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[2015] ZAKZPHC 38
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Ndwandwe and Another v S (AR646/14) [2015] ZAKZPHC 38 (20 August 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO: AR646/14
DATE: 20 AUGUST 2015
NOT REPORTABLE
In the matter between:
SIDINGO SIFUNDO
NDWANDWE
...................................................................
FIRST
APPELLANT
SIBONGISENI
DUMA
....................................................................................
SECOND
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Delivered on: Thursday, 20 August
2015
OLSEN J (V NAIDOO AJ concurring)
[1] The two appellants in this matter
were each convicted in the Regional Court at Durban of robbery with
aggravating circumstances,
kidnapping, possession of firearms,
possession of ammunition and 5 counts of attempted murder. The
cumulative effect of the sentences
imposed in respect of these
convictions was 20 years imprisonment and a non-parole period of 12
years was stipulated by the learned
magistrate. The appellants
appeal against their convictions and sentences with the leave of the
court a quo.
[2] When the application for leave to
appeal was argued before the magistrate counsel for the State (who
did not appear for the
State during the trial) argued that there were
problems with some of the convictions in this matter on the State’s
own version,
and that leave to appeal ought accordingly to be granted
(as it was). Counsel who appeared for the State before us similarly
conceded
that there were difficulties on the State’s own case
with all of the convictions save for the conviction on the charge of
kidnapping.
[3] Both of the appellants gave
evidence at the trial. They denied being party to any criminal
activities and asserted that they
were innocent travellers caught up
in the events which gave rise to their trial. Nothing they said
contributed to the quality
of the State’s case. I accordingly
propose to commence by dealing with the convictions of robbery,
possession of firearms
and ammunition and attempted murder against
the background of the facts revealed by the State witnesses, without
raising any question
as to the reliability of the State witnesses and
as to whether those facts were proved beyond reasonable doubt.
[4] The State called six witnesses.
The first of them was a Mr Ngcobo, a taxi driver. The other five
were policemen, two of them
being members of the Metro Police in
Durban, and the other three members of the South African Police
Services. The evidence of
these witnesses described the following
events.
[5] On the evening of 14 July 2011 Mr
Ngcobo was driving a taxi affiliated to the Inanda Taxi Association.
He was employed as its
driver. He was in Durban. He found himself
in his taxi with some men (later established to be 5 in number) who
he could not identify.
One of them placed an object (which Mr Ngcobo
never saw) against the back of his neck and told him to move off,
whereafter he
was required to drive as instructed by another one of
the passengers who was sitting in the front passenger seat of the
taxi.
(This event gives rise to the kidnapping charge which I shall
deal with later.)
[6] Eventually the taxi came to a place
in Clairwood where Mr Ngcobo was told to stop the taxi. Three of the
occupants disembarked
from the rear of the taxi and crossed the road.
The occupant of the front passenger seat walked off in another
direction, and
one of the passengers who had been sitting behind
remained, apparently to ensure that Mr Ngcobo was kept as a hostage.
The keys
to the taxi were removed by the front seat passenger. The
passenger who remained behind received a cell phone call and decided
to conduct his conversation outside the taxi, leaving Mr Ngcobo in
it. Mr Ngcobo took the opportunity to dial the emergency number
10111 on his cell phone. According to Mr Ngcobo he managed to report
that he was driving a white taxi, that he had been hijacked
and that
he was in Clairwood, before he had to terminate the call as his
“guard” returned to the taxi. Thereafter
the others who
had walked off returned, gave Mr Ngcobo the keys and told him to
drive off.
[7] It is the State’s case that
the message to the emergency call centre generated the delivery of
messages to three police
cars occupied variously by the five
policemen who gave evidence. They were busy with other duties at the
time. They eventually
came upon the taxi being driven by Mr Ngcobo.
After the presence of the police cars was signified, shots rang out
from the taxi
and the police returned fire. At the end of the fire
fight the taxi driver emerged unharmed. Two of the five alleged
kidnappers
were found to have been killed in the fire fight. Three
were wounded. One of them died later in hospital from his wounds.
The
remaining two are the appellants. The wounded were taken by
ambulance to a hospital.
[8] The policemen involved in the fire
fight noticed that there were three hand guns lying on the floor of
the taxi once they had
extracted the dead and wounded. These were
not touched or interfered with in any way. According to them they
simply secured the
scene (which was on an access ramp to the N2, at
the intersection of two major roads south of Durban), and awaited the
arrival
of the police who would investigate the incident. These
police who investigated the incident (I will call them the
“investigators”)
did not give evidence. Instead
affidavits were handed in without objection from the appellants which
provided the court with photographs
taken of the taxi and the area
around it (including spent cartridges), a list of the articles
collected on the scene and a report
on a forensic examination of the
spent cartridges and the hand guns found in the taxi. These
affidavits revealed that only two
of the hand guns found in the taxi
were capable of being fired. Only three spent cartridges were found
in the taxi. A forensic
examination revealed that one cartridge came
from one of the hand guns found in the taxi and the other two from
the other hand
gun which was capable of being operated. From the
evidence placed before the court only two cartridges were found
outside the
taxi and the forensic report confirmed that they had not
been fired by any of the guns found inside the taxi.
[9] Although Mr Ngcobo gave evidence to
the effect that there had been shooting from his taxi, he was unable
to say anything at
all about who amongst the passengers was shooting.
He gave no evidence as to any discussion at all amongst the five men
in the
taxi as to whether the shooting should take place. According
to him he simply heard his windows being opened and shots ringing
out
from the inside of the taxi. He gave no evidence to the effect that
he had realised in advance of the clash with the police
that any of
his passengers were armed with a firearm (although he presumably
suspected that the hard object which had been placed
behind his neck
when the alleged kidnappers first took control of his taxi was a gun;
but he did not know that).
[10] Two of the police witnesses who
described the message they had received, and which put them on the
trail of the taxi, gave
an account of the message which coincides
more or less with what Mr Ngcobo says he was able to convey to the
operator at the emergency
number. The other three said that the
message conveyed to them was that the taxi was to be used or had been
used in a robbery
at a tavern in South Coast Road known as the
Manyaweni Tavern. No evidence at all was led in support of the
proposition that there
had been such a robbery or that one was
planned. Mr Ngcobo gave no evidence that he overheard conversations
whilst he was driving
the taxi, which gave any clue as to why he had
been kidnapped and his taxi commandeered in the process.
[11] The State led no evidence of an
examination of the firearms found in the taxi for fingerprints, or of
the conduct of any primary
residue tests, in order to establish who
amongst the five alleged kidnappers had fired at the police. Neither
was any explanation
tendered for the absence of such evidence.
[12] It is against that background that
the State sought convictions on the charges that the appellants were
guilty of
(a) robbing Mr Ngcobo of the taxi in
aggravating circumstances;
(b) unlawful possession of the firearms
(and ammunition still in the magazines thereof) which were found in
the taxi; and
(c) the attempted murder of each of the
five policemen (none of whom were injured and none of whose cars were
in any way damaged)
through the firing of guns from the taxi at the
police officers concerned.
[13] Dealing first with the conviction
of robbery, it is a requirement that the theft of the taxi be proved.
Counsel for the State
argued during the course of the application
for leave to appeal there was no evidence to support the proposition
that the five
alleged kidnappers intended to steal Mr Ngcobo’s
taxi. He was left in the driver’s seat at all times, and it is
clear
that he was deprived of the keys for only a short while, and
simply to ensure (on the State’s version) that his status as
hostage was maintained. Whatever may be said, one way or the other,
on the question as to whether the alleged kidnappers had assumed
control of the taxi to the exclusion of Mr Ngcobo (the latter being
the lawful possessor), it is a requirement for a conviction
on the
crime of theft (and therefore robbery) that there should be an
intention “to terminate the owner’s enjoyment
of his
rights or, in other words, to deprive him of the whole benefit of his
ownership.” (R v Sibiya
1955 (4) SA 247
(A) at 257.) Here
there is no evidence at all to support any conclusion as to why
Ngcobo was kidnapped (one might say, with his
taxi). No evidence of
any robbery or planned robbery was led. No final destination was
reached. Ngcobo could say nothing about
what the five men in his
taxi might have intended to do at the end of or during the course of
the journey, whether with regard
to the taxi or otherwise. It seems,
therefore, that the conviction for robbery cannot be sustained on the
State’s case.
There is no evidence of an intention permanently
to appropriate the taxi.
[14] The difficulties which afflict the
convictions of possession of the firearms and of attempted murder
overlap to some extent.
It will be recalled that there were only
three spent cartridges found at the scene, which had been fired from
the two firearms
found in the taxi. It is overwhelmingly probable
that only two out of the five men fired. There is no evidence to
support the
proposition that the three who did not shoot knew that
those who did were armed with those two firearms. Whatever the
purpose
of the kidnapping and directions given to Mr Ngcobo as to
where the taxi should drive, it was not to use those firearms to
shoot
at the police. As far as can be judged from the evidence, the
decision of the two to shoot at the police must have been made on
the
spur of the moment when it was realised that the police were
attempting to or had stopped the taxi. As already mentioned Mr
Ngcobo gave no evidence of any conversation generating a joint
decision to start shooting at the police. In the absence of that
it
is difficult to see how the conduct of those who did shoot can be
imputed to those who did not, without it being established
first,
beyond a reasonable doubt, that those who were not armed knew that
the others were.
[15] It will be apparent that these
difficulties afflict also the proposition that there was joint
possession of the firearms alleged
to have been found in the taxi
after the event. The magistrate found that joint possession had not
been established. He convicted
the appellants of possession of the
firearms and ammunition upon the basis that they were over 16 years
of age and present in the
vehicle at the time when the firearms and
ammunition were found. In this regard he relied upon the presumption
set out in
s117
(2) (d) (vii) of the
Firearms Control Act, 60 of
2000
. Putting aside the concern raised by counsel who appeared for
the State in the application for leave to appeal, as to the
constitutionality
of
s117
of the
Firearms Control Act (or
certainly
parts of it), it seems to me that the learned magistrate misdirected
himself in overlooking the requirements set out
in the introduction
to sub-section 117 (2) for the application of the presumption in the
various circumstances listed in sub-sections
117 (2) (a) to (i).The
presumptions cannot apply unless “the State can show that
despite the taking of reasonable steps it
was not able with
reasonable certainty to link the possession of the firearm or
ammunition to any other person”. In the
absence of evidence of
an attempt to establish who had possessed the firearms through an
examination for fingerprints, and primary
residue tests, the
conclusion must be that the State had not taken reasonable steps
available to it. The magistrate’s reliance
on
s117
(2) was
accordingly misplaced.
[16] For the reasons stated above it
was accepted by the State in argument that on its own case it had
difficulties supporting the
convictions it had secured for robbery,
possession of firearms and ammunition and attempted murder. There is
a strong suspicion
that the appellants were fully involved, but not
proof beyond a reasonable doubt. Insofar as the conviction for
kidnapping is
concerned the position on the State’s case is
different. According to the evidence of Mr Ngcobo, after something
had been
pressed against the back of his neck to commence the
kidnapping, all of the five men concerned left the taxi and would
have had
an opportunity to flee the scene if they were not associated
with the kidnapping. They all returned voluntarily. On the State’s
case, therefore, the two appellants participated in the kidnapping.
Their return associated them with it. The question then is
whether
the State discharged the onus of proving its version beyond a
reasonable doubt. Counsel for the appellants offered no
argument
against the proposition that the State had proved its case. But the
appeal against the convictions on the charge of kidnapping
still
stands and must be dealt with.
[17] According to both appellants they
were innocent travellers in a taxi in which no act of kidnapping took
place. In the course
of the journey in the area to the south of
Durban the taxi dropped its five occupants off at the Manyaweni
Tavern and the driver
left them there promising to return to pick
them up. Some or all of the five took some refreshment and the taxi
eventually returned,
whereupon they boarded, intending to be taken
back to Durban. According to the first appellant at a certain stage
near a robot
intersection he heard the sound of a siren outside and,
after crossing the intersection, the taxi pulled over on the
roadside.
Then he heard gunshots – the police were shooting at
the taxi. The taxi was stationary. When the shooting had apparently
died down the doors were opened and a police dog dragged the first
appellant out of the taxi. At that stage, he says, he had not
been
shot. He was dragged towards where the police cars were parked. He
asked why the taxi had been shot at but there was no
answer. He was
then shot in his left buttock and the bullet travelled through to
lodge itself near his left groin. He asked why
they were shooting
him and lifted up his hands. He got no answer and the next thing he
was shot in his left hand. He was then
seated on the ground
supporting his body with one hand when he overheard one policeman say
to another “you can shoot the
head”. He was shot in the
head. It appears that the shot penetrated below his right cheek and
exited between his eyebrows,
in the process destroying his right eye.
All of this was done to him outside the vehicle. He, like the
second appellant, contended
that there had been no shooting at all
from inside the taxi. He did not know the other occupants of the
taxi save for one, and
he did not know the second appellant. The
only person he had spoken to during the course of the journey was his
friend, one Vuzi,
who appears to have been the front seat passenger,
and who was killed on the scene.
[18] The second appellant’s
account of how the shooting started is very similar to that of the
first appellant. He remembers
the sound of the siren and he saw the
lights of the police car but he cannot remember what happened after
that. He only heard
the sound of gunshots. It was the police
shooting at and into the taxi. When the shooting had apparently died
down he heard a
voice saying that those in the taxi should put their
hands in the air and open the door. He followed the instruction. As
he was
in the process of exiting he was shot in his upper right arm.
When he turned facing the police another bullet entered the left
side
of his chest. At the same time a dog was biting him on his right
thigh. He was told to lie on the ground. Although his
evidence is
not clear on this point it appears that he may have been shot again
at this stage with a rifle. He lost consciousness
and was
hospitalised for three months to recover from his wounds.
[19] On the version of the two
appellants not only was there no kidnapping; there was also no
shooting from the taxi; which must
mean that the attack by the police
on the taxi, and those in it, was some sort of dreadful mistake. On
the appellants’ version
the three firearms found in the taxi
must have been planted there by the police. If that happened it
would presumably have been
to facilitate a cover-up. On this
question the magistrate misdirected himself by finding that it was
“inconceivable”
that the police officers would have had
such firearms and exhibits (presumably he meant spent cartridges)
available to be used
in circumstances like this. It would be
legitimate to say that on all the evidence it was improbable; but
illegitimate to close
one’s mind to an assessment of all the
evidence upon the basis that it is “inconceivable” that
the events could
have occurred as the appellants said they did.
[20] The intersection through which the
taxi passed just before it stopped led the taxi onto a ramp giving
access to the N2 highway.
Even at 10 o’clock at night (when
the shooting occurred) this would be a very public place. According
to the police evidence
all those shot (as the appellants were) were
shot in the taxi. The three who did not die immediately were
extracted or emerged
wounded already. It seems to me to be grossly
improbable that, for no reason at all, the police would have shot the
two appellants
after they had emerged unscathed from the taxi into
the open where there was presumably a risk that a member or members
of the
public may see what was going on. If, as seems to be implied
by the version given by the appellants, the intention was to shoot
the appellants to cover up what the police had done, then a bad job
was made of it by the police, and one wonders why an ambulance
was
called to assist the appellants to recover and live to tell their
tale.
[21] However it is not for an accused
person to establish his or her innocence. It is not a necessary
condition for a finding that
the State failed to prove its case
beyond a reasonable doubt that the version of events furnished by the
appellants should be accepted.
It is not impossible that the
appellants inadvisably decided to embellish their version as to how
they were shot, with a view
to gain some advantage beyond the
criminal trial, when in fact the rest of their version of events is
substantially true, save
that they were in fact shot whilst in the
taxi.
[22] The allegation that the taxi
driver was kidnapped rests primarily on the evidence of Mr Ngcobo.
[23] The learned magistrate accepted
the evidence of Mr Ngcobo and his view may be summarised from this
statement in the judgment.
“He explained all of the evidence
sequentially and the court felt that he was, although it was a
harrowing experience, he
did explain it in such a way that all of the
pieces fitted together.”
Insofar as the police evidence was
concerned the magistrate concluded that there were no discrepancies
and he described the police
as good and honest witnesses. Their
version of events was accepted. A difficulty with which we are
confronted as an appeal court
is that as a matter of fact there were
discrepancies between the evidence of Mr Ngcobo and the police
witnesses, and in some respects
between the police witnesses
themselves, which were not cleared up in evidence and which were
overlooked by the magistrate.
[24] I have already mentioned that
three of the police witnesses claimed to have received a message that
the white taxi they were
to look out for had been involved or might
be involved in a robbery at the Manyaweni Tavern, information which
would not have emanated
from Mr Ngcobo according to his evidence.
However it is possible that the three police witnesses became
confused about the connection
between the events that night and the
Manyaweni Tavern, given that the appellants’ claim that the
taxi dropped them off there.
[25] According to Mr Ngcobo, as he
approached the scene where he eventually stopped his taxi he became
aware of the fact that there
were police behind him, and perhaps
alongside him ( his evidence is not perfectly clear on that point).
He said that he was instructed
through a loud speaker to stop the
taxi. No such evidence was given by the police witnesses. They said
they had employed blue
lights and sirens.
[26] Mr Ngcobo said he was instructed
by a person sitting behind him not to stop and to carry on, which is
what he did. He realised
that the occupants of the taxi had opened
the windows and they then started shooting at the police behind. He
carried on driving.
Next the police returned fire, and when that
happened Mr Ngcobo brought the taxi to a stand-still. That account
of how the shooting
started does not accord with the evidence of the
five police witnesses. According to them Mr Ngcobo did not bring his
taxi to
a stand-still as soon as their blue lights and sirens were
turned on, but proceeded through the robot intersection onto the ramp
leading to the N2, and then brought his taxi to a halt. At that
stage the policemen got out of their cars and started to approach
the
taxi. It was only then that they were shot at from the taxi, as a
result of which three of them returned fire. Two did so
with
handguns and a third with a R1 rifle. This discrepancy was not
noticed by the magistrate and neither was it dealt with in
the course
of the evidence.
[27] The State case was characterised
by shoddy investigation. It may well be that the prosecution was not
conducted properly either.
One does not even know the names of the
three people who died. No medical reports (post mortem or otherwise)
were handed in to
clarify what happened. Only two spent cartridges
emanating from police weapons were recovered on the scene despite the
fact that
5 or 6 shots struck the appellants themselves. One does
not know how many bullets struck those who died. No R1 cartridges
were
recovered by the investigators, despite the fact that the five
police witnesses claimed that as soon as the dead and wounded had
been extracted from the taxi the scene was cordoned off and protected
from interference pending the arrival of the investigators.
As
mentioned already, the investigators were not called to explain what
they did; and in particular to explain what they did not
do in the
discharge of their duty to ascertain what had happened on the scene
of these events.
[28] Having said all these things it
must be observed that Mr Ngcobo and the police witnesses were not in
any way disturbed by cross-examination
on their account of events. No
other explanation for the pursuit by the police of the taxi emerged
save for Mr Ngcobo’s message
to the emergency number. Whilst
the different accounts of how the shooting started (i.e. whether the
taxi had come to a stand-still
before or after the shooting started)
should have been explored in evidence, one must observe that given
the nature of these events
there is no reason to be surprised at any
confusion arising in Mr Ngcobo’s mind as to whether he had
stopped the taxi before
or after the shooting started. It was open
to the magistrate to accept, notwithstanding the contradictions and
shortcomings I
have referred to, that Mr Ngcobo’s evidence was
acceptable, and in particular his evidence that he was kidnapped.
The magistrate
was highly critical of the evidence of the appellants
and their performance as witnesses and, judging from the record, I
can see
no reason for an appeal court to conclude that the
credibility findings he made against the appellants were wrong.
Indeed, as
observed earlier, no argument was advanced by counsel for
the appellants to the effect that the convictions of kidnapping
should
be set aside. In my view they should be affirmed.
In the circumstances the following
order is made.
1. The appeals are upheld in part.
2. The convictions of the appellants on
Counts 1 (robbery with aggravating circumstances), 3 and 4
(possession of firearms and ammunition)
and 5 to 9 (attempted
murder), and the sentences imposed in respect of those convictions,
are set aside.
3. The appeals of the appellants
against the convictions on Count 2 (kidnapping) and the sentences
imposed in respect of that count
(2 years imprisonment), are
dismissed, and the convictions and sentences are confirmed.
4. To the extent that it is necessary
to do so, given the outcome of the appeals, it is recorded that the
appeals against the imposition
of non-parole periods of imprisonment
are upheld and the relevant orders are set aside.
OLSEN J
V NAIDOO AJ
Date of Hearing: TUESDAY, 11 AUGUST
2015
Date of Judgment: : THURSDAY, 20
AUGUST 2015
For the Appellants : Mr T P Pillay
Instructed by: LEGAL AID OF SOUTH
AFRICA
Appellants’ Attorneys
4TH FLOOR,
SALISBURY HOUSE
332 ANTON LEMBEDE STREET
DURBAN
(Ref.: Mr T P Pillay)
(Tel No.: 031 – 3040100)
For the Respondent: Mr S H Ngcobo
Instructed by: Director of Public
Prosecutions
325 Pietermaritz Street
Pietermaritzburg
(Ref.: Mr S H Ngcobo)
(Tel.: 033 – 392 8729)
(Tel.: 031 – 3345114 / 033 –
845 4400)