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[2014] ZAGPPHC 353
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Mahlangu v S (A742/2013) [2014] ZAGPPHC 353 (15 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
A742/2013
Date:15 May 2014
In the matter
between:
MAXWELL
MAHLANGU
...............................................................................................................
Appellant
And
THE
STATE
..................................................................................................................................
Respondent
JUDGMENT
PRETORIUS J,
[1] This is an
appeal against conviction of the appellant by the Benoni Regional
Court on contravention of Section 3 of Act 60 of
2000, unlawful
possession of two (2) semi-automatic firearms (pistols);
contravention of Section 90 of act 60 of 2000, unlawful
possession of
ammunition (total of 21 x 9mm calibre rounds). A further appeal is
against sentence. The appellant was sentenced
as follows by the court
a quo: count 1: 15 years imprisonment, count 2: 15 years
imprisonment, count 6: 15 years imprisonment,
count 8: 15 years
imprisonment, count 9: 5 years imprisonment.
[2] The court
ordered that the sentences on counts 1, 2 and 6 be served
concurrently and that the sentences on counts 8 and 9 be
served
concurrently, which resulted in an effective sentence of 30 years.
[3] The court a quo
refused leave to appeal against conviction and sentence. Leave to
appeal was granted on petition to the High
Court in respect of the
convictions on counts 8 and 9 and leave to appeal was granted against
sentence.
[4] The appellant,
who was accused 1 in the court a quo, and five other perpetrators
robbed the residence of Mrs Krynakides and
robbed her two employees
as well at the same time and place. The only person identified as
having a firearm during the robbery,
was accused 2. The six
perpetrators then walked away from the scene of the robbery. They
were all, according to the witnesses,
dressed in two piece overalls.
[5] Members of the
security company arrived, which caused the perpetrators to flee,
running in different directions and divesting
themselves of their
overall jackets. Mr Vermeulen, a member of the security company, saw
the appellant throwing his jacket over
the wall of a house. He
subsequently found some of the stolen jewellery in the pockets of the
appellant’s discarded jacket.
The appellant was apprehended by
the members of the security company. Mr Vermeulen recovered a CZ75
pistol in the vicinity of the
appellant’s jacket. Accused 2 was
apprehended by the police in an outside toilet on the same premises
where the appellant
was apprehended. A firearm was recovered from the
toilet where accused 2 had been found.
[6] The appellant
was convicted on the robbery charges, as well as the charges of
possession of firearms and ammunition.
[7] The magistrate
only made mention in his judgment in respect of the firearm as
follows:
“
And
when they recovered the jacket later, they found that there was some
jewellery, and there
was
a
firearm next to it. And also a lot of cash which were captured in the
pictures, which money
was
just
lying around. And also two cellphones were lying there where there
was
a
firearm
and cash. ”
[8] He did not draw
any conclusions in respect of where the fire-arm was found. He did
not deal, in his judgment, with the ammunition
that was found. He
only convicted the appellant as charged on this count.
[9] There is only
circumstantial evidence regarding the possession of the CZ75 pistol.
The court has to agree that it is not the
only inference that can be
drawn that the appellant was in possession of the firearm due to the
place where it was found. Accused
2 could have dropped it there as
well. There is a contradiction in the evidence of the state regarding
the ballistic report. The
CZ75 pistol was placed and sealed in a
forensic evidence bag with seal number FSC1217771, whilst the
ballistic report dealt with
sealed evidence bag with number
FSE269466. No explanation was given for this vital discrepancy. There
was no evidence presented
where the ammunition had been found and the
court a quo erred in convicting the appellant on count 9.
[10] The evidence in
regards to where Constable Meso photographed two jackets and two
firearms where the appellant had been apprehended
could take the
matter no further. Mr Mepbure, a security officer, testified that he
observed two jackets lying inside the premises
where appellant was
apprehended. Warrant Officer Meintjies seized the CZ75 pistol and
placed it in an evidence bag and sealed it
with seal number
FSC1217771. His evidence was that the firearm was found at a distance
of 20 meters from the jacket on the premises
where the appellant was
found.
[11] It is common
cause in the present case, that there were at least six perpetrators
and that the appellant had not been seen
with a
firearm during the
robberies. Two jackets were found at the premises where the appellant
and accused 2 were apprehended. Nobody
saw the appellant throwing the
firearm over the wall or onto the ground. The firearm was found
approximately 20 metre from the
appellant’s jacket.
[12] The state did
not prove that the weapon the appellant was allegedly in possession
of, was a firearm as defined in Act 60 of
2000. The numbers of the
seal on the forensic evidence bag and the ballistic report do not
accord, which nullifies the evidence
of the ballistic report.
[13]
In
R
v Sibanda and Others
1965 (4) SA 241
RA
at
p 246 Beadle CJ held:
“
Where,
however, there is a particularly vital fact which in itself
determines the guilt of an accused, it must be proved beyond
reasonable doubt. Suppose, for example, the vital fact in determining
the intent to kill in a murder case is whether or not the
accused
used a knife in killing the deceased. If the evidence merely showed
that it was 'probable' he used a knife, it could not
be held against
him in determining his guilt that he 'had' used a knife, because,
unless there was proof 'beyond reasonable doubt'
that a knife was
used, the accused's guilt could not be said to have been proved
'beyond reasonable doubt'.’’
(Court’s
emphasis)
[14]
In
S
v Nango
1990 (2) SACR 450
(A)
Smalberger
JA found at p 457 a - b:
“
Die
appellant se opset moet afgelei word van die bewese feite en
omstandighede met inagneming van die logiese voorskrifte rakende
omstandigheidsbewys soos geformuleer in R v Blom1939 AD 188 op
202-3."
[15]
In
S
v Mbuli
2003 (1) SACR 97
(SCA)
Nugent
JA held at paragraph 72:
“
I
do not agree that the only reasonable inference from the evidence is
that the accused possessed the hand grenade jointly. It is
equally
possible that, like the pistols, the hand grenade was possessed by
only one of the accused.
Mere
knowledge by the others that he was in possession of a hand grenade,
and even acquiescence by them in its use for fulfilling
their common
purpose to commit robbery, is not sufficient to make them joint
possessors for purposes of the Act.’’
(Court’s
emphasis)
[16]
In
S
v Kwanda
2013 (1) SACR 137
(SCA)
Theron
JA found at paragraph 6:
“
[6]
Adopting the reasoning in Nkosi and Mbuli, and even if the appellant
was aware that Mahlenche was in possession of the firearm,
such
knowledge is not sufficient to establish that he had the intention to
jointly possess the firearm with Mahlenche.
In
this matter there are no facts from which it can be inferred that the
appellant had the necessary intention to exercise possession
of the
firearm through Mahlenche or that the latter had the intention to
hold the firearm on behalf of the appellant.”
(Court’s
emphasis)
[17] It is clear
from the evidence that the state did not prove joint possession of a
firearm at all. There is no evidence from
which it can be adduced
that the appellant was aware of the possession of the firearms by his
co-perpetrators and that the co-accused
had the subjective intention
to possess the firearm on behalf of the appellant.
[18] If the court
applies the principles as set out in these cases, then this court
cannot find that the only reasonable inference
to be drawn is that
the firearm was in the possession of the appellant.
[19] The court has
already dealt with possession of the ammunition. The state has not
proved the guilt of the appellant on counts
8 and 9 beyond a
reasonable doubt. This court finds that the court a quo erred in
convicting the appellant on counts 8 and 9.
[20] It is thus not
necessary to deal with the sentencing on these counts. The counsel
for the defence has conceded that the sentences
on count 1, 2 and 6
are appropriate. This court has considered these sentences as well
and finds the order by the court a quo that
the sentences on counts
1, 2 and 6 should be served concurrently is correct, a sentence of 15
years is appropriate.
[21] The following
order is made:
1. The appeal
against the conviction on counts 8 and 9 are upheld;
2. The appeal
against sentence is dismissed;
3. The order of the
court below on conviction and sentence on counts 8 and 9 is set
aside.
Judge C Pretorius I
agree,
Judge NB Tuchten
Case number:
A742/2013
Heard on: 12 May
2014
For the Appellant:
Adv VZ Nel
Instructed by: Legal
Aid
For the Respondent:
Adv
Instructed by:
Director of Public Prosecutions Date of Judgment