S v Mohapi (307/2003) [2003] ZAFSHC 3 (6 March 2003)

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[2003] ZAFSHC 3
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S v Mohapi (307/2003) [2003] ZAFSHC 3 (6 March 2003)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
Nr :307/2003
In
the review between:
THE
STATE
versus
SAMUEL
NTSANE MOHAPI
_______________________________________________________________
CORAM:
RAMPAI et EBRAHIM JJ
_______________________________________________________________
JUDGMENT:
RAMPAI J
_______________________________________________________________
DATE
DELIVERED:
6 MARCH 2003
_______________________________________________________________
[1]
This is a review case from a district court via a regional court. The
accused was arrested on 15 May 2002 according
to evidence. The first
charge against him was contravention of section 2 of the Arms and
Ammunitions Act No 75/1969. The prosecution
alleged in the charge
sheet that he was found with a firearm, namely a 9 mm pistol, in his
possession without a licence at Rammulotsi
in the Viljoenskroon
district on Wednesday 15 May 2002. The second charge was
contravention of section 36 of the Arms and Ammunitions
Act 75/1969,
in other words, unlawful possession of ten rounds of ammunition.
[2]
On Friday 6 September 2002 he again appeared in the said district
court where he pleaded not guilty to both
charges before Mr AJ
Barnard the district court magistrate. Attorney Moahlodi conducted
his defence. He was then tried. On the same
day he was convicted on
both charges.
[3]
Instead of sentencing the accused in terms of section 39(2) of the
Arms and Ammunitions Act No 75/1969 after
convicting him, the
district court magistrate stayed the proceedings in the district
court. He then referred the accused to the Kroonstad
regional court
for sentence. He did so in terms of section 116 of the Criminal
Procedure Act No 51/1977. He considered that the penal
provisions of
section 51 of the Criminal Law Amendment Act No 105/1977 were
applicable seeing that the firearm in question was a
semi-automatic
weapon.
[4]
In the Kroonstad regional court the matter was allocated to Mr GJ
Visagie for sentence. He perused the record
of the proceedings in the
district court. Having applied his mind to the facts and the evidence
adduced, he was doubtful as to whether
the proceedings in the
district court were in accordance with justice. He then acted in
terms of section 116(3)(a) of the Criminal
Procedure Act No 51/1977
and asked the district court magistrate to furnish reasons for the
conviction. The reasons were given in
a two page letter dated 22
January 2002.
[5]
The regional court magistrate, Mr GJ Visagie, refrained from
sentencing the accused as the district court magistrate
Mr AJ Barnard
had requested. He was still having some reservations as to the
correctness of the conviction. He held the view that
the version of
the defence was reasonably and possibly true. That is the one thing.
The other thing was that he was also of the view
that the committal
of the accused for sentence by the regional court assuming the
conviction to be correct, was improper. In the
light of these two
uncertainties, the regional court magistrate in turn referred the
case to this Court for review.
[6]
I deem it convenient to start with the second issue raised in this
review. Here the enquiry is whether the referral
from the district
court to the regional court was correct regard been had to the
circumstances of this particular case.
It
will be recalled that the first charge against the accused was
contravention of section 2 of the Arms and Ammunitions Act No 75/1969
in other words, possession of an unlicensed firearm. There was no
allegation in the charge sheet that the firearm found in the
possession
of the accused was a semi-automatic arm. The prosecution
merely stated in the charge sheet that the accused had in his
possession
at the relevant place and time a firearm, namely a 9 mm
pistol. There was virtually no hint in the charge sheet itself that
the pistol
so found was a semi-automatic arm the unlawful possession
of which attracted the prescribed minimum sentence in terms of
section
51 of the Criminal Law Amendment Act 105/1997.
[7]
Testifying for the prosecution Captain MB Mabeleng said:
"Die
9 mm pistool is ‘n semi-outomatiese pistool wat by die beskuldigde
gekry is."
That
was all the evidence there was concerning the description of the
firearm in this case. The prosecutor Mr GN Mtabane left it there.
The
defence lawyer, Ms Moahlodi did not touch it at all. It must be borne
in mind that there was no formal admission in terms of
section 220 of
Act 51/1977 made by the defence that the pistol in question was a
semi-automatic firearm. Moreover, the presiding
judicial officer did
not, at the commencement of the proceedings, or at any other stage
before the conviction, warn the accused or
the defence lawyer of the
special and drastic penal provisions of section 51 of the Criminal
Law Amendment Act No 105/1997 read with
subsection (b) of the third
category of the offences specified in part 2 schedule 2. The
prescribed minimum sentence for the possession
of a semi-automatic
firearm is ordinarily 15 years direct imprisonment. It is crystally
clear to me that neither the accused nor
his lawyer appreciated the
danger which a verdict of guilty would entail.
[8]
After the magistrate had pronounced the verdict that he found the
accused guilty, the prosecutor stood up and
said the following on p
22 of the record:
"Aangesien
beskuldigde skuldig bevind is oor die besit van ‘n semi-outomatiese
vuurwapen en ammunisie word hof se leiding gevra."
The
response of the magistrate was as follows:
"Wet
105 van 1997 aan beskuldigde en beskuldigde se prokureur verduidelik.
Verduidelik die Wet op minimum vonnisse. Ook verduidelik
dat die hof
nie die jurisdiksie het om die vonnis te kan oplê nie."
(
Vide
p 23)
Ms
Moahlodi was apparently stunned. She was simply speechless. The
impression I get is that the dramatic turn of the proceedings took
her by complete surprise.
[9]
Besides the aforesaid passage, or shall I say a sentence extracted
from Captain Mabeleng’s testimony, there
was no further evidence
whatsoever on which his conclusion that the pistol was a
semi-automatic firearm was based. He was not asked
to distinguish
between an automatic firearm on the one hand and none automatic
firearm on the other - let alone a functional distinction
between a
semi-automatic firearm on the one hand and a fully automatic firearm
on the other. Although Captain Mabeleng has considerable
experience
as a member of the South African Police Service, he did not claim to
be an expert in the field of firearms. What the extent
of his
knowledge of firearms is, does not appear
ex
facie
the record.
Upon
vigilant examination of the circumstances of this case, it certainly
cannot be said that the accused has had a fair trial. The
finding of
the district court magistrate that the firearm was a semi-automatic
weapon was in my view erroneous. The evidence on which
such view was
based was too thin to justify such a finding. In my view the
prosecution did not discharge the onus of proving that
the firearm
found in the possession of the accused was indeed a semi-automatic
firearm. It being the case, the accused was entitled
to be sentenced
in accordance with the ordinary provisions of section 39(2) of the
Arms and Ammunitions Act No 75/1969 and not the
extra-ordinary penal
provisions of section 51 of the Criminal Law Amendment Act 109/1997.
It follows therefore, that the referral
of the accused from the
district court to the regional court for sentence was not a
procedural option open to the district court
magistrate. A district
court magistrate had the jurisdiction to sentence the accused
assuming the conviction was in order.
[10]
A similar situation arose in
S
v NDLOVU
2003(1) All SA
66 SCA. At paragraph 8 Mpati JA said:
"An
allied submission made by counsel was that at no stage was the
appellant pertinently alerted to the fact that he stood in
peril of
the sentencing regime of the Act being applied if he was convicted.
In response to this latter submission counsel for the
State contended
that apart from the fact that reference was made in the charge sheet
to section 50 of the Act the appellant was legally
represented and
that `everyone knew what it was all about’."
In
dismissing the contention by counsel for the State, Mpati JA observed
at par 9:
"The
difficulty with this argument of course is that there is no
indication whatsoever in the record that the appellant or his
legal
representative had the slightest idea, prior to sentence, that the
appellant was facing the prospects of imprisonment of 15
years in
terms of the minimum sentencing provisions of the Act. Apart from
mentioning, in the course of his judgment and while summarising
the
facts, that `[d]ie wapen is ‘n semi-outomatiese vuurwapen’, the
magistrate does not appear to have advised the appellant
at any stage
of the consequences of this finding, if made."
[11]
In the instant case, absolutely no prior advice was given to the
accused. He was not pertinently forewarned
about section 51 of the
Criminal Law Amendment Act 105/1997. Everyone said nothing about it
until the magistrate had found the accused
guilty. By then it was too
late for the defence lawyer to tighten her belt. She had been
ambushed. The accused’s right to a fair
trial had been violated.
Vide
S v SELEKE EN ANDERE
1976(1) SA 786 (TPD) at 682H which was quoted with approval by
Cameron JA at par 20 in the recent decision of
S
v MICHAEL LEGOA
2002(4)
All SA 373 SCA and again by Mpati JA at par 12 in
S
v NDLOVU
,
supra
.
Stressing the concept of substantive fairness as embraced in a
guaranteed constitutional right to a fair trial, Mpati JA elucidating
the said passage in
S v
SELEKE
supra
as ably translated from Afrikaans to English by Cameron JA said:
"And
I think it is implicit in these observations that where the State
intends to rely upon the sentencing regime created by
the Act a fair
trial will generally demand that its intention be pertinently brought
to the attention of the accused at the outset
of the trial, if not in
the charge sheet then in some other form, so that the accused is
placed in a position to properly appreciate
in good time the charge
that he faces as well as its possible consequences.
.....
It is sufficient to say that what will at least be required is that
the accused be given sufficient notice of the State’s
intention to
enable him to properly conduct his defence."
No
forewarning to invoke section 51 of the Criminal Law Amendment Act
105/1997 was at all given in the instance case. In
S
v NDLOVU
supra
an attempt was made to do so. But even that attempt did not impress
the Supreme Court of Appeal. In this case where no warning not
even
an attempt was given the accused was clearly prejudiced. He was
deprived of the opportunity to properly prepare and conduct
his
defence. The penalty provided for in section 39(2) of the Arms and
Ammunitions Act 75/1969 for possession of ordinary firearm
is R12 000
or 3 years imprisonment or both. The penalty provided for the
possession of a semi-automatic firearm in section 51 of
the Criminal
Law Amendment Act 105/1997 is 15 years imprisonment without the
option of a fine unless there are substantial and compelling
circumstances to deviate from the sentence. The prejudice is too
obvious to see. The reservation of the regional court magistrate
was
therefore valid. The referral was improper. It was potentially
prejudicial to the accused. The noble notion of a fair trial demands
both substantive fairness as well as procedural fairness. The
criminal proceedings cannot be seen and declared to have been in
accordance
with justice if anyone of these two tenets of justice is
missing.
[12]
I now turn to the merits. The version of the accused was that two men
came to his tuckshop on the night in
question. They had firearms to
sell. They were aggressive. They did not believe that he a
shopkeeper, could not afford to buy a firearm
for R500. They began to
loot his shop. Among others, they took R60 from a bowl he used as a
sort of money-box. They told him they
would come back for the balance
(R440). They went away leaving one firearm behind in his shop. While
all this was going on he did
not utter a word because he knew
Gopalang very well. According to my understanding he meant that
Gopalang was apparently a notorious
or troublesome young man. He
feared for his life. Gopalang’s companion was a certain Lethebela.
The accused perceived both as armed
and dangerous. Captain Mabeleng
testified that Gopalang was one of the six suspects who were arrested
that night in connection with
charges of armed robbery and murder at
Vierfontein.
[13]
After the robbers had gone away, the accused locked the door of the
shop, put the firearm in the bag and concealed
it. The shop was the
front part of his dwelling. His aim was to take the firearm to the
police the next day. He told his wife about
the incident and slept.
During the same night the police came to his house. They were led by
Gopalang. He took out the firearm the
police were looking for. He was
then arrested.
[14]
The district court magistrate rejected the accused’s version as a
pure story which he fabricated afterwards.
"Ek
kon glad nie bevind dat beskuldigde se weergawe enigsins moontlik
waar kan wees nie."
(
Vide
p 2 letter from district court magistrate dated 22 January 2002.)
It
is so that the accused gave no explanation to the police of where he
got the firearm from. But the State witness Captain Mabeleng
confirmed during cross-examination that at the time of the arrest in
the early hours of Wednesday 15 May 2002 the accused gave him
no
explanation because he, the captain, advised him of his right to
remain silent and warned him of the consequences of speaking
up about
the firearm and the ammunition found in his possession. The accused
heeded the warning and remained silent. In my view the
presiding
judicial officer erred in holding this fact against the accused. No
unfavourable inference can be legitimately drawn from
the action of a
suspect who chose to assert his fundamental right to remain silent.
By giving no explanation the accused was perfectly
within the ambit
of his constitutional protection. Secondly, the police found the
firearm bagged and hidden in the accused’s bedroom.
This fact does
not mean much in favour of the prosecution’s case. It must be kept
in mind that the accused’s dwelling was a shack.
He was not the
sole occupant of the shack. The firearm was loaded. A loaded firearm
is a deadly weapon. I can see nothing wrong with
the actions of the
accused. Any person who wraps up a loaded firearm and conceals it may
be prompted to do so by considerations of
safety. The accused was
never asked why he put the firearm in the bag and why he concealed
it. A vendor who hardly had a cash register
probably had no safe in
which he could have locked the firearm away. To avoid any possible
accident by negligent handling of a firearm,
he might have thought it
advisable to hide it away in order to make doubly sure it was not
within easy reach by any other occupant
of the shack. But he might
also have hidden it away with some criminal motive as the district
court magistrate believes. Therefore,
there are at least two possible
motives - the one evil the other noble. Since the accused was never
specifically asked to explain
what his motive was in hiding the
firearm he is entitled to the benefit of the doubt, which is that the
district magistrate should
have found that it was doubtful whether
the motive for the concealment was nefarious or innocent.
[16]
Thirdly, the accused was arrested in the early hours of Wednesday 15
May 2002. It seems the police arrived
shortly after the firearm was
delivered. He testified that he intended taking the unwanted firearm
to the police the next day. The
next day should not be understood to
mean Thursday 16 May 2002. I understand it to mean after daybreak of
the same day Wednesday
15 May 2002. He was not prepared to go to the
police immediately at night. It was safer during daytime than at
nighttime to go to
the police. The district court magistrate made an
unfavourable finding against the accused on this point. He remarked:
".....
en die vraag is dan, hoekom gaan hy nie dadelik polisie toe nie,
hoekom eers tot die volgende dag wag?’
During
cross-examination the accused answered the prosecutor’s question by
saying he feared for his life which was why he did not
immediately go
the police at night. He was fearful to venture out at night because
he was aware "the robbers or the sellers"
were still armed
with another firearm. He was uncertain whether they had gone away or
whether they were still hanging around his
place. Unfortunately for
the accused the police arrived before dawn. His good intentions were
overtaken by the unexpected early arrival
of the police. In my view
the explanation of the accused is reasonable. In those circumstances
he did not have to put his fears aside,
leave his family at an
ungodly hour of the night alone and walk 5 km forward journey only to
hand the unwanted firearm to the police
and walk another 5 km return
journey back home.
Fourthly,
the district court magistrate found the accused was untruthful as to
how the firearm came into his hands. The version of
the accused was
that the two men did not negotiate the terms of the transaction with
him. They decided to sell the firearm to him.
They fixed the price.
They took a deposit from the bowl. They undertook to collect the
balance later. They left the firearm behind.
The accused in essence
alleged that he was never a party to the sale of the firearm found on
his premises. He was not a willing buyer.
He did not purchase the
firearm. He said in his evidence in chief on p 14:
"Ek
kon nie iets sê nie, net stil gebly ....."
[18]
Now if the version of the accused is true, then there was no genuine
sale agreement here. The entire deal was
a unilateral transaction and
not a valid bilateral contract between two willing parties who were
ad idem
in respect of all the
essentialia
of the transaction. Where there was no meeting of the minds there
could have been no sale. Since the accused lacked
animus
acquirendi
he could not
have had
animus possidendi
.
It
can be accepted that the accused’s version that the firearm was
brought to his premises by Gopalang and Lethebela is true. It
was
Gopalang who led the police to where the firearm was. But Gopalang
Alfred Somfula was not called to rebut the forced or the alleged
forced or unilateral nature of the transaction as alleged by the
accused. It seems to me that the finding of the district court
magistrate
that:
".....
die geforseerdery ‘n klomp leuens is."
was
a misdirection on the part of the district court magistrate. The real
issue here was
mens rea
.
It seems to me that the accused did not receive the firearm at all.
The firearm was dropped with duress in his shop. He did not
accept it
cum animo possidendi
.
On the facts it appears to me that the accused did not have the
requisite criminal intent to possess the firearm found in his house.
Fifthly, the district court magistrate also described as a bunch of
lies the accused’s claim that he did not call the police though
he
had a cell phone because he did not know how. The magistrate found it
unbelievable that a man who had a cellular phone would not
know the
emergency number of the police. The district court magistrate was of
the opinion that the accused ought to have known the
police emergency
telephone number 10111. No penetrating questions were put to the
accused during cross-examination to establish that
he in fact knew
the number. It is not sufficient to find that he ought to have known
the number since he had a cellular phone. The
court did not know the
highest level of education the accused had achieved, if he had
received any formal schooling. The court did
not know whether the
accused was able to make any sense of a telephone directory, assuming
he had one. His evidence that he did not
know the police emergency
number and his further evidence that he did not know how to telephone
the police cannot, without more,
be summarily dismissed as false.
[19]
Having considered all the relevant facts, the totality of the
evidence, the magistrate’s reasons for conviction
and especially
the incident of onus, I agree with the view of the regional court
magistrate that the version of the accused must
have been accepted as
reasonably and possibly true. There was nothing on oath to gainsay
it. The State has not succeeded to discharge
the onus of proving the
contrary in my view. It must always be remembered that no onus rests
on the accused to convince the court
about the truth of his version.
If he gives an explanation which is reasonably and possibly true he
must be acquitted even if such
an explanation is improbable.
Vide
REX v DIFFORD
1937 AD 370
at 373.
[20]
For the reasons enumerated above I am not satisfied that the
proceedings in the district court were in accordance
with justice.
Accordingly the conviction of the accused is hereby set aside. So is
his referral to the regional court for sentence.
__________________
MH
RAMPAI, J
I
CONCUR:
__________________
S
EBRAHIM, J