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[2014] ZAGPPHC 193
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Ngwenya v S (A144/12) [2014] ZAGPPHC 193 (14 April 2014)
IN THE HIGH
COURTOF SOUTH AFRICA
(NORTH GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A144/12
DATE:
14 APRIL 2014
In the appeal
between:
WILLY NGWENYA
…...............................................
Appellant
And
THE
STATE
............................................................
Respondent
JUDGMENT
DESAI AJ
[1] The appellant
was convicted in the above court on several diverse charges and
sentenced, effectively, to life imprisonment.
With the leave of the
Supreme Court of Appeal, he comes on appeal to this court both
against his convictions and the sentences
imposed in respect thereof.
[2] Underpinning
these convictions are the events which occurred in the vicinity of
the Long Tom Pass on 16 and 17 November 2002.
One of the victims, a
Ms Julie Stevens, is a British subject who was visiting this country
as a tourist.
She was accompanied
by a Mr Tinus Opperman in a red Toyota Venture when they stopped at a
viewing spot on the pass to enjoy the
view. What happened thereafter
is most unfortunate.
[3] Briefly stated,
they were accosted by the appellant and his co-accused, robbed,
assaulted, tied up, gagged and put on the floor
between the rear
seats of the vehicle,that is the red Venture. For the next fourteen
hours - approximately - they were driven around,
subjected to various
indignities, attempts were made to draw money on their ATM cards and
Ms Stevens was raped on more than one
occasion. The horrific details
of what exactly transpired is set out in the judgment of the trial
court. I do not intend repeating
same.
[4] In any event the
saga came to an abrupt end when their vehicle capsized. A Mr Vasco
Chambal, the brother of the deceased who
was in another vehicle, saw
the red Venture overturning and stopped to offer assistance. He
realised something was amiss and shortly
thereafter saw two of the
accused at the deceased’s vehicle while the deceased was still
sitting behind the steering wheel.
As he approached the vehicle he
heard two shots being fired and he and his passengers ran into the
bush. In the meantime another
vehicle had removed Ms Stevens and Mr
Opperman from the scene. Mr Chambaf stayed hidden until the police
arrived a few hours later.
He then also found out that his brother
had been shot in his head and killed.
[5] It was not in
dispute that the four attackers were the accused. None of them
testified at the trial and some of them, including
the appellant,
placed themselves on the scene during cross-examination. The fact
that the appellant - accused 4 in the court a
quo - was one of the
attackers is not an issue before us. Instead it was argued that each
of his convictions should be set aside
on somewhat technical grounds.
[6] The appellant
was convicted on the following charges:
1) Count 1 : Robbery
with aggravating circumstances
2) Count :
Kidnapping
3) Count 3 :
Kidnapping
4) Count 4 : Assault
with the intent to do grievous bodily harm
5) Count 10 : Murder
6) Count 11 :
Possession of an unlicensed firearm
7) Count 12 :
Possession of ammunition
[7] With regard to
the robbery charge, appellant’s counsel contended that the
charge specifically relates to the complainants
being robbed at
gunpoint at the lookout point or viewing spot. It does not refer to
the money withdrawn from Ms Stevens’
bank account or the items
stolen from Mr Chambal. Counsel contended that the trial court did
not make a distinction for the purposes
of convicting the appellant
on this charge. There was simply no need for the trial court to make
such a distinction. There was
no count of robbery in respect of the
goods taken
from Mr Chambal and
the appellant was not convicted on Count 9 which dealt with the money
being withdrawn from Ms Stevens’
account.
[8] Counsel further
contended that if the charge was restricted to what happened at the
lookout point, the appellant could not be
convicted on the said
charge as he was not there when Ms Stevens and her companion were
seized by the assailants. This argument
is largely based upon the
response elicited from Ms Stevens during cross-examination:
“I could not
say he was at the cliff face, but he was in the car” and her
later response when it was put to her that
the appellant was not
involved in the original capture she responded:
“I did not see
him at the cliff face”
[9] Although Ms
Stevens could not say what the appellant did at the cliff face, Mr
Opperman’s evidence on this aspect is very
clear. He implicated
the appellant by stating that the appellant was the one that took his
sunglasses.
[10] In the absence
of any evidence from the appellant, Mr Opperman’s evidence was
accepted as correct. This finding cannot
be faulted.
[11] Counts 2 and 3
relate to the abduction of Ms Stevens and Mr Opperman. On these
counts counsel also contended that the state
failed to prove beyond a
reasonable doubt that the appellant participated in the initial
abduction of the complainants. The evidence
is overwhelming that the
appellant was part of the group who attacked and abducted the
complainants. The abduction lasted for a
period of 14 hours and the
appellant remained part of it throughout. When it was put to Ms
Stevens that the appellant:
“...was trying
to protect (her) through the evening at certain stages...”,
She answered:
“Yes”.
After the car had
overturned, Mr Opperman - on Ms Stevens evidence - asked the
appellant if they could go, he just said “go,
go”.
[12] This evidence
does not suffice for an inference to be drawn that he did not have
the intention to abduct the complainants.
In the absence of any
evidence by the appellant, the only reasonable inference is that
throughout the night the appellant made
common cause with the other
assailants.
[13] There is no
evidence that the appellant at any stage personally assaulted Mr
Opperman. Ms Stevens conceded under cross-examination
that the
appellant tried to stop the attack. That may be so. However on the
basis of common purpose it appears that the appellant
was correctly
convicted on this charge.
[14] With regard to
the murder conviction, appellant’s counsel contended that the
trial court wrongly rejected the version
put to the state witness
that the appellant followed Accused 3 in order to prevent him from
shooting anyone. The evidence of this
witness, namely Ms Stevens, was
simply to the effect that she could not say whether the appellant was
chasing Accused 3 or the
deceased. As the accused did not testify,
the only evidence is that of Ms Stevens. In the light of her evidence
we can safely infer
that Accused 3 was still in possession of the
firearm when Accused 3 and the appellant ran after the men who had
approached them.
Shortly thereafter shots were fired and the deceased
was killed. The only other evidence of some significance is that Mr
Chambal
saw two persons next to the deceased’s vehicle before
the deceased was shot and of course, the appellant’s palm print
on the deceased’s vehicle.
[15] As the trial
court correctly pointed out, when two or more persons embark upon an
armed robbery, as the appellant and his co-accused
did, the act or
acts of any one of them are imputed to the others if it falls within
their common purpose. The appellant would
be guilty of murder if he
foresaw the possibility that his co-accused might shoot a person in
pursuance of their goal, and if it
shows that he was indifferent to
such possible conduct and its consequences.
[16] The appellant
ran after Accused 3 who had the firearm. They ran in the direction of
the deceased. The appellant did not tell
the court why he did so or
what steps, if any, he took to prevent the killing. Moreover the palm
print establishes that the appellant
was in physical contact with the
vehicle of the deceased, perhaps in an endeavour to steal the vehicle
for purposes of escaping
the scene.
[17] In the peculiar
circumstances of this matter it is apparent that the appellant
foresaw the possibility that Accused 3 might
shoot and kill anyone
who interfered with their joint venture and reconciled himself with
the possibility of a killing occurring.
[18] Counts 11 and
12 relate to the unlawful possession of an unlicensed firearm and
ammunition. Save for the appellant, the other
accused at various
stages had the firearm in their possession. The appellant was
convicted on the principle of joint possession
in that the other
accused possessed the firearm on his behalf.
[19] We have been
referred to Molini v The State [2006] SCA 38(RSA). I do not think it
is applicable in this instance. The firearm
had been handled by three
of the accused. The appellant was aware of this. The group
accordingly had the intention to exercise
possession of the firearm
through Accused 3, the actual detentor who, in all the circumstances
of this matter, intentionally held
the firearm on behalf of the group
(see S V Mbuhli 2003(1) SACR 97 (SCA) para 71).
[20] Sentencing in
this matter must attach due weight to the seriousness of the crime.
The assault upon the dignity and person of
the complainants endured
for up to 14 hours. Instead of assisting the complainants, ordinary
people at various places where the
accused stopped, gawked and jeered
at them. That diminishes all of us. Ultimately, a good Samaritan who
came to the assistance
of those injured by the overturning of their
vehicle, was shot and killed.
[21] The seriousness
of the crimes must weigh heavily in deciding upon appropriate
sentences. The trial court was fully aware of
this and largely
imposed sentences of appropriate severity. The issue raised by
counsel for the appellant is the following. It
appears that the first
reference to the minimum sentence regime was made by the trial judge
at the sentencing stage. The appellant
was then told that he was
facing a minimum sentence of 15 years’ imprisonment for the
robbery and life imprisonment for the
murder.
[22] Counsel for the
state did not disagree with the aforementioned submission. He
confirmed that the indictment did not refer to
the provisions of
Section 51 of Act 105 of 1997, and stated that it was not evident
that the appellant had been informed thereof
at the commencement of
the trial. Counsel submitted that the mere fact that the appellant
was not informed thereof does not mean
that he did not have a fair
trial.
[23] It is certainly
not apparent from the record that the appellants were “fully
and clearly” informed of the charges
which included the minimum
sentence regime. As was pointed out by Mpati JA (as he then was) in S
v Ndlovu 2003(1) SACR (SCA) para
12 “...where the state intends
to rely upon the sentencing regime created by the Act a fair trial
will generally demand that
its intention pertinently be brought to
the attention of the accused at the outset of the trial ...”.
[24] Similar views
were expressed by Lewis JA in S v Makatu 2006(2) SACR 582 (SCA) para
3&7.
[25] Counsel for the
appellant accordingly asked that the sentences on counts 1 and 10 be
set aside and substituted with more appropriate
sentences.
[26] I intend to go
along with this submission, in the light of the authorities referred
to above.
[27] In arriving at
appropriate penalties I cannot lose sight of the fact that this
appellant was a very young man at the time of
the commission of these
offences. He was then only 19 years old. He was a first offender. He
had already spent a year in custody
awaiting the finalisation of
these proceedings. He grew up in adverse conditions. Despite these
factors which militate in favour
of the appellant, a long term of
imprisonment must inevitably follow because of the heinous nature of
the crimes and the circumstances
in which they were committed.
In the result the
appeal succeeds partially. It is ordered:
1. The appellant’s
convictions on counts 1, 2, 3, 4, 10 and 11 are confirmed.
2. The appellant’s
sentences on counts 2, 3, 4, 11 and 12 are confirmed.
3. The appellant’s
sentences on counts 1 and 10 are set aside and substituted with the
following:
Count 1:12 years’
imprisonment Count 10: 22 years’ imprisonment
4. The sentences
imposed in respect of counts 1, 2, 3, 4, 11 and 12 are to run
concurrently with the sentence imposed in respect
of count 10.
5. The sentences are
antedated in terms of
Section 282
of the
Criminal Procedure Act 51 of
1977
to 15 December 2003, this being the date when the appellant was
originally sentenced.
DESAI J
JUDGE OF THE HIGH
COURT
I Agree
MOLOPA-SETHOSA J
JUDGE OF THE HIGH COURT
I Agree.
MABENA AJ
ACTING JUDGE OF
THE HIGH COURT