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[2024] ZAKZPHC 63
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Nojiyeza v S (AR185/23) [2024] ZAKZPHC 63; 2024 (2) SACR 516 (KZP) (12 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO.:AR185/23
In
the matter between
:
SIHLE
ISIAH NOJIYEZA
APPELLANT
and
THE
STATE
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties' representatives by email, and
r
eleased
to SAFLII. The date for hand down is deemed to be 12 August 2024 at
11
:
00
ORDER
On
appeal from
:
Ntuzuma
Regional Court (sitting as the court of the first ins
t
ance):
The appellant's appeal against his conviction is dismissed
.
JUDGMENT
Chithi
AJ (Sibisi AJ concurring):
[1]
The appellant
was found guilty by the Regional Court in Ntuzuma on 25 February 2022
on the following two counts, namely:
(a)
possession
of a
prohibited firearm; and
(b)
possession
of ammunition
.
[2]
On 23 March
2023 the appellant was sentenced to eight years' imprisonment for
possession of a prohibited firearm and to six months'
imprisonment
for possession of ammunition which sentences were ordered to run
concurrently
.
[3]
The appellant
now appeals to this court only against his conviction having been
granted leave to appeal by the trial court on 8
March 2023.
[4]
The grounds
upon which the appellant seeks to assail his conviction are broadly
the following:
(a)
The trial
court erred in lowering the standard of proof to a civil standard of
balance of probabilities
.
(b)
The trial
court erred in concluding that the two police officers who testified
for the
respondent
corroborated
each other and that their evidence was clear and satisfactory in all
material respects particularly as to where and
from whom the firearm
was recovered.
(c)
The
trial
court erred in admitting the ballistic report in evidence without
first
verifying with
the appellant whether he had any objections to it being admitted in
evidence
.
(d)
The
trial court erred in accepting the ballistic report in evidence when
the
appellant
had not admitted it in terms of s 220 of the Criminal
Procedure
Act
[1]
('the CPA').
(e)
The trial
court erred in permitting the ballistic report to be admitted in
evidence without it being read into the record in terms
of s
150(2)(b)
of the
CPA.
[5]
The
appellant was
legally represented throughout the pre-trial proceedings and during
the
trial
until the close of the respondent's
case by Mr
Ndwandwe.
Thereafter
he
was
legally represented
by Mr Hlongwa
who
represented
him until the
conclusion
of
the trial.
[6]
The respondent
called two witnesses
,
Constables
Sabelo Goodman Dumakude and Sikhumkbuzo Sibongiseni Sikhakhane who
were both stationed at lnanda Police Station. The
appellant testified
in his own defence and called two witnesses, Thobani Ngidi and
Thandithoko Wiseman Nojiyeza.
[7]
The
evidence
of Constables
Dumakude
and
Sikhakhane
was
almost
identical
in nature
.
It is
therefore unnecessary to give an outline of their evidence
ind
i
vidually.
The broad overview of their evidence is that on 2 July 2017 at
midnight, they were performing crime prevention
duties in the
lnanda
area, which
compromises
Amaoti
Dube
Village,
Bhambayi, and Ezimangweni
,
together with
their colleague
Constable
G Gokhe who
did not test
i
fy..
They were in
full uniform and driving a marked State vehicle.
While they
were driving on an incline
,
they spotted
four African males that were standing along the road under a
streetlight.
As they were
approaching, they noticed one of the four males stepping away from
the other three
.
They drove the
police van and stopped it in their immediate vicinity
.
They then
instructed these males to stop. They introduced themselves as police
officers and the male who stepped away from the others
introduced
himself as Isiah Sihle Nojiye
z
a
,
the appellant.
They then asked for permission to search him to which request he
agreed
.
[8]
Constable
Dumakude proceeded to then search the appellant while his colleagues
were on guard
.
He
recovered a firearm from the appellant's right hip which he
removed.
[2]
Upon
requesting the appellant to produce a license to possess the firearm
the appellant failed to do so
.
He
then placed the appellant under arrest.
He
thereafter took the appellant and placed him in the police vehicle.
The firearm was a 9mm Norinco Star Fire with one 9mm magazine
and
four live ammunition.
The
serial number of the firearm was erased.
[9]
He then went
back to search the area where the other males were standing. He
requested to search each one of them to which they
consented.
He searched
them and found nothing and then released them.
The police
then drove the appellant to lnanda Police Station whereat Constable
Dumakude entered the firearm, magazine and the four
live ammunition
in the exhibit register (SAP13).
He then placed
them in a seal bag in the presence of the appellant. He then detained
the appellant for being in possession of an
unlicensed firearm and
ammunition. A copy of the SAP13 and the ballistic report was handed
in as exhibits and that concluded the
respondent's case.
[10]
The appellant
testified that
on 2 July 2017 at about 21h00 while he and his two companions Thobani
Ngidi and Thanditholo Wiseman Nojiyeza were
on their way to the
tuckshop
they
were
stopped
by police
who
came out of a
police van
which had
emerged
in
their
immediate vicinity. They pointed firearms at them and proceeded to
search them without their consent. When the appellant enquired
as to
why they were being searched Constable Dumakude remarked that the
appellant talked too much and that the appellant thought
he was
clever. During the search Constable Dumakude did not find anything on
him except
keys and some
money.
Constable
Dumakude
then went
across
the road in
the bushy area where he picked up something using his cellphone
flashlight. Constable Dumakude
then came back
to the scene with a firearm and attributed possession
thereof to the
appellant. The appellant denied ever having stepped away from his
companions when the police approached them
.
The appellant
further denied that he and his companions were standing along the
road under a streetlight.
[11]
The evidence
of Messrs Ngidi and Nojiyeza was not materially different to the
evidence of the appellant.
However, Mr
Ngidi did not know when exactly
in
2017 the
incident happened. In addition, he did not know whether Constable
Dumakude used a cellphone or torch when he went looking
for something
in the bush. The evidence of Mr Nojiyeza differed from that of the
appellant and Mr Ngidi in that he testified that
they were each
searched
by
the
other
two
officers
while
Constable
Dumakude
went
into
the
bush. This
means that the three officers searched each one of them. He further
testified that the appellant
refused
to be
searched.
Furthermore,
he testified
that upon
being
searched
in
addition
to
the
keys
and
money
the
police
also
found
cell
phones
and
wallets
in
their
possession.
Moreover, Mr
Nojiyeza denied that firearms were pointed at them.
[12]
On 26 June
2024 two days before the hearing
,
this court
requested the parties to file supplementary
heads of
argument
on
or before 28 June 2024 on the following issues:
(a)
The effect of
the admissions that were made on behalf of the appellant
in respect of
the chain evidence and ballistic report during the pre-trial
conferences
held on 16
April 2018 and 16 May 2018 respectively.
(b)
The
grounds
upon which the trial court was alleged to have applied the incorrect
standard of proof.
(c)
The approach
which the trial court had to adopt in assessing two conflicting
versions.
[13]
Both parties
duly
filed their
respective
supplementary
heads of
argument
on 27 June
2024 and we are grateful for their endeavours at short notice
.
However, the
parties
'
supplementary
heads of argument did not take the matter any further.
[14]
It
is
trite where there has been no misdirection
on
the facts by the trial court the presumption is that its conclusion
is correct, and the appellate court will only reverse it
where it is
convinced that it is wrong.
[3]
[15]
Mr
Moola
on
behalf of the appellant argued that the two witnesses for the
respondent did not corroborate each other in relation to where
exactly the appellant's firearm was recovered.
Mr
Moola
'
s
argument
was not borne out by record and when his attention was drawn to the
evidence of both Constables Dumakude and Sikhakhane
in which they
both testified that the firearm was found on the appellant's right
hip
[4]
he
found himself impelled to concede that both witnesses in fact
corroborated each other in relation to the recovery of the firearm.
Mr
Moola's
insistence
on this point to the extent of including it in the appellant's
grounds
of
appeal was rather
puzzling.
It
was puzzling
because
he had
already
conceded and abandoned this point in the application for
leave
to
appeal.
[5]
On
the face of this concession, we could not fault the findings of the
trial court in
relation
to
the recovery of the firearm.
[16]
Mr
Moola
further
argued that the trial court ought to have verified with the appellant
whether he had any objection to the admission of the
ballistic report
before admitting it in evidence
.
Moreover, Mr
Moola
argued
that in view of the ballistic report not having been admitted by the
appellant
in
terms of s 220 of the CPA before it was tendered in evidence it ought
to have been read into the record in terms of s 150(2)(b)
.
Lastly Mr
Moola
argued
that the trial court applied a civil standard of proof in deciding
the case.
[17]
Ms
Mkhize
on behalf
of the respondent
argued that on
at least two occasions during the pre-trial conferences the
appellant's erstwhile attorney Mr Ndwandwe recorded that
the chain
evidence and ballistic report were not in dispute. Moreover, the
ballistic
report
was by virtue
of the provisions of s 212(4) of the CPA admissible upon its mere
production. Consequently, it was unnecessary for
the report to be
read into the record as the appellant's attorney had a copy thereof.
Lastly Ms
Mkhize
argued
that the appellant's contention that the trial court applied a civil
standard of proof is
not borne out
by the record.
[18]
Mr
Moola
insisted
that the ballistic report was not properly admitted into evidence
despite
this
court drawing
to his attention the fact that Mr Ndwandwe
who
represented
the appellant
during the pre-trial proceedings and during a portion of the trial
did not place the ballistic report in dispute.
[19]
Mr
Moola
clearly
did
not
have
this portion
of the
record
as he
shuffled
his record
when this was drawn to his attention until Ms
Mkhize
gave him a
copy of her record.
This court can
only
strongly
discourage
as
a
highly
undesirable
practice
for
any
legal
practitioner
to seek to
argue an appeal without having the full record and making himself
au
fait
of it
not only during the preparation of the
heads of
argument but also as part of the preparation for the hearing.
[20]
In order to
determine whether the ballistic report was properly admitted into
evidence and whether
the contents
should have been read into the record
it is
necessary to consider the relevant Regional Court practice
directives, together with the provisions of ss 220 and
150(2)(b)
of the
CPA
.
[21]
Practice
directive 3 of the Criminal Practice Directives for the Regional
Courts in South Africa
[6]
provides:
'3
JUDICIAL
CASE
MANAGEMENT:
PRE-TRIAL
HEARING
AND
CERTIFICATION
OF
CASES AS TRIAL READY
In
compliance with paragraph 5.2.4 of the Norms and Standards dealing
with judicial case flow management,
no matter may
be enrolled
for trial
unless certified trial ready by a court
.
3.1
Prior to
certifying the case as trial ready a court must have conducted a
pre-trial hearing during the court proceedings.
3.2
At the
pre-trial hearing the issues enumerated below, but not limited
thereto, are to be considered and addressed where relevant:
3.2.1
Whether
the
prosecution is ready to proceed to trial?
3.2.2
Whether the
accused/defence is ready to proceed to trial?
3.2.3
Whether the
accused person is legally represented and in the case of a private
practitioner, whether the legal representative has
sufficient funds
or acceptable financial arrangements for the determined number of
trial dates.
3.2.4
Whether the
legal representative has received copies of the final charge sheet
,
further
particulars (if any) and copy of the docket/statements;
3.2.5
Whether the
legal representative has consulted
with accused
person.
3.2.6
Where
multiple
accused
have the same
legal
representative, whether
there
is a
possibility of any conflict of interest.
3.2.7
Whether the
parties had exhausted all possibilities to make representations to
the prosecution
.
3.2.8
Whether the state
intends to present any evidence of a technical nature.
This may
include,
for
example,
admissions
or
confessions,
pointing
out
by
the
accused
person
,
forensic
evidence, expert testimony, or statements
in terms of
section 212 of the Criminal Procedure
Act, 51 of
1977 (CPA) or other documentary
evidence.
3.2.9
The number of
accused and the number
of legal
representatives
.
3.2.10The
number of witnesses the prosecution intends to call.
3.2.11
Whether such
witnesses include any child witnesses, witnesses with mental or other
disabilities
.
3.2.12Whether
an appropriate language intermediary is necessary and whether
arrangements have been made.
3.2.13
Whether
there are any technical requirements for the trial, such as the use
of an intermediary, audio visual equipment, etc
.
3.2.14
Whether any
foreign language interpreters or other specific interpreters are
necessary for any of the accused or for any of the
witnesses and
whether any arrangements have been made.
3.2.14.1
The court must
conduct any inquiry to determine the language the accused understands
(as provided in s 35(k) of the Constitution)
rather than the mother
tongue or
preferred language
of the
accused.
Such
enquiry must be recorded.
3.2.15
Whether the
appointment
of
assessors is necessary?'
[22]
Pre-trial
hearings were held in this matter on 16 April and 16 May 2018
respectively where
the
issues which
are enumerated
in practice
directive 3, particularly those set out in practice directive 3.2.8,
were considered and addressed.
[23]
During
these two pre-trial hearings Mr Ndwandwe the appellant's erstwhile
attorney
did
not place the ballistic
report
in dispute and in fact during
the
pre-trial hearing of 16 May 2018, he specifically
recorded
that he had no objections to the admission of any formal evidence.
[7]
The
appellant was present during both pre-trial hearings and the court
interpreter must have interpreted the proceedings to the
appellant.
[24]
Shortly
before the respondent closed its case the issue of the ballistic
report having been admitted in the pre-trial hearings was
pertinently
raised by the prosecutor. The trial court confirmed that the
ballistic report was not placed in dispute during the
pre-trial
conferences.
[8]
The ballistic
report was thereafter handed in as an exhibit. Mr Ndwandwe was
present in court when the issue arose and did not
object to the
ballistic report being handed in as an exhibit.
In
any event had Mr Ndwandwe
objected,
in
my view, he would not have been able to do so without any difficulty
as this would have amounted to a withdrawal of an admission
which he
had previously made
.
[25]
The question
which
arises from
this context is
,
did the
admissions
which were
made during the pre-trial hearings amount to admissions
in terms of s
220 of the CPA.
[26]
In order to
answer this question, it is necessary to consider the provisions of s
220 which provide
:
'An
accused
or
his or her legal adviser
or the
prosecutor may in criminal proceedings
admit any fact
placed in issue at such proceedings and any such admission shall be
sufficient proof of such fact.
'
[27]
Section 220 of
the CPA does not prescribe the stage at which admissions can be made
.
Equally it
also does not prescribe that admissions have to be in writing
.
In practice
admissions
are
made at any time, at the pre-trial conference
stage to
before the delivery
of judgment.
The purpose of admissions at a pre-trial conference is to promote the
effective disposal of litigation
.
[28]
The ballistic
report which forms the foundation of the appellant
'
s
grounds of appeal was admitted
during
the pre-trial
conferences
which
were
held
in terms
of the
practice
directive 3.
While the
trial court did not record the admission of the ballistic report as
an admission in terms of s 220 of the CPA if one considers
practice
directive 3.2.8 the admission
of the
ballistic
report by Mr
Ndwandwe
was clearly
an
admission
in
terms
s 220.
[29]
The
effect thereof is that the appellant was bound by those admissions
unless he was able to prove that his legal representative
was not
properly instructed to make those admissions or that the admissions
were
made as a result of a
bona
fide
mistake.
[9]
[30]
The appellant
did not at any stage of the proceedings
after the
ballistic report was handed in seek to challenge it or seek to revoke
the admissions which had been made on his behalf.
Even after the
respondent's case was closed the appellant did not challenge the
evidence
that
the article
that
was
found
in his
possession
was
not a firearm.
The appellant
did not assert that his legal representative was not properly
instructed when he made
the
admissions or
that the admissions were made as a result of a
bona
fide
mistake
and therefore revocable.
[31]
It
is
trite
that
formal
admissions
in
terms
of
s
220
of
the
CPA
have
the
effect
of
relieving
the
State of the burden of adducing
evidence
concerning
the
facts admitted.
If
the admission is still standing at the end of the case, it becomes
conclusive proof of the facts admitted.
[10]
[32]
The trial
court was fully aware of the admissions which the appellant made not
only in relation to the ballistic report, but in
relation to all
formal evidence in general.
In my view
while it might have been desirable for the trial court, before
admitting
the
ballistic
report into
evidence, to verify with the appellant's attorney if the appellant
confirmed that during the pre-trial conference,
he did not
place the ballistic
report in
dispute.
This
failure does not on
its
own vitiate
the proceedings
resulting in a
failure of justice.
[33]
Consequently,
I cannot fault
the trial court in finding the appellant guilty based on the
ballistic report.
[34]
Allied to the
issue of the admission of the ballistic report is the whether the
ballistic report should have been read into the
record in terms of s
150(2)
(b)
of the
CPA.
[35]
Section
150(2)
(b)
provides
:
'
Where
any document may be received in evidence before any court upon its
mere production, the prosecutor shall read out such document
in court
unless the accused is in possession of a copy of such document or
dispenses
with
the reading out thereof
.'
[36]
When
the appellant's counsel was directed to the proviso in s 150(2)
(b)
he
correctly
conceded that in view of discovery having been effected upon the
appellant on 6 December 2017
[11]
it was unnecessary for the ballistic report to be read out. In view
of this concession
,
it
was therefore unnecessary
to
take this point any further.
[37]
In relation to
the issue of the trial court having allegedly applied a civil
standard of proof when the appellant's counsel was
referred by the
court to the relevant authorities with regard
to the proper
approach which
the trial court was by law
entitled
to adopt when
it was confronted with mutually destructive versions between the
appellant and the respondent
,
he conceded
that he was
wrong to have contended that the trial court applied a civil standard
of proof in the case.
[38]
It
is a matter of fact that after the trial court had assessed both the
appellant
'
s
and the respondent's
evidence
regarding
where
the
firearm
was
recovered
from
and
as
to
when the appellant was arrested it remarked that 'it was highly
improbable that
,
if
the accused was arrested at around nine p.m., that the statement
would have been commissioned that late
-
or
early hours of the morning at 01:05.
'
In
arriving at this conclus
i
on
,
the
trial court employed the well-established approach that is usually
applied when a court is confronted
with
two mutually
destructive
versions.
[12]
The
concession
by
the appellant's counsel was therefore correctly made.
[39]
Accordingly,
for
all
these
reasons
the
appellant's
appeal
against
his
conviction
must fail.
Order
[40]
In the result
I make the following order:
The
appellant's appeal against his conviction is dismissed.
CHITHI AJ
SIBISI AJ
APPEARANCES
Counsel
for the appellant:
Mr
M N Moola
Instructed
by
:
M
N Moola Attorneys
C/o
Omar
Attorneys
1a
,
Hillrand
15/21
,
Hill
Street
,
Overport
Durban
4091
Emai
l
:
mnlaw27@gmail.com
Counsel
for the respondent:
Ms
HT
Mkhize
Instructed
by:
Specialized
Commercial Crime Unit: Durban
Tel:
0331
335 6608
Dated
of hearing
:
28
June 2024
Date
of Judgment:
12
August 2024
Judgment
is electronically handed down on 12 August 2024 at 11
:
00
[1]
Criminal
Procedure Act 51 of 1977
.
[2]
Record
:
page
7
,
line
10 and page 28
,
line
14
.
[3]
R
v Dhlumayo and Another
1948
(2) SA 677
(A)
.
[4]
Record
:
page
7, line 10 and page 28
,
line
14
.
[5]
Record
:
page
159
,
lines
3-5.
[6]
Criminal
Practice Directives for the Regional Court in South Africa
,
5th
Revision
(2017)
.
[7]
Record
:
pages
1R
,
1T
,
4H
and
41.
[8]
Record
:
page
43
,
lines
12-18
.
[9]
S
v
Malebo en Andere
1979
(2) SA 636
(B) at 644;
Dlamini
v Minister of Law and Order and Another
1986
(4)
SA 342
(D)
;
Vilakazi
v
S
[2010] ZASCA 125
para 17
.
[10]
S
v
Seleke
en
'
n
Ander
1980
(3) SA 745
(A) at 754A-B
;
S
v
Groenewald
2005
(2) SACR 597
(SCA) para 33
;
S
v
Van
Der Westhuizen
2011
(2) SACR 26
(SCA) para 32.
[11]
Record
:
pages
1P and 4E
.
[12]
S
v
Saban
en
'
n
Ander
1992
(1)
SACR
199
(A)
at
203J-204A-B
;
S
v Trainor
2003
(1)
SACR
35
(SCA)
para
9
;
S
v M
2006
(1) SACR 135
(SCA) para 189.