About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 111
|
|
Moepadira v S (A238/14) [2015] ZAFSHC 111 (21 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Number : A238/14
In
the appeal
between:-
MOLEFI
JONAS
MOEPADIRA
Appellant
and
THE
STATE
Respondent
CORAM:
VAN
ZYL, J
et
JORDAAN,
J
JUDGMENT
BY:
VAN
ZYL, J
DELIVERED
ON:
21 MAY
2015
[1]
The appellant was charged before the Regional Court, Welkom, with two
charges, namely, count 1, the illegal possession of a
fire-arm (.38
special Rossi revolver) and count 2, the illegal possession of
ammunition (2x9mm Parabellum rounds). The appellant
was legally
represented in the Court
a
quo
.
He pleaded not guilty, based on a total denial. At the
conclusion of the trial the appellant was convicted on charge
1, but
he was acquitted on charge 2. He was thereafter sentenced to
four (4) years’ imprisonment of which two (2) years
were
suspended for a period of five years on certain conditions. The
appellant applied for leave to appeal from the Court
a
quo
against the conviction only, which leave was granted on 16 September
2014.
[2]
Constable Motshoane, stationed at Meloding Police Station as a member
of the Crime Prevention Unit, and Constable Dithebe, stationed
at the
Welkom Tactical Response Team, were on duty the evening of 22 June
2013. They were doing patrol work in Meloding as
part of a
special operation called Tibela. At around 23h00 they saw the
appellant walking in the street and he appeared suspicious.
The
two witnesses alighted from their vehicle and they searched the
appellant. They found in his possession a .38 special
revolver,
loaded with 3x9mm rounds. According to the evidence of
Constable Motshoane, the serial number of the fire-arm was
tampered
with and was therefore not visible. Because the appellant did
not have a licence to possess a firearm, they confiscated
the firearm
and the ammunition and arrested the appellant. After the arrest
was made, Constable Motshoane is the one who
further dealt with the
matter and the firearm and ammunition were booked into the SAP13
store at Meloding Police Station under
number 286/2013.
[3]
During cross-examination of Constable Motshoane it was put to him
that at the time when the appellant was approached by the
said
witnesses, the appellant was accompanied by his wife. This was denied
by Constable Motshoane. It was furthermore put
to the said
constable that he knew the appellant at the time of his arrest, that
he also knew that the appellant had earlier opened
a case against two
other police officers and that this was the reason why the appellant
had been arrested and furthermore assaulted
by the two witnesses and
other policemen after their arrival at the police station.
Although Constable Motshoane immediately
conceded that he knew the
appellant from before the day of the incident, he denied the further
allegations.
[4]
Constable Dithebe testified that he did not know the appellant before
the day of the incident. The version of the accused
regarding
the presence of his wife and that he was not in possession of any
firearm or ammunition, was denied by constable Dithebe.
[5]
Constable Nkoala was also called as a state witness. She was
stationed at Meloding Police Station in the Detective Unit.
She
testified that on 27 June 2013 she was tasked to take exhibits to
Pretoria. She received a bag with one firearm and three rounds
of
ammunition from the SAP13 store at Meloding Police Station with the
number 286/2013. She placed a letter into the bag
with the
firearm and the three rounds of ammunition, after which she sealed
the plastic bag with seal number FSC1043899. She took
the sealed bag
to Pretoria Ballistic Laboratory to be analysed. She handed the
sealed bag to the officials at the said laboratory
who is responsible
for receiving exhibits and they gave her an acknowledgement receipt.
[6]
Before the State’s case was closed, an affidavit in terms of
Section 212 of the Criminal Procedure Act, 51 of 1977 (“the
ballistic report”) was handed in by agreement between the State
and the defence and received by the Court
a
quo
as Exhibit “B”.
[7]
The appellant testified in his own defence and denied having had a
firearm and/or any ammunition in his possession. He
testified
that at the time of his arrest he was with his wife and he repeated
the version of events which was put to constable
Motshoane, to which
I have already referred earlier. His wife, Rethabile Mabote,
was also called as a defence witness.
In essence she narrated
the same version of events to the Court as the appellant.
[8]
The Court
a
quo
rejected the appellant’s version of events and adjudicated the
matter on the basis of the evidence presented by the State.
Because of my findings in this judgment, I deem it unnecessary to
consider whether, as submitted on behalf of the appellant in
the
notice of appeal, the Court
a
quo
erred in this respect, or not. For purposes of this judgment, I am
considering the appeal on the version of the State.
[9]
Mr K Pretorius of the Bloemfontein Justice Centre drafted the
appellant’s heads of argument. However, Mr Tshabalala
from the said Justice Centre represented the appellant during the
hearing of the appeal. Mr Tshabala based his submissions
on the
same grounds as those advanced in the heads of argument.
[10]
Mr Thsabalala firstly submitted that there is a contradiction in the
evidence of the state witnesses, in that reference was
made to live
rounds of ammunition on the one hand, but to cartridges on the other
hand, the last mentioned being ammunition which
has already been
fired.
[11]
Although constable Motshoane used the words “rounds”,
“
ammunition
”
and “
cartridges
”,
he clearly intended to refer to live rounds of ammunition,
considering his explanation in re-examination that they were
“
unused
cartridges
”.
Constable Nkoala used both the word “
bullet
”
and “
ammunition
”,
but explained in re-examination that according to her, a bullet is a
live round of ammunition and that it was bullets that
were contained
in the plastic bag. Constable Dithebe used the term
“
ammunition
”,
which is clearly a reference to live rounds of ammunition. With
regards to this aspect, the Court
a
quo
remarked as follows in her judgment:
“
The
Court also noted that the state witnesses defined cartridges or
bullets or ammunition differently but that is neither here nor
there
and this in my opinion is one and the same thing.”
[12]
The aforesaid view of the Court can therefore not be faulted as it is
evident that all three witnesses indeed intended to refer
to live
rounds of ammunition, despite them having used different
terminology.
[13]
What the Court
a
quo
however did not refer to specifically, is the fact that in the
ballistic report it was stated that 9mm “
cartridges
”
had been received. Mr Tshabalala contended that the ballistic
report therefore contradicts the evidence of the state
witnesses, as
the term “
cartridge
”
is a description for the empty case of a bullet which has already
been fired, as also testified by constable Nkoala at p.
22, lines 7
to 10. I can however not agree with Mr Tshabalala’s
contention. The deponent to the ballistic report
is clearly an
expert in his capacity as an examiner of Forensic Ballistics related
cases, as set out in paragraph 2 of his affidavit.
He should
therefore be considered to be knowledgeable of the provisions of the
Firearms Control Act, 60 of 2000 (“the Act”).
In terms of
the definitions contained in Section 1 of the Act, a cartridge
“
means
a complete object consisting of a cartridge case, primer, propellant
and bullet
”
.
In terms of the Act a cartridge is therefore in actual fact a live
round of ammunition. That the deponent to the ballistic
report
was well-aware hereof, is evident from paragraph 5 of the said report
where he stated the following:
“
I
visually inspected the cartridges mentioned in 3.2 and found that
they consist of a primer, cartridge case, bullet and propellant
and
were designed and manufactured to be fired by a centre-firearm.”
[14]
Therefore, in my view, there is no discrepancy or contradiction
regarding the description of what was allegedly found in the
possession of the appellant, as it is evident that on the State’s
version it was live rounds of ammunition.
[15]
There is however a material contradiction regarding the number of
rounds of ammunition which were allegedly found in the possession
of
the appellant. In this regard all three state witnesses
testified that three rounds of live ammunition were found in the
possession of the appellant, whilst the ballistic report states that
only two rounds of live ammunition (cartridges) were received
for
ballistic analysis. The charge sheet in count 2 also refers to
only two rounds of ammunition. This contradiction
led to the
acquittal of the appellant on the second count by the Court
a
quo
and in this regard the following was stated in her judgment.
“
The
main question as regarding the second count of possession of
ammunition is how many of this were found in accused’s
possession;
only two were tested and qualified as cartridges so the
question is what happened to the third one that according to all
three
state witnesses was found. I find this to be a
technicality but when technicality brings doubt to one’s mind
it cannot
also be ignored. And for that accused gets the
benefit of the doubt.”
Despite
this, the Court
a
quo
still concluded that the State proved its case beyond
reasonable doubt regarding the first count pertaining to the
firearm.
[16]
In the heads of argument drafted by Mr Pretorius, he made the
following submission:
“
The
question remains whether the firearm that was confiscated from the
appellant, was the same that was referred to in Exhibit “B”.
If the possibility existed that the ammunition got switched, on what
basis can there be certainty about the firearm. There
was no
serial number and there was only referred to it as a .38 special with
a flywheel. Witness 2 merely refered to it as
a firearm that
she received and three bullets. If such is a reasonable
possibility, then the Court has no information about
the firearm that
was confiscated from the appellant. If so, the Court with all
respect, cannot convict.”
In
support of the aforesaid submission, Mr Tshabalala contended that
considering the situation regarding the change in the number
of
rounds of ammunition, it is evident that the exhibits consisting of
the firearm and the rounds of ammunition, which were all
in the same
bag, were either tampered with or in some or other manner
contaminated. In these circumstances the appellant
should also
have been acquitted on the first count.
[17]
As correctly pointed out by Mr Hoffman, on behalf of the State, the
chain evidence starting from the alleged booking in of
the firearm
and the rounds of ammunition into the SAP13 store up to the forensic
analysis thereof seems, on the face value thereof,
to be in order.
In this regard, constable Motshoane testified that the said exhibits
were booked in under number 286/2013
and constable Nkoala testified
that she took the package with number 286/2013 from the SAP 13 store,
sealed it with seal number
FSC1043899 and handed it over to forensics
in Pretoria. The forensic analyst who deposed to the ballistic
report, stated
in paragraph 3 thereof that he received a sealed
evidence bag with seal number FSC1043899 from Case Administration of
the Ballistics
Section.
[18]
However, on the State’s own version it has to be accepted that
somewhere in the aforementioned process the exhibits became
contaminated in that only two 9mm rounds of ammunition were
eventually received by the forensic analyst. In these
circumstances
it is the only reasonable inference that the exhibits
were tampered with in some or other way, either intentionally or
negligently.
This is the very reason why the Court
a
quo
gave the appellant the benefit of the doubt regarding the second
count. Considering that all the exhibits were placed in
the
same bag, there is in my view no basis upon which it can be justified
not to give the appellant the same benefit of the doubt
regarding the
firearm. In these circumstances it cannot be found that the
State proved beyond reasonable doubt that the firearm
which is
referred to in the ballistic report, is necessarily the same firearm
that was allegedly found in possession of the appellant.
[19]
One should be mindful of the elements of the crime with which the
appellant was charged with in count 1 are (i) the possession
of
(ii) a firearm, (iii) unlawfulness, and (iv) culpability. Regarding
the firearm-element of the crime, Section 1 of the Act gives
a long,
technical definition of the word “
firearm
”.
In
S
v FILANI
2012(1) SACR 508 (ECG) at 514 J and further, the following principles
were established in this regard:
“
It
is clear, in my view, from the definition of ‘firearm’ in
Act 60 of 2000, as opposed to the definition of ‘arm’
in
Act 75 of 1969, that a legislature no longer intended ‘firearm’
to bear its ordinary meaning as explained in S v
Shezi
supra
.
In these circumstances it was incumbent on the State to prove that
the weapon of which appellant was allegedly in possession
was a
firearm as defined in the Act.
In
my view the State has failed to discharge that onus.
…
In
the absence of such forensic evidence a submission of Ms Hendricks
was in effect that, because the weapon in possession of the
appellant
discharged or propelled a missile with enough force or velocity for
it to be used for defensive purposes, it must therefore
fall within
the ambit of the definition of a firearm in s 1 of Act 60 of 2000.
In other words, on an acceptance of Ms Hendricks’
submission,
any weapon which was capable of discharging or preparing a missile as
set out above would fall within the ambit of
the definition. In
my view, however, given the increased technical nature of the various
definitions of ‘firearm’
contained in the later and
current Act, such a finding cannot be made in the absence of expert
evidence to that effect. Certainly,
it is not a matter of which
this court may take judicial notice. The State failed to lead
any such expert evidence and accordingly
failed, in my view, to
discharge the onus upon it.”
[20]
Therefore, even if the version of the arresting constables are to be
accepted, expert forensic evidence is still needed for
the State to
proof that the firearm found in possession of the appellant, complies
with the technical definition of a firearm contained
in Section 1 of
the Act. Considering that I have already found that there is
reasonable doubt as to whether the firearm referred
to in the
ballistic report is in fact the one which was allegedly found in
possession of the appellant, the State has, in my view,
failed to
discharge its onus in this regard. The appeal must therefore succeed.
[21]
The appellant’s appeal against his conviction is upheld and the
conviction and sentence are set aside.
_______________
C.
VAN ZYL, J
I
concur.
_______________
A.F.
JORDAAN, J
On
behalf of Appellant:
Mr. L. Tshabalala
Instructed
by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On
behalf of Respondent: Adv. R. Hoffmann
Instructed
by:
Office
of the Director of
Public
Prosecutions
BLOEMFONTEIN