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[2020] ZASCA 102
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Mbatha v S (928/20) [2020] ZASCA 102 (15 September 2020)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 928/20
Not
Reportable
In
the matter between:
ZAKHELE
DERRICK MBATHA
Applicant
and
THE
STATE
Respondent
Neutral
citation:
Mbatha
v The State
(928/2018)
[2020] ZASCA 102
(15 September 2020)
Coram:
MAYA P, DAMBUZA, NICHOLLS JJA AND WEINER AND MABINDLA-BOQWANA AJJA
Heard:
This matter was
decided without an oral hearing in terms of
s 19(a)
of the
Superior
Courts Act 10 of 2013
.
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 15 September at 10h00.
Summary:
Reconsideration
of application for special leave to appeal against conviction and
sentence –
section 17(2)
(f)
of
the
Superior
Courts Act 10 of 2013
–
exceptional
circumstances.
ORDER
Application
for reconsideration referred by Navsa AP in terms of
s
17(2)(
f
)
of the
Superior
Courts Act 10 of 2013
:
1.
Condonation for the late filing of the
copies of the original application for leave to appeal and copies of
the application in terms
s 17(2)(
f
)
of the Act is granted.
2.
The application
succeeds and the order dismissing the applicant’s petition for
leave to appeal is varied to read:
‘
The
applicant is granted leave to appeal to the Gauteng Division of the
High Court (Johannesburg) against conviction in respect
of count 3
and the sentences in respect of counts, 1, 2, 4 and 5.’
JUDGMENT
Weiner AJA
(
Maya
P, Dambuza and Nicholls JJA and Mabindla-Boqwana AJA concurring):
Introduction
[1]
The applicant was charged in the Magistrate’s
Court of the Regional Division of Gauteng, Lenasia, Gauteng with the
following:
count 1 - robbery with aggravating circumstances; count 2
- robbery with aggravating circumstances; count 3 - possession
of an unlicensed firearm; count 4 - assault with the intent to do
grievous bodily harm; and count 5 - attempted murder. He was
acquitted on count 4 and convicted on counts 1, 2, 3 and 5 on
30 January 2013.
[2]
On 25 February 2013, the applicant was sentenced
on Count 1 to 15 years imprisonment; on Count 2 to 15 years
imprisonment; on Count
3 to 15 years imprisonment; and on Count 5 to
10 years imprisonment.
[3]
The magistrate ordered that the sentence imposed
for count 2 run concurrently with the sentence imposed for count 1.
In regard to
count 3, it was ordered that 10 years of the 15 year
sentence run concurrently with the sentence imposed for count 1. On
count
5, the sentence was not to be served concurrently with any of
the other sentences. The effective sentence imposed on the applicant
was thus 30 years imprisonment.
[4]
The applicant applied for leave to appeal against
the sentence and the conviction on count 3. The magistrate dismissed
the application
due to a lack of prospects of success. The applicant
then directed a petition to the Gauteng High Court, Johannesburg. The
petition
was dismissed on 13 March 2014. The applicant, in a further
effort to secure leave to appeal, directed a petition to this Court
for special leave. The petition was considered by two judges of this
Court. On 22 May 2018, they dismissed the application
on the
ground that there were no exceptional circumstances meriting a
further appeal. The applicant thereafter applied to this
Court in
terms of
s 17(2)
(f)
of
the
Superior Courts Act (the
Act) for reconsideration of this Court’s
decision of 22 May 2018.
[5]
Condonation for the late filing of the copies of
the original application for leave to appeal and copies of the
application in terms
s 17(2)(
f
)
of the Act was not opposed by the State. The appellant set out facts
which show good cause why condonation should be granted.
[6]
The State also did not oppose the application for
reconsideration of this Court’s refusal to grant leave to
appeal. The State
conceded that the conviction on count 3, cannot
stand. It also conceded that the principles governing the cumulative
effect of
the sentences, taken together with the time spent awaiting
trial, were incorrectly applied.
[7]
The parties agreed that this matter could be
disposed
of without an oral hearing in terms of
s 19(
a
)
of the Act.
Factual
background
[8]
The applicant was convicted on the following
facts:
(a) He was part of a group of three
attackers who robbed the first complainant, Mrs Regina Siyabela, at
gunpoint of R14 000
cash, at her home from which she ran a
tavern;
(b) Two other complainants, Makro
truck drivers, Mr Prince Jabulani Botsaki and Mr Thabo Phiri, who
were delivering liquor at the
house, were also robbed of their
wallets and cellular phones;
(c) The firearm referred to in charge
3 was in the hands of accused 3;
(d) The applicant was the driver of
the Toyota Tazz motor vehicle used by the robbers, who fled the scene
in the vehicle;
(e) The police gave chase; a shootout
followed between certain of the people in the Toyota Tazz vehicle and
the police. Several
other firearms were used by the robbers in the
shootout;
(f) Accused 2 was injured in the
shootout and the robbers abandoned the vehicle and fled on foot;
(g) The applicant and his co-accused
were arrested sometime after the incident;
(h) The applicant was subsequently
pointed out as one of the robbers at an identity parade.
[9]
The applicant submitted that no evidence was
placed before the trial court that he, at any stage, handled a
firearm or had one in
his possession. He contended that, although it
is evident that the firearms were used for the benefit of the whole
group, a mere
intention on the part of the group to use the weapons
for the benefit of them all is insufficient for a conviction of
unlawful
possession of a firearm.
Section
17(2)(
f
) of the
Superior Courts Act
[10
]
The issues which form the
basis of this reconsideration are:
(a)
Whether the applicant was correctly convicted on
count 3;
(b)
whether, in imposing the sentences that it did,
the court a quo, failed to take into account the time that he spent
in custody awaiting
trial; and
(c)
whether the sentences should not all run
concurrently.
[11]
Section
17(2)(
f
)
of the Act confers a discretion on the President of the
Supreme Court of Appeal, in exceptional circumstances, to
refer
a decision of that Court, refusing an application for
leave to appeal, to the Court for reconsideration and, if
necessary, variation.
[12]
On 25 February 2019, this court (Navsa AP)
granted the following order in terms of
s 17(2)(
f
):
1.
Condonation as applied for is granted.
2.
The decision of the court dated 22 May 2018
dismissing the applicant’s application for leave to appeal with
costs is referred
to the court for reconsideration, and if necessary,
variation.
3.
The argument for special leave to appeal and
condonation is referred for oral argument in terms of
s 17(2)(
d
)
of the Act.
4.
The parties must be prepared, if called upon to
do so, to address the court on the merits.
Exceptional
circumstances
[13]
The
issue for reconsideration is whether the applicant should have been
granted leave to appeal his conviction on count 3, on the
basis that
the conviction was clearly wrong,
on a point of law. If so, exceptional circumstances would exist which
would warrant a reconsideration
of the conviction (and the consequent
sentence imposed in respect of such conviction).
[14]
In
Liesching
and Others v S
,
[1]
the
Constitutional Court stated:
‘
The
courts have been reluctant to lay down a general definition, as each
case is to be considered on its own facts. It has been
held that it
is neither desirable nor possible to lay down a precise rule or
definition as to what would constitute exceptional
circumstances. The
meaning and interpretation given by the courts to the phrase has been
wide-ranging . . . Ultimately, it is the
function of the presiding
officers to determine whether, on a case-by-case basis, the
circumstances can be found to be exceptional.’
(Footnotes
omitted).
[15]
The concept
of exceptional circumstances, in terms of
s17(2)(
f
),
was dealt with in
Malele
v S; Ngobeni v S
,
[2]
where it was stated that on a correct application of these
principles, on the facts of that case, another court might reach a
different conclusion.
[3]
It concluded that ‘a grave injustice may otherwise result’
if the decision dismissing the applicants’ application
for
leave to appeal was not referred to the court for reconsideration,
and that a grave injustice ‘in itself constitutes
exceptional
circumstances enabling [the Court],
mero
motu
,
to refer the decision . . . to the court for reconsideration.’
[4]
[16]
In
Manyike
v S,
[5]
this Court dealt with the concept as follows:
‘
What
constitutes exceptional circumstances depends on the facts of each
case. …. Thring J in
MV
Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas & another
2002 (6) SA 150
(C) at 156H remarked that:
“
1.
What is ordinarily contemplated by the words ‘exceptional
circumstances’ is something out of the ordinary and of
an
unusual nature; something which is accepted in the sense that the
general rule does not apply to it; something uncommon, rare
or
different . . .
2.
To be exceptional the circumstances concerned must arise out of, or
be incidental to, the particular case.
3.
Whether or not exceptional circumstances exist is not a decision
which depends upon the exercise of a judicial discretion: their
existence or otherwise is a matter of fact which the Court must
decide accordingly.
4.
Depending on the context in which it is used, the word ‘exceptional’
has two shades of meaning: the primary meaning
is unusual or
different; the secondary meaning is markedly unusual or specially
different.
5.
Where, in a statute, it is directed that a fixed rule shall be
departed from only under exceptional circumstances, effect will,
generally speaking, best be given to the intention of the Legislature
by applying a strict rather than a liberal meaning to the
phrase, and
by carefully examining any circumstances relied on as allegedly being
exceptional.”
In
a nutshell the context is essential in the process of considering
what constitutes exceptional circumstances.’ (footnotes
omitted)
[17]
The
reconsideration is not the consideration of the merits of the appeal.
It is the reconsideration of the decision of this Court
refusing
leave to appeal. This Court is required to decide whether the
magistrate, the judges of the Gauteng Division, and the
two judges of
this Court should have found that reasonable prospects of success
existed to grant leave to appeal.
[6]
For
the purposes of this reconsideration, this Court is not called upon
to make a decision on the merits of the appeal. However,
for the
purposes of assessing whether special circumstances exist, it is
necessary to traverse the merits in order to decide whether
there are
reasonable prospects of success on appeal.
[18]
The
applicant was convicted on the basis of joint possession of the
firearm. The applicant submitted that the fact that he was aware
that
accused 3 possessed the firearm for the purpose of committing the
robbery does not lead to the inference that he possessed
the firearm
jointly with his co-accused. He relied in this regard on this Court’s
decision in
Kwanda
v S
,
[7]
and the decision of the Constitutional Court in
Makhubela
v S
.
[8]
[19]
In
S
v Kwanda
this court held:
[9]
‘
The
fact, that the applicant conspired with his co-accused to commit
robbery, and even assuming that he was aware that some of his
co-accused possessed firearms for the purpose of committing the
robbery, does not lead to the inference that he possessed such
firearms jointly with his co-accused. In
S
v Nkosi,
Marais J
said that such an inference is only justified where “the state
has established facts from which it can properly
be inferred by a
court that: (a) the group had the intention (animus) to exercise
possession of the guns through the actual detentor
and (b) the actual
detentors had the intention to hold the guns on behalf of the group”.
Nugent JA, in
S
v Mbuli
, referred to
the above-quoted passage from
Nkosi
and commented that
Marais J had “set out the correct legal position”. In
Mbuli
the applicant and his two co-accused were charged with and convicted
of being in possession of a hand grenade that had been found
in their
vehicle shortly after they had robbed a bank (this is the only charge
of relevance to this matter). Nugent JA found that
the evidence did
not establish that the applicant and his co-accused had possessed the
hand grenade jointly and that it was possible
that the hand grenade
had been possessed by only one of them. Nugent JA concluded with
these words:
“
I
do not agree that the only reasonable inference from the evidence is
that the accused possessed the hand grenade jointly. It is
equally
possible that, like the pistols, the hand grenade was possessed by
only one of the accused. Mere knowledge by the others
that he was in
possession of a hand grenade, and even acquiescence by them in its
use for fulfilling their common purpose to commit
robbery, is not
sufficient to make them joint possessors for purposes of the Act. The
evidence does not establish which of the
accused was in possession of
the hand grenade and on that charge, in my view, they were entitled
to be acquitted.”
Adopting
the reasoning in
Nkosi
and
Mbuli
, and even if the
applicant was aware that Mahlenche was in possession of the firearm,
such knowledge is not sufficient to establish
that he had the
intention to jointly possess the firearm with Mahlenche. In this
matter there are no facts from which it can be
inferred that the
applicant had the necessary intention to exercise possession of the
firearm through Mahlenche or that the latter
had the intention to
hold the firearm on behalf of the applicant.’
[20]
The test
for establishing liability for the joint possession of a firearm was
established in
S
v Nkosi
,
[10]
and has been confirmed by the Constitutional Court in
Makhubela
v S
where
it was held:
‘
In
convicting the applicants for unlawful possession of firearms and
ammunition on the basis of the doctrine of common purpose,
the trial
court departed from settled jurisprudence. The test for establishing
liability for the possession of firearms and ammunition
was
established in
S v
Nkosi:
“
The
issues which arise in deciding whether the group (and hence the
applicant) possessed the guns must be decided with reference
to the
answer to the question whether the State has established facts from
which it can properly be inferred by a Court that:
(a)
the group had the intention (animus) to exercise possession of the
guns through the actual detentor; and
(b)
the actual detentors had the intention to hold the guns on behalf of
the group.
Only
if both requirements are fulfilled can there be joint possession
involving the group as a whole and the detentors, or common
purpose
between the members of the group to possess all the guns.”
…
.
In these judgments, the courts have found perpetrators guilty of a
crime involving the use of firearms on the basis of the doctrine
of
common purpose, but nevertheless found that the perpetrators could
not be found to be guilty of the unlawful possession of firearms
on
the basis of this doctrine. The test takes into account the fact that
the application of the doctrine of common purpose differs
in relation
to “consequence crimes”, such as murder, and in relation
to “circumstance crimes”, such as
possession….’
[11]
[21]
The magistrate, in finding the applicant guilty
of possession of the firearm on the basis of joint possession, held:
‘
[A]lthough
the evidence places the firearm referred to in this charge in the
hands of accused 3 the well-known Supreme Court of
Appeal decision of
Nkosi
,
refers to the possibility of a conviction in respect of more than one
accused on the basis of joint possession if certain pre-
requisites
are present.
The
court can safely infer from the evidence that all three . . . accused
knew of this firearm and that it might be utilised upon
confrontation. The evidence shows that more than one firearm was
fired during the incident. All three accused are therefore also
convicted of count three.’
[22]
The applicant contended that none of the
complainants or the police witnesses testified that he was in
possession of a firearm or
that he fired at the police. While the
applicant was driving the Toyota Tazz vehicle, and trying to evade
the police, it seems
unlikely that he would have been able to use a
firearm at the same time. The question then is whether the only
inference to be
drawn from the evidence, is that those who
used
the
firearms, to rob
the complainants and to
evade
the
police,
possessed them on behalf of all of three accused.
Sentence
[23]
The
applicant spent 3 years and 6 months in custody awaiting trial. In
S
v Vilakazi
,
[12]
this court held:
‘
While
good reason might exist for denying bail to a person who is charged
with a serious crime, it seems to me that if he or she
is not
promptly brought to trial, it would be most unjust if the period of
imprisonment while awaiting trial is not brought to
account in any
custodial sentence that is imposed.’
[24]
In addition, the cumulative effect of the
sentences, taking into account that certain of the sentences were not
to run concurrently,
led to an effective sentence of 30 years.
Conclusion
[25]
The prospects of success on appeal appear to favour the applicant,
both in relation to the conviction on Count 3 and the effective
sentence handed down. However, as was held in
Avnit
v First Rand Bank Ltd
:
[13]
‘
Prospects
of success alone do not constitute exceptional circumstances. The
case must truly
raise
a substantial point of law
,
or be of great public importance or demonstrate that without leave
a
grave injustice might result
.
Such cases will be likely to be few and far between because the
judges who deal with the original application will readily identify
cases of the ilk. But the power under
section 17(2)(
f
)
is one that can be exercised even when special leave has been
refused, so “exceptional circumstances” must involve
more
than satisfying the requirements for special leave to appeal. The
power is likely to be exercised only when the President
believes that
some matter of importance has possibly been overlooked or a grave
injustice will otherwise result.’
[emphasis
added]
[26]
In my view, this matter raises a substantial
point of law in relation a conviction based upon joint possession of
a firearm. The
sentences handed down by the Magistrate also overlook
certain important principles. As the State properly conceded, a grave
injustice
might result if leave to appeal is not granted. Thus, the
test for exceptional circumstances has been met.
[27]
Accordingly, the following order is granted:
1.
Condonation for the late filing of the
copies of the original application for leave to appeal and copies of
the application in terms
s 17(2)(
f
)
of the Act is granted.
2.
The application
succeeds and the order dismissing the applicant’s petition for
leave to appeal is varied to read:
‘
The
applicant is granted leave to appeal to the Gauteng Division of the
High Court (Johannesburg) against conviction in respect
of count 3
and the sentences in respect of counts, 1, 2, 4 and 5.’
_______________________
WEINER
AJA
ACTING
JUDGE OF APPEAL
APPEARANCES
For
applicant: Bhengu & Rajagopal Attorneys, Cape Town
Instructed
by: Blair Attorneys, Bloemfontein
For
respondent: Director of Public Prosecutions, Johannesburg
Instructed
by: Director of Public Prosecutions, Bloemfontein
[1]
Liesching and Others
v S
[2018] ZACC 25
;
2019 (4) SA 219
(CC) para 132. Although this was in
a minority judgment, these principles were not refuted in the
majority judgment
[2]
Malele v S; Ngobeni and
Others v S
[2016]
ZASCA 115.
[3]
Ibid paras 8-9.
[4]
Ibid para 12; see also
Gwababa
v S
[2016] ZASCA 200
(SCA).
[5]
Manyike v S
[2017] ZASCA 96
para 3.
[6]
Liesching
(note
1 above);
Notshokovu v S
[2016] ZASCA 112
; 2016 JDR
1647 (SCA).
[7]
Kwanda v S
[2011] ZASCA 50; 2013 (1) SACR 137 (SCA).
[8]
Makhubela v S, Matjeke v S
[2017] ZACC 36
;
2017 (2)
SACR 665
(CC) para 55.
[9]
Kwanda v S
(note
7 above) paras 5-6.
[10]
S v Nkosi
1998 (1) SACR 284 (W).
[11]
Makhubela v S
(note 8 above) paras 46-47.
[12]
S v Vilakazi
2009
(1) SACR 552
(SCA) para 60.
[13]
Avnit v First Rand Bank Ltd
[2014] ZASCA 132
para 7.