Radebe v S (A06/2005) [2006] ZAFSHC 77; 2006 (2) SACR 604 (O) (29 June 2006)

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[2006] ZAFSHC 77
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Radebe v S (A06/2005) [2006] ZAFSHC 77; 2006 (2) SACR 604 (O) (29 June 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: A06/2005
In
the case between:
SIMON
RADEBE
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
EBRAHIM, J
et
VAN DER MERWE, J
JUDGMENT:
EBRAHIM, J
_____________________________________________________
HEARD ON:
8 MAY 2006
_____________________________________________________
DELIVERED ON:
29 JUNE 2006
_____________________________________________________
[1] The appellant was
convicted of the following offences in the Regional Court sitting at
Odendaalsrus: -
On count 1: culpable
homicide;
On count 2:
contravening section 2 of Act 75 of 1969 (the Arms and Ammunition
Act); the unlawful possession of a 9mm pistol number
44017418;
On
count 3: contravening section 36 of Act 75 of 1969 (the Arms and
Ammunition Act), the unlawful possession of two 9mm rounds
of
ammunition; and
On
count 4: contravening section 36 of the General Law Amendment Act
1955 (Act 62 of 1955) in respect of the 9mm pistol and the
two 9mm
rounds of ammunition.
The
accused was sentenced as follows:
Count 1: 5 years
imprisonment;
Count
2: 1 year imprisonment;
Count
3: 15 years imprisonment;
Count
4: 3 years imprisonment.
The court
a
quo
ordered appellant to serve an effective sentence of 18 years
imprisonment.
[2] The appellant appeals
against his respective convictions and sentences. Mr. Nkhahle who
appears on behalf of the appellant has
conceded that there is no
merit in the appeal against the convictions in respect of counts 1, 2
and 3. In so far as the conviction
on count 4 is concerned Mr.
Strauss for the State has conceded that the conviction is a
duplication of the convictions on counts
2 and 3 and therefore is
incompetent.
[3] The substantial issue
in this appeal is whether such a duplication has occurred with regard
to counts 2, 3 and 4. The rule against
a duplication of convictions
is a salutary one and it is the Court’s duty to guard against such
duplication where an accused person
is charged with multiple charges
supported by the same culpable facts. The question to be asked is
not whether the accused has been
charged with the same offence twice
but whether he has been convicted and sentenced twice for the same
offence.
It was contended for on
behalf of the appellant
(a) that the relevant
facts proved only that the appellant was in possession of a 9mm
pistol without a license and 2 live rounds of
9mm ammunition and that
it was that evidence alone which the trial court relied on in
convicting the appellant in respect of counts
2, 3 and 4.
(b) that, no other
evidence was advanced in support of the conviction on count 4 and
that accordingly the State had failed to prove
this charge beyond a
reasonable doubt.
[4] I now proceed to
consider various authorities in which the guidelines to be applied in
order to establish whether a duplication
of convictions had occurred
was dealt with. In
REX
v SABUYI
1905 TS 170
, Innes C J applied the following test (at p. 171):
“
Where a man commits 2 acts of which
each, standing alone, would be criminal, but does so with a single
intent and both acts are necessary
to carry out that intent, then it
seems to me that he ought only to be indicted for one offence,
because the 2 acts constitute one
criminal transaction.”
In
REX
v GORDON
1909 EDC 254
, Kotze JP at 268 stated the following:
“
Still we may adopt as a sound
principle which will cover many of the cases that where evidence
necessary to support the one charge
will likewise support the other,
there the offences are the same.”
and at p. 269:
“
....
so, on the other hand, we may safely say that where 2 different
indictments or counts each lay a charge differing in its elements
from that laid in the other though they both relate to one
transaction, there the offences are separate and distinct.”
In
REX
v VAN DER MERWE
1921 TPD p. 1 Bristowe J (at p. 5) held referring to the so-called
borderline cases:
“
Generally
speaking
,
the law is one act one offence, or rather, perhaps, that one offence
is constituted by the outcome of one criminal intent in the
accused’s
mind, and that it is the carrying of that intention into effect which
constitutes the criminal act. The difficulty is
that in so many
cases acts are closely connected with each other; they cannot be
separated and one attributed to one intention and
one to another.
Often they follow closely on one another, and often the actual crime
consist of a series of acts which cannot be
disconnected, so that the
difficulty is to decide where is the boundary line at which the
series attributable to one criminal intention
ceases and the series
attributable to another criminal intention begins. What we have to
do is to find a satisfactory test which
we can apply for the purpose
of determining the question, namely, what is part of one criminal act
and what must be attributed to
another.”
In
REX
v JOHANNES
1925 TPD 782
, Curlewis JP stated at p. 786:
“
...it
seems to me that the Court can safely lay down that under certain
circumstances both those tests, or the one, or the other,
may be
applied, namely, the test of whether two acts are done with one
single intent and constitute one continuous criminal transaction,
and
the test as to whether the evidence necessary to establish one crime
involves proving another crime. It depends entirely on
the
circumstances of each particular case.”
In
EXPARTE
MINISTER OF JUSTICE: IN RE REX v MOSEME
1936 AD 52
the scope of the rule against a duplication of convictions
was discussed by De Villiers JA who at p. 61 held as follows:
“
The
rule against splitting of charges (assuming it to be a valid rule)
can apply only when an accused is charged in the course of
one and
the same trial with several offences arising out of one act or
connected series of acts or transactions.”
It is wise to remember
that although the learned judge in this case used the term “splitting
of charges” the purpose of the principle
involved is not to avoid
multiple charges but rather to avoid multiple convictions in respect
of the same offence.
[5] The tests to be
applied as set out in the authorities quoted above are not to be
regarded as rules of law but are to be employed
merely as practical
guidelines alternatively as rules of practice in establishing whether
an improper duplication has in fact occurred.
In
REX
v KUZWAYO
1960 (1) SA 340
AD at 344 A – B. The appellate division held:
“
Tussen hierdie
twee gevalle is daar grensgevalle en ek vind dit nie moontlik om een
of meer toetse te bedink wat in alle gevalle met
sekerheid sal bepaal
wanneer daardie grens bereik is al dan nie. Na my mening moet die
sogenaamde toetse waarna die beslissings hierbo
aangehaal, verwys,
nie as regsreël beskou word nie, maar slegs as nuttige praktiese
hulpmiddels wat gebruik kan word om vas te stel
of daar wesentlik een
misdaad gepleeg is al dan nie. Dit volg dus dat by die toepassing van
die reël 'n mens tot 'n groot mate afhanklik
is van die gesonde
verstand en billikheidsgevoel van die hof.“
In
S v
GROBLER
1966 (1) SA 507
at 523 F, Wessels JA stated the following with regard
to the rule of practice to be applied in establishing whether an
improper duplication
of convictions had occurred.
“
The
test or combination of tests to be applied are those which are, on a
common sense view, best calculated to achieve the object
of the Rule.
In so far as the ‘single intent’ and ‘continuous transaction’
test is concerned the distinction between motive
and intent and the
different intents inherent in different offences must not be
overlooked.”
The
learned Judge then went on to cite examples in illustration of this
dictum and to analyse the elements of the relevant offences
in order
to examine whether a duplication of convictions had occurred.
In
REX
v SHELEMBE
1955 (4) SA 410
N at p. 412, Selke J said the following:
“
In
some of these cases the decision went one way, in some the other.
Whether a separate charge was, or was not, countenanced, seems
to
have depended on the Court's idea of a common sense view of the
matter, and of what was fair to the accused in the light of the
established facts. I am inclined to think it is impossible, in the
border line type of case, to get any nearer to a general rule
than
that.”
The rule against a
duplication of convictions is a rule primarily aimed at fairness.
Its main aim and purpose is to avoid prejudice
to an accused person
in the form of double jeopardy, that is being convicted and punished
twice for the same offence when in fact
he or she has only committed
one offence.
[6] I revert now to the
facts of the present appeal. The first question to be asked is
whether the State proved the charges on counts
2, 3 and 4 against the
appellant. This demands an analysis of the evidence with reference
to the individual elements of each charge.
The facts upon which the
trial court convicted the appellant are briefly the following:
6.1 Both the deceased and
his friends as well as the appellant and his friends were drinking
liquor at a particular drinking place
when acrimony arose between the
two groups. One of the appellant’s friends broke a beer bottle
thereby splattering splinters of
glass onto the deceased and his
friends who then left the drinking place. The appellant followed
them. He was in possession of
a firearm which he pointed at them,
clearly intending to shoot one of the deceased’s friends, Tsokolo,
who then ran away. The
appellant nevertheless fired and the deceased
was struck.
6.2 The investigating
officer, Detective Sergeant Jeremia Tsebong Tsoeu, testified that he
arrested the appellant the following morning
after the shooting. He
noticed the appellant holding on to the front of his trousers. The
appellant was handcuffed and then searched.
A 9mm Norinco Pistol was
found in the front of the appellants trousers together with two live
rounds of 9mm ammunition which was
found in the chamber of the pistol
he explained the appellant’s rights to him and took him to the
Police Station where he attempted
to trace on the computer who the
owner of the firearm was. Before he could establish this, the
appellant told him where he had obtained
the firearm. He also
established that the appellant was not the owner of the firearm and
did not have a license to possess that
arm. He said he did not
believe the firearm belonged to the appellant in any event because of
the manner in which the appellant
was holding on to it and hiding it
in his trousers. He later established the firearm had been stolen
during a robbery case and a
docket had been opened on a charge of
robbery.
6.3 The appellant denied
having the firearm and ammunition in his possession but he was
convicted thereof after the trial court rejected
his evidence as an
improbability on the totality of the evidence. The appellant’s
evidence was just a bare denial of all the issues
in respect of each
of counts 1, 2, 3 and 4. In terms of
section 220
of the
Criminal
Procedure Act of 1977
, the appellant admitted that the Norinco Pistol
was an arm as defined in the Arms and Ammunition Act 75 of 1969. He
also admitted
that the two live rounds of ammunition also fell within
the definition of that term in the said act in that they were capable
of
being fired from a weapon/firearm. Appellant also admitted that
the pistol was a semi automatic pistol. The appellant flatly denied
being in possession of the firearm and alleged in evidence that the
investigating officer was himself in possession of that arm when
he
arrested him. The appellant moreover denied having shot and killed
the deceased.
[8] The learned trial
magistrate correctly, in my view, rejected the appellant’s evidence
as a tissue of lies and convicted him
on all four charges. The
question which arises then is whether the convictions on counts 2, 3
and 4 are all competent. Bearing
in mind the two rules of practice
applied as guidelines and referred to in the authorities quoted in
this judgement, the question
to be asked now is whether the
convictions in respect of counts 2, 3 and 4 are competent in so far
as the evidence test and/or the
single intent test is concerned. All
three convictions in my respectful view are competent for the reasons
set out below.
8.1
The
evidence test.
In regard to this test the following elements have to be proved by
the state in order to establish a
prima
facie
case
against the appellant:
8.1.1 as regards the
charge of unlawfully possessing a firearm (count 2).
(i) That the Norinco
Pistol was found in the possession of the appellant; and
(ii) That
he had no license to possess it.
(iii) That
the pistol was a fire-arm as defined in the relevant Act.
As regards count 3,
the charge of unlawfully possessing 2 rounds of 9mm ammunition,
the State has to prove
(i) that he was found in
possession thereof;
(ii) that
he did not possess a licensed firearm from which the ammunition could
be discharged.
8.1.3 As regards count 4
– that is the charge of contravening section 36 of the General Law
Amendment Act 62 of 1955, the following
had to be proved by the
State:
(i)
That the firearm and ammunition was found in the appellant’s
possession.
(ii) That
there was a suspicion based on reasonable grounds that the said
firearm and ammunition had been stolen.
(ii) That
the appellant had failed to give a satisfactory account of such
possession.
It is quite clear from
the above that the elements of the charge of contravening section 2
and 36 of Act 75 of 1969 are different
to the elements of the charge
of contravening section 36 of Act 62 of 1955. Accordingly all these
convictions would be competent,
if proved by the State beyond
reasonable doubt.
8.2
The
single intent test
.
Here too the appellant’s claim of a duplication of convictions
must fail as the intention in respect of a contravention of section
2
and 36 of the Arms and Ammunition Act of 1969 is to possess a firearm
and ammunition without a license and the intention in respect
of a
contravention of section 36 of Act 62 of 1955 is to possess goods (in
this case a firearm and ammunition) which had been stolen
and in
respect of which he is unable to give a satisfactory account for such
possession.
[9] On all of the
evidence therefore, I conclude that no improper duplication of
convictions occurred and that the convictions on
each of counts 2, 3
and 4 are competent.
[10] This however, is not
the end of the matter for the next issue which must be addressed is
whether it can be argued on the evidence
advanced by the State in
support of its case on count 4 that the state proved its case against
the appellant beyond reasonable doubt.
In my view, an examination
and analysis of Detective Sergeant Tsoeu’s evidence establishes
that the State did indeed do just
that. At page 41 of the typed
record of the proceedings, lines 5 – 11, the following evidence
appears:
“
Voordat
beskuldigde vir u ‘n verduideliking gegee het rondom hierdie wapen,
wat het u gedink hoe sou hy in besit kom van die wapen?
Ek het net
gedink dat dit is moontlik dat hy dit iewers gesteel het of geroof
het.
Wat
het u so laat dink? Want as iets aan u behoort u moet u bewys
daarvan hê. Nou beskuldigde het dit versteek om te wys dit nie
aan
hom behoort het nie.”
Then at page 40 lines 16
-21,
“
Het beskuldigde toe vir u ‘n
verduideliking gegee omtrent die wapen, hoe hy daaraan gekom het of
nie? Korrek hy het my ‘n verduideliking
gegee.
Hierdie
verduideliking, was dit inkriminerend van aard gewees of was dit
verontskuldigend van aard? Dit was inkriminerend van aard.”
and, finally at page 43
lines 5 – 10.
“
Nee meneer hy kan dit seker aan sy
persoon hou waar hy wil. Ja as hy die regmatige eienaar is, hy moes
nie bang gewees het as hy
die polisie gesien het nie en probeer het
om weg te steek nie. Hy moes dit net oop en bloot gehou het en hy
moes, want hy weet moes
hy het al die dokumente van die vuurwapen.”
This evidence, the
magistrate, correctly found amounted to the formation of a reasonable
suspicion in the mind of Tsoeu that the
firearm and ammunition had
been stolen and, consequently, led to the conclusion by the trial
magistrate that the appellant had failed
to give a satisfactory
account of his possession thereof.
[11] As regards the
appeal against the sentence I am in agreement with both counsel that,
interference by this court is warranted
in respect of the sentence of
15 years imprisonment imposed on count 2. Clearly the court
a
quo
in
sentencing the appellant misconstrued the provisions of the
Criminal
Law Amendment Act 105 of 1997
dealing with the imposition of minimum
sentences for certain offences. A contravention of section 2 of the
Arms and Ammunition Act
75 of 1969 for the unlawful possession of a
pistol is not one of those offences carrying a minimum sentence in
terms of the
Criminal Law Amendment Act of 1997
. The learned
sentencing magistrate quite obviously laboured under the
misapprehension in sentencing the appellant to 15 year imprisonment
for the possession of a 9mm pistol that such an offence attracted the
prescribed sentence of 15 years imprisonment pursuant to the
provisions of
section 51(2)(a)
of the
Criminal Law Amendment Act of
1997
.
[12] The authorities on
the point are clear. In
STATE
v SUKWAZI
2002 (1) SACR 619
(N), P.C. Combrinck J in a well researched
judgement, concluded that it was not the intention of the legislature
that the minimum
sentence of 15 years imprisonment prescribed for the
possession of a semi automatic firearm, should be applicable to a
conviction
for the possession of a pistol without a licence as
referred to in section 2 of the Arms and Ammunition Act no. 75 of
1969 even if
such a pistol had a semi automatic firing mechanism or
was commonly described as a semi automatic firearm.
See also:
STATE
v KHONYE
2002 (2) SACR 621
T;
STATE
v MOOLEELE
2003 (2) SACR 255
T;
The
unreported judgement of Van der Merwe J delivered in this court on 27
October 2005 in
MAKGASAME
& OTHERS v THE STATE
,
Appeal nr. A302/2004.
[13] It was conceded by
the appellant’s legal representative in the court
a
quo
,
that the firearm in question, the 9mm Norinco pistol had semi
automatic power and a formal admission to that effect was recorded
on
behalf of the appellant.
[14] In addition, the
sentence of 1 year imprisonment imposed for the unlawful possession
of 2 rounds of 9mm ammunition and the sentence
of 3 years
imprisonment imposed in respect of the conviction on count 4 is, in
my view, also unnecessarily harsh considering that
all three offences
were committed at one and the same time. Consequently the sentences
on these counts ought to run concurrently.
[15] The following order
is then made:
1. The appeal against the
convictions on count 2, 3 and 4 is dismissed and these convictions
are confirmed.
2. The
appeal against the sentence on counts 2, 3 and 4 succeeds.
The sentence of 5
(five) years imprisonment on count 1 is confirmed.
The sentence of 15
(fifteen) years imprisonment on count 2 is set aside and
substituted with a sentence of 3 (three) years imprisonment
which
is to run from 30
th
May 2000.
The
sentence of 1 (one) year imprisonment imposed in respect of count 3
is to run concurrently with the sentence of 3 (three)
years
imprisonment imposed on count 2.
The
sentence of 3 years imprisonment imposed on count 4 is to run
concurrently with the sentences of 3 years and 1 year imprisonment
imposed on counts 2 and 3.
3. The appellant is to
serve an effective term of 8 (eight) years imprisonment.
_____________
S. EBRAHIM, J
I
concur.
_________________________
C.H.G.
VAN DER MERWE, J
On
behalf of appellant: Adv. R.J. Nkhahle
Instructed by:
Bloemfontein Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. M. Strauss
Instructed by:
The Director: Public Prosecutions
BLOEMFONTEIN
/em