Officer Le
Grange and that there were two children in the shack with
the
appellant and the major female. The appellant could not explain the
firearm according to Constable Bosch. After the close
of the
state’s case it was reopened in order to hand in a ballistic
report. This report was confined to certifying that the
firearm was a
9 millimetre pistol and functions normally. What the report and
investigation could and should have done is to link
the firearm to
the husband of the complainant.
6.
The
appeal against the conviction rests on two grounds namely that the
state failed to prove beyond a reasonable doubt that the
appellant
robbed the complainant and that the appellant was in possession of
the firearm. It is clear that the complainant’s
description of
the robbers is insufficient and this being the case, the state could
not have proved the case against the three
accused, let alone against
the appellant.
7.
It
seems that the main consideration of the trial court is the firearm
that was found in the shack where the appellant was present.
There is
discrepancy in the evidence of the two police officials about where
the firearm was found. The state failed to call the
appellant’s
wife or the owner of the shack to give evidence about the firearm.
8.
The
time lapse between the incident and the date on which the firearm was
found is a material issue that the trial court did not
place any
weight on. I have had regard to the decision of S v Skweyiya
[1984] ZASCA 96
;
1984 (4)
SA 712
(A) at 715 E to which reference was made in Zwane and another
v The State (426/13)
[2013] ZASCA 165
(27 November 2013) wherein the
following was held:
“
The
evidence against the second appellant is woefully inadequate to
sustain a conviction and his election not to testify was entirely
justified given the absence of any incriminating evidence against
him. His appeal must accordingly be upheld. The inference that
a
person found to be in possession of recently stolen property is the
thief or one of the thieves (or, in this instance, one of
the
robbers) can only be drawn as the only reasonable inference where the
nature of the goods stolen and the time lapse between
the theft (or
robbery) and the discovery of the goods in that person’s
possession lend themselves to such a finding (see
S v Parrow
1973 (1)
SA 603
(A) at 604B-E; S v Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(A) at 715 C-D; S
v Mavinini
2009 (1) SACR 523
(SCA) para 6). The crucial question
would be whether the items concerned are of the type which can easily
and quickly be disposed
of, in which event anything beyond a
relatively short time lapse cannot be said to be recently stolen (see
Skweyiya at 715E)
.”
9.
The
state also failed to present evidence that the firearm found was
indeed that of the complainant’s husband. This being
the case
it cannot be said that the state proved its case against the
appellant. In my view the appeal must succeed.
10.
Consequently
and taking all the circumstances into account I make the following
order:
10.1 The appeal is upheld.
10.2 The conviction and sentence are set aside.
___________________________
AVVAKOUMIDES, AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree:
__________________________
A.
A.
LOUW, J
JIUDGE
OF THE HIGH COURT
Representation
for the Appellant:
Counsel
L.
Augustyn
Instructed
by
Legal Aid South Africa
Representation
for Respondent:
Counsel
C. P. Harmzen
Instructed
by:
The
State