About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 138
|
|
Madlovu v S (A435/2006) [2008] ZAWCHC 138 (8 February 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO
:
A435/2006
DATE
:
8
FEBRUARY 2008
In
the matter between:
ZAZA
MADLOVU
Appellant
and
THE
STATE
Respondent
JUDGMENT
POTGIETER,
AJ:
[1]
This is an appeal with the leave of the Court
a
quo
against
appellants conviction of being an accessory after the fact to robbery
and the unlawful possession of firearms, as well as
his sentence of
five and two years respectively (to run concurrently) in the Cape
Town Regional Court on 15 March 2006.
[2]
The convictions and sentences arose from an incident that occurred
just after 8pm on 21 September 2004 when the complainant,
Mr MveEazi,
was robbed at gunpoint of a Toyota Cressida motor vehicle at
Nyanga. The complainant testified that
he had gone to a shop to
buy bread. On his return to the vehicle he was confronted by a
gun-wielding assailant after he had gotten
into the vehicle and was
about to take out the keys. The assailant was standing next to the
open door and ordered him to hand over
the keys and get out of the
vehicle. After he got out of the vehicle and had handed over the
keys, the assailant called a companion
who was standing nearby. They
sped off with the vehicle. He only saw the vehicle a week later at
Stikland when he attended an identity
parade. The complainant
initially pointed out two of the accused at the trial as the
assailants, but it transpired that he was
in fact unable to identify
the attackers. In fact, appellant's three co-accused were all
acquitted.
[3]
The remaining two State witnesses were the arresting officer Sergeant
Leoii and Constable Seagram who are members of the Cape
Town City
Police They were both on duty in a patrol car when they received a
radio message at approximately 10pm that a white Toyota
Cressida
vehicle with registration number CA 850447 was hijacked by two armed
men at Nyartga terminus and was heading towards Lansdowne
Road. They
proceeded towards Lansdowne Road and spotted the hijacked
vehicle driving in their direction at high speed
and without lights.
[4]
They followed the vehicle and apprehended the occupants after the
vehicle had stopped at a red traffic light. The vehicle was
searched
and a 9mm pistol was found on the floor on the front passenger side
and a shotgun at the back. These firearms were clearly
visible tnside
the vehicle. Appellant was the driver of the vehicle and upon enquiry
he told the police that he was asked to take
the vehicle to
Khayelitsha. The four occupants of the vehicle were arrested and
taken to Nyanga police station.
[5]
Appellant testified in his own defence. He indicated that on the
night in question he had been watching television at the house
of one
of his co-accused. He left at some stage to go home to eat. After
having eaten, he proceeded back to the house of the co-accused.
On
the way a former schoolmate, one Simphiwe, stopped next to him in a
Cressida motor vehicle followed by another white Cressida.
Simphiwe
asked him to take the white Cressida to Mong's Tavern in Khayefitsha.
He was at first reluctant to do so but he eventually
agreed. His
co-accused accompanied him. On the way they were arrested by
the police. He never saw any firearms in the vehicle.
[6]
Appellant's elder sister, Nomzane Madlovu, testified in appellant's
defence. She basically pointed out that two vehicles had
stopped at
their house on the night in question and that the appellant drove off
in one of the vehicles.
[7]
The Court a
quo
assessed
the evidence and found that the arresting officers were credible
witnesses whose versions should be accepted. Appellant
did not make a
favourable impression as a witness on the Court a
quo
and
his version was found to be contradictory and improbable. He was,
moreover, contradicted by his sister.
[8]
The Court a
quo's
assessment
of the evidence cannot be faulted in my view. The Court
a
quo
found
that appellant was not one of the robbers but that he knew that the
vehicle was stolen and he was assisting the robbers. Appellant
was
accordingly convicted of being an accessory after the fact to robbery
and of possession of firearms.
[9]
Mr
Fretorius,
who appears on behalf of the appellant, submitted that the Court a
quo
erred
in not finding that appellant's version was reasonably possibly true.
He submitted that the Court a
quo
correctty
held that the State case was based upon circumstantial evidence but
erred in finding that the only reasonable inference
was that
appellant was an accessory after the fact to robbery. He also
submitted that the Court
a
quo
acted
irregularly by descending into the arena and cross-examining the
appellant.
[10]
Insofar as the latter aspect is concerned, it is trite that a trial
court can ask questions to clarify any relevant issue,
provided that
it does not amount to cross-examination in support of the prosecution
case, see
R
v De Klerk
1930 AD 308
as well as
R
v Ntembu
1965(1) Prentice Hall L7 at page 20 where the Court made the
following observations:
"Moreover,
these
dicta
of
the magistrate seem to indicate that he makes a habit of telling his
prosecutors how to conduct their cases in his court. This
is not the
duty of a judicial officer sitting in a case. In most cases justice
demands that a magistrate should put some questions
to the witnesses
and the accused. In many cases he will have to call or recal] a
witness, this should however not be carried
too far". It is also
apposite in this regard to refer to the well-known quote that was
referred to with approval by the then
Appellate Division in the
matter of
R
v Roopsingh
1956(4)
SA 509 (A) at 514A-B:
"A
judge who observes the demeanour of the witnesses while they are
being examined by counsel has from his detached position
a much more
favourable opportunity of forming a just appreciation than a judge
who himself conducts the examination. If he takes
the latter course
he, so to speak, descends into the arena and is liable to have his
vision clouded by the dust of the conflict.
Unconsciously he deprives
himself of the advantage of caEm and dispassionate observation. It is
further to be remarked, as everyone
who has had experience of these
matters knows, that the demeanour of a witness Is apt to be very
different when he is being questioned
by the judge from what it is
when he is being questioned by counsel, particularly when the judge's
examination is, as it was in
the present case, prolonged and covers
practically the whole of the crucial matters which
[11]
While the Court
a
quo
in
some respects did subject appellant and his witness to excessive
questioning, they were not treated unfairly in my view. It appears
that some of the questioning resulted from language problems and
problems of interpretation. By way of example reference could
be made
to the following extract on page 183 of the record starting at line
4:
Nee,
nee maar wys my afstand hier in die hof aan meneer. â Hier waar die
tolk sit is dit die hek by ons se huts en dan is dit
die pad soos hy
daar by daardie motor is soos ek nou van ons se huis n kant afkom.
Is
dit so moeilik om te verstaan dat u net vir my afstand moet aandui. U
verstaan nou die plek waar die kar langs jou stop, hier
is jou huis
se voorhekkie. Wys net vir my aan hoe ver in reguit lyn af met die
hof waar het die kar langs u gestop, verstaan u
dit? Verstaan u die
vraag? --- Die kar het agter my gekom.
Het
u my vraag verstaan, het u my vraag verstaan want u antwoord nou nie
eers dit nie? ---Ja ek het die vraag gehoor Edelagbare.
Herhaal
my vraag, herhaal my vraag wat ek vir jou gevra het. â Hoe ver is
dit van ons se huis af tot daar by daardie pad wat ek
nou sou oorgaan
Edelagbare.
Waar
die kar langs u gestop net, verstaan u dit? --- Daar waar ek saam met
die kar gestaan het".
It
is clear, in my view, that this results from a misunderstanding
concerning the question. Some of the magistrate's remarks are,
however, unfortunate and reference could be made in this regard to
the following extracts from the record. I refer firstly to page
184
lines 3-4 where the magistrate made the following remarks:
Hemel,
hoeveel keer moet ek dit herhaal, stap en gaan wys vir my waar dit
is, stap, stap af". The magistrate then records
the result of
that little exercise. Then on page 187 of the record lines 11-12 the
following remarks appear:
Ja,
maar meneer kyk u is nou mooi groot ne, u verstaan mos nou wat ek vir
u vra. Dit is nie asof ek nou hier antwoord by u kry nie.
U se vir
my, en in alle billikheid, want soos ek reeds gese het, huishoudings
verskil." Then on page 190 of the record starting
at line 1:
Meneer,
weet u ek begin die indruk kry dat jy my vrae ontwyk. Jy het mos
reeds vir my gese jy het nie toestemming gehad voor die
aand nie.
Jy het nie hierdie aand toestemming gehad om by Zandile TV te kyk
nie. En my indruk sover was, jy het nie - jy het
toestemming gehad om
daar die begin van TV - na donker daar te wees en ook nie later die
aand nie. En ook as my indruk verkeerd
is dan het u nou die
geleentheid om dit reg te stel. Wat is u getuienis, want ek het die
punt waar ek moet kom en ek kom nie daar
nie, want u het aanmekaar
dwaalspoortjies."
Then
at page 189 starting at line 4 and on the same
theme:
Nou
ja presies, nou is u - nou is ons weer terug by die eerste ou
blokkie. Hoekom ontken jy dtt en gaan by die dwaalpaadjies af
meneer
dit is mos nie nodig nie. U het mos reeds in hoof getuig Nou ontken u
dit. En dan erken u dit weer. Is dit nou nodig? Hoekom
doen u dit?
1
'
[12]
In spite of the remarks that I have referred to and highlighted this
has not, in my view, led to a failure of justice as is
referred to in
the proviso to
section 322(1)
of the
Criminal Procedure Act, 51 of
1977
. The proviso reads as follows:
"Provided
that notwithstanding that the court of appeal is of the opinion that
any point raised might be decided in favour
of the accused, no
conviction or sentence shafl be set aside or altered by reason of any
irregularity or defect in the record of
proceedings unless it appears
to the court of appeal that a failure of justice has in fact resulted
from such irregularity or defect".
[13]
In my view, the Court a
quo
was
justified in rejecting appellant's version with regard to his
possession of the vehicle. His version that he innocently acquired
possession of the vehicle cannot be reasonably possibly true. He
acquired possession under suspicious circumstances and must have
been
aware of the firearms in the vehicle. His denial in this regard tacks
credibility. He must have known in the circumstances
that the vehicle
was obtained by illegal means and he reconciled himseEf with that
fact. However, it does not follow, in my view,
that the only
reasonable inference that could be drawn in the circumstances is that
appellant was assisting the robbers to evade
justice. The latter is
an essential element of the offence of being an accessory after the
fact (see
S
v Williams & Others
1998(2) SACR 191 (SCA) at 193c-e:
"As
the appeals are directed against the appellants' convictions as
accessories after the fact it is necessary to
say something
about this branch of the law which fortunately appears to be
reasonably settled. In considering the issues raised
in this appeal I
shall accept for the purposes of this judgment that the
obiter
remarks
in
S
v Morgan & Others
1993(2) SACR 134 (A) at 174A-E are a correct reflection of our law.
According
to this judgment, the narrower approach to the definition of an
accessory, a person who assists the perpetrator to evade
justice, is
to be preferred to the wider approach according to which it is
sufficient if the accessory associates himself in a
broad sense with
the offence.
Counsel
were afso agreed that it was essentia! for the State to establish
that the appellants, as accessories, intended to help
the
perpetrators evade justice. This concession was correctly made by the
State for the intention to assist the main offenders
in evading
detection is an important ingredient of accessorial liability".
(See
also Jonathan Burchell:
Principles
of Criminal Law
(3
rd
ed.) page 611)
[14]
It follows that the Court
a
quo
erred
in convicting the appellant of being an accessory after the fact to
robbery. As indicated above, appellant was patently not
in innocent
possession of the vehicle but was aware that the vehicle was stolen.
Accordingly, in my view, appellant should have
been convicted of
being in possession of stolen goods in contravention of section 36 of
the General Law Amendment Act, 62 of 1955.
The latter is a competent
verdict in respect of a charge of robbery pursuant to the provisions
of
section 260(f)
of the
Criminal Procedure Act.
[15]
There is no merit in the appeal against the conviction of being in
unlawful possession of firearms, which conviction should
be
confirmed.
[16]
Insofar as the appeal against sentence is concerned, the Court a
quo
did
not err or misdirect itself in any respect with regard to the
sentence imposed in respect of the unlawful possession of firearms.
AM relevant factors were properly considered and the sentence is
appropriate in the circumstances and should be confirmed.
[17]
It follows that the sentence imposed in respect of the conviction of
being an accessory after the fact to robbery should be
set aside and
be substituted with an appropriate sentence in respect of a
conviction of a contravention of
section 36
of Act 62 of 1955. The
latter is a serious offence. This is evident from the fact that the
section provides for the same penalties
which may be imposed on a
conviction of theft. In my view, a sentence of direct imprisonment is
appropriate in the circumstances.
[18]
In the circumstances I would make the following order:
Appellants
conviction of being an accessory after the fact to robbery and the
sentence of five years' imprisonment are set aside.
Appellant
is convicted of a contravention of section 36 of Act 62 of 1955 and
is sentenced to five years' imprisonment with two
years suspended
for a period of five years on condition that appellant is not
convicted of an offence of which dishonesty is
an element during the
period of suspension.
Appellant's
conviction of being in unlawful possession of firearms and the
sentence of two years' imprisonment are confirmed.
The
sentences imposed shall run concurrently.
POTGIETER,
AJ
ALLIE,
J.
Iagreed
and it is so ordered
ALLIE,
J