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1993
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[1993] ZASCA 137
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S v Gwala (192/92) [1993] ZASCA 137 (27 September 1993)
Case nr 192/92
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between :
MOSAWENKOSI SILENCE
GWALA
Appellant
and
THE STATE
Respondent
CORAM
: VAN DEN HEEVER JA
KANNEMEYER AJA
HEARD
: 1993-09-16
DELIVERED
:
1993-09-27
JUDGMENT
1
KANNEMEYER, AJA
The appellant was charged before a
regional
magistrate with three contraventions of the Arms
and
Ammunition Act, No 75 of 1969 ("the Act"). The first
count
alleges that, on 5 November 1990 and at or near Nagle
Dam
Road, in the district of Camperdown, he unlawfully had in
his
possession two AK 47 machine rifles in contravention
of
section 32 (l)(a) of the Act. Count 2 alleges that on
the
same date and place as mentioned in count 1 he
unlawfully
possessed two F1 grenades and two RGD 5 grenades
in
contravention of section 32 (l)(b) of the Act, while count
4
(count 3 having been withdrawn) alleges that on the date
and
place mentioned in count 1 he possessed 117 rounds of AK
47
ammunition without being in lawful possession of an
arm
capable of firing such ammunition, in contravention
of
section 36 of the Act.
He pleaded guilty to all three counts, and handed in a statement in terms
of section 112(2) of Act No 51 of
2
1977 which reads :
"I the undersigned Mosawenkosi Silence Gwala do
hereby admit that
A) COUNT
ONE
1.
On
or about the 5th day of November 1990 and at or near Nagel Dam Road, Camperdown
Natal I had in my possession two AK 47 Madrine
rifles.
2.
Those two rifles
were in my possession in the sense that I had physical control over them and
that I intended to possess
them.
B) COUNT TWO
3. On or about the 5th day
of November 1990 and
at or near Nagel Dam Road, District
Camperdown
I had in my possession two F. 1 grenades and
two RGD 5 grenades together with four UZRGM detonators which are used to
trigger the said grenades.
4. The articles referred to in paragraph 3 above
were in my
possession in the sense that I had
physical control over them and
that I intended
to possess them.
C) COUNT FOUR
5. On or about the 5th day of November 1990 and
at or near
Nagel Dam Road, District of
Camperdown I had in my possession
the
following live ammunition.
117 X A/C 47 rounds.
6. I possessed the said ammunition in the sense
that I had
physical control over them and I
3
intended to possess the said articles.
7. I did not at the time lawfully possess an arm
capable of
firing such
ammunition.
D) ALL
COUNTS
8. I admit that my possession of the said arms and ammunition was
unlawful.
9. I knew at the time that my conduct in possessing the said arms and
ammunition was unlawful and I accordingly admit that I had the
requisite legal
intention to contravene the relevant sections of the Arms and Ammunition Act
under which I have been charged.
10. I accordingly plead guilty to counts one, two and
four."
The prosecutor accepted
the plea on the above basis and the appellant was found guilty on all three
counts.
He gave no evidence in mitigation but the attorney
representing him made a lengthy statement in this regard. His statement was, of
course, neither made under oath nor was it subject to cross-examination.
However, it appears that both the trial Court and counsel
for the State accepted
the facts contained in it as true and the magistrate sentenced the appellant on
the basis thereof and of certain
4
evidence presented by the State. The facts mentioned by the
appellant's attorney and the evidence elicited by the
State
will be mentioned presently.
The magistrate sentenced the appellant to five -
years' imprisonment on both count 1 and count 2 and to
one
year's imprisonment on count 4. He then said that he
had
taken into account the cumulative effect of the sentence and
ordered that :
"two years' imprisonment on each of counts 1 and 2
run concurrently. The effective sentence is then
one of a term of seven years' immediate summary
imprisonment."
On appeal to the Court
a quo
the sentence was
confirmed on the basis that the magistrate, while intending
to impose a cumulative sentence of seven years' imprisonment
had failed to achieve this object by the formula he had
adopted. Accordingly the judgment of the Court
a quo
concluded as follows :
"In order to give effect to the clear intention of the Magistrate I
therefore propose that the appeal should be allowed only to the
extent that
four
5
years of the term of imprisonment imposed in respect of count 2 should be
ordered to run concurrently with the five years sentence
imposed in respect of
count 1, with the result that the appellant's effective term of imprisonment
will be seven years."
It was ordered
accordingly. It is against this sentence that the appellant now
appeals.
I now turn to the facts placed before the trial court in
mitigation of sentence. The appellant was thirty eight years old when the
offence was committed and at the time of his trial he was unemployed. He was a
first offender. He is a married man with five dependant
children. He grew up in
the Swaaiemani district in Natal, where he went to school and passed standard 8
in 1974. He then left school
and obtained work with a company, South African
Nylon Spinners, in which he rose to the position of supervisor. In 1982 he
resigned
in order to start his own business as a shopkeeper. In 1983 he became
interested in civic matters and was made an organiser in the
Swaaiemani civic
Association
6
and, as such, was involved in community welfare projects
and
joined the United Democratic Front (UDF). This led to his
becoming interested in politics. In 1989 there was civil disorder and violence
in the Swaaiemani area between members of the UDF and those of the Inkatha
Freedom Party (IFP) and the appellant's shop and home
were destroyed by fire. He
suspected that this was because of his membership of the UDF. This left him with
no source of income and
without a roof over his head. He decided to commit
himself to the process of political change in South Africa and to this end he
made contact with Umkonto Wesizwe (MK), the military wing of the ANC. He was
accepted by this organisation and on 25 August
1989 he left for Lusaka in Zambia and from there he was
sent
to Moscow where he received military training for two
months.
He eventually returned to South Africa in March
1990.
Prior to his return to this country the ANC, which had been a banned
organisation, was unbanned on 2 February
1990 and thus, when he returned, membership of the ANC was
7
legal, but it was still its intention to continue using its armed forces
to achieve its object.
On his return home the appellant obtained
temporary
employment at a shop in Sinathingi in the
Pietermaritzburg
district. The weapons, which are the subject of the
three
counts to which he pleaded guilty, were brought to him
at
this shop on 13 July 1990 by a person who introduced
himself
as Mandla Nxumalo and referred to the appellant as
Victor
Vezi which was the latter's
nom de guerre
in MK.
The
appellant accordingly concluded that Mandlo Nxumalo was
also
a member of that organisation, using an assumed
name.
Nxumalo instructed him to keep the weapons in a safe
place
until he received further instructions. The
appellant
accordingly hid the weapons. On the following day, 14
July
1990, he was detained in terms of section 29 of the
Internal
Security Act, until 22 October 1990 when he was
released.
During the period of his detention he heard that the ANC
had
suspended the so called "armed struggle". This
8
notwithstanding, on his release, he did not hand over
the
weapons he had concealed before his detention to either
the
ANC or to the authorities. The explanation advanced on
his
behalf was first, that he had had no further
instructions
from Nxumalo and did not know how to contact him and
secondly
that, although he knew that discussions were taking
place
between the ANC and the Government about the disposal
of
weapons, no finality had been reached and he had received
no
instructions from MK officials to hand his cache to
the
authorities. It appears that when he received the
weapons
originally at Sinathingi he had intended or been
instructed
to conceal them in Swaaiemani, but had been detained
before
he could do this. After his release from detention
he
decided, in the absence of any other instructions, to
take
them to Swaaiemani as originally planned. He did this on
5
November 1990, but the vehicle in which he was travelling
was
stopped at a police road block en route and the weapons
were
discovered and he was arrested.
9
In aggravation of sentence the State called warrant officer Wilson
Magadhla of the South African Police. He is
second in command of a
special investigation unit stationed at Wartburg. Swaaiemani is in his area. The
purpose of the special investigation
unit of which he is a member is to
investigate cases arising out of unrest between the ANC and the UDF on the one
hand and the IFP
on the other. His unit took over these investigations in 1991
but he was aware that the unrest had commenced in 1988. He says there
was an
escalation of violence in the area in 1989 and 1990 but that during 1991 the
incidents of violence had lessened. He investigated
eighty-eight murder cases
between 1988 to 1991 in the Swaaiemani area, in some of which AK 47's had been
used.
The procedure adopted in the magistrate's court is far from satisfactory.
One is left in doubt about many facts that could, and probably
would, have been
clarified had the appellant given evidence under oath and been subjected
to
10
cross-examination. One has statements made by his
attorney
which are argument in mitigation and other statements
which
contain factual allegations. Then there was no
agreement
between counsel for the appellant and counsel for the
State
before us whether everything said by the appellant's
attorney
in the trial court was unconditionally accepted by the
magistrate and counsel for the State or not.
After counsel for the State had concluded his
argument, the appellant's attorney was invited, by the
magistrate, to reply. He said :
"Your Worship, the only point I wanted to make was that my learned friend
has led evidence and made submissions about the unrest conditions
in the
Swaaiemani area and the fact that these conditions stem from conflict between
Inkatha and the ANC. I would simply make the
submission. Your Worship, that the
reasons why the accused possessed these arms, given to the Court, they're not
disputed and they
are not associated with those aspects or that particular
conflict".
It was argued that, since this statement was not challenged by the State,
it must be assumed that the State
11
accepted it.
This led to a debate before us as to whether the
strife between members of the ANC and the IFF in
the
Swaaiemani area was of relevance in determining
an
appropriate sentence. The appellant appears to
have
prospered until his house and shop were burnt down. He
thought that members of the IFF were responsible and that he
had been chosen as a victim because of his membership of an
organisation to which they were opposed. An inference could
be drawn from these facts that he joined MK in order to
settle his score with the IFF, if it were not for his
attorney's statement :
"As a result of the mood in which he found himself after the destruction
of his home and in the context of the changes which were
taking place in his own
mind, he decided to commit himself firmly to the process of political change in
South Africa and he therefore
made contact with Umkonto Wesizwe..."
and his disavowment that the appellant possessed the arms in connection
with the conflict in the Swaaiemani area, quoted
12
above.
Another question that remains unresolved because
of
the procedure adopted is why the appellant attempted to
remove the arms which were in his possession at sinathingi to
Swaaiemani after his release from detention on 22 October
1990. He must have known that the Swaaiemani area was in a
state of unrest. His attorney merely said that the weapons
were brought to the appellant on 13 July 1990. It was only
when, at the conclusion of his address, the magistrate asked
him how the appellant came to be arrested in possession of
the weapons that, after taking instructions, he said :
"... he acquired possession of the arms, as indicated, on 13 July. He
placed them in a temporary place of safekeeping. The following
day he was
detained in terms of section 29 before he had taken these arms to the place
where they were supposed to have been kept
near his family home at Swaaiemani
and after his release he arranged to go and fetch them from the place where they
had been left
before his detention ..."
From this it is not clear if he had decided that they should be concealed
at Swaaiemani or if Nxumalo
13
instructed him to take them there. Indeed nothing is
known
about the conversation between the appellant and
Nxumalo.
Had the appellant given evidence he doubtless would have
been
asked under cross-examination for details of the
instructions
he received.
It was argued before us that the State had
accepted
that there was no indication that the appellant intended
to
use the weapons unlawfully. The basis of the submission
is
the statement, in his address on sentence, by counsel for the
State, that :
"He was in possession of a formidable arsenal and although there's no
evidence to show that he himself intended to use the weapons
unlawfully, there's
no evidence to show what guarantees or safeguards were undertaken to prevent
others from so using the weapons."
In view of the above it must be accepted that the appellant held the
weapons for storage purposes only and that while they were in
his possession he
did not intend to use them himself. However he must have appreciated that they
may
14
still have been used by MK for military purposes. Indeed Mr
Blomkamp
for the appellant admitted that had he received instructions to
use them in the furtherance of the struggle he probably would have
done
so.
Whether or not he personally intended to use the weapons, he
must have appreciated the danger of them falling into the hands of one
or other
of the warring factions in Swaaiemani. Had this happened it would have added to
the violence in this area.
Much was made in argument of the fact that the appellant did not enjoy
the benefit of the indemnity provided by Government Notice
12834 of 7 November
1990 because it only applied to offences committed before 8 October 1990. He
apparently applied for indemnity
and was refused it but full details of this
application are not before us. However, the fact that his crime was committed
after 8
October 1990 with the result that he did not qualify for indemnification
is not, in my view, a mitigating circumstance. The 8th October
15
1990 must have been chosen for a cogent reason and, so we were informed,
the date has not been extended. Thus offences of a political
nature, committed
after that date should be punished on the normal basis.
We were
referred to the decision of Foxcroft J, in the Cape Provincial Division in the
unreported matter of
S v Dlali
Case no. SS 79/92 where, in somewhat
similar circumstances, an accused, found guilty on a plea of guilty in respect
of the possession
of illegal arms and ammunition, had sentence postponed for one
year and he was ordered to appear before the Court on 10 June 1993,
but only if
called upon to do so, in terms of
section 297(1)(a)
of the
Criminal Procedure
Act, No.51 of 1977
. It is not necessary to consider whether the order made in
Dlali's
case was a proper one. Suffice it to say that there are
differences between that case and this. Dlali also pleaded guilty, but his
statement made in terms of
section 112(2)
of Act no.51 of 1977 was very
detailed. It contained much more information
16
than does the section 112(2) statement made by the appellant, which
discloses the bare essentials for a plea of guilty. Further Dlali
gave evidence
and called witnesses whose evidence must have been of great assistance to the
Court. Also, while violence is rife in
many areas of South Africa the appellant
intended, and was in the process of, taking a quantity of weapons of war into an
area where
the situation was particularly sensitive. He was not going to hide
them in his home in anticipation of receiving instructions to
hand them over to
a joint command of the Government and the ANC as Dlali was. He was taking them
to a trouble spot some distance
from where he was then working and intended to
leave them there. How he intended to safeguard them we do not know. They
certainly
would not have been under his personal care as was the position in
Dlali's case.
However sight must not be lost of the fact that it was accepted at the
trial that the appellant did not possess the arms and ammunition
in question in
order to commit acts
17
of violence but rather as a custodian of them on behalf of
MK.
The trial magistrate said that, taking all the factors into
consideration, the appellant merited "robust sentences". He considered
that the
appellant should serve a sentence of seven years and, having sentenced the
appellant to a total of eleven years' imprisonment,
achieved his object by
ordering certain portions of the various sentences to run concurrently.
On appeal, the Court
a quo
, having amended the
order concerning the concurrent running of the sentences, as
mentioned above, confirmed the sentence stating that :
"... it cannot be said that the sentence, although it is a severe one, is
startlingly inappropriate."
There is nothing to indicate that the magistrate
gave any consideration to a suspension of a portion of the sentence he
imposed. The appellant's attorney suggested that a totally
suspended sentence
would be appropriate and a
18
similar submission was made to the Court
a quo
and to us by his
counsel. The magistrate does not mention this aspect in his judgment on
sentence. Even if a totally suspended sentence
would not be appropriate, one
does not know why the magistrate did not consider a partial suspension. Nor does
the Court
a quo
appear to have given this possibility any thought despite
the fact that until his hard earned estate was destroyed by arson the appellant
appears to have been a useful member of society.
True, he has committed a serious crime. He dealt with the arms he
possessed as custodian in a manner verging on recklessness. But
I do not
consider that what he did deserves "a term of seven years immediate summary
imprisonment". In my view, if he were sentenced
to a total of seven years'
imprisonment but was required to serve four years of this sentence, he would
have expiated his wrong.
A suspended sentence would have a saluatory effect upon
him and will hopefully deter him from similar conduct in the future
19
while the period which he will serve in prison will be sufficient to
deter those who contemplate committing similar offences and will
satisfy the
public interest.
The appeal is allowed to the following extent. The sentences imposed by
the trial court are altered to : Count 1 - 3 years' imprisonment
Count 2 - 3
years' imprisonment Count 3 - 1 years' imprisonment
It is ordered that eighteen months of the sentences on both count 1 and
count 2 will be suspended for a period of 5 years on condition
that the
appellant is not convicted of a contravention of any of the provisions of the
Arms and Ammunition Act, No 75 of 1969, committed
during the period of
suspension, in respect of which he is sentenced to direct imprisonment without
the option of a fine.
KANNEMEYER AJA VAN DEN HEEVER JA CONCURS
JUDGMENT
SMALBERGER, JA:-
I have had the privilege of reading the judgment of my learned brother
KANNEMEYER ("the judgment"). I agree that the appeal must succeed
and that the
appellant's sentence should be reduced. For reasons that follow, however, I am
of the view that the
2
circumstances of the present matter merit a lesser
sentence than that proposed by him.
As pointed out in the judgment, the case of s
v Dlali
is one of "somewhat similar
circumstances".
Without going into the matter in detail, the
general
approach of FOXCROFT, J in
Dlali's
case commends itself
to me. I agree with him that "there is no magic
formula which can be used to determine a proper sentence
in all cases of unlawful possession of firearms". Each
case must depend upon its own facts. The following
passage from FOXCROFT, J's judgment is also apposite:
"The crime clearly falls within the category of offences generally
described as 'political'. The accused was obviously not intent
on any personal
benefit in possessing these weapons and was carrying out the orders of MK. From
time immemorial, courts of law have
recognised the distinction between ordinary
and political crimes."
I appreciate the fact that, as pointed out in
the judgment, there are certain differences between
3
Dlali's
case and the present one. The most significant of these is
the fact that at the time of his arrest the appellant was conveying the
weapons
in question into a particularly sensitive and volatile area.
It is clear that the appellant did not (subject to further orders) intend
to use the weapons, but to safeguard them pending instructions
as to their
disposal. The appellant received military training while outside the country. He
would appear to be a generally responsible
person. In the circumstances one
could reasonably expect him to exercise proper care and control with regard to
the custody of the
weapons. It is not without significance that the weapons
remained safely hidden over the period of more than three months while he
was in
detention. Their proper safekeeping was therefore not necessarily dependent upon
his being in physical control of them. No
doubt he would have
4
attempted to hide them successfully again.
I accept that
introducing the weapons into a volatile area involved some risk that they might
fall into the wrong hands, and that
the appellant acted unreasonably in
attempting to take them to Swaaiemani. I do not agree, however, that his conduct
in the circumstances
can be said to verge on recklessness. In
Dlali's
case FOXCROFT, J concluded that the degree of careless conduct displayed by
Dlali was "not the kind of carelessness which would commend
itself to me as
meriting a prison sentence". The same cannot be said for the appellant's
negligence. It was of a sufficient degree
to merit some imprisonment.
In my view an effective sentence of two years imprisonment coupled with a
further period of imprisonment suspended on appropriate
conditions would have
been a proper one in the present matter. That would have ensured the appellant's
immediate, or almost
5
immediate release, as he has been in custody since 3 October 1991. As
this is a minority judgment it is not necesary to set out how
I would have
structured the sentence in relation to the three counts.
J W SMALBERGER JUDGE OF APPEAL