About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2012
>>
[2012] ZAKZPHC 7
|
|
Cele and Others v S (AR 237/2001) [2012] ZAKZPHC 7 (1 January 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG)
CASE NO.: AR 237/2001
In the matter between:
BHEKAMACELE CELE
….....................................................................
1st
Appellant
LUBANZI CELE
…................................................................................
2nd
Appellant
NOKWE SHEZI
…..................................................................................
3rd
Appellant
and
THE STATE
….........................................................................................
Respondent
______________________________________________________________
J U D G M E N T
______________________________________________________________
KOEN
J
:
INTRODUCTION:
[1] The appellants, who were respectively accused 1, 2 & 3 in the
Court
a quo
were convicted by the trial judge (Hurt J and two
assessors) of:
(a) Conspiracy to commit robbery in contravention of s18 (2) (a) of
the Riotous Assemblies Act No 17 of 1956 (Count 1);
(b) Murder (Count 2);
(c) Unlawful possession of a firearm in contravention of s2 read with
ss 1 and 39 of the Arms and Ammunition Act 75 of 1969 (‘the
Act’) (Count 3);
(d) Unlawful possession of ammunition in contravention of s 36 read
with ss 1 and 39 of the Act (Count 4).
[2] The counts were all taken as one for the purposes of sentence.
The first and third appellants were sentenced to 20 years'
imprisonment each. The second appellant was sentenced to 15 years'
imprisonment.
[3] Leave to appeal was granted by Van Zyl J to the second appellant
in respect of his conviction in counts 3 and 4 and to all
three
appellants in respect of the sentences imposed. By letter dated the 5
December 2011 the first appellant indicated that he
no longer wishes
to proceed with his appeal and that he withdraws the appeal.
[4] The evidence established that the appellants, one Mbhele and
Thembelani conspired to rob the deceased, Hilda Chiya of money.
The
first appellant had a firearm in his possession. The second appellant
and initially also the third appellant were not armed
at all. The
rest were all armed with knives. These weapons were to be used to
inspire fear in the deceased. The plan was not to
kill anybody but
only to rob the complaint. The first and third appellants would enter
the home of the deceased and steal her money
whilst the second
appellant, Thembelani and Mbhele would stand guard outside.
[5] En route, the first appellant produced a firearm and fired one
shot into the air. The third appellant then asked for the firearm,
which the first appellant then handed to him. Having taken possession
of the firearm, the third appellant pointed the firearm at
the second
appellant. When asked what he was doing the third appellant said to
the second appellant that ‘you are a coward,
you are scared of
an object that does not have ammunition.’ The third appellant
retained possession of the firearm as they
proceeded to the
deceased’s home.
[6] Having arrived at the deceased's home the first appellant knocked
at the door. The second appellant, Mbhele and Thembelani
stood guard.
The deceased appeared inside the building armed with a spear and
‘made some noise’. As she appeared at
the window, the
third appellant shot her with this firearm. The second appellant was
shocked. He and the others, but excluding
the third appellant, ran
away. More shots were fired as they ran. The third appellant later
joined them some distance from the
scene. He still had the firearm
which he was carrying in his hand. The first appellant then asked him
for the firearm which the
third appellant handed to him. The first
appellant then told the third appellant to go back to the scene of
the shooting and fetch
the cartridges which would have been left
there. The third appellant refused to do so. When asked about the
shots that he fired
at the deceased, the third appellant responded
that ‘if I shot someone, it is none of your business, it is my
business.’
[7] In his defence, the second appellant claimed to have tagged along
with a group of men not knowing what their intentions were.
He was
later allegedly compelled to join them to rob the deceased. However,
he elected not to testify.
[8] The requirements for a conviction of unlawful
possession of a firearm and ammunition where the accused did not have
actual possession
thereof were stated in S v Nkosi
1
where the court said:
‘
the
issues which arise in deciding whether the group (and hence the
appellant) possessed the guns must be decided with reference
to the
answer to the question whether the State has established facts from
which it can properly be inferred by a court that:
(a) the group
had the intention (
animus
)
to exercise possession of the guns through the actual detentor and
(b) the actual detentors had the
intention to hold the guns on behalf of the group.
Only if both requirements are
fulfilled can there be joint possession involving the group as a
whole and the detentors, or common
purpose between the members of the
group to possess all the guns.’
[9] In S v Mbuli
2
the Supreme Court of Appeal approved the aforesaid
requirements stated in S v Nkosi and further commented on the
provisions of the
Arms and Ammunition Act, which are not dissimilar
to those forming the subject matter of counts 3 and 4, as follows:
‘
[71]
What is prohibited by both those sections is the existence of a state
of affairs (i.e. having possession of an armament, or
a firearm as
the case may be) and a conviction will be competent only if that
state of affairs is shown to exist. That state of
affairs will exist
simultaneously in respect of more than one person if they have common
(or joint) possession of the offending
article. Their contravention
of the relevant section in those circumstances does not arise from an
application of the principles
applicable to common purpose (which is
concerned with liability for joint activity) but rather from an
application of ordinary
principles relating to joint possession.
Common purpose, and joint possession, both require that the parties
concerned share a
common state of mind but the nature of that state
of mind will differ in each case. Perhaps Olivier J A had in mind the
principles
of joint possession, rather than the doctrine of common
purpose, when he said in S v Khambule
2001 (1) SACR 501
(SCA) at para
[10] that there is no reason in principle why a common intention to
possess firearms jointly could not be established
by inference, but I
do not agree with the further suggestion that a mere intention on the
part of the group to use the weapons
for the benefit of all of them
will suffice for a conviction.’
[10] In S v Nkosi, on facts not dissimilar to that in casu relating
to the possession of firearms, and in S v Mbuli on facts likewise
not
dissimilar to those in casu, save that the possession related to a
hand grenade, the court in each instance concluded that
it was not
the only reasonable inference to be drawn from the evidence that the
accused all possessed the offending firearm jointly.
It is equally
possible that the firearm was possessed by only one of the accused,
in casu, the first and third appellants. Mere
knowledge by the second
appellant that other assailants were in possession of a firearm and
even acquiesence by the him in its
use for fulfilling their common
purpose to commit robbery, is not sufficient to make the second
appellant a joint possessor for
the purposes of the Act.
[11] The present is not an instant such as
occurred in S v Manene
3
where during the course of robberies a large
number of articles including firearms and ammunition were stolen by a
group acting
in concert to deprive the possessors of these items of
property. On those facts, the only reasonable inference that could be
drawn
was that the group had the common intention to possess all of
the firearms and the ammunition and to hold it on behalf of the
group.
See also S v Mathobela
4
.
[12] The learned Judge in the court
a quo
had concluded that
‘we find that all three accused are guilty on counts 3 and 4,
it being part of their common purpose to
use the pistol and
ammunition.’ The common purpose to use the pistol and
ammunition, was no doubt a finding justified on
the evidence
supporting the conviction of conspiracy to commit robbery and the
murder. However the evidence does not exclude every
reasonable
inference other than the inference that there was a joint intention
to possess the firearm in question.
[13] Accordingly the appeal by the second appellant in respect of
counts 3 and 4 must succeed and the second appellant's conviction
on
those two counts set aside.
[14] As regards sentence, the learned trial judge referred to
parliament having in 1997 enacted legislation which obliged courts
to
impose heavy sentences and stated that parliament decreed ‘that
where a person is murdered in the course of a robbery,
the minimum
sentence which the courts should impose, should be life imprisonment.
It was only in cases where the courts found what
are called
substantial and compelling circumstances to be present, that the
court had a discretion not to impose life imprisonment.’
[15] Taking into account that the first and third appellants were
young men slightly over 18 years of age at the time, and the
second
appellant 17 years' and a few months but not yet 18, and that he felt
that it would be in accordance with justice for him
to give them the
opportunity of taking their places in the community again, as well as
that the second appellant by all accounts
played a very minor roll in
the offences, the learned trial judge imposed the sentences which he
did. Implicit in his reasoning
was a finding that substantial and
compelling circumstances were present which would justify a deviation
from the prescribed minimum
sentence of life imprisonment.
[16] As the legislation, being the
Criminal Law Amendment Act No 105
of 1997
imposes ‘heavy sentences for this type of offence’,
its provisions should be read restrictively and in
favorem
libertatis.
[17] The evidence does not establish that this was a murder in the
course of a robbery with aggravating circumstances.
[18] The relevant provisions in
part 1
of Schedule 2 to the
Criminal
Law Amendment Act No. 105 of 1997
in respect of which a prescribed
minimum sentence of life imprisonment would apply, read as follows:
‘
Murder,
when –
…
…
the death of the victim was
caused by the accused in committing or attempting to commit or
having committed or attempted to commit
one of the following
offences:
(i) …
(ii) robbery with aggravating
circumstances as defined in s 1 of the Criminal Procedure Act, 1977
(Act 51 of 1977);
(d) …’
[19] This was not a robbery with aggravating circumstances and
probably not yet even an attempt to commit a robbery with aggravating
circumstances. Indeed the conviction was correctly one of
contravening s 18 (2) (a) of the Riotous Assemblies Act 17 of 1956
(Conspiracy
to commit robbery with aggravating circumstances).
[20] The learned trial judge, with respect, erred in seemingly
proceeding on the basis that the prescribed minimum sentence was
one
of life imprisonment.
[21] In the light of this misdirection, this court is accordingly at
liberty to consider the issue of appropriate sentences afresh.
[22] The appropriate category within which the murder falls is part 2
of Schedule 2 to the
Criminal Law Amendment Act 105 of 1997
. In
respect of first offenders the prescribed minimum sentence is 15
years' imprisonment.
[23] The learned trial judge correctly concluded that the first and
third appellants should be treated on the same basis. Although
the
third appellant had consumed liquor which might have clouded his
judgment, he was the one who pulled the trigger. The first
appellant,
although not firing the fatal shot, provided the firearm and appeared
to have suggested the robbery at the outset. They
were both just over
18 years of age at the time. Due consideration is also given to their
age and prospects of rehabilitation.
[24] In the case of the second appellant there were the additional
mitigating considerations that he was not armed and by all accounts
played a very minor role in the offences.
[25] As against the aforesaid personal
considerations, the killing of the deceased, a mature lady, solely in
pursuit of personal
gain and greed, outweighs the youthfulness of the
first and third appellants
5
.
I am not persuaded that there are substantial and compelling
circumstances present which would justify a deviation from the
prescribed
minimum sentence of 15 years imprisonment in respect of
them. However, in respect of the second appellant consideration must
be
given to the very minor role played him, his youthfulness and the
fact that he might have been under the influence of his co-accused,
as mitigating factors justifying a lesser sentence.
[26] Although the first appellant has withdrawn his appeal, in view
of the conclusion we have arrived at in respect of the third
appellant, justice demands that in the exercise of its inherent
powers, this court also adjust the sentence in respect of the first
appellant.
[27] As the learned trial judge had done, it seems appropriate that
all the counts be taken as one, that is counts 1 to 4 in respect
of
the first and third appellants, and counts 1 and 2 in respect of the
second appellant, for the purposes of sentence.
[28] An order is accordingly granted in the following terms:
1. The appeal by the second appellant against his convictions on
counts 3 and 4 is upheld;
2. The second appellant's conviction on counts 3 and 4 is set aside
and he is found not guilty of counts 3 and 4;
3. The appeal by the second and third appellants against their
sentences is upheld;
4. The sentences of 15 years' and 20 years' respectively in respect
of the second and third appellants are set aside and substituted
with
the following:
In respect of accused 2, counts one and two are taken as one for the
purpose of sentence and he is sentenced to 10 years' imprisonment.
In respect of accused 3, his conviction on counts 1 to 4 is taken as
one for the purpose of sentence and he is sentenced to 15
years'
imprisonment;
5. In the exercise of its powers, this court directs that the
sentence of 20 years' imposed in respect of the first appellant be
set aside and substituted with one of 15 years' imprisonment.
KOEN J
MOKGOHLOA J
PLOOS VAN AMSTEL J
1
1998
(1) SACR 284
W at 286h - i
2
2003
(1) SACR 97
(SCA ) at p 114h - 115, paras [71] to [73].
3
2008
JDR 1088 (E)
4
2007
JDR 786 (T) at para [16].
5
S
v Matyityi
2011 (1) SACR 40
(SCA),