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2012
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[2012] ZAGPPHC 192
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Mkhulisi v S (A567/2011) [2012] ZAGPPHC 192 (24 August 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: A567/2011
DATE:24/08/2012
In
the matter between:
PRINCE
PHILANI
MKHULISI
..........................................................................................
APPELLANT
And
THE
STATE
.......................................................................................................................
DEFENDANT
JUDGMENT
BOSMAN,
AJ
INTRODUCTION
[1]
The appellant, Mkhulisi Prince Philani, was convicted and sentenced
in the Piet Retief Regional Court on two counts, for the
offence of
possession of a firearm without a license, where the penal provisions
of the
Firearms Control Act, No 60 of 2000
provides a maximum
sentence of fifteen years, and further for the possession of
ammunition.
[2]
He was found guilty and sentenced in respect of count 1, possession
of a firearm, without license, and count 2, possession of
ammunition
without being in possession with the necessary license, in terms of
the provisions of the
Firearms Control Act, No 60 of 2000
.
[3]
The appellant was further found not guilty on the third charge,
namely theft of a firearm.
[4]
The appellant was sentenced to fifteen years imprisonment on count 1
in terms of the Minimum Sentence Act, 105, of 1997 and
was cautioned
and discharged, on count 2.
[5]
A further order was made in terms of
Section 103
of the
Firearms
Control Act, No 60 of 2000
, and the appellant was declared unfit to
possess the firearm.
[6]
Appellant was duly represented during the trial.
[7]
The appellant brought an application for leave to appeal against his
conviction and sentence, which application was refused
by the court a
quo.
[8]
The appellant then petitioned to the Judge President of the North
Gauteng High Court and was granted leave to appeal against
both his
conviction and sentence on 6 June 2011.
The
evidence
on
behalf
of
the
State
[9]
The witness on behalf of the State was a constable, N W Buthelezi, in
the service of the South African Police Services stationed
at Piet
Retief.
[10]
On 30 April 2009 he was on duty and on patrol together with constable
Sibiya, in a marked police vehicle.
[11]
He testified that they saw two boys, at approximately 21h20 and he
observed that one of them was trying to hide something.
They stopped
the vehicle and the witness approached the accused and searched him.
He found a firearm hidden on the person of the
appellant and asked
the appellant where the license to posses the firearm is. The
appellant's answer was that he does not have
a license. According to
the witness the appellant told him that he found the firearm when he
was digging for medicinal plants.
[12]
He further asked the appellant to show him the place where the
firearm was found, but the appellants answer was that it was
too
dark. The firearm that he found in the possession of the appellant
was a 9mm pistol, with one round in the barrel.
[13]
At the police station the witness observed the serial number, and
when he tested the firearm, it was clean and oiled.
[14]
The witness confirmed that the appellant could not produce a license
in respect of the firearm. According to the witness the
appellant
told him that he picked up the firearm, whilst he was busy digging
for herbs and that it was his intention to take the
firearm to the
police station. He found a person to walk with him to the police
station. The owner of the firearm could not be
found, but the number
of the weapon was scraped off, or something like that. The number was
not clearly visible.
[15]
Constable Buthelezi further testified that the appellant denied that
he already passed the way to the police station when the
witness and
the other police officer approached him. According to constable
Buthelezi the appellant said to him that they, the
accused and
another person, would take another road to the police station as they
already passed Brand Street that leads to the
police station.
[16]
Constable Buthelezi further said that it was if the appellant was
hiding something in the front of his trousers and he then
found the
appellant to be in possession of the firearm.
[17]
Constable Buthelezi also testified that, when the accused and the
other person were asked to come with them, they wanted to
try to
flee, as he put it. He also testified that the firearm was cleaned
and oiled.
Evidence
of
behalf
of
the
appellant
[18]
The appellant admitted that he was found in possession of the said
firearm, on 30 April 2009. He testified that he did not
know whether
there was any rounds or ammunition inside the pistol. While at the
police station he observed that the police removed
a round.
[19]
The version of the appellant was that he do not know who's firearm it
was or is and that he picked it up in a veld, on the
same day around
17h00; 18h00 in the evening, after sunset.
[20]
He was on his way to the police station, and he had a person with him
to accompany him. The police then approached them in
a vehicle, and
the police vehicle's bright lights were showing on them. They were
approached by the police, searched and the firearm
was found in the
possession of the appellant.
[21]
The appellant testified that he told the police that he picked up the
firearm, that it was dark and there was grass where he
picked up the
firearm. He denied that he already passed the way to the police
station, when he was approached by the police. He
also denied that he
tried to escape or run away. According to the appellant the firearm
was rusted, when he found it.
[22]
The appellant testified that he hide the firearm in his pants, so
that other people could not see it. He did not know that
the firearm
was cocked. Under cross-examination he was questioned about his
evidence that the firearm was found around 17h00, 18h00
and at 21h20
he was still in possession of the firearm. His answer was that they
walked a far distance, and they first visited
their house, left
certain goods there and was delayed at the house which they visited.
[23]
Under cross examination he further testified that it was the other
person in his presence that found the firearm, when they
were looking
for more medicine and on their way back to the house, he picked up
the firearm.
[24]
A witness was called on behalf of the appellant, one Mr Mthetwa. He
confirmed that he was in the veld digging for some traditional
medicine on 30 April 2009, and that the accused was with him.
[25]
The witness testified that he and the accused were digging herbs,
that the accused was a distance away from him when he was
called by
the accused who told him that he found a firearm. They then decided
to go to the police station. They first went back
home.
[25]
When they arrived at their house, he asked somebody who could
accompany the accused to the police station. He told the accused
not
to inform the person that would accompany him about the firearm and
the witness went to Pietersburg.
[26]
According to the witness Mthetwa, the accused left the house, to take
the firearm to the police, approximately 17h40. The witness
further
testified, by car, it would take approximately 5 to 6 minutes from
the house to the police station, as it was approximately
4 to 5 km.
He is not sure whether the accused and the other person took a taxi
or whether they went on foot. At a later stage he
said that the
accused left the house at approximately 18h00.
[27]
The witness again confirmed that the firearm was rusty and you could
see that it rained on the firearm.
Judgement
of the court a quo
[28]
In my view the appellant was correctly convicted on charges 1 and 2.
[29]
The witness, Buthelezi, testified satisfactory in all material
respects and his evidence can be regarded as proof at the State's
case, in my view, beyond reasonable doubt. The actions and reactions
of the accused and the other person that accompanied him,
namely Mr
Mthetwa was suspicious. The appellant clearly tried to hide the
firearm in his clothes, where constable Buthelezi found
the weapon
upon investigation.
[30]
The version of Appellant, namely that the firearm were found in the
veld, when the appellant and the other witness were looking
for
medicinal plants, is highly unlikely. The firearm was clean and oiled
and not rusted, according to the evidence of const Buthelezi.
It was
already 21h20 in the evening and the version of the appellant, that
he was on his way to hand the firearm to the police,
is not, under
the circumstances reasonably possibly true.
[31]
The accused also had two different versions regarding the question
who found the firearm. He first testified that the firearm
was found
not by himself, but by the witness and when they left for the house,
he (the appellant) picked it up. He later changed
this evidence.
[32]
The witness Mthetwa also testified that it was the accused that found
the firearm.
[33]
The version that they were on their way to the police station, must
be seen against the background that the witness Mthetwa,
testified
that the appellant left the house at approximately 18:00. It could
not take the appellant so long to get to the police
station. He was
further past the street that led to the police station (Brand Street)
and the condition of the firearm was not
rusted, as if it was lying
in the veld for a while, as the appellant conveyed to the court.
[34]
It is further highly unlikely that the appellant would not, to some
extend investigate the firearm. His version that he was
unaware of
the fact that there was a round in the barrel of the firearm, is
further highly unlikely.
[35]
The magistrate was therefore correct in his findings that the
appellant's version cannot be accepted.
[36]
The suspicious behaviour of the appellant and the witness was further
accentuated by the fact that the appellant's tried to
run a way when
he observed the police vehicle.
[37]
The conviction of the appellant on count 1 and count 2, was
therefore, in my view, justified.
The
appeal regarding sentence
[38]
The appellant is not a first offender. He was previously convicted on
three counts of housebreaking with the intend to steal,
four counts
of theft and one count of dependents-producing medicine.
[39]
The appellant was 28 years of age at the time of sentencing, married
and had 2 children, respectively 5 and 6 years of age.
The children
were staying with their mother in Germiston. He was further employed,
before his arrest, at a car wash, earning R80
to R100 per vehicle
washed. The magistrate made use, inter alia, of his personal
knowledge regarding the prevalence of crime in
his jurisdictional
area. See S v Malinga 1962(1) SA 439 (T); S v Steenberg 1997(3) SA
513(b).
[40]
The magistrate was further dealing with the previous sentences
received by the appellant it seems to me that the magistrate
took
into account the necessary factors regarding the personal
circumstances of the appellant as well as the circumstances
surrounding
the illegal possession of the semi-automatic pistol. See
S v Rasengani
2006 (2) SACR 431
(SCA).
[41]
The fact that the appellant has previous convictions of offences that
is not totally unrelated to the present offences, also
play, in my
view, an important role.
[42]
The debate whether the sentence should be imposed in terms of Act 105
of 1997 or in terms of the
Firearms Control Act, is
in my view, not
of crucial importance. The appellant was charged and convicted in
terms of the said Act 60 of 2000. The magistrate
was, in my view,
correct in imposing a sentence of 15 years imprisonment having regard
to the previous convictions of the appellant
and the circumstances
prevailing when the crimes were committed. Schedule 4 of Act 60 of
2000, read together with section 3 and
section 21 of the said Act,
imposes the maximum sentence of 15 years. Part II of schedule 2 to
the Criminal Law Amendment Act 105
of 1997 imposes the identical
sentence of 15 years as a minimum sentence for any offence relating
to the possession of an automatic
or semi-automatic firearm under the
Firearms Control Act. See
: S v Baartman 2011 (2) SA CR at 79.
[43]
Sentence imposed by a magistrate is a discretionary function and in
my view, the sentence has been judicially and properly
exercised and
is not vitiated by irregularity or misdirection or is so disturbingly
inappropriate that it justifies this court
to interfere. See: S v
Rabie
1975 (4) SA 855
(A).
[44]
I therefore hold that the appeal against sentence should likewise be
dismissed and I therefore make the following orders:
1.
The appellants appeal against conviction and sentence is dismissed.
A
J H Bosman
Acting
Judge of the North & South Gauteng High Courts, Pretoria
I
agree
T
M Makgoka
Judge
of the North & South Gauteng High Courts, Pretoria
Representation
for the appellant
Counsel:
Adv DM du Plessis
Instructed
by: Legal Aid South Africa, Pretoria
Justice
Centre
Representation
for respondent
Counsel:
Adv PT Nkuna
Instructed
by:Director of Public Prosecutions,
Pretoria