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[2012] ZAWCHC 266
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Mkhehle v S (A173/2012) [2012] ZAWCHC 266 (25 May 2012)
JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
CASE
NUMBER:
A173/2012
DATE:
25 MAY 2012
In
the matter between:
MFUNISELE
MKHEHLE
.............................................................................................................
Appellant
and
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
BINNS-WARD.
J
:
The appellant was arraigned in the
Regional Court at Cape Town on various charges of robbery and theft
and of contravening the
Firearms Control Act, 60 of 2000
. He was
tried together with two co-accused. He was convicted in respect of
only three of the eight charges that were put to him.
These concerned firstly the robbery
at gunpoint of Monwabise Ndingi - erroneously referred in the
transcript as Monwabise Sandigo
- of a Toyota Cressida motor vehicle
at or near the LA Squatter Camp at Driftsands on 1 December 2006;
secondly, the unlawful
possession of a 9 mm pistol in contravention
of the
Firearms Control Act and
, thirdly, the unlawful possession of
15 X 9mm rounds of ammunition, also in contravention of the
Firearms
Control Act.
He
was sentenced to 15 years’
imprisonment in respect of the robbery, which was the prescribed
minimum sentence applicable
in terms of
Section 51(2)
of the
Criminal Law Amendment Act, 105 of 1997
, and two years’
imprisonment ^ one of which was conditionally suspended - in respect
of the counts contravening the
Firearms Control Act, those
two
counts having been taken together as one for the purpose of
sentence.
The appeal lies against the
aforementioned convictions and sentences, it is brought, with leave
granted in terms of a petition
to the Judge President in terms of
Section 309C
of the Criminal Procedure Act, 51 of 1977.
At the trial the appellant pleaded
not guilty to the three counts that are of relevance. He exercised
his right to silence and
did not offer a plea explanation. The main
issue on appeal is whether the State succeeded in establishing the
appellant’s
guilt beyond reasonable doubt. In respect of the
robbery the issues are the dependability of the complainant’s
identification
of the appellant as one of the robbers and whether it
should have been found by the trial court, with reference to the
totality
of the evidence that the appellant’s exculpatory
evidence could have been reasonably possibly true.
In respect of
the firearms offences the question is whether the convictions can be
sustained on th
:
e
applicable inferential reasoning test in criminal cases laid down in
S v Blom
1939 AD 188
at 202-203.
On the matter of sentence it is the
appellant’s contention that the trial court should have found
the presence of substantial
and compelling circumstances, justifying
a departure from the prescribed minimum sentence.
The relevant evidence adduced against
the appellant at the trial was that of the complainant and the
police details that arrested
him some three hours or so after the
robbery at a time when he was a passenger on the rear seat of the
stolen vehicle and at
a place far removed from the commission of the
offence. There was also evidence concerning the holding of an
identification parade
at which the appellant was identified by the
complainant. After a trial-within-a-trial had been held, an
extra-curia I state
m e nt made by the appellant was admitted.
The complainant
testified that he was a taxi driver by occ upation. On the day in
quest ion, at a b o u t eleven o’cl ock
in the morning, two
men had approached him at the Lesoko Taxi Rank in Philippi East.
They had asked him to convey them to Driftsands
because they wished
to fetch some property from there. After he had driven some distance
one of these men, both of whom appeared
to have been accommodated on
the back seat of the car at the time, pointed a firearm at him and
ordered him to get out of the
vehicle. The complainant identified
this person from the witness box as having been the appellant. He
observed, however, that
while the accused was sporting dreadlocks at
the time of the trial, he had been wearing his hair short at the
time of the robbery.
The complainant also remembered that the
appellant had been wearing a leather jacket and that his accomplice
had been
;
wearing blue overalls and a black hat. He had in addition noticed
that the appellant was noticeably taller than his companion.
While on the aspect of the
observations made by the complainant at the time, it is perhaps
convenient to mention at this stage
that in a statement made to the
police on 6 December, just over a week after the incident, the
complaihant described one of his
assailants as having been light in
complexion, tall and of slender build, and the other as being dark
of complexion with no ‘side
teeth’. The appellant
matched the characteristics of the first person so described. These
are all pointers to the fact
that the complainant had sufficient
opportunity to take in and form a complex impression of the
appearance of the two men he
conveyed in his taxi.
I think it may also be taken into
account that it appears from the content of a witness statement made
by the complainant on the
afternoon of the day of the incident, and
put in as EXHIBIT A at the trial at the instance of the appellant's
legal representative,
that Driftsands is in the Mfuleni area. As it
happens, according to accused 1, the appellant was resident in
Mfuleni at the time.
According to the appellant, on the other hand,
it was his wife or girlfriend who lived in Mfuleni while he lived in
Philippi.
Considering that accused 1 and the
appellant were well-known; having been friends for many years; the
contradiction is curious.
The only significance of the issue is that
it was just one more coincidence - if one is to believe that the
appellant might have
been mistakenly pointed out by the complainant
- that he came from the very area in which the robbery occurred. The
Court can
use its local knowledge to take judicial notice that
Philippi East and Mfuleni are in close proximity to one another
along the
N2 freeway and that a car journey between the two places
would probably take in the order of about five minutes.
In both of his witness statements
made to the police within a week of the commission of the robbery
the complainant stated that
he would be able to recognise his
assailants if he saw them again. The offence was committed in broad
daylight and, in the circumstances
I have just outlined, it is clear
that the complainant would have had ample opportunity to have a good
look at his assailants
before and during the commission of the
offence.
The complainant continued his
description of the robbery, describing how the gun-wielding
assailant then moved to the front of
the car and again ordered him
to vacate the vehicle, saying “you’d better get out
because we don’t want to
kill you, we only want the car”.
The complainant did as he was told. The vehicle’s engine must
have been turned off
because the complainant described that the
robbers had difficulty in getting the vehicle to start and called
him back to help
them. He did not comply and instead ran away from
the scene.
He testified that he had been invited
to an identification parade held at the Athlone police station in
May 2006, about six months
later. It was not in issue at the trial
that the identification parade was conducted with due propriety. The
complainant was
invited to identify his assailants, if he could,
from a line-up of 14 men. He picked out the appellant. He testified
that when
he picked out the appellant, he had stated to the
policeman that he was not 100% sure of his identification, but
thought that
the appellant looked like his assailant. In
translation, through the interpreter, his evidence was:
“
I pointed him because of I saw
now this man is the man who pointed me with a firearm although I was
not 100% sure.”
The complainant’s evidence
reads on the record as if candidly given. It was not upset in
cross-examination. Consistently,
with the impression created by a
reading of his evidence in the written record, the trial Magistrate
found him to be a completely
honest and straightforward witness and
Mr Klopper, who appeared today for the appellant, fairly conceded
that this was a fair
assessment.
In my view the magistrate’s
rejection of the criticism of his evidence cannot be faulted. There
is nothing on record to
suggest that the appellant’s physical
features did not coincide with those described by the complainant in
an extra-curial
statement given many months before the
identification parade, and the likelihood of the pointing out of the
appellant, whom it
is common cause was found in the stolen vehicle
very shortly after the robbery, as his assailant in a properly
conducted parade
involving a line-up of 14 men having been mistaken,
or an unreliable one, or just a matter of unfortunate coincidence
for the
appellant, stretches credulity beyond reasonable limit.
Constable Ntotshwa of the SAPS, who
is attached: to the Organised Crime Unit at Bellville South,
testified that at about 12:30
p.m. on 1 December 2006 he received
information concerning the likely commission of a robbery somewhere
along the N1 freeway.
It was apparent from his evidence that; the
report contained information enabling the police to be on: the
lookout for identifiable
vehicles. It is evident that the vehicle,
which had earlier been stolen from the complainant,: was one of the
vehicles so identified.
Ntotshwa and his colleagues took Up
station at an Engen Garage along the N1 to look out for the reported
vehicles, Ntotshwa spotted
the white Toyota Cressida which was
occupied at the time by two Black males. He and his colleagues
followed the vehicle. It left
the N1 at the Klipheuwel off-ramp and
then proceeded in the direction of Malmesbury. Shortly, after the
vehicle left the N1,
it stopped and a white Isuzu KB vehicle drew up
behind it. Two Black males in the Isuzu went up to the stationary
Cressida vehicle.
A white Opel Monza vehicle - initially mistakenly
referred to by the witness as a Honda Ballade - also stopped in the
line-up
of stationary vehicles. The two men who had been in the
Isuzu vehicle then returned to that vehicle, while one person
emerged
from the Monza vehicle and climbed into the Cressida. It
would seem, from the evidence Ntotshwa gave under cross-examination
by the legal representatives for one of the appellant’s
co-accused, that the person who transferred from the Monza to the
Cressida was probably the appellant. The Monza and the Isuzu then
proceeded towards Malmesbury while the Cressida turned onto
a gravel
road which, judging from the manner in which the witness described
it, may have been a farm road.
Ntotshwa and
some of his colleagues, including a Capt Naude, followed the
Cressida vehicle while the rest of his colleagues followed
after the
other two vehicles. As he drove behind the Cressida Ntotshwa
observed a black bag being thrown from the back window
of the
Cressida on its left-hand side. It was eventually common cause, ex
facie
his own evidence, that the appellant was the only person sitting in
the back of the Cressida at the time. The item appears to
have been
thrown from the window at a stage when the police were indicating to
/LHC the occupants of the Cressida that the vehicle
should stop; I
should perhaps mention that Ntotshwa was travelling in an unmarked
vehicle equipped with blue lights for use when
the police wished to
declare themselves.
The three
occupants of the vehicle were searched and a licensed 9 mm Norinco
firearm was found on the. driver, who was accused
3 at the trial.
The occupants of the car were unable to give any explanation about
the item that Ntotshwa had seen thrown out
of the car. Ntotshwa then
called in the dog unit to search for the item which he had been
unable to locate himself. The search
by the dog unit turned up a bag
containing a firearm with its serial number erased and 15 rounds of
ammunition. Ntotshwa was
responsible for labelling and taking the
weapon to the Forensic Laboratory, which he did on Monday, the 4
th
of December.
Under questioning by the police at
the time, accused 1 stated that the Cressida was his vehicle.
Telephonic enquiries had established
that it was the vehicle that
had been stolen earlier in the day from the complainant.
The appellant’s
legal representative in the court a
quo
did not challenge the evidenee of Sgt Opperman of the SAPS who was
called to the scene where the Cressida vehicle was recovered
with
the search dog. Opperman’s evidence was simply to the effect
that the dog located a weapon stored inside a black bag
in some
bushes about a meter off the road on which the Cressida had been
stopped. He testified that the weapon had been found
on the
left-hand side of the road relative to the position of the Cressida
and about 12 meters distant from the stationary position
of the
vehicle on the road.
Capt Roger Naude of the SAPS also
testified. He was one of the police details who followed, albeit in
a separate vehicle, behind
Constable Ntotshwa after the Cressida,
when St was: being driven on the gravel road. He described how the
police followed the
Cressida vehicle for some 500 meters along the
gravel road before they succeeded in stopping it. He corroborated
the salient
aspects of Ntotshwa’s description of events. Naude
appeared confused and uncertain about the:; seating arrangements of
the three accused in the Cressida^but that is not material in the
context of the appellant’s legal representative’s
decision not to cross-examine Ntotshwa and the appellant's own
evidence which confirmed that of Ntotshwa in this respect.
Naude was able to identify the
licensed firearm found on the driver of the Cressida as a Norinco 9
mm pistol. He was also able
to describe the weapon recovered by the
dog unit as a firearm with no serial number and 14 rounds of
ammunition. I go into some
detail in this regard because it would
seem from the content of a ballistic report that there must have
been some mis-labelling
of the exhibits, because the ballistic
report as I read it, ascribes seven rounds of the 22 rounds of
ammunition recovered to
the CZ75 rather than to the Norinco. Mr
Klopper, correctly in my view, conceded that the. direct evidence of
Ntotshwa and Naude
should prevail in the circumstances.
The appellant gave evidence in his
own defence. He testified that he requested accused 3 to assist
accused 1 with transport on
the day in question. According to his
evidence the appellant seemed to believe that accused 1 needed
transport for something
to do with his fruit and vegetable stall. He
approached accused 3 for assistance. According to the appellant
accused 3 had arrived
in the Toyota Cressida. He said that he and
accused 1 had had no reason to believe that it had been stolen. He
appeared from
his evidence to have learnt only when the three of
them were underway in the vehicle, that accused 1 was looking for a
vehicle.
He said only accused 1 knew to which destination they were
headed.
He made no
reference in his evidence in chief to someone called Phindile, or to
any apprehension by him that the
intended
destination on the journey on which he and the other; two had
embarked, was Stellenbosch.
The appellant's
evidence contradicted the contents of his extra-curial statement,
which was to the effect that he had arranged
the previous day with
his brother-in-law, one Phindile Madubela, who lived in
Stellenbosch, for accused 1 to come to Madubela
to view a motorcar.
When the contradiction was put to him, the appellant sought to
suggest that he had telephoned Phindile only
when he and his
co-accused had become lost on the journey on the 1
st
of December of 2006. The appellant’s evidence in this respect
was risible.
In my view, the magistrate cannot be
faulted for finding that the appellant was an unreliable witness.
The record shows he was
often evasive. An example is that when asked
as to when he had telephoned accused 3 on the day, he gave a series
of alternatives,
eventually ending up with “not at six o’clock
in the morning, but neither between three and five in the
afternoon.”
The record shows that some of his answers were so
convoluted that the interpreter had no idea what he was trying to
say.
The magistrate correctly had regard
to the totality of the evidence. In the result, taking account of
the appellant’s dismal
performance on the witness stand, there
was nothing of s u b stance to contradict the cog ent evid e n ce of
t h e comp la i
nant and the police witnesses. In my judgment the
evidence of the identification of the appellant by the complainant
was an honest
and reliable one. The honest qualification given by
the complainant at the time that he was. not 100% sure, does not
occasion
reasonable doubt when assessed in the context of all the
other factors in the evidence linking the appellant to the
commission
of the robbery. I can find no merit in the appeal against
conviction on the count of robbery.
Likewise, in
the context of the acceptance of the police evidence concerning the
throwing of an object from the back of
:
the Cressida and the complainant’s evidence that he had seen
the appellant in possession of a handgun only a few hours
earlier,
taken together with the position of the appellant at the vehicle at
the time, I am left in no reasonable doubt that
the appellant was
the person who threw the handgun and ammunition out of the car's
window and that his possession of those items
was thus established.
In the absence
of a credible explanation to the contrary from any of the accused -
compare
S v Boesak
2001(1) SA 912 (CC) at 28 - that in my view is the only reasonable
inference to be drawn from the proven facts. The evidence
of the
appellant, who, as I have said, was seated at the back seat of the
Cressida at the time, that he was unaware of anything,
having been
thrown from the back window, is quite patently false. It is
undisputed that the dog unit was summoned to the scene.
It is
inconceivable that this would have happened had Const Ntotshwa not
seen what he testified to having seen.
I am thus of the view that the appeal
against convictions on the two counts contravening the
Firearms
Control Act should
also fail.
On the issue of sentence I see no
reason to interfere. Sentence is pre-eminently a matter within the
discretion of the trial Court,
and in the absence of a material
misdirection by the trial court, a court of appeal should not
intervene. The magistrate took
into account ail of the relevant
factors, including the fact that the appellant had been in custody
for over three years since
his arrest and during the course of a
very extended trial.
In the context of the seriousness of
the offences the appellant’s personal circumstances obviously
weighed less in ; the
balance against the interests of society in
the severe punishment of such offenders. Indeed, apart from the
seriousness of the
offences there were a number of aggravating
factors, including an impressive criminal record stretching back 20
years, including
offences involving; violence, theft and
housebreaking and also the complete absence of any indication of
remorse on the part
of the appellant. Had it not been for the period
that the appellant had already spent in custody, the trial Court
would have
been justified in the circumstances in imposing a
sentence longer than the prescribed minimum. The sentences in
respect of the
statutory offences, if they were at all errant, erred
on the side of leniency in my view.
Having arrived
at the conclusions just stated, I feel it necessary to comment on an
aspect of the prosecution of the appellant.
It is apparent from the
ballistic evidence adduced by the State at the trial, the weapon in
issue in this appeal was a semi-automatic
pistol. In terms of
Section 51
(2)(a)(i) of the
Criminal Law Amendment Act, 105 of 1997
,
the unlawful possession of a semi-automatic firearm is subject to a
prescribed minimum sentence of 15 years in the case of a
first
offender. The charge sheet was not appropriately formulated to
include a reference to the sentencing provisions and accordingly,
because of this ineptitude on the part of the prosecution, the
appellant was not prosecuted in a manner that rendered him
susceptible
on this account to the minimum s e ntence regi me. See
S
v Lego a
2003 (1) SAC R 13
(SCA);
S
v Ndlovu
2003 (1) SACR 331
(SCA),
S
v Makatu
2006 (2) SACR 582
(SCA),
paras 4-7 and
S v Mabuza
2009 (2) SACR 435
(SCA) at para 10. This type of inexcusable
ineptitude is unfortunately not infrequently encountered and is to
be deplored. It
brings the criminal justice system into disrepute,
undermines the legislative scheme and it results in an arbitrary and
constitutionally
incompatible unequal treatment of accused persons
and offenders.
Counsel appearing for the State
today, Ms Ardim, acknowledged the unsatisfactory state of affairs in
this respect and undertook
to draw the remarks I have made to the
attention of the Director of Public Prosecutions in the hope that
remedial measures will
be implemented within the system.
I WOULD THEREFORE DISMISS THE
APPEAL AND CONFIRM THE CONVICTIONS AND SENTENCES.
BINNS-WARD, J
I agree and I order in these terms.
BLIGNAULT
J