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[2015] ZAGPPHC 430
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S v Yende (A439/15) [2015] ZAGPPHC 430 (1 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG :
PRETORIA)
Case no: A439/15
Date: 01 JULY 2015
In the matter between:
THE STATE
And
M.P. YENDE
JUDGMENT
DATE: 10/12/2014
High Court Ref no: 690/14
Magistrate's Serial No: 3/14
(Ermelo)
Review case no: FSH 22/12
RABIE J :
1. This is a review judgement relating
to the conviction and sentence of the accused on 5 September 2013 in
the Magistrate's Court
of Amersfoort on three counts. The first count
related to the pointing of a firearm for which 12 months'
imprisonment was imposed;
the second count related to the illegal
possession of a firearm for which a sentence of 15 years was imposed;
and the third count
related to the theft of a firearm for which a
sentence of 6 years was imposed. The accused pleaded not guilty and
represented himself.
2. The applicant applied for the matter
to be specially reviewed and in an accompanying affidavit he set out
the grounds for such
a review. The applicant stated, inter alia, that
he had an unfair trial for the following reasons: he was forced to
conduct his
own defence as a layman; it was never explained to him
that he had a right to appeal against the refusal of legal aid; he
never
had access to docket copies or copies of statements by
witnesses and could therefore not cross-examine them properly; a copy
of
the charge sheet was never made available to him; and he could not
make proper notes while standing in the dock and therefore had
to
rely on his memory which was difficult since the matter was part
heard.
3. According to the accused he was
legally represented by an attorney from Legal Aid. He terminated the
services of this attorney
because, according to the accused, the
attorney did not instil confidence in him. He then appointed an
attorney in private practice
who had a reputation as a good criminal
lawyer. The accused stated that he could not afford this attorney's
fees and that the attorney
then withdrew from the matter. According
to the magistrate's response the private attorney had indicated that
he was withdrawing
from the matter because the accused did not want
to follow his advice. According to the magistrate the accused had
indicated that
he would pay another attorney to represent him.
However, when the matter commenced on 22 August 2013, the accused was
not represented
and on enquiry from the court indicated that he was
aware of his rights to legal representation or legal aid. The
magistrate also,
inter alia, submitted that the accused was supposed
to have made use of the petition procedure rather than a special
review.
4. On the evidence before this court it
appears that the accused did have a fair trial. He was initially
legally represented and
would have understood the case against him
and would have received all relevant information. When he eventually
decided to represent
himself he did so of his own free will and never
uttered any complaint or any difficulty. I am satisfied that the
convictions and
sentences of the accused cannot be set aside for the
reasons mentioned by him.
5. It appears, however, that the trial
court perpetrated at least one serious irregularity which had an
effect on the trial and
that this court would be remiss if such were
not addressed. I shall now refer to the general background of the
matter.
6. The events which led to the charges
against the accused occurred on the night of 12 June 2011 near
Daggakraal in the province
of Mpumalanga. The relevant facts were
briefly the following. On the night in question the accused visited
the Tavern of Mr Shongwe.
Mr Shongwe testified that when he arrived
at the Tavern at approximately 20:00 he found that there was trouble
brewing. He was
informed that certain people were armed and behaved
violently. One of the persons pointed out to him was in possession of
a big
knife. He approached this person and asked him to leave the
Tavern. The next moment the accused came from the side, pulled him by
his jacket and uttered threats and swear words at him. At that moment
the accused pulled out a firearm, cocked it and pointed it
at Mr
Shongwe and treatment to kill him. The brother of the accused
attempted to push the firearm away from Mr Shongwe and in this
process Mr Shongwe walked backwards towards his motor vehicle which
was standing close by. The accused followed Mr Shongwe and
continued
to threaten him and point him with the firearm. Mr Shongwe succeeded
in getting into his car and while he was starting
the vehicle the
accused rapped on the window with the firearm repeating that he was
going to kill him. The wife and two-year-old
child of Mr Shongwe was
also in the car at the time and while witnessing the events, his wife
called the police on her cellphone.
7. Mrs Shongwe also testified and
confirmed the aforesaid events. She saw the commotion and her husband
retreating to their vehicle
whilst the accused was pointing a firearm
at him and threatening him. She confirmed that the accused rapped on
the window with
the firearm and said that he pointed the firearm at
all of them who were inside the vehicle. She said that she could hear
the accused
cocking the firearm several times and does not know why a
shot did not go off. She confirmed that the accused's brother led him
away and that she telephoned the police as they were driving off.
8. Mr Shongwe further testified that he
accompanied the police to the parental home of the accused but could
not find him. At approximately
03:00 the police came to him again and
they again went to the accused's parental home but could not find
him. They were directed
to another house where they eventually found
the accused. It is common cause that it was the house of the
accused's brother and
that they were the only persons present at the
house. Mr Shongwe confirmed to the police that the accused was the
person that had
pointed the firearm at him earlier that night. The
police searched the house and found a firearm inside the house. It is
common
cause that the firearm was found under the mattress of a bed
in the bedroom of the house. According to the accused his brother was
sleeping in the bedroom whilst he slept in the kitchen area of the
house. The accused denied that he was ever in possession of
the
firearm and there was no evidence on behalf of the prosecution that
the accused was found in possession of the firearm. Regarding
the
appearance and identification of the firearm the only evidence
emanated from the following question by the prosecutor and the
answer
of Mr Shongwe: "In terms of the appearance of the firearm, was
it similar or totally different from the one that you
were pointed
with? — It was similar to the one that was pointed to me
earlier."
9. The prosecution also presented the
evidence of Mr S.P. Ndaba, who testified that he returned from a
night vigil earlier that
night and fell asleep next to Mr Shongwe's
Tavern. At some point he woke up and realised that his firearm which
he had at his side,
had disappeared. He asked around and was told by
certain unknown people that they had heard from others that the
accused had stolen
his firearm.
10. At some point he came across Mr
Shongwe in the street and told him that his firearm had been stolen.
Mr Shongwe then took him
to the police station. Mr Ndaba testified
that his firearm was recovered. The Magistrate then asked the
following question from
him: "How did you identify it, how did
you know (inaudible)? — I know my firearm your worship and I am
sure about that."
11. The last witness who testified on
behalf of the prosecution was Constable O.P. Hadebe. He was tasked to
investigate the aforesaid
pointing of a firearm at the Tavern on the
night in question. He testified that they arrived at the house of the
accused's brother
who gave them permission to search the house. The
accused and his brother were both in the kitchen of the house when
they entered.
Eventually they found a silver Norinco firearm under
the mattress in the bedroom.
12. Constable Hadebe then testified
that they showed the firearm to Mr Shongwe who said that it was the
one that was used at the
Tavern. Constable Hadebe then added that he
asked the accused whether he has any knowledge regarding the firearm
whereupon the
accused said "yes". He said that the accused
added that the firearm was not his but that the owner of the firearm
was
Mr Sipho Ndaba. He then arrested the accused.
13. Constable Hadebe was asked whether
the firearm was sent to the forensic laboratory for analysis and he
answered that he does
not know because all he did was to book the
firearm into the SAP 13 register. It was up to the clerk to hand the
firearm to the
detectives.
14. The prosecutor then put the
following leading question to Constable Hadebe: "The firearm
that was analysed by the forensic
laboratory refers to a serial
number 0300063, it is a 9 mm Parabellum calibre Norinco model 17-7B".
Constable Hadebe's response
was "yes". He was then asked
"Is that the firearm that you recovered?" And his answer
was: "Yes".
One of the questions by the Magistrate to
Constable Hadebe was how the complainant, Mr Shongwe, identified the
firearm as the firearm
that was used at the Tavern. Constable
Hadebe's response was that according to Mr Shongwe he saw the firearm
at the Tavern and
when he showed him the firearm at the house of the
brother of the accused, he positively said that the firearm "is
the one
that was used". The Magistrate asked whether he had
given any reasons why he said so and Constable Hadebe responded as
follows:
"He just gave us the colour of that firearm as it was a
silver firearm. He was not, I do not believe the complainant was in
a
position to tell whether that firearm was a Parabellum or what model
of a firearm it was, but what matters is that when we went
into that
house we discovered a silver firearm which was identified by the
complainant as the firearm that was used."
15. The last piece of evidence on
behalf of the prosecution was an affidavit in terms of section 212 of
the Criminal Procedure Act.
The accused did not object to this
affidavit being handed in. According to the affidavit a certain
firearm which was a 9 mm Parabellum
calibre Norinco model 77B with
serial number 0300063 was a semi-automatic pistol. A magazine and two
cartridges were also mentioned
in the affidavit.
16. The accused testified on his own
behalf. He admitted being at the Tavern on the night in question and
that he had an axe with
him. He denied stealing the firearm of Mr
Ndaba and ever being in possession of a firearm on the night in
question. He testified
that he went to his parental home and
thereafter to the house of his brother where he slept until the
police came to the house
and woke them up. He said that he had no
knowledge of the firearm that was found in the house of his brother.
He denied that he
ever told the police that he had knowledge of the
firearm and that it belonged to Mr Ndaba. He confirmed that his
brother was also
at the Tavern at the time that he was there.
17. After the accused had closed his
case the prosecutor made submissions to the court and thereafter the
accused did the same.
When the prosecutor addressed the court in
reply the magistrate asked the prosecutor whether there was evidence
that the firearm
that was found in the house of the accused's
brother, was the firearm that was shown to Mr Ndaba. This question
was clearly asked
in order to establish whether it had been proved
that the firearm stolen from Mr Ndaba was the one eventually found in
the house.
18. The prosecutor confirmed that there
had been no such evidence but that the inference should be drawn that
the firearm that Mr
Ndaba had lost was the firearm eventually found
in the house. The magistrate was not satisfied with this response and
indicated
that he wanted to hear evidence of the person who had shown
the firearm to Mr Ndaba. It would be recalled that the only evidence
in this regard was Mr Ndaba testifying that his firearm had been
received and that he was sure that it was his firearm. There was
no
evidence as to when this occurred nor as to how Mr Ndaba identified
the firearm as his.
19.The prosecutor indicated that he
would contact the investigating officer and the magistrate adjourned
the proceedings for that
purpose. On the resumption of proceedings
the prosecutor indicated that he had certain documentation reflecting
the serial number
of a firearm and that the owner thereof was Mr
Ndaba.
20. The magistrate instructed this
document to be shown to the accused. Without any question directed at
the accused, an answer
was interpreted as follows: "No objection
your worship." The following was then said by the magistrate:
"Ja goed
meneer, streng gesproke het die hof nou getuienis
aangehoor. Verlang u om enigsins u saak te heropen of nie?" The
answer of
the accused was interpreted as follows: "Nothing
further your worship, I am not reopening my case." These were
the last
words spoken in the trial and thereafter the magistrate
commenced with his judgement.
21.1 am satisfied that the evidence
proved beyond a reasonable doubt that the accused had pointed a
firearm at Mr Shongwe and that
he was thus correctly convicted of the
charge relating to the pointing of a firearm.
22. On the evidence before the court it
is, however, clear that there was no admissible evidence that the
accused had stolen Mr
Ndaba's firearm. The only evidence in that
regard was double hearsay on the part of Mr Ndaba.
23. There was also no evidence that the
firearm which the accused pointed at Mr Shongwe was Mr Ndaba's
firearm. The question whether
the accused had ever been in possession
of the firearm of Mr Ndaba was an important one, not only for
purposes of proving the crimes
of theft and possession, but
especially to allow for the sentence of 15 years imprisonment
prescribed by Act 105 of 1997 to be
applicable. This is so because
the section 212 affidavit presented by the prosecution referred to
the firearm mentioned therein
as a semi-automatic firearm.
Consequently, if the prosecution had proven the firearm mentioned in
the affidavit as belonging to
Mr Ndaba and as the one later being in
possession of the accused, the chances of the accused being convicted
and sentenced as prescribed
in Act 105 of 1997, were much higher.
24. It is clear that the magistrate
realised that there was a lacuna in the prosecution's case in this
regard and that the semi-automatic
firearm mentioned in the section
212 affidavit could not be connected to any of the charges against
the accused. The magistrate
attempted to fill this gap by asking the
prosecutor to present further evidence at a time when both the cases
for the prosecution
and the defence had been closed and the parties
had already made their submissions. In doing so the magistrate
committed a serious
irregularity. A court may, in terms of the
provisions of the Criminal Procedure Act, subpoena a witness or cause
a witness to be
subpoenaed if the evidence of such witness appears to
the court essential to the just decision of the case, but a court
cannot
at the end of the case identify weak points in the
prosecution's case and then ask the prosecutor to present the
necessary evidence
in order to enable him to convict the accused.
Such conduct constitutes and irregularity and, at best for the
prosecution, such
evidence should be regarded as inadmissible.
25. But the attempt by the magistrate
to bolster the prosecution's case in any event did not have this
result. The document that
was handed up was a typed document
reflecting, inter alia, the name of Mr Ndaba, his identity number, a
description of a firearm
and the serial number thereof. It is not
known where this document originated from or who the author thereof
was. Furthermore,
the contents of this document and the import
thereof was not explained to the accused and neither was he asked
whether he would
have any objection to the contents thereof being
introduced in evidence. After the document was apparently shown to
the accused
it is reported that he had indicated that he had no
objection. It is not known, however, what, if anything, the
interpreter had
said to the accused before the accused had allegedly
indicated that he has no objection. It is thus also not clear in
respect of
what he allegedly had no objection.
26. In convicting the accused the
magistrate relied on the aforesaid document as proof that the firearm
found in the house of the
brother of the accused had been the firearm
of Mr Ndaba. This, together with certain broad and unsubstantiated
assumptions, opened
the way for the magistrate to conclude that the
accused was the one who had stolen the firearm and had used it later
at the Tavern
before he took it with him to his brother's house.
27. If the aforesaid irregularity is
disregarded it is evident that the prosecution had failed to prove
that the accused had ever
been in possession of Mr Ndaba's firearm
and that he had ever been in possession of a semi-automatic firearm.
28. Reliance was also placed by the
magistrate on the evidence of Constable Hadebe to the effect that
after the firearm had been
found in the house, the accused said that
the firearm belonged to Mr Ndaba and more particularly the fact that
the accused did
not deny this evidence when he cross-examined
Constable Hadebe. In my view there is no justification for the
inference that the
accused had admitted this evidence of Constable
Hadebe. The accused represented himself and if regard is had to his
whole version
and his denials when he testified, it is clear that his
failure to put to Constable Hadebe during cross-examination that this
part
of his evidence is denied, was due to a mistake on the part of
the accused and not because he accepted the evidence of Constable
Hadebe on that point. It also needs to be pointed out that Mr
Shongwe, who was present at the house, never testified that he had
heard the accused making this crucial admission that the firearm
belonged to Mr Ndaba.
29. Even if the matter is approached
from a different angle and it is accepted for purposes of the
argument that the accused had
in fact wielded, and thus possessed, a
firearm, the prosecution still failed to prove that the firearm
possessed by the accused
was a semi-automatic firearm. The section
212 affidavit indicated that a certain firearm with serial number
0300063 was a semi¬automatic
firearm. The question then is
whether there was evidence that this particular firearm had been
found in the house of the accused's
brother.
30. Constable Hadebe was not aware
whether the firearm found in the house had been sent to the forensic
laboratory. He had merely
booked it into the SAP 13 register. Then,
out of the blue, the following leading statement and question was put
to Constable Hadebe
by the prosecutor: "The firearm that was
analysed by the forensic laboratory refers to a serial number
0300063, it is a 9
mm Parabellum calibre Norinco model 17-7B. —
Yes.
Is that the firearm that you recovered?
— Yes".
If the previous evidence of Constable
Hadebe is considered he could not have confirmed these two leading
questions posed by the
prosecutor.
31. No other evidence was led to show
that the firearm collected from the house was in fact sent to the
forensic laboratory or that
that the firearm was the one referred to
in the section 212 affidavit.
32. Having regard to the aforesaid the
accused could have been convicted of the pointing of a firearm and
the possession of a firearm
but not of the theft of Mr Ndaba's
firearm and the possession thereof and neither could he have been
sentenced on the basis that
he had been convicted of being in
possession of a semi-automatic firearm. Consequently the conviction
and sentence in respect of
count 3 should be set aside. The accused
was in illegal possession of a firearm which he used to point at Mr
Shongwe. This court
should consequently not interfere with the
conviction in respect of count 2 but should interfere with the
sentence in respect thereof
and sentence the accused for the illegal
possession of a firearm without reference to the provisions of Act
105 of 1997.
33. In respect of count 1, the pointing
of a firearm, the accused was sentenced to 12 months imprisonment. In
this regard the trial
court considered the aggravating circumstances
and the mitigating circumstances, inter alia, that the accused was a
first offender.
There is no reason for this court to interfere with
this sentence. This court should, however, interfere with the
sentence in respect
of the conviction for possession as there is no
prescribed sentence applicable.
34. Having regard to the mitigating as
well as the aggravating circumstances as well as the nature of the
crime of the illegal possession
of a firearm and the circumstances
attending its commission, I am of the view that the just and
justifiable sentence in respect
of count 2 is a sentence of 3 years
imprisonment.
35. In the result the following order
is made:
1. The conviction and sentence in
respect of count 1 and the conviction in respect of count 2 is hereby
confirmed.
2. The sentence in respect of count 2
is hereby set aside.
3. In respect of count 2 the accused is
sentenced to 3 years imprisonment which sentence is ante dated to 5
September 2013.
4. The conviction and sentence in
respect of count 3 is hereby set aside.
5. The accused is consequently
sentenced to an effective sentence of 4 years imprisonment.
C.P.RABIE
JUDGE OF THE HIGH COURT I agree
H. DE VOS
JUDGE OF THE HIGH COURT