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[2014] ZAFSHC 152
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Morojelle and Others v S (A68/2014) [2014] ZAFSHC 152 (11 September 2014)
FREE STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC OF
SOUTH AFRICA
Appeal No. :
A68/2014
In
the appeal between:-
MPHETHI
MOROJELLE
…..............................................................................................
1
st
Appellant
NEPHER
MAHLATHINI
…..............................................................................................
2
nd
Appellant
MARIO
KHOZA
…..............................................................................................................
3
rd
Appellant
and
STATE
….................................................................................................................................
Respondent
CORAM:
KRUGER, J
et
MBHELE, AJ
JUDGMENT
BY:
KRUGER, J
HEARD
ON:
8 SEPTEMBER 2014
DELIVERED
ON:
11 SEPTEMBER 2014
[1]
The three appellants were accused 1, 2 and 3 in the trial in the
regional court, where there were five accused. To avoid confusion,
the appellants are referred to as accused 1, 2 and 3. During the
defence case accused 4 and 5 made admissions and were convicted
on
all counts and sentenced. Sipho Gift Sophile was accused number 6,
against whom the state withdrew all charges before the trial
and he
was called as a section 204 witness. The charges were the following:
Count 1: Robbery of a Toyota Hilux Double Cab Bakkie,
a digital
camera, a Nokia cell phone, an ID book and R3 000 cash. Count 2:
possession of a semi-automatic firearm, 9mm Parabellum.
Count 3:
Possession of a 9 mm Short Calibre. Count 4: Possession of
ammunition, 12 cartridges. Count 5: Possession of Ammunition,
three 9
mm cartridges.
[2]
Accused 1 made a plea explanation under Section 115 of the Criminal
Procedure Act wherein he said that his employer in Lesotho
instructed
him to go and fetch a vehicle he had bought in South Africa and bring
it to Lesotho. He had no knowledge that the vehicle
was stolen. The
regional magistrate rejected his evidence and convicted him of
receiving stolen property and sentenced him to 10
years’
imprisonment, 5 suspended for five years. Accused 2 and 3 were
convicted on all counts as charged and each sentenced
to 11 years’
imprisonment (5 suspended for five years) on count 1. Counts 2, 3, 5
and 6 were taken together for purposes
of sentence and each accused
was sentenced to 8 years’ imprisonment (4 suspended for five
years). The trial magistrate refused
the three accused leave to
appeal, but leave was granted by the high court on petition.
[3]
Six witnesses testified for the state, and the three accused
testified in their defence. The state witness were (1) Kutoane
Adam
Ramahlonami (2) Sipho Gift Sophile, the former accused 6 who was
called as a section 204 witness. Then four police witnesses:
(3)
Captain Nkadi (4) Constable Kapi (5) Constable Mpenvana (6) Captain
Moleme (the investigating officer). The first three police
witnesses
worked at the border post at the Maseru port of entry from South
Africa into Lesotho.
[4]
The first problem with the magistrate’s judgment is his
reliance on the evidence of Sophile, the section 204 witness.
From
the record it appears that Sophile was never sworn in. He was never
asked whether he had any objection to taking the oath.
He was 26
years old. The magistrate treated him as a child witness. Section 163
of the Criminal Procedure Act, which makes provision
for affirmation
in lieu
of
taking the oath, provides for consciencious objections to the oath by
the witness alone. Unless the witness indicates that he
has
objections to taking the oath, he must be sworn in. If the witness
has not raised any objection to taking the oath, and is
not sworn in
but warned, it means that all the evidence of that witness must be
ignored (
S v Ndlela
1984 (1) SA 223
(N) at 225D-H). Both Mr Botha, for the state, and Mr
van der Merwe, for the appellants, were in agreement that the
evidence of
Sophile had to be ignored.
[5]
The second problem with the magistrate’s judgment is his
apparent reliance on the admissions by accused 4 and 5 against
accused 1, 2 and 3. Admissions by an accused are not admissible
against a co-accused. Both counsel agreed on this point. The
objections
to receiving an admission made by A against B are set out
fully in
The Commentary on the Criminal Procedure Act
by Du
Toit
et al sub voce
section 219 pages 24-70D – 24-70F.
[6]
Once the evidence of Sophile and the admissions of accused 4 and 5
are struck out, all that remains against accused 1, 2 and
3 is the
evidence of the complainant and the police officers at the border
post and the evidence of the accused.
[7]
The complainant, Mr Ramohlonami testified that on 3 September 2009 he
was in Virginia, driving home in his Toyota. Three persons
approached
him and asked for a lift to the farm Soutfontein. In court he pointed
out accused 4 and 5. It is significant that he
did not point out
either accused 4 or 5 at the Identity Parade that was held eight days
after the incident. There he pointed out
accused 2 and 3 and a person
who was not a suspect. He testified that he could only identify
accused 4 and 5 of the first group.
He then turned back to Virginia,
where another person got in. He pointed out accused 2 in court as the
person who got in at that
stage. Accused 4 got out of the vehicle at
some stage, walked to the driver’s side, and instructed
complainant to climb over
the gears, accused 4 was going to drive. A
person who was sitting behind the complainant pointed a firearm at
the complainant.
Complainant could not identify the person who
pointed the firearm. Asked about accused 1, complainant said accused
1 was not present
among the persons who got into the vehicle. This
corroborates the evidence and case of accused 1 that he only got into
the vehicle
at a later stage. Asked about accused 3, the complainant
first said he remembered clearly that he did not point out accused 3
at
the Identity Parade. Yet he did point out accused 3 on the
Identity Parade. The complainant went on to say he did not get a
chance
to look clearly at the person who was pointing a firearm at
him, later he said “I did not see his face”. From the
complainant’s
evidence it is clear that he could not identify
accused 3. When they got to a 4-way stop, they took his cell phone
and phoned their
friends. They drove off again and stopped at an old
deserted building. All the others got out but accused 2 remained in
the vehicle
with the complainant. After a while the others came back
and told the complainant to get out of the vehicle. They searched the
complainant and took the money he had, about R3000. Two persons
remained with him, but he could not identify them. They also took
his
cell phone and a camera. Asked about the firearm that was pointed at
him, the witness said it was a small firearm. In cross-examination
the complainant admitted that at the Identification Parade the first
person he pointed out was not a suspect in this case.
[8]
Captain Nkadi of the South African Police Service works at the Maseru
Border post. On 3 September 2009 he was in front of the
computer in
the control room. He entered the registration number of the Toyota
Hilux Bakkie, and the computer indicated that it
was a stolen
vehicle. Captain Nkadi went out and found accused 1 behind the
steering wheel of the bakkie. He pulled accused 1 out
of the bakkie.
Accused 1 first said the vehicle belonged to Ernest, and when asked
who Ernest was, accused 1 said it belonged to
the five persons who
were in the police vehicle. Sophile, the former accused 6, the
section 204 witness, told Captain Nkadi that
there were two firearms
in the police vehicle. He found the two pistols and ammunition which
are mentioned in counts 2-5. Constable
Kapi also works at the Border
post. He stopped the Toyota after Captain Nkadi told him to do so.
Accused 1 was the driver, who
was alone in the vehicle, and said it
was Ernest’s vehicle. He said accused 1 then pointed out other
people who were with
him in the vehicle, who were accused 2, 3, 4 and
5. Constable Mpenvana then put those persons into the police van.
They searched
the police vehicle and found the two firearms under the
spare wheel. Constable Mpenvana arrested accused 2-5 for not having
passports.
Accused 1 was arrested for being in possession of a stolen
vehicle. Captain Moleme is the investigating officer and his
testimony
concerned only the sending off of the firearms and
ammunition for ballistics evaluation.
[9]
The evidence of accused 2 and 3 was to the following effect:
They were in a
vehicle with accused 4 and 5 they were going to Lesotho to buy dagga.
They left from Virginia. All the accused, including
the former
accused 6, were in the vehicle, except accused 1. The vehicle stopped
at Ficksburg, where accused 1 got in. Accused
2 and 3 got out before
the vehicle got to the border post, and walked through, where they
were apprehended because they did not
have passports.
[10]
Three issues need to be decided in this appeal. They are (1) the
conviction of accused 1 of receiving stolen property, (2)
the
conviction of accused 2 and 3 of robbery, (3) the conviction of
accused 2 and 3 of possession of firearms and ammunition.
(1)
The
conviction of accused 1 of receiving stolen property.
[11]
An essential element of the offence of receiving stolen property is
the
mens rea
of the accused. The accused must be shown to have known that the
goods were stolen. The mental element of the crime is satisfied
where
the accused suspected that the goods were stolen but nevertheless
deliberately decided not to make enquiries. The test for
intention is
subjective (see the discussion in
South
African Criminal Law and Procedure
by J
R L Milton Volume II (3
rd
Edition) (1996) 669-670; Snyman,
Criminal
Law
5
th
Ed (2008) 523). The accused must be shown to have actually foreseen
the real possibility that the goods were stolen, and nevertheless
received them (Milton at 671). The only admissible evidence against
accused 1 is his own evidence, which was in conformity with
his plea
explanation, namely that his employer in Lesotho told him that he had
bought a vehicle in South Africa, and that accused
1 had to go and
fetch it and bring it to Lesotho. There is no evidence to contradict
this version of accused 1. Mr Botha, correctly,
did not ask for a
confirmation of the conviction of accused 1.
(2)
The
conviction of accused 2 and 3 of robbery
[12] Once the
evidence of the accomplice and the admissions of accused 4 and 5 fall
away and cannot be used against accused 2 and
3, all that remains is
the evidence of the complainant and the evidence of accused 2 and 3
that they were in the vehicle from Virginia
to Ficksburg, but never
in the presence of the complainant.
[13]
Mr Botha contended that the three persons the complainant picked up
must have been accused 4, 5 and 3. He says this because
accused 4 and
5 admit in their admissions in court that they boarded the
complainant’s vehicle. Accused 3 was arrested at
the border
post, and admitted that he was in the vehicle. Mr Botha said the
complainant’s evidence was clear that there were
three persons
in his vehicle, he was the fourth. Mr Botha stresses that it is not
in dispute that accused 2 and 3 were arrested
at the border post, and
that they had been in the Toyota Hilux vehicle which had been robbed
from the complainant. Mr van der Merwe,
on the other hand, points out
that Virginia is far from the border post, and that all depends on
the identification of the complainant.
[14]
The identification evidence of the complainant is not satisfactory.
He pointed out accused 2 and 3 at the Identity Parade,
and not
accused 4 and 5, yet in court he pointed out accused 4, 5 and 2. He
said he could not be certain of accused 3. But he had
seen accused 2
(and probably accused 3) two days after the incident at the Virginia
police cells when he went to look for his phone.
If one accepts, as
Mr Botha asks us to do, that the first two persons in the vehicle
were accused 4 and 5, according to their admissions,
then we would be
using the admissions of accused 4 and 5 against accused 2 and 3,
something we cannot do. The question is whether
the admissible
evidence proves beyond reasonable doubt that accused 2 and 3 were in
the vehicle when it was robbed from the complainant.
They admit that
they were in the vehicle at the stage when it arrived in Ficksburg
and they got out. They do not admit that they
were in the vehicle at
any time when the complainant was in it. The complainant’s
evidence about the identification of accused
2 and 3 is not good.
There is uncontested evidence by accused 2 that the complainant saw
him at the police cells in Virginia two
days after the incident,
being about six days before the Identification Parade. In court the
complainant could not identify accused
number 3, although he had done
so on the Identity Parade. Further, the first person he pointed out
on the Identity Parade was a
person who is not a suspect. He pointed
out accused 4 and 5 in court, although he had not pointed them out on
the Identity Parade
even though all the accused were there.
[15]
The evidence of the identification of accused 2 and 3 is not
sufficient to sustain the convictions.
(3)
The
possession of the firearms and ammunition
[16]
The accused were charged and convicted of possessing two firearms and
two sets of ammunition. There is no evidence as to which
accused
handled which firearm at which stage. The fact that the firearms and
ammunition were found in the police vehicle that took
the accused to
the police station does not assist the state, because it does not
show who possessed the firearms. In
S
v Nkosi
1998 (1) SACR 284
(W)
reference is made to an unreported judgment of Swart J in
Molemane
and Others v S
where the court
accepted the inference that a group of robbers had the intention to
possess weapons jointly. In
Nkosi
the majority judgment disapproved
Molemane
.
The reasoning accepted by the majority in
Nkosi
,
and endorsed by the Supreme Court of Appeal in
S
v Mbuli
2003 (1) SACR 97
(SCA) pars
[71]-[72] was explained as follows (
Nkosi
at 288e – f): what robbers normally contemplate is that each
gun-holder would use his gun as he thought desirable and necessary.
The gun-holder would always retain physical possession of the gun and
he would not intend to yield up his right to possess the
gun and to
use it as he deemed fit. Marais J expressed the view that generally,
or at least often, the gun-holder would not intend
to cede one iota
of his right to control the gun to the group (at 288f-g). At the very
least, it is a reasonably possible inference,
on the facts of this
case, that the guns were held by two persons, or perhaps even one,
and that person or persons did not intend
to yield control to the
group. Possession is a concept which has a physical and mental
element. Both must be established. The state
must prove that the
accused physically possessed the firearm and had the mental intention
to possess it. In this case that has
not been proven. Not in respect
of one of the accused has it been established that that accused had
the physical control and mental
intent to possess any particular one
or both of the firearms. As a last resort Mr Botha asked us to alter
the convictions to one
of being accessories after the fact of
possession because they lied about the firearms. There is no room for
such a finding. It
is not clear that the accused lied about anything.
The firearms could theoretically have been in the police vehicle
before the
accused got into it, taking into account only the evidence
admissible against the accused. The convictions of counts 2-5 must be
set aside.
ORDER
1.
The appeals of the three appellants against all their convictions and
sentences succeed.
2. The convictions
and sentences of all three appellants are set aside.
____________
A.
KRUGER, J
I
agree.
_______________
N.M
MBHELE, AJ
On
behalf of appellants Mr P. van der Merwe
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv JP du P Botha
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN