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South Africa: Western Cape High Court, Cape Town
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[2011] ZAWCHC 518
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Nquma v S (A733/2010) [2011] ZAWCHC 518 (16 September 2011)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
: A733/2010
DATE
:
201 1-09-16
In
the matter between:
THEMBA
NQUMA
Appellant
And
THE
STATE
Respondent
JUDGMENT
MANTAME,
AJ:
This
is an appeal against conviction and sentence handed down by
Magistrate Mouton on the 17th of June 2009 at Strand Regional
Court.
Appellant
pleaded not guilty to all seven charges that were put to him, and he
was found guilty of an unlicensed firearm and ammunition
- that was
Counts 6 and 7. Appellant is represented by Ms Ruiters, and
respondent is represented by Ms Blows.
It
is common cause that appellant was legally represented at all times.
Counts 6 and 7 were put together for purposes of sentence,
and he was
therefore sentenced to undergo eight years imprisonment.
The
State led seven State witnesses, and the defence led two witnesses.
All the State witnesses were members of the South African
Police
Services.
In
summary
On
3 May 2006 these members were advised that the suspect that they had
been looking for, was somewhere in S[...] Road, B[...]'s
Farm in
Nyanga. Members of the Bishop Lavis provincial office who were
patrolling in Nyanga called for their colleagues in the
Dog Unit to
come and assist them. The suspect happened to be the appellant. They
informed the Dog Unit members that the suspect
was driving a Mazda
323. When the suspect saw that he was followed by the police, he fled
away. The police gave chase. During the
chase the suspect lost
control of his car, and it left the road and collided with the
informal structure that was a place of worship.
Immediately after the
collision gunshots were fired. Almost all the police officers noticed
that the appellant had a firearm in
his hand, and he tried to fire
some shots at the policemen. Constable Steenkamp fired a shot at the
appellant, and appellant threw
the firearm away.
Appellant's
counsel argued that the Magistrate failed to make a finding in
respect of the contradictions of the State witnesses,
although she
was aware of such contradictions. As a result, she erred in
convicting the appellant, due to the fact that the defence
witness
described the firearm as old, rusty and brown, and it was not proved
that appellant possessed a black 7.65mm pistol.
The
respondent contended that the defence witness is a layperson in
respect of firearms. It can never be expected of this witness
to
assist the Court in any way to arrive at the conclusion that the
appellant possessed a 7.65mm pistol.
I
agree with the respondent. It cannot be reasonably expected that a
layperson, in the form of the defence witness, can be expected
to be
particular to detail in as far as the description of the firearm is
concerned. I would imagine that the said witness had
limited
knowledge of firearms.
The
fact that appellant was lying down or standing up when he was
apprehended in the shack, is irrelevant, as the appellant was
convicted and sentenced for unlawful possession of a firearm and
ammunition.
Further,
the fact that the firearm was found under the plants, or outside the
door of the church, or next to the right wheel, or
next to the left,
back wheel, is not material in establishing the guilt of the
appellant. The fact of the matter is that a firearm
was seized by the
police officers, with serial number 2[...].
All
the evidence by the State witnesses pointed to one direction: that
the appellant was seen in possession of this firearm that
he threw
away, and not further than a metre from where he was. It is my
opinion that there has been no doubt that has been created
in as far
as this firearm is concerned.
In
my view, there are contradictions in the State witnesses, they were
not overwhelming so as not to disprove the guilt of the appellant.
In
rejecting the appellant's version and accepting the evidence of the
State witnesses, the magistrate did not at all misdirect
herself.
It
has to be appreciated that the State has proven its case beyond
reasonable doubt in relation to the two charges. I have no doubt
that
the Court a quo took into account all the evidence that was presented
before it. In
R v Dhlumavo
1948(2) SA 677 AD it was held that
the fact that the trial judge did not make certain factual findings,
did not mean that such evidence
or facts have not been considered.
It
follows that the appeal against conviction cannot succeed. Besides,
it is so that, as the record of the previous convictions
reflect,
appellant has been on the wrong side of the law for more than eight
times, and even during testimony by his doctor, Dr
Johnson, it was
difficult to consult with him in Pollsmoor Prison, as he was
classified as a high-risk offender.
Returning
to sentence
In
S v Malgas
it was held that, in the absence of a material
misdirection, an appeal court may not be justified in interfering
with the sentence
imposed by the trial court, unless it can be
described as shockingly, startling or disturbingly inappropriate.
Further,
it is so that, when the appeal court has to decide an appeal, such
has to be done within the confines of the record. In
the record
itself there is nothing pointing towards a misdirection by the trial
court.
In
my view, the conviction and
sentence imposed,
are reasonable in the
circumstances, consequently I make the following order:
THE APPEAL
IS DISMISSED
.
MANTAME,
AJ
It
is so ordered:
LE
GRANGE, J