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[2009] ZAGPJHC 71
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Mukwevho v S (A452/09) [2009] ZAGPJHC 71; 2010 (1) SACR 349 (GSJ) (7 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE
No. A452/09
REPORTABLE
In
the appeal between:
EMMANUEL
MUKWEVHO
Appellant
and
THE
STATE
____________________________________________________________
JUDGMENT
____________________________________________________________
WILLIS
J:
[1]
The appellant appeals against conviction, but not sentence, with the
leave of the court
a
quo
.
Obviously, if the appeal against conviction succeeds, the sentence
falls away. The appellant was arraigned before the Regional
Court in
Soweto. He was charged with one count of unlawful possession of a
firearm and a further count of unlawful possession
of ammunition.
Count one (the count of unlawful possession of a firearm) reads as
follows:
POSSESSION OF A
FIREARM
That
the accused is guilty of the offence of contravening the provisions
of Section 3 read with Sections 1, 103, 117, 120(1) (a),
Section 121
read with Schedule 4 and
Section 151
of the
Firearms Control Act, No.
60 of 2000
, and further read with
Section 250
of the
Criminal
Procedure Act, No. 51 of 1977
- Possession of a firearm (read with
Section 51
of the
Criminal Law Amendment Act, No. 105 of 1997
)
In
that on or about 07/04/2008 and at or near Kempton Park in the
Regional Division of Gauteng, the accused did unlawfully have
in his
possession of the following firearm, to wit
9mm
Parabellum Calibre Norinco Model 201 C Semi-automatic
without
holding a licence, permit or authorization issued in terms of the Act
to possess that firearm.
Count two (the
count of unlawful possession of ammunition) reads as follows:
POSSESSION OF
AMMUNITION
That
the accused is guilty of the offence of contravening the provisions
of
Section 90
read with
Sections 1
,
103
,
117
,
120
(1) (a),
Section 121
read with Schedule 4 and
Section 151
of the
Firearms Control Act,
No.60 of 2000
, and further read with
Section 250
of the
Criminal
Procedure Act, No. 51 of 19977
- Possession of ammunition (read with
Section 51
of the
Criminal Law Amendment Act, No. 105 of 1997
)
In
that on or about 07/04/2008 and at or near Kempton Park in the
Regional Division of Gauteng, the accused did unlawfully have
in his
ammunition (
sic
- i.e. the word “possession” was omitted) to wit
4
(9mm) cartridges
without
being the holder of
a
licence in respect of a firearm capable of discharging that
ammunition;
permit
to possess ammunition;
a
dealer’s licence, manufacturer’s licence, gunsmith’s
licence, import, export or in-transit permit or transporter’s
permit issued in terms of this Act;
or
is otherwise authorized to do so.
The
appellant, who had the benefit of an advocate representing him,
pleaded not guilty in respect of both counts. The appellant’s
counsel advised in respect of the plea explanation given at the
beginning of the trial that the appellant “will exercise
his
constitutional right to remain silent”. The appellant was
convicted on both counts on 5 January 2009. In terms of
section 51
(2) (a) (i) of the
Criminal Law Amendment Act, No 105 of 1997
, read
with
part II
of Schedule 2 thereof, a first offender (as the
appellant indeed was) who is convicted of possession of a
semi-automatic firearm
is liable to be sentenced to a minimum of 15
years’ imprisonment, unless, in terms of
section 51(3)
thereof
the court is satisfied that “substantial and compelling
circumstances exist which justify the imposition of a lesser
sentence”. On the same day as conviction, the learned
magistrate imposed a sentence of 15 years’ imprisonment in
respect
of count one and five years in respect of count two. He
ordered the sentences to run concurrently. The effective sentence is
therefore
15 years. It may be appropriate to mention at this stage
that the appellant gave no evidence whatsoever in respect of either
conviction
or sentence. His counsel applied for a discharge in terms
of
section 174
of the
Criminal Procedure Act, No. 51 of 1977
, as
amended. This application was dismissed. The appellant was 24 years
of age at the time.
[2]
Constable Tshabalala testified that, acting on information, he and
Sergeant Mujapiwe, who were on patrol at the time, went to
the home
of the accused in Kempton Park on 7 April 2008. The appellant was
sleeping at the time. He was searched by Tshabalala
and a firearm was
found between his body and his trousers. There was no holster.
Tshabalala asked the appellant if he had a licence
to posses this
firearm but the appellant failed to produce any such licence. In the
firearm were four rounds of ammunition. Having
confiscated the
firearm and arrested the appellant, Constable Tshabalala put the
firearm and ammunition in a sealed plastic bag
and booked it in the
“SAP 13” (the register of items seized by the police
during investigations). The “SAP 13”
number of the entry
was 307/08. The forensic bag’s number was written in his diary
or “pocket book”. He says
this number was not recorded
elsewhere (this appears to mean that the forensic bag number was not
recorded in the SAP 13). The
docket has no record of the seal number
of the forensic bag. The serial number of the firearm was recorded by
him in the “SAP
14” and his diary. Neither the “SAP
14” nor the diary was not produced in evidence. No evidence was
led as what
either the “SAP 13” or “SAP 14”
are or were. The “SAP 13” is common knowledge to this
court
at least and, in any event, one can infer what it is from the
evidence. Constable Tshabalala describes the firearm as a “
L
orinco”
whereas the charge sheet refers to a “
N
orinco”.
The difference may not be a mere error of spelling or pronunciation.
As far as I have been able to ascertain, a Lorinco
is a different
type of firearm from a Norinco. This difference, as will appear more
fully later on, may not be unimportant.
[3]
Sergeant Mujapiwe confirmed the evidence of Constable Tshabalala.
Constable Majela confirmed that a 9mm Lorinco pistol with
cartridges
had been booked in the “SAP 13” under number 307/08.
These were in a sealed forensic bag. The sealed forensic
bag had
number FSE340218. Constable Majela refreshed his memory from his
statement. The serial number of the firearm was recorded
as 49108772.
According to Majela, this serial number was written in the “SAP
13”. He took the sealed bag to the forensics
laboratory and
there he handed it over. Majela says that the seal number of the
forensic bag was recorded in the “SAP 13”
(this is
contrary to the evidence of Tshabalala).
[4]
The report of the forensic ballistics expert Cindy Maria Silva
Bekarees was handed in terms of
section 212
of the
Criminal Procedure
Act. She
confirms that she opened this sealed bag, that it contained
a firearm having this serial number as well as the cartridges. She
described the firearm as a “9 mm Parabellum Calibre Lorinco 201
C semi-automatic pistol”. The State then closed its
case. As
has been recorded above, the appellant then unsuccessfully applied
for a discharge. Thereafter, he closed his case without
leading any
evidence.
[5]
In
section 1
of the
Firearms Control Act, No.60 of 2000
,
“semi-automatic” is defined as meaning “self-loading
but not capable of discharging more than one shot with
a single
depression of the trigger”. No evidence was led in this
regard. The appellant was at the risk of receiving a severe
minimum
sentence if convicted as charged. In
S
v Nziyane
1
Botha J, with Du Plessis J concurring, held, when referring to the
provisions of
section 51
of the
Criminal Law Amendment Act, No. 105
of 1997
, insofar as they relate to the minimum sentence for
possession of an unlicensed semi-automatic firearm, that:
Die
woorde dra na my mening die betekenis oor die feite wat aanwesig moet
wees om die minimum vonnis verpligtend te maak by skulgigbevinding
moet vassstaan in die sin dat dit inbegrepe moet wees in die feite
waarop die skuldigbevinding gegrond is.
In
other words, in order to attract the prescribed minimum sentence, all
the necessary elements must be proven at the stage of conviction,
including the fact that the weapon in question was a semi-automatic
one. In this case, questions arise not only whether the appellant
was
in unlicensed possession of a firearm and ammunition but also whether
the firearm was the one described in the charge and whether
it was a
semi-automatic one. There is also the question of
mens
rea
to which I shall refer separately at a later stage.
[6]
The sealed bag is indeed linked to the “SAP 13” number
307/08, the entry made by Constable Tshabalala. None of
the
following were, however, tendered as evidence: the diary, the record
of the “SAP 13” entries or the “SAP
14”.
There was no explanation for the absence. Not even copies thereof
were produced to the court
a
quo
.
The content of these documents was directly in issue. In the absence
of an acceptable explanation for the unavailability of the
original
document, no evidence is ordinarily admissible to prove the contents
thereof except the original document itself.
2
This is the so-called “best evidence” rule. This rule
has not escaped criticism as a relic from the Dark Ages, before
the
advent of photocopying machines.
3
Nevertheless, in my opinion, in the absence of a suitable explanation
these documents should have been produced in order for the
defence to
cross-examine to test the veracity and accuracy of the information
allegedly recorded therein, more especially as there
are differences
between Tshabalala and Majela’s evidence of what was recorded
in those documents.
[7]
Furthermore, the learned magistrate disallowed the defence counsel’s
request that Tshabalala’s allegedly inconsistent
previous
statement be handed in as an exhibit. He also disallowed the handing
in of Constable Majela’s statement. In my opinion,
the learned
magistrate erred in both respects. Then there is the issue that the
charge alleges the firearm was a “Norinco”
but the
evidence was that it was a “Lorinco” – and these
may indeed be different kinds of firearm.
[8] A
few observations in regard to whether the firearm in question was a
“Norinco” or a “Lorinco” may be
apposite. The
State is bound by the charge and a variance between what is alleged
and what is proven can result in the setting
aside of the
conviction
4
.
The critical test is one of
prejudice
.
In
R
v Bruins
5
Tindall JA said:
Under
the circumstances it seems to me that in a case like the present,
where, though the
nomen
criminis
is the same, the particulars of the offence of which the accused has
been convicted are entirely different from those alleged in
the
charge, the accused has been prejudiced.
During
the course of this term, Farber AJ and I had to consider an appeal in
a case which involved the robbery, with aggravating
circumstances, of
a motor vehicle. We were confronted with a situation in which the
description of the motor vehicle in which the
suspects were
apprehended was materially different from that alleged in the charge
sheet. The complainant’s evidence correlated
with the
information in the charge sheet. The police evidence did not. There
was no identification of the suspects at the scene
of the crime at
the time when the crime was committed. We felt obliged to intervene
to acquit. I accept that there is a qualitative
difference between a
misdescription of a firearm in respect of which an accused person is
alleged to have been in unlawful possession
and a motor vehicle. I
accept that one cannot be comfortable with a conclusion that a
“Lorinco” is “entirely
different from” a
“Norinco”. Nevertheless, one cannot escape a sense of
disquiet about confirming a conviction
and a 15 year prison sentence
for unlawful possession of a firearm in circumstances where the
evidence as to the make of that firearm
is inconsistent with that
alleged in the charge sheet.
[9]
The record shows that the learned magistrate was often impatient with
counsel for both the State and the accused. Counsel for
the State was
inexperienced. We all have our bad days. All judicial officers have
to work in stressful conditions. The police
and prosecutors also work
under trying conditions. Nevertheless, however exasperated we may be
in regard to the rampant levels
of crime in our society, we must
remember that in terms of the Constitution (section 35 (3)), every
accused person has a right
to a fair trial. We cannot too easily
allow society’s justifiable demands to “put criminals
behind bars” to
compromise reasonable standards of police work,
prosecutions and judicial proceedings, more especially when
compliance with such
standards need not be onerous. We cannot put
persons in gaol without requiring a high standard of the necessary
evidence. Put differently,
there has to have been sufficient
quantum
of
proof before it can be found that an accused person committed the
crime in question – proof beyond a reasonable doubt.
One’s
sense of unease is acute when there is the prospect of lengthy
periods of imprisonment, such as fifteen years in this
case. In view
of the fact that counsel for the defence, from the earliest
opportunity, made it clear that the chain of evidence
was being
contested, it is my opinion that, in all the circumstances, the
conviction cannot stand. It was not in accordance with
justice. It
must, in fairness to the learned magistrate, be recorded that, when
he considered the application for leave to appeal,
he appeared much
more relaxed and appears readily to have conceded that he may have
erred. I should also record that, in my opinion,
the learned
magistrate was correct in refusing leave to appeal on the question of
sentence: if the conviction stands, so does the
sentence.
[10]
The compulsory minimum sentence of 15 years shows just how serious
this case is. This compulsory minimum sentence underlines
the point
that there must be certainty that the firearm in question was indeed
a semi-automatic one, never mind a firearm. Not
only was the
appellant denied a fair opportunity to test these aspects but the
chain of evidence linking the search of the appellant
to the report
of the ballistics expert appears to have been deficient.
[11]
In case I have been overly pedantic in regard to the procedural
aspects and the chain of evidence to prove the possession of
the
actual firearm alleged in the charge sheet, I shall now deal with the
question of whether, even if one accepts that the firearm
in question
was indeed found on the person of the appellant, he had the necessary
mens
rea
.
The general principle is that
actus
non facit reum nisi mens sit rea.
In the context of our criminal law, this Latin expression entails
that, ordinarily, an accused person cannot be convicted of a
crime
unless he or she had a blameworthy state of mind. This principle was
affirmed in
S
v Qumbella
6
,
S
v Oberholzer
7
and
S v De Blom
8
.
The
De
Blom
case, with which every student of criminal law will be familiar, has
been followed in cases too innumerable to mention. This blameworthy
state of mind may take the form of
dolus
(generally understood to mean “intention”) or
culpa
(generally understood to mean “negligence”).
9
There appears to have been no reported case directly in point
relating to possession of semi-automatic firearms in terms of
section
3
of the
Firearms Control Act, No. 60 of 2000
. In
S
v Tshwape and Another
10
which was quoted with approval in
De
Blom
,
11
Corbett
J, as he then was, said as follows:
Without
attempting to formulate a proper definition of
mens
rea
,
it seems to me that conduct which falls within the terms of a
statutory offence, will only escape the taint of criminality on
the
ground of absence of
men
rea
,
where it appears that the person concerned through ignorance or
mistake was at that time unaware of some fact or circumstance
which
either by itself or in conjunction with other facts and circumstances
rendered such conduct an offence.
Although
Botha and Du Plessis JJ were not, in the
Nziyane
case, dealing pertinently with the question of
mens
rea
,
it seems to me that the fact that the firearm in question was a
“semi-automatic” one (and, by definition, “self-loading
but not capable of discharging more than one shot with a single
depression of the trigger”) is not merely part of the narrative
or description of facts in the charge sheet: it constitutes an
essential element of the alleged offence. Guided by the
Nziyane
case, by which I am in any event bound, I come to this conclusion
that the semi-automatic feature of the firearm is an essential
element of the alleged offence precisely by reason of the fact that
it is the possession of this very type of firearm that brings
a
severe minimum sentence into operation. Moreover, it is not good
enough to prove that an accused person possessed a firearm
which so
happens to be a semi-automatic one. With the
Tshwape
and
De
Blom
cases as my guide, it seems to me that it must be proven, at least by
necessary inference, that the accused person must have known
(
dolus
)
or ought to have been aware of the relevant facts (
culpa
)
which give rise to that prescribed minimum sentence for such
possession – and assumed the risks that attached thereto.
Ordinarily, when it comes to possession of a firearm, it will be a
matter of ready inference that a person found in actual physical
possession thereof either must have known or ought to have known that
it was a firearm. When it comes to possession of a
semi-automatic
firearm,
that inference is not quite so easily drawn. Nevertheless, the issue
of whether such an inference may be drawn should not,
generally, be
unduly problematic for the prosecution. Ordinarily, the inference can
readily be drawn that a person proven to have
discharged a
semi-automatic firearm either knew or ought to have known that it was
“self-loading but not capable of discharging
more than one shot
with a single depression of the trigger”. Furthermore, cross –
examination of an accused person
should assist in determining how
credible the denial by the accused person of the absence of either
dolus
or
culpa
in regard to its semi-automatic quality may be. In the present case
before us, even if it accepted that it has been proven that
he was in
possession of a firearm, there is nothing to justify the necessary
inference that the appellant must have been aware
or ought to have
been aware of the fact that it was a semi-automatic.
[12]
The question then arises: even if the appellant cannot be convicted
of possession of a semi-automatic firearm, may he nevertheless
be
convicted on a competent verdict in respect of such a charge
(assuming, for purposes of this discussion, that it is accepted
that
his possession of a firearm has been satisfactorily proven)?
Section
270
of the
Criminal Procedure Act provides
as follows:
If
the evidence on a charge for any offence not referred to in the
preceding sections of this Chapter does not prove the commission
of
the offence so charged but proves the commission of an offence which
by reason of the essential elements of that offence is
included in
the offence so charged, the accused may be found guilty of the
offence so proved.
In
S
v Mwali
12
the
Supreme Court of Appeal (“the SCA”) had to deal with the
question of a competent verdict of a contravention
under section 36 of the General Law Amendment Act, No. 62 of 1955
(the failure to give a satisfactory account of possession of
goods in
respect of which there exists a reasonable suspicion that they had
been stolen) where the accused had been charged with
the theft of a
motor vehicle but had neither been charged in the alternative with
such an alternative verdict nor it had brought
to his attention that
there was a risk of such a conviction in terms of
section 264
(1) (c)
of the
Criminal Procedure Act. Nicholas
AJA, delivering the
unanimous judgment of the court, said: “Even though neither
course be followed, however, the accused
would not be entitled to
succeed in an appeal against or review of the conviction unless it
appeared that he was prejudiced by
the failure”. The court then
referred to various cases in which this principle had been affirmed
elsewhere.
13
Justifying the court’s view that there had been no prejudice,
Nicholas AJA went on to say:
It
does not seem that, if he had been charged under
s 36
, or if he had
been told that he stood in jeopardy of a conviction under that
section, his conduct of his case would have been any
different or
that he could have had any other line of defence.
In
S
v Jasat
14
the SCA reaffirmed the principle of prejudice being decisive and, as
had occurred in
Mwali
,
that, in determining whether there had been any prejudice by either
the State or the court failing pertinently to draw attention
to the
possibility of a competent verdict, the court would consider whether
the defence may have been conducted differently.
15
The SCA observed that the accused had been represented by senior and
junior counsel and said:
It
is difficult to conceive, even as after having heard argument, how
the appellant would have conducted his defence differently,
by means
of cross-examination or the tendering of evidence, if the charge had
been formulated along the lines on which the appellant
was ultimately
convicted.
In
Jasat
the accused had been charged with housebreaking with intent to steal
and theft but was convicted of housebreaking with intent to
trespass
and trespass in terms of
section 262
(1) of the
Criminal Procedure
Act. The
SCA also observed that:
Any
qualified lawyer would know that a main charge comprehends every
verdict which is a competent one on such a charge, and that
in
preparing his defence an accused should be alive to the eventuality
of such a conviction.
Of
course, the fact that an accused person enjoyed the benefit of legal
representation will normally defeat a complaint that the
question of
competent verdicts was neither explored nor explained to him. That
now seems to be settled law. On the other hand,
I do not think it can
be elevated to an absolute principle or that the SCA intended this to
be the case. It is too well known
that, in the end, each case must
be decided on its own merits. It remains desirable, as was said in
R
v Dayi
,
16
that,
where the State contemplates asking for a competent verdict in the
alternative to a count, the State should do so in the
charge sheet,
even though the failure to so will not necessarily vitiate such a
competent verdict. In the present case, the prosecutor,
the
appellant’s counsel and the court
a
quo
all seemed to have understood that this was an “all-or-nothing”
case. The defence was conducted accordingly. The Firearms
Control
Act is relatively new legislation: it came into operation only on 1
July, 2004. The law reports are replete with examples
of how the
courts have grappled with applying the minimum sentence legislation
contained in the Criminal Law Amendment Act, on
the one hand, and
acting in accordance with justice, on the other. It is not difficult
to imagine that, notwithstanding the fact
that the appellant enjoyed
the benefit of legal representation, he may have be conducted his
defence differently and indeed may
not have relied upon his
constitutional right to remain silent (section 35(3)(h) of the
Constitution) if he had been made aware
of the precise nature of any
alternative verdict which the State may have sought and that, by
conducting a different line of defence,
he may have avoided a
compulsory minimum sentence of 15 years’ imprisonment. In my
opinion, it will be desirable, especially
where the State seeks a
conviction on a charge of possession of a particular type or
genus
of
firearm as a “stand-alone” count (i.e. not with other
more serious counts such as murder, rape or robbery where such
a
firearm is used as an instrument of such offence), to set out in the
charge sheet itself such alternative and competent verdicts
which it
may seek.
[13]
Accordingly, for reasons that are both varied and mixed, I am of the
opinion that the conviction cannot stand. The following
is the order
of this court:
The
appeal is upheld;
The
following verdict is substituted for that of the court
a quo
:
“
The accused
is acquitted on both counts”.
DATED
AT JOHANNESBURG THIS 7th DAY OF DECEMBER, 2009
N.P.
WILLIS
JUDGE
OF THE HIGH COURT
I
agree.
G.
FARBER
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Appellant:
Adv.
M.
B. Mulaudzi
Counsel
for the State:
R.
Molokoane
Date
of hearing: 07 December 2009
Date
of judgment: 07 December 2009
1
[2000]
2 All SA 391
(T) at 394j-3295a
2
See,
for example
R
v Pelunsky
1914 AD 360
;
Ex parte Roche
1947 (3) SA 678
(D);
R
v Hodge
1949 (2) SA 323
(E);
R
v Halem
1949 (3) SA 274
(T);
R v Van Der Merwe
1952 (1) SA 143
(SWA);
R
v Zungu
1953 (4) SA 660
(N) at 661-2;
Mabena
v Brakpan Municipality
1956 (1) SA 179
(T);
R
v Pierce
1956 (1) SA 183
(T);
R
v Nhlanhla
1960 (3) SA 568
(T);
R
v Gemeenskapsontwikkelingsraad v Williams & Others
(1)
1977 (2) SA 692
(C ) at 698A;
S
v Omega Bearing Works (Edms) Bpk
1977 (3) SA 978
(O);
S
v Miles
1978 (3) SA 407
(N);
Standard
Merchant Bank v Rowe
1982 (4) SA 186
(T);
Standard
Merchant Bank v Creser
1982 (4) SA 671
(W) at 674B;
Singh
v Govender Brothers Construction
1986 (3) SA 613
(N);
S
v Ngesi
1986 (2) SA 244
(E) at 246D-E; D. T. Zeffert, A. P. Paizes, and A.
St. Q. Skeen,
The
South African Law of Evidence
,
LexisNexis: Durban, 2003, 357-9.
3
See,
for example,
Welz
and Another v Hall and Others
1996 (4) SA 1073
(C) at 1079C-D.
4
See
R v Bruins
1944 A.D 131
at 135 and
S
v Mandela and Another
1974 (4) SA 878
(A) at 882E.
5
1944
A.D. 131
at 135
6
1966
(4) SA 356
(A)
7
1
971
(4) SA 602
(A)
8
1977 (3) SA 513
(A) at 529A
9
De
Blom
at
529A
10
1964 (4) SA 327
(C) at 330A
11
at 529F-G
12
1992
(2) SACR 281
(A) at 283j-284d
13
R
v Dayi and Others
1961 (3) SA 8
(N) at 9E-G;
S
v Mogandi
1961 (4) SA 112
(T) at 114A;
S
v Arendse en ’n Ander
1980 (1) SA 610
(C) at 613A-B; and
S
v Human
1990 (1) SACR 334
(C) at 336-8
14
1997
(1) SACR 489
(SCA)
15
At
493h-494a
16
1961
(3) SA 8
(N) at 9E; referred to with approval in
S
v Mwali
(
supra
)
at 284c