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[2009] ZAGPPHC 54
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S v Shibambo (A47/2009) [2009] ZAGPPHC 54 (15 May 2009)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN GAUTENG HIGH COURT,
PRETORIA)
Appeal no 30/04
CASE NUMBER: A47/2009
DATE: 15/05/2009
UNREPORTABLE
In the matter between:
THABO SHIBAMBO APPELLANT
AND
THE STATE
RESPONDENT
JUDGMENT
MAVUNDLA, J.
[1] The appellant, who
was dully represented at the trial court, was charged at the
Regional Court of North Regional Division
at Pretoria on one count
of robbery with aggravating circumstances, two counts of unlawful
possession of firearms and one count
of possession of ammunition and
one count of pointing a firearm.
[2] The appellant was
charged, convicted and sentenced as follows:
2.1 On count one:
robbery with aggravating circumstances (firearm used) convicted and
sentenced to 15 years imprisonment;
2.2 On count two:
pointing a firearm convicted cautioned and discharged;
2.3 On count three and
four, respectively possession of 9 millimeter parabellum and
possession of ammunition, for purposes of
sentence these two counts
taken as one and he was sentenced to 3 years imprisonment .
2.4 It was a ordered that
2 years of the 3 years must run concurrently with the sentence of 15
years.
2.4 The appellant
was declared not fit to possess a firearm.
[3] The appellant
approached this court to appeal against both conviction and sentence
after he was granted leave to appeal against
both conviction and
sentence. The grounds of appeal, I summarize them to be that the
magistrate erred in accepting the version
of the state witnesses. It
is submitted that the state witnesses contradicted themselves and or
one another. In respect of sentence
the grounds relied upon are that
the magistrate ignored the fact the appellant was a first offender,
and that complainant’s
loss was very minimal and the fact that
the appellant was not directly involved in the robbery.
[4] The appellant was
duly represented during the trial. He pleaded not guilty to all five
counts. Admission in terms of section
220 of the Act was made’
namely the date and place where the offences were committed were
admitted, but disputed the rest
of the allegations.
[5] The State’s
case is premised on the evidence of Mr. Ensamisi Andries Nukeri, the
complainant Mr. Enoch Masupye a member
of the South African Police
Serves, his sister Ms Jacobeth Masopye, inspector Preston Fanyane
Zwane; the appellant also testified
on his own defence but did not
call any witness.
[6] According Mr.
Nukeri, he stays in Atteridgeville and is employed as a police
reservist. On the 22 March 2003 he was at Madjadji
and Makaza streets
in Saulsville in Atterriddgevile waiting for the police transport to
take him to the shooting practice at Hammanskraal.
There were still
stars and streets lights. The time was about 4.30 in the morning. He
found four young men. When they were near
where he was standing,
three of these young men hurriedly approached him. When the three
came to him one of them had a firearm.
He says that the fourth person
was busy following him. The one who had a firearm instructed him to
lift his hands into the air
and instructed him to kneel. These men
started searching him. The fourth man cocked his firearm and pointed
it towards inspector
Masupye. He says that when the three we
searching him; the fourth person was also approaching him.
[7] He says that he had
with him a lunch pack, police book, and plastic ear plugs which he
was going to use at the shooting range.
He says that he could see the
firearm that these men had with them, it was a pistol.
[8] He says that he saw
inspector Masopye when he arrived at the scene. After he had been
instructed by these men who were busy
searching him, he heard a shot
being discharged. The three that were searching him ran away, taking
every thing. The fourth person
who had cocked his firearm fell with
his firearm. He says the fourth person who fell is the appellant and
he was shot on the collar
bone. He says that the value of the goods
he was robbed off could be about R70, 00.
[9] Under cross
examination he said that he was walking from South of Modjadji. He
says that the young men were walking towards
Modjadji Street on the
side of Makaza Street, walking towards him. He says that there were
street lights illuminating the area.
He could see for a distance of
about fifteen meters. He could see from that distance the colours of
what a person was wearing.
He said that at the time when he was
kneeling he was facing eastwards. He said that two of the men who
were searching him were
in front of him and the other one was behind
him. The fourth person was already close to him. He says that he kept
his eyes on
the fourth person because he was not in the company of
the other three. The reason he says that the fourth person cocked a
firearm,
is because he heard the sound of a firearm being cocked. He
did not see the firearm itself. He says that this person was about
three meters away from him at the time he heard him cocking his
firearm.
[10] Mr. Nukeri says
that inspector Masupye approached from the left hand side and the
appellant was standing on the right hand
side. Masupye came towards
the side where he Nukeri was standing. He literally saw inspector
Masupye, he did not recognize him
on his voice. He did not see who
fired the shot; he merely heard the shot being fired. He reiterated
that he heard the firearm
being cocked by the appellant and he also
saw him holding it. He says that he had an opportunity to look at the
fourth person although
the others were busy searching him.
[11] Mr. Nukeri disputed
the version of the appellant put to him that the appellant that
approaching the corner of Modjadji and
Makaza where he noticed a
group of unknown people who looked to him as if they were involved in
a fight as they were shoving one
another, and that he the appellant
waited a distance away since it was dark he could not see who these
people were. Mr. Nukeri
says that the appellant was part of the three
people who were robbing him.
[12] Inspector Masupye,
the second witness for the state testified that on the 22 March 2003
at about 5:30 he was in the company
of his sister Jacobeth on their
way where the latter was to catch her police transport to the
shooting practice. Transport point
was at corner Modjadj and Makaza
Street at Saulsville. He approached the place from northerly
direction. When he reached the corner
of direction of the Modjadj and
Makaza he noticed the first state witness with his hands in the air
and three men surrounding him
and searching him. He screamed at these
men saying that leave that man. When asked whether there was any
other person in the vicinity,
he said that there was, although he was
not aware of this fourth person. After he had screamed that they must
leave that man, another
person emerged from the dark, coming to the
scene and cocked his firearm. He says that there were street lights
in the vicinity.
When this person cocked his firearm and directed
towards him, inspector Masupye took his own firearm, cocked it and
fired one shot
at this person, directly hitting him before he could
use his firearm. He did not hear any other shot thereafter. This
person fell
and his firearm also fell. The other three men fled down
Makaza Street. He picked up the firearm and two bullets, one of which
was in the magazine.
[13] Masupye summoned
other police to the scene. The first to arrive was inspector Zwane.
He himself picked one empty shell. When
he picked the firearm from
the ground, there were two bullets, one of which was in the magazine.
He says that the firearm was a
Z88 pistol. He says that he handed
the firearm to inspector Zwane and the firearm was booked at the
police station. He says that
he picked up the firearm at the scene
while the appellant was still there. He does not know whether the
three other men had firearms
with them.
[14] Under cross
examination he was confronted with the statement he had made shortly
after the events. It was pointed out to him
that in the statement he
said that the three men one of them had a firearm. When asked to
describe the firearm these men had he
said that he could not remember
it. He says that Zwane picked up one shell. Asked whether Zwane
picked any other thing he says
that it was only the bullet and the
firearm. He says further that he made the firearm safe and wrote its
serial number Q004870.
The firearm was a one millimeter parabellum
caliber vekta model Z88 semi-automatic. He was shown exhibit A which
he confirmed to
be the same firearm he had picked up at the scene. He
said that the person he had shot was struck on the collar bone
“halslyn”
on the right in front. He says that he is
unable to give a discretion of the firearm the three had because they
ran away scattering
in different directions.
[15] He said that
according to his observation the three men and the fourth person he
shot were all together. The reason for this
induction is because when
he screamed at the three to leave Andries, the fourth person emerged
and cocked his firearm. One of the
fleeing people went to stand about
20 meters and looked back, when the fourth person fell, he himself
then pointed his firearm
towards this person who then resumed running
away. He says that the person he shot is the appellant.
[16] When asked by the
court, he says that the appellant when he saw him for the first time
emerging from the darkness he was in
the middle of the road about ten
meters from him. The court estimated the distance the witness pointed
out in court to be about
fifteen meters. He further said that the
fourth person came alone from his own direction towards where Andries
and the other three
were. The proceedings were then adjourned to
another day as the result of time constrains.
[17] When the proceedings
resumed, inspector Masupye was further cross examined. He said that
the first thing he observed on his
arrival at the scene was that
Andries was being searched by three boys. He reiterated that he
screamed at these three to leave
that man and another person emerged
from the dark and cocked his firearm. He says that he specifically
saw this person cocking
his firearm. He could have been between
fifteen meters way from him. He could see him clearly. He reiterated
his answer he had
given when asked by the court, that he says that
this person was part of the group of three because he emerged from
the dark and
cocked his firearm. This person did not fire a shot, but
had pointed his firearm towards him. When asked how many bullets were
lying on the ground when he examined the firearm, he said that there
were two, one on the ground and one in the magazine. The version
of
the appellant put to him was that he was coming from a night vigil
walking home and he stopped when he saw a group of people
who were
fighting and he suddenly heard a shot being fired from the direction
of the group and was not part of the group. Inspector
Masupye insists
that the appellant was part of the group of three. He reiterated
that he saw that one of the three men had a firearm
after he had
already fired a shot and when they were running away. He denied that
there were several shots fired. He insists that
the appellant was
struck by the single shot he fired. He further explained that the
appellant had come from the dark into the light
that is when he saw
him cocking his firearm. When it was again put to him that the
appellant says that he was not part of the group,
he said he is not
certain whether he was part of the group but he had cocked his
firearm and pointed it towards him.
[18] Ms Jacobeth Masupye
was then called. She confirmed that she was with his brother, the
previous witness walking along Modjadji
Street approaching Makaza
Street, where they had agreed with Nukeri to meet for their transport
to the shooting practice. Before
they could arrive where Nukeri was
standing they saw three boys approaching him. One of them was behind
them, this was the fourth.
“The one who was coming from behind
these three, people, when he arrived where these three people were
busy searching Nukeri,
he cocked a firearm.” She could hear
the sound of a firearm being cocked. Her brother managed to draw his
firearm and managed
to fire a shot. She says that she heard only one
shot. She says further that they took the firearm which the appellant
had with
him and they ran with it towards Hlakola Street. When they
arrived at Hlakola Street they found their transport having arrived.
They got into their transport and went back to the scene and the
driver advised them to phone the police. They did phone the police
as
well as the ambulance. The firearm was handed to the police; it was a
Z88.She says that there were streets lights in the vicinity
of the
scene. She says when the fourth person, who is the appellant, he was
about five and a half to six meters from the group
of three and
Nukeri. She says that because she saw one of the three people who
ran away having a firearm, she thought that the
appellant was part of
them, coupled with the fact that after her brother had shot at the
appellant they ran away. She says that
her brother had shouted at the
three “What are you doing to these people?” She says that
her brother uttered these
words after the appellant had cocked his
firearm. And he was holding it in his hands. She said that where they
had to get their
transport, it was two blocks further away from the
scene. On arrival at the place where they had to get their transport,
they had
to drive back to the crime scene. The appellant who had been
shot by her brother was still there. For purposes of this appeal,
for the reasons that will follow herein below, I deem it not
necessary to chronicle the rest of this witness’ evidence under
cross examination.
[19] Inspector Zwane was
then called by the state. He confirmed that he is an inspector in the
South African police services stationed
at Atteredigville and was
on duty on Friday 21 March 2003 and on extended duty until early
morning of Saturday 22 March 2003
when he received a radio call about
an incident at corner Makaza and Modjadji Street in Atteridgeville.
He proceeded to where the
incident occurred, where he found inspector
Masupye as well as his sister and Andries Nukeri. He also found the
appellant with
a firearm wound on the side of the neck, bleeding and
lying on the ground. The appellant at that moment could not give his
name.
Paramedics were busy with him. Both the Masupye and Niukeri
made a statement to him. At the scene he also found caption Monkwe,
the driver of the police transport to go to shooting range. He says
that he picked up one nine milliliter cartridge near the place
where
inspector Masupye had fired a shot. He also picked up one live
ammunition on the side where the person who was shot was lying.
He
says that inspector Masupye gave him a nine millimeter Z88 pistol,
but another captain who was at scene took it from him. He
says that
he found two live bullets in this firearm. He says all in all there
were three live ammunition, the two live rounds and
the firearm were
given to him and he picked one. These were subsequently handed in at
Attridgeville police station under entry
210 and made SAP13. He says
that Inspector Masupye gave him the two live ones, which were inside
the magazine which was in the
firearm. The one he says that he found
next to where the appellant was lying. He says that he did not see
inspector Masupye picking
up the firearm, but the latter gave it to
him. He says that the firearm of Masupye and the other one that was
picked up are both
nine milimeters He says that inspector Masupye
handed him the firearm with his hand. He says that the empty shell
which he found
was next to the stop sign board opposite where the
victim was lying and that is opposite where Masupye was standing,
which was
a distance of about fifteen to twenty meters across the
street. That concluded the evidence of the State.
[20] Inspector Enock
Masupye was recalled to the witness box. The defence did not object
thereto. The inspector confirmed that he
was not seated in court
during the testimony of his sister, Jacobeth Masupye, nor did he
discuss the case with her. He said that
after the shot he picked up
the firearm of the appellant and waited at scene with the firearm. He
said that the transport that
was supposed to pick up Nukeri at corner
Makaza and Madjadji Street where the incident happened. He says that
his sister ran away,
to a church nearby after the shooting. He
further said that it is not correct that they left the appellant at
the scene and went
away to Masupye Street. He said that the firearm
he picked it up and it was not on the ground until the police arrived
at the scene.
[21] The appellant was
called to testify in his own defence. He was asked in chief to
explain what transpired on 22 March 2003 at
the corner of Madjadji
and Makaza strets at about 4: 30 in the morning. The appellant said
that on that particular morning it was
a Friday and he was coming
from college and going to his home. He said that he had attended a
night vigil that Friday night. He
says that he was walking along
Madjadji Street in the direction of Makaza Street. He noticed a group
of persons and it seemed that
they were pushing one another; he does
not know whether these people were fighting with one another. He says
that from a distance
he stopped to see whether he could walk past the
fighting people. He then heard a gun shot. He says that he had to run
back towards
where he had come from but he could not and fell. He
regained his conscience at hospital some three days after. He says
that Modjadji
and Makaza streets form a T-junction. He could not make
out whether the group of people he saw at the corner what they were
doing.
He says that he could not identify the group. He thinks that
there were three shots fired. He says that when he heard the first
shot, he started running and it kept on fire ring and that is when he
fell. He says that he knows nothing about the three and the
fourth
person. He further said under chief that he knows nothing about a
firearm. He denies that he had with him a Z88 firearm.
He further
says that it was dark on that morning. He says that he did not speak
to any person at the scene of this incident.
[22] Under cross
examination the appellant said that there was a street light in the
vicinity, although he could not see the people
fighting as the result
of the distance where he was standing. He said that he was about 25
to 30 meters away from the group. He
says that the group could have
been between 7 and 8. He says that the group could not have been
between 3 and 4 people. He said
that the group looked like people
pushing one another. He says that only two people pushed each other
and the other two merely
followed the people who were pushing each
other. He says that when he saw these people pushing each other he
decided to stop because
he realized that there was something terrible
about happen, and he then heard a shot (page 73 line) He says that he
could not see
the faces of those people. He says that he did not hear
the sound of a firearm being cocked. He also contradicts himself by
saying
that he grew in that vicinity and he did not expect any
trouble. He then says that not far from the scene there is a tavern
and
when people are drunk there is always a fight.
[23] It was put to him
that his attorney never put to the state witnesses that he did not
have any weapon. The appellant responded
by saying that he knows
nothing about a firearm. The appellant further said that he was from
a night vigil of an old friend of
his, by the name of Leslie Sithole,
at Hlakola Street. He said that it could have taken about 15 minutes
walking from Hlakola to
the corner of Modjadji and Makaza streets. He
said that he left from the night vigil at something past 4:00. It was
put to the
appellant that if the distance from the night vigil to the
corner where the incident happened takes 15 minutes, it would mean
that
he must have been at the intersection at about 4:10. The
appellant said that he could have been at the intersection at about
between
4: 20, 26 or
5: 30. It was pointed
put to him that the incident took place at 4: 00, he then said that
he did not have a watch with him.
[24] The appellant
pointed to the court the location of the entry bullet wound in front
on the right side of the neck a centimeter
above the collar bone and
about three centimeter left of the middle line and the exit point
above the left bladder above the shoulder
head. He conceded that with
the location of his wounds he must have been shot from. He concedes
that he was not shot from behind.
He says that he thought that the
shot came from the group of people. He says that there was no one
near him and behind him when
he was shot. He said that he run away
for a distance of about four, five to six meters when he heard the
first shot and then fell.
He says that with the first shot that was
when he began turning and with the second and third shots he had
already turned and ran
about two to three meters. He says that he
knows nothing about the firearm.
To the court’s
question he said that with the first shot the people were still
pushing. He could not give any explanation
why the people who were
fighting were not shot but him.
[25] The court
appreciated the fact that there were contradictions on the part of
the state witnesses; in particular Ms Jacobeth
who it found was not a
good witness. The court did not accept her evidence that the
appellant was left alone on the scene while
inspector Masupye and
Jacobeth ran to another block of the street. The court had regard to
the fact that there was no reason for
the police to run away; it
rejected the evidence of Jacobeth, in that regard. The court found
inspectors Masupye and Zwane to be
good witnesses and accepted their
evidence. The court found that the evidence shows that there was only
one empty shell found where
the inspector Masupye shot and that there
were two live ammunition found at the vicinity where the appellant
had fallen. The court
found that there was one live ammunition found
where the appellant had fallen and it accepted that that ammunition
most probably
fell out of the appellant’s firearm when he was
cocking it. The court found that it is highly improbable that
inspector Zwane
would shoot at an innocent bystander and not at the
culprits who were busy robbing his colleague. The court found that
the appellant
was part of the group who were robbing inspector
Masupye although he did not directly participate in the robbery. The
court held
that once the appellant cocked his firearm when inspector
Masupye shouted at the three culprits, he directly associated himself
with their misdeed. The court proceeded to find the appellant guilty
of the count of robbery, the count of possession of the firearm
Z88
and ammunition and the count of pointing a firearm. The court was not
satisfied with the count of possession of the other firearm,
because
there was no evidence that the appellant was aware that the other
three were armed with a firearm. In so far as the pointing.
[26] In the matter of S
v Francis
1991 (1) SACR 198
(a) at 198j- 199a et 204a-e, the
approach to an appeal is setout as follows:
“The power of a
Court of Appeal to interfere with the finding of fact of a trial
Court is limited. In the absence of any
misdirection the trial
Court’s conclusion, including its acceptance of a witness’
evidence is presumed to be correct.
In order to succeed on appeal the
appellant must therefore convince the Court of appeal on adequate
grounds that the trial Court
was wrong in accepting the witness’
evidence-a reasonable doubt will not suffice to justify interference
with its findings.
Bearing in mind the advantage which a trial Court
has of seeing, hearing and appraising a witness, it is only in
exceptional cases
that the Court of appeal will be entitled to
interfere with a trial Court’s evaluation of oral testimony”.
[27] In the matter of S
v Hadebe and others
1997 (2) SACR 641
(SCA) at 645E-F it was decided
that:
“…
in
the absence of demonstrable and material misdirection by the trial
Court, its finding of fact are presumed to be correct and
will only
be disregarded if the recorded evidence shows them to be clearly
wrong” Vide also R v Dhlumayo and another
1948 (2) SA 677
(A).
[28] On behalf of the
appellant it is submitted that the contradictions between the
evidence of Masupye and Zwane are such that
the court should not
have found that they are honest and reliable witnesses.
[29] Inspector Masupye
when asked whether the three persons were armed, he said that he
could not see whether they were armed (page
20 lines 20-24). In his
statement which he conceded that he made it whilst the events were
still fresh, he said that one of these
people had a firearm, although
he could not describe the firearm (page 21 lines 14-18). At page 31,
after he had refreshed his
memory through looking at his statement,
he said that after he had fired a shot, when they were running away
he could see one holding
a firearm.
In my view, this
contradiction on this aspect shows that the inspector testified from
memory and without having accessed his statement.
I assume that his
statement was made in March 2003. The trial was heard in April 2004.
It does not seem to me that inspector Masupye
deliberately mislead
the court in that regard. As correctly stated in
S
v Mokhele
1990 (1) SACR 95
(A) 98F that:
“
Contradictions
per se
do not lead to the rejection of a witness’s evidence, they may
simply be indicative of an error. Not every error made by
a witness
affects his credibility: in each case the trier of fact has to make
evaluation, taking into account such matters as the
nature of the
contradictions, their number and importance, and their bearing on the
other witness’s evidence.”
[30] Inspector Masupye
testified that he picked up an empty shell and one live ammunition.
They picked the firearm and it had one
bullet which it seemed to him
that it fell when the firearm was cocked (page 19 lines 4-15).
Inspector Zwane said that he picked
one cartridge near the place at
the stop sign where Masupye told him he was standing when he fired.
He also picked up a live bullet
on the side where the person who was
shot was lying. (Page 54 lines 3-7 and 13-14 respectively.
[31] Much was said about
the contradictions between the evidence of inspector Masupye and
Zwane, in particular the amount of live
bullets that were picked up
at the scene. Inspector said that there was only one live bullet
picked up, whereas inspector Zwane
said that he was handed three live
ammunition. Again, in my view, this discrepancy can be attributed to
the fact the witnesses
testified long after the event and also that
one of them made an error in regard the number of live bullets found.
[32] In casu, there is
only one empty shell that was picked up from the scene, particular
where Mr. Masupye was standing when he
fired. The only shot fired
struck the appellant. The appellant does not say that there was any
shot directed towards the fleeing
people. The improbability of the
version of the appellant that he was not part of the group and that
there was no reason why he
was shot, lies in the very fact that he
was neither a threat to Nukeri nor to Mr. Masupye. There was no
reason at all, according
to this version, for inspector Masupye to
shoot at the appellant and not at the three persons robbing his
colleague Nukeri.
[33] On the other hand
inspector Masupye testified that he saw saw three people around and
searching his colleague Mr. Nukeri.
Inspector Masupye further said
that he heard the appellant cocking his firearm and saw him pointing
it towards him (Masuoye). Inspector
Masupye further says that he then
pulled his firearm, cocked it and shot at the appellant.
[34] It has been quite
correctly pointed out in
Mattioda
1973 (1) PH H 24 (N) that: “The proper approach in a criminal
trial is to consider the totality of the evidence, that is
to say, to
examine the nature of the state case, the nature of the defence case,
the probabilities emerging from the case as a
whole, the credibility
of all witnesses in the case, including the defence witnesses, and
then to ask oneself, at the end of all
this, whether the guilt of the
accused has been established beyond a reasonable doubt. It is not a
proper approach to hold that,
because a court finds that the State
witnesses have given evidence in a satisfactory manner ergo the
defence evidence must be rejected
as false.”; vide
Mgedezi
1989 (1) SA 687
(A) and
Makobe
1991 (2) SACR 456(W).
The court must evaluate the totality of the
evidence before it; vide S v Jochem
1991 (1) SACR 208
A at 211 i-j.’
[35]
S
v Makobe
1991 (2) SACR (W) at 460i-j Zulman, as he then was said:
“The test is, and
remains, whether there is a reasonable possibility that the
appellant’s evidence may be true. In
applying that test one
must also remember that the court does not have to believe her story;
still less has it to believe it in
all its details. It is sufficient
if it thinks there is a reasonable possibility that it may be
substantially true (
R
v M
1946 AD 1032
at 1027.)”
[36] If the version of
the appellant is true, it would mean that Masupye decided to ignore
his friend who was at that point in time
being robbed and threatened.
Masupye would then have directed his shot towards the appellant who
was in no way a threat to either
Nukeri nor Masupye himself. This
version of the appellant, is in my view not reasonably possibly true,
having regard to the inherent
improbability in it and it must be
rejected as falls.
[37] On the other hand,
Masupye is being corroborated by the appellant himself that there
were people who were pushing one another.
Masupye says that there
were three people around Mr. Nukeri. His attention after he had
shouted to these three youths to leave
his colleague, was diverted to
the sound of a firearm that being by the person who emerged from the
dark. This person who emerged
cocked his firearm and pointed it
towards Masupye, who in turn drew his firearm, cocked it and fired it
at this person.
[38] This version of
Masupye is in my view more realistic than that of the appellant and
is reasonably possibly true. At that point
in time, Masupye was being
pointed with a firearm. He had not as yet seen any weapon on the
people who were searching Mr.Nukeri.
He shot once at this person
pointing at him with the firearm. His life was, in my view, placed in
danger that he had no option
but to shoot the appellant.
[39] I am of the view
that the version of the appellant is not only improbably but it is
beyond any reasonable doubt false, and
needs to be rejected, as I do;
vide Makobe case (supra) at 460d-h.
[40] The three youths
were in the process of robbing Mr. Nukeri. Masupye shouts these
youths to leave Mr. Nukeri. The appellant
emerges and pulls a firearm
and points it at inspector Masupye. In my view, the inference to be
made is that he intended to stop
Masuype at his tracks from foiling
the robbery that was in progress.
[41]
In
S v Motaung
and Others
[1990] ZASCA 75
;
1990 (4) SA 485
at 510F-511A the Appellate Court said:
“The net of common
purpose will enmesh only an accused who consciously recognizes that
his mind and that of the actual perpetrator
are directed towards the
achievement of a common goal. In this connection Botha JA remarked at
712B-C:
‘
Inherent in the
concept of imputing to an accused the act of another on the basis
of common purposes is the indispensable notion
of an act in concert.
From the point of view of the accused, the common purpose must which
is merely coincidentally and independently
the same in the case of
the perpetrator of the deed and the accused is not sufficient to
render the latter liable for the act of
the former.’
The
practical implications of the principle enunciated in the passage
quoted above are indicated in the judgment in
Mgedeza
case. At 705H-706B Botha JA stated:
‘
In
the absence of proof of a prior agreement, accused N 6 who was not
shown to have contributed causally to the killing or wounding
of the
occupants of the room 12, can be held liable for those events, on the
basis of the decision in
S v
Sefatsa
and
Others… only if
certain prerequisites are satisfied. In the first pace, he must have
been present at the scene where the
violence was being committed.
Secondly, he must have been aware of the assault of the inmates in
room 12. Thirdly he must have
intended to make common cause with
those who were actually perpetrating the assault. Fourthly he must
have manifested sharing of
a common purpose with the perpetrators of
the assault by himself performing some act of association with the
conduct of the others.
Fifthly, he must have had the requisite
mens
reas , so, in respect of the killing of the deceased, he must have
intended them to be killed, or must have foreseen the possibility
of
their being killed and performed his own act of association with
recklessness as to whether or not death was to ensue.”
[42] The appellant
emerged from the dark and pointed his firearm at Masupye, while the
three youths were robbing Mr. Nukeri. When
Masupye tried to
intervene, the appellant pointed his firearm at Masupye. In my view,
the pointing of the firearm, must have been
done with a singular
purposes, to stop Masuype in foiling the robbery which was in
progress.
[43] The incident
happened in the early hours of the morning. In my view, from the
circumstances of the case, it can be inferred
that the appellant and
the three youths had at one or other stage planned that they would
commit an act such as robbery. The appellant
knew and in fact was
aware what was happening around Mr. Nukeri, otherwise he would not
have pulled his firearm and directed it
at Masupye. In my view, his
conduct manifested his intention to associate himself with the
robbery. By pointing his firearm at
Masupye he must have had a
singular intention to stop him on is tracks so that the robbery can
be eventuated. This conviction
is premised on the evidence of Mr.
Nukeri and Mr. Mosupye. I have already earlier referred to the fact
that whatever discrepancies
there is with regard to these witnesses,
that doe not mean that their evidence must therefore be rejected. I
have pointed out
that whatever discrepancies there may be these can
be attributed to the fact they testified a year after the incident.
The magistrate
found these two witnesses to be reliable. A court of
appeal will not interfere with credibility finds of the magistrate,
unless
there are demonstrable and material differences that do not
fit in to the entire matrix of the evidence lead.
[44] Mr. Masupye’s
evidence that the appellant pointed him with a firearm is
corroborated by inspector Zwane who says that
around the scene where
Mr. Masupye fired a shot, he found an empty shell. He received the
Z88 9milimetre firearm from Mr Masupye.
Mr. Masupye has testified
that he picked the said firearm next to where the appellant had
fallen. The criticism that there was
no evidence on gun powder
residual on the fingers of the appellant produced by the State, is in
my view ill conceived. The State
does not have to close every
speculative noose in its case to achieve a conviction.
[45] There is exhibit A
which was admitted in terms of section 212 (4A). This is the
affidavit of captain Swelabo where in he says
that he is a captain
in the South African Police Service and attached at the ballistic
Unit of the Forensic Laboratory and tested
the said Z88 firearm. He
says that he has received training in forensic ballistic training. He
conducted test on a
9 millimeter
Parrabellum caliber Vektor model Z88 semi-automatic pistol with
serial number Q004870. He found that this firearm
was in a working
condition and its trigger pressure was normal and it was a single
action when its hammer is in rear position and
double action with the
hammer in forward position. He found the firearm to be self loading.
[46] I am of the view
that the magistrate quite correctly found that the appellant was in
possession of this Z88 9mm pistol. It
is in my view, of no
consequence that there are some contradictions in the evidence of
inspector Zwane who said that he was handed
two live ammunition where
the appellant was found lying. On the other hand, inspector Masupye
said that and that of inspector Masupye
who says that he found one
live ammunition. This court need not speculate, as it was invited to,
as to how it came about that the
firearm of the appellant could have
disgorged out of the chamber, be it one or more bullet(s) and to draw
conclusion that it is
not possible that when the appellant cocked his
firearm that there could have been still a bullet in magazine. The
court is confined
to the four corners of the record. There was no
expert evidence led as to what could have or not happened when the
firearm was
cocked and also as to how the bullets are fed into the
chamber from the magazine.
[47] For purposes of this
case, I am satisfied that the magistrate quite correctly convicted
the appellant on the possession of
the ZC 88 firearm and the
ammunition that were found next to where the appellant had fallen
after he had been shot. The evidence
proves that this firearm was in
a working condition. This evidence was accepted by the magistrate. It
cannot therefore, on the
speculative evidence given over the bar be
said that it has not been proved that the firearm was not in a
working condition. Also
the exact quantity of the bullets found next
to where the appellant was found, is of no consequence with regard to
the conviction
of possession of ammunition, one or two qualifies that
the appellant be found guilty on this count of possession of
ammunition.
[48] The magistrate quite
correctly, in my view, acquitted the appellant on count 5, of
possession of the pistol which was dropped
by the fleeing persons,
since it could not be proved that the appellant knew about this
firearm and that it was going to be used
in the robbery.
[49] In the result I am
satisfied that there was no misdirection on the part of the
magistrate in accepting the evidence of the
State and rejecting that
of the appellant. I am also of the view that the magistrate quite
correctly found the appellant guilty
on count 1, count 2, count 3 and
count 4 and the convictions on these counts should be confirmed.
[50] With regard to
sentence, in respect of possession of the firearm and the ammunition,
I do not intend to discuss those sentences,
since there was no
submission made in that regard. Besides, it cannot be said that those
sentences are shockingly inappropriate.
I shall address myself in
respect of the sentence of 15 years that was imposed on count 1 of
robbery.
[51] It brooks no
argument that count 1 of robbery falls squarely within the ambit of
the Minimum Sentence Act. The appellant was
according to the charge
sheet 22 years old at the time of arrest and 23 at the time of
sentence. The highest standard the appellant
passed at school is
standard 9. He was a first offender. He sustained gunshot injury
during the commission of the offences.
[52] It was submitted on
behalf of the appellant that his personal circumstances I have
referred to herein above, are such that
the magistrate should have
found that there were substantial and compelling circumstances and
that magistrate should have exercised
his discretion and imposed a
lesser sentence that the minimum sentence of 15 years.
[53] Criminals who
sustain injuries during their unlawful escaped must accept such
injuries as perennial occupational hazards of
their chosen unlawful
escaped. It does not follow that any injuries sustained in such
circumstances, as in casu, automatically
qualifies them to be treated
differently. However, the court in deciding whether there exists
substantial and compelling circumstances
entitling the court to
depart from imposing the minimum sentence, must still put on the
balancing scale that very fact of injuries,
consider it together with
all relevant fact in that particular case.
[54] The appellant did
not get any financial benefit out of this robbery. The items robbed
were a lunch pack, police book, and plastic
ear plugs that were to be
used at the shooting range. All these items were estimated by Mr.
Nukeri to be worth R70, 00. It does
not seem that the magistrate
paid any attention to this fact. I must hasten to say that the value
of the loot in robbery, is not
per se a major consideration. It
cannot however, be ignored.
[55] The prospect of
rehabilitation is a major consideration, vide
S v M
1994 (2) SACR 24.
The
magistrate was wrong in his approach by adopting a simplistic
approach and stating that in his view, the personal circumstances
of the appellant are not substantial and compelling circumstances,
without applying his mind on the rehabilitation prospects of
the
appellant, especially having regard to his age. I am of the view that
the magistrate misdirected himself in finding that there
were no
substantial and compelling circumstances in this matter.
[56] The fact that the
appellant was shot and spent some time at the hospital, coupled with
the fact that at his age, there is
a good prospect of rehabilitation
gleaned from the fact he is a first offender, as well as the value of
R70 and involved in the
robbery, taken together these facts qualify
to be regarded as substantial and compelling circumstances. In my
view the magistrate
misdirected himself on the aspect of substantial
circumstances and therefore this court is entitled to interfere with
the sentence
of 15 years imposed.
[57] I am of the view
that the sentence of 15 years in the circumstances of this case
should be set aside and substituted with the
sentence herein below.
As I have stated herein above, there is no need to interfere in the
sentence imposed on counts 2, 3 and
4. For purposes of convenience,
I shall herein below make an order that the magistrate should have
given.
[58] In the result I make
the following order:
1. That the
conviction on counts 1, 2, 3 and 4 are confirmed;
2. That the sentences
imposed on counts 2, 3 and 4 are confirmed;
3. That the sentence of
15 years imprisonment on count 1 is set aside and substituted as set
herein below:
“1. that on count
1: The accused is sentenced to eight
(8)
Years imprisonment;
2. That count 3 and
4, possession of firearm and
Ammunition
is for purposes of sentence taken as
one. The
appellant is sentenced to three (3) years
imprisonment.
3. That it is
ordered that two (2) years of the three years
imprisonment
to run concurrently with the sentence in
count 1.
4. That the
accused is declared unfit to possess a
firearm”
HEARD :
04 MAY 2009
DELIVERED: 15 MAY 2009
N. M. MAVUNDLA
JUDGE OF THE COURT
I AGREE
T. PHALANE
ACTING JUDGE OF THE COURT