About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2019
>>
[2019] ZASCA 160
|
|
Mthembu v S (525/2019) [2019] ZASCA 160 (28 November 2019)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No: 525/2019
In the matter between:
JOSEPH TIAMO
MTHEMBU
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Mthembu v
The State
(525/2019)
[2019] ZASCA 160
(28 November 2019)
Coram:
Navsa, Saldulker, Swain and Dlodlo JJA and Eksteen AJA
Heard:
14 November 2019
Delivered:
28 November 2019
Summary
:
Attempted murder and
unlawful possession
of – firearm and ammunition –
appeal against conviction
and sentence – appellant found in
possession of firearm and ammunition – sufficiency of evidence
– ballistic
testing linked firearm to offence of attempted
murder – conviction and related sentences justified –
appeal dismissed.
ORDER
On appeal from:
Gauteng Division of the High Court,
Johannesburg (Mokgoatlheng et Vally JJ sitting as court of first
instance):
The appeal is dismissed.
JUDGMENT
Dlodlo JA (Navsa, Saldulker and Swain JJA and Eksteen JJA
concurring):
[1]
After a trial in the Regional Court for
the Regional Division of
Gauteng, Tembisa (the regional court), the appellant was convicted
and sentenced as follows: on count
1, the attempted murder of
Sergeant K Phase Themane, where s 51 of the Criminal Law Amendment
Act 105 of 1997 (the Minimum Sentences
Act) was invoked, a sentence
of
10 years’
imprisonment; on count 3, the possession of an unlicensed firearm in
contravention of s 3 of the Firearms Control
Act 60 of 2000 (the
Firearms Control Act), a
sentence of 15 years’ imprisonment;
and on count 4, the possession of ammunition in contravention of
s 90
of the
Firearms Control Act, a
sentence of 3 years’
imprisonment. The regional court ordered that the sentences on counts
3 and 4 run concurrently. Having
been refused leave to appeal by both
the magistrate’s court and the Gauteng Division of the High
Court, Johannesburg (the
high court), the appellant was granted
special leave to appeal by this court. The appeal is limited to
conviction and sentence
on count 1 and sentence only on count 3.
[2]
The offences arise from an incident where
two police officers
narrowly escaped death. On or about 31 January 2009, Constable Morris
Zitha and his colleague, Sergeant Themane,
were on night duty. At 3am
the two police officers stopped a Red Jetta motor vehicle that
had two male
occupants, being the
driver and a passenger. In
the performance
of their duties, the two police officers
intended to conduct a search of the occupants and the vehicle.
Constable Zitha proceeded
to the passenger whom he instructed to
alight from the vehicle. Sergeant Themane moved towards the driver
and proceeded to the
driver’s side of the vehicle.
[3]
As the passenger was alighting he produced
a firearm and shot in the
direction of Constable Zitha, who took cover behind the open
passenger door. The passenger fired several
shots at the police
officers. Both driver and passenger abandoned the vehicle and fled on
foot. The occupants of the vehicle were
both unknown to Constable
Zitha and Sergeant Themane. Constable Zitha categorically told the
trial court that he was unable to
identify either of the occupants of
the vehicle. He added that the incident happened so fast that he
could not see the faces of
the two occupants.
[4]
It was only after the two occupants of the
vehicle fled that
Constable Zitha realised that Sergeant Themane had been shot in the
leg and was bleeding profusely. Constable
Zitha summoned an
ambulance, a police photographer and a fingerprint expert. It is
common cause that at the scene of the shooting,
a balaclava and
cartridges were found. The cartridges were collected and sent for
ballistic examination. At the trial Sergeant
Themane stated that he
knew the person who shot him and that it was the appellant. He
claimed he had an opportunity to observe
and saw the face of his
assailant. He was adamant that the street lighting and the lights
from the motor vehicle enabled him to
identify the appellant. This
evidence has to be contrasted with his written statement, in which he
said that he did not know, and
would not be able to identify his
assailant. The trial court accordingly, correctly rejected Sergeant
Themane’s identification
of the appellant.
[5]
Seven hours after the incident referred
to above, at approximately
10am, police officers were manning a roadblock in Tembisa, when they
stopped a blue Mazda Rustler motor
vehicle. It had three occupants,
being a male driver, the appellant, and a female passenger. The
police officers proceeded to search
the occupants and the vehicle.
During the search Constable Ramatapa found a firearm with ammunition
at the front of the appellant’s
waist. When the appellant was
asked about the firearm he said that he was the owner of the firearm
and had a licence to possess
it. The appellant then made a phone call
with the asserted objective of having the licence brought to him. The
phone call yielded
no firearm licence. Thereafter, the appellant
instructed the female passenger, his girlfriend, to accompany the
driver of the vehicle
to Alexandra Township to fetch the licence. No
licence was forthcoming, resulting in the arrest of the appellant for
possession
of an unlicensed firearm and ammunition.
[6]
The appellant’s evidence was that
their vehicle was stopped at
a roadblock and the occupants and the vehicle were searched. However,
according to him, nothing was
found on his person. He claimed that
the firearm was found in the vehicle, under the seat on which he had
been sitting. He initially
denied that there had been a female
passenger in the vehicle. Subsequently, he changed his version and
admitted her presence. His
implausible explanation for his initial
denial was that it was an endeavour on his part to protect the female
passenger’s
marriage. He denied he had sent his girlfriend and
the driver to fetch his firearm licence. Instead, his evidence was
that they
had been instructed to go to Tembisa Township to fetch a
licence for a TV and DVD player found in the vehicle.
[7]
The appellant’s testimony in relation
to the first incident was
that at 3am, when the shooting in respect thereof took place, he was
at home. In short, he denied any
involvement at all in respect of
that incident.
[8]
The cartridges found at the first scene and
the firearm found in
possession of the appellant, were sent for ballistic examination. The
ballistic report and the affidavit compiled
by the ballistic expert
were admitted in terms of s 220 of the Criminal Procedure Act 51 of
1977 (the CPA) and proved that the
spent cartridges found at the
scene of the shooting (on count 1 and 2), were fired from the firearm
found in the possession of
the appellant at the roadblock. The trial
court, having correctly rejected the identification of the appellant
by Sergeant Themane,
proceeded to decide the matter on the strength
of the circumstantial evidence.
[9]
The principles underpinning circumstantial
evidence are trite. Courts
must consider the cumulative effect of all items of circumstantial
evidence. The fact that it was ballistically
proven that the spent
cartridges found at the scene at which the two police officers were
shot, were fired from the firearm found
in possession of the
appellant, only 7 hours after the shooting, was the essential element
in the circumstantial evidence linking
the appellant to the shooting.
[10] In
R
v Blom
[1]
this court set out two cardinal rules of logic when considering
circumstantial evidence and reasoning by inference. These rules
are:
‘
(1) The inference sought
to be drawn must be consistent with all the proved facts. . .
(2) The proved facts should be
such that they exclude every reasonable inference from them save the
one to be drawn.’
A
ll
circumstantial evidence depends upon the facts that are proven by
direct evidence. In other words, the conclusion that the court
reaches must necessarily account for all the evidence. No evidence
may be ignored.
[2]
[11] In
S
v Essack & another
,
[3]
the following passage by Lord Wright in
Caswell v Powell Duffryn
Associates Collieries Ltd
[4]
was quoted:
‘
There
can be no inference unless there are objective facts from which to
infer the other facts which it is sought to establish.
In some cases
the other facts can be inferred with as much practical certainty as
if they had been actually observed. In other
cases the inference does
not go beyond reasonable probability. But if there are no positive
proved facts from which the inference
can be made, the method of
inference fails and what is left is mere speculation or
conjecture.’
[12]
An additional factor is that the court below correctly concluded
that
the appellant’s evidence lacked credibility and that his
evidence, on material aspects, was wholly unreliable. Thus
the court
below correctly convicted the appellant of the attempted murder,
contemplated in count 1. In respect of the unlawful
possession of a
firearm and ammunition, contemplated in counts 3 and 4, the following
is material:
At the roadblock, the appellant was found in possession of a 9mm
parabellum Tauris semi-automatic pistol, which contained 6 live
rounds of ammunition and failed to furnish the police officers with a
licence entitling him to possess that firearm and ammunition.
The
possession of the firearm and ammunition established the appellant’s
guilt on counts 3 and 4.
[13]
I turn to the appeal against the sentence on count
1 (attempted
murder) and on count 3 (the possession of an unlicensed firearm).
Relying on
S v Mokela
,
[5]
counsel on behalf of the appellant, contended that the sentences
should have been ordered to run concurrently because the relevant
offences are ‘inextricably linked’ in terms of locality
and submitted that they were committed with one common intent.
It was
submitted that the trial court had failed to consider the cumulative
effect of the sentences. In the latter regard, reliance
was placed on
Zimila v State
[6]
a judgment of this court. In effect, the appellant’s submission
was that the sentences were inappropriate. But the trite
principle of
our law is that sentence is the prerogative of the trial court. This
court, in
S v Snyders
,
[7]
reaffirmed the principles that a court of appeal will not interfere
with a sentence imposed by a trial court, unless it is of such
a
nature that no reasonable court ought to have imposed it, or it is
out of proportion to the gravity or magnitude of the offence,
or it
induces a sense of shock or outrage, or it is grossly excessive or
inadequate, or there was an improper exercise of its discretion
by
the trial court, or the interests of justice requires it. The mere
fact that a court of appeal would have imposed a lighter
sentence if
the punishment were within its discretion, is not in itself
sufficient reason for it to intervene.
[14]
It appears from the record of proceedings that the trial court
considered the appellant’s personal circumstances, the
seriousness of the offences, and the interests of the community
before
sentencing the appellant on the several counts. I bear in mind
that shooting at police officers is certainly a serious offence that
is becoming a daily occurrence in this country.
Police officers are the protectors
of
the South African community. Courts need to send a
message that attacking police officers is not to be tolerated.
It is
trite that an appropriate sentence should necessarily reflect the
severity of the crime, while at the same time giving full
consideration to the mitigating and aggravating factors surrounding
the person of an accused. Put differently, the sentence must
reflect
the blameworthiness of an offender or should be proportional to what
an offender deserves. It should have regard to or
serve the interests
of society. Essentially, as stated in
S v Zinn
,
[8]
a sentencing court must consider the crime, the offender and the
interests of society. Sentencing is, of course, not there to satisfy
public opinion, but to serve the interest of the public.
[9]
The sentence of 10 year’s imprisonment for the attempted murder
was entirely appropriate. As regards the sentence imposed
for the
unlawful possession of a firearm, the conviction attracted a minimum
sentence of 15 years imprisonment, in the absence
of substantial and
compelling circumstances, in terms of s 51(3)
(a)
(i) of the
Minimum Sentences Act. The unlawful possession of firearms has caused
untold harm in this country. Unless it is punished
appropriately, it
will never be contained. Almost all violent crimes, including
robbery, involve the use of firearms that are unlawfully
possessed.
If courts do not punish the possessor of the unlawfully possessed
firearm appropriately, they would be guilty of failing
to protect the
public.
[15]
The trial court considered the cumulative effect of the sentences
imposed and directed, in terms of s 280(2) of the CPA that the
sentences imposed in respect of counts 3 and 4 run concurrently.
I am
unable to find that the sentencing discretion was not exercised
properly, reasonably and judicially. There is, in my view,
no room
for interference with the trial court’s sentencing discretion
in this appeal.
[16] For
these reasons the following order is made: The appeal is dismissed.
DV
Dlodlo
Judge of
Appeal
APPEARANCES:
For
Appellant:
J Henzen-Du Toit
Instructed by:
Legal Aid South Africa, Johannesburg
Justice Centre, Johannesburg
Bloemfontein Justice Centre, Bloemfontein
For
Respondent
M M Mbaqa
Instructed by:
Director of Public Prosecutions, Johannesburg
Director of Public Prosecutions, Bloemfontein
[1]
R v Blom
1939 AD 188
at 202-203.
[2]
S v Van der Meyden
1999 (1) SACR 447
(W) at 450.
[3]
S v Essack & another
1974 (1) SA 1
(A) at 16C-E.
[4]
Caswell v Powell Duffryn Associates Collieries Ltd
[1939] 3
All ER 722
at 733.
[5]
S v Mokela
[2011] ZASCA 166
;
2012 (1) SACR 431
(SCA) para 11.
[6]
Zimila v S
[2017] ZASCA 55
para 5.
[7]
S v Snyders
1982 (2) SA 694
(A);
[1982] 4 All SA 215
(A) at
216.
[8]
S v Zinn
1969 (2) SA 537
(A);
[1969] 3 All SA 57
(A) at 61.
[9]
S v Mhlakaza
1997 (1) SACR 515
(SCA);
[1997] 2 All SA 185
(A)
at 189.