IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
APPEAL NO .A 17/2022
OPP REF NO: 10/2/5/1-(2022/008)
In the matter between:
NCUBE, MQONDISI MONGEZI APPELLANT
and
THE STATE RESPONDENT
JUDGMENT
KARAM AJ:
INTRODUCTION
1. The appellant was convicted in the Randburg Regional Court of:
1.1 count 3 - unlawful possession of a firearm, a semi-automatic pistol,
read with the provisions of the Section 51 (2) of the
Criminal Law Amendment Act 105 of 1997
("the minimum sentence legislation"); and
1.2 count 4 - unlawful possession of four rounds of ammunition.
2. He was sentenced as follows:
2.1 count 3 - 17 years imprisonment; and
2.2 count 4 - 5 years imprisonment.
No order was made as to concurrency, resulting in an effective term of
22 years imprisonment.
3. Leave to appeal both the conviction and sentence was granted.
THE EVIDENCE
4. Constable Phiri testified that on the evening in question he was together
with Constable Sekula and they were patrolling in their motor vehicle.
They encountered two suspicious looking males and decided to stop and
search them. They exited their vehicle and introduced themselves to the
two males, displaying their appointment cards.
The two males ran in opposite directions to one another and the officers .
gave chase on foot. The one male managed to outrun Sekula, and the
latter joined the witness in pursuing the other male, the appellant. The
witness was shouting at the appellant to stop, which the appellant
ultimately did. Whilst the witness searched the appellant, Sekula was
giving the witness backup.
A firearm was discovered on the appellant's right waist, with four live
rounds of ammun ition therein. The appellant did not have a license to possess
the firearm. Upon being asked what he was doing therewith, the appellant
responded that he was trying to make a living, and that the people back home
w e re suffe ring a n d h e vvas trying to provide for the m . He w a s thereafter arrested
on the scene.
5. During cross examination, the witness disputed the version put that the appellant
was together with one Mduduzi, and that the latter was in possession of a plastic
bag which he threw to the ground upon noticing the police vehicle approaching
and ran away. Further, that the appellant did not run away, and was guarded by
the witness whilst his colleague retrieved the plastic bag wherein a firearm
was discovered. Further that the appellant had no knowledge that there was
a firearm therein.
6. Constable Sekula testified. He repeated the evidence of Phiri and was
consistent therein. He disputed the appellant's version aforesaid, as put
to him.
7. The appellant testified. He reiterated the version as put to the officers
aforesaid.
ISSUES ON APPEAL
8. The issues to be determined on conviction are whether the trial court erred
in finding that the State had proved its case beyond reasonable doubt and in
not finding the appellant's version to be reasonably possibly true.
9. The issues to be determined on sentence are whether the trial court erred in
imposing more than the minimum sentence on count 3 and in making no
order as to the concurrency of the sentences imposed.
LAW AND ANALYSIS
10. It is trite that in a criminal trial, the onus of proof is on the State to prove its
case beyond reasonable doubt. This is indeed a stringent test but is applied
in order to ensure that only the proven guilty are convicted. It is further trite
that the Court is required to adopt a holistic approach in respect of the
evidence and its assessment thereof, and use a common-sense approach.
It is not sufficient if the guilt of the accused appears possible or even
probable - his guilt must be proven beyond reasonable doubt.
S v Hadebe & Others 1998 (1) SACR 422 {SCA}
S v Van Der Meyden 1999 (1) SACR 447 {SCA}
S v Phallo & Others 1999 (2) SACR 558 {SCA}
S v Van Aswegen 2001 (2) SACR 97 {SCA}
S v Shackel 2001 (2) SACR 185 {SCA}
S v Chabalala 2003 (1) SACR 134 {SCA)
AD CONVICTION
11. The State witnesses were impressive witnesses. The corroborated each
other in material respects. They were cross examined extensively and
nothing material emanated therefrom. It is clear that they we re honest
and reliable witnesses.
12. It is noteworthy to mention that the appellant's counsel conceded at the hearing
Of the appeal that she could not point out any inconsistencies in the evidence
of the police officers.
13. On the contrary, the appellant was an unimpressive witness to say the least.
He contradicted himself in his evidence and same was riddled w ith
improbabilities.
He initially stated that whilst seated w ith Mduduzi, the latter had made
a telephone call to his girlfriend and Mduduzi had requested
the appellant to accompany him to his girlfriend.
He subsequently stated that Mududuzi had received a call from some
p e rson and after ending the call, had requested the a ppellant to accom pany
him to meet that person at the terminal.
It is highly improbable that Mduduzi would have kept the firearm under the
table in a plastic bag at the tavern where they were drinking; that only
Mdudzi had run away; that neither of the officers had pursued Mduduzi;
and that he saw the firearm for the first time at the police station.
14. The ballistic report in respect of the firearm was handed in by consent.
15. Having regard to all of the aforesaid, I am of the view that the learned
Magistrate correctly convicted the Appellant, finding that his version was
not reasonably possibly true, and that there is no merit in the appeal on
conviction.
AD SENTENCE
16. Having been charged in terms of the minimum sentence provisions, the
appellant faced a minimum sentence of 15 years imprisonment on count
3.
17. I am satisfied that the learned Magistrate correctly found that, in the
circumstances of this matter, there are no substantial and compelling
c irc umst a nc e s tha t \Na rra nt a d e via tion from the imposition o f tho
prescribed minimum sentence.
18. It is trite that a lower court has a discretion to impose up to an additional
5 years imprisonment to the minimum sentence. Further, that the
presiding officer is required to give reasons for the imposition of more than
the minimum sentence.
In this matter, the reason furnished was the prevalence of the offence.
I am not satisfied that this is a proper reason for justifying the imposition of
more than the minimum sentence, for the following reasons:
18.1 the lack of evidence that the firearm was utilised in the commission
of any other offence;
18.2 the evidence that the appellant was incarcerated at the time the
firearm was robbed from its lawful owner, hence the acquittal of
the appellant on count 1 ;
18.3 it is for the very reason of the prevalence of the offence, that the
increased penalties were introduced by the minimum sentence
legislation.
18.4 there are, in my view, no facts or circumstances warranting the
impooition o f more tha n the minimum 5ente n ce.
19. Regarding the sentence of 5 years imprisonment imposed on count 4, I
am of the view that this sentence is startlingly inappropriate in the
circumstances of this matter, entitling this Court to interfere therewith.
The 4 rounds of ammunition were contained in the firearm. It may have
been a different issue were the ammunition to have been of a different
calibre to the firearm.
I am of the view that an appropriate sentence therefore would be 3 years
years imprisonment.
20. It is further trite that in imposing sentence, a court is required to take into
account the cumulative effect of the sentences imposed.
S v Moswathupa 2012 (1) SACR 259 (SCA)
S v Kruger 2012 (1) SACR 369 (SCA)
S v Mokela 2012 (1) SACR 431 (SCA)
It is apparent from the record that this was not considered by the court
a quo in the imposition of sentence, constituting an irregularity and enabling
this Court to inte rf6ro th6 re with.
There are further no reasons in my view, having regard to the facts and
circumstances of this matter, why the sentence imposed on count 4
should not be ordered to run concurrently with that imposed on count 3.
21 . In the circumstances I propose the following Order:
21.1 The appeal against conviction is dismissed.
21 .2 The appeal against sentence is upheld:
21 .2.1 The sentence of 17 years imprisonment imposed on count 3
is set aside and replaced with a sentence of 15 years
imprisonment;
21.2.2 The sentence of 5 years imprisonment imposed on count 4
is set aside and replaced with a sentence of 3 years
imprisonment.
21 .2.3 The sentence imposed on count 4 is ordered to run concurrently
with the sentence imposed on count 3.
The effective sentence, accordingly, is 15 years imprisonment,
and is antedated to 30 September 2020.
WA KARAM
ACTING JUDGE OF THE HIGH COURT
I AGREE AND IT IS SO ORDERED
CIMOOSA
JUDGE OF THE HIGH COURT
Appearances:
Appellant: Ms S Bovu
Legal Aid SA
Johannesburg Office
Respondent: Adv C Mack
Director of Public Prosecutions
Gauteng Local Division