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[2015] ZAGPPHC 574
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S v Yende (A439/15) [2015] ZAGPPHC 574 (1 July 2015)
IN THE
HIGH COURT
OF
SOUTH
AFRICA
(NORTH
GAUTENG : PRETORIA)
A
439/15
01/07/2015
DATE:
10/12/2014
High
Court
Ref
no:
690/14
Magistrate's
Serial
No: 3/14
(Ermelo)
Review
case
no:
FSH
22/12
In the
matter
between:
THE
STATE
and
M.P. YENDE
JUDGMENT
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 17-78". 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 778
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 hot 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
17-78. --- 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