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[2014] ZAWCHC 150
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Cotenberg v S (A404/2004) [2014] ZAWCHC 150; 2015 (2) SACR 56 (WCC) (30 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
[REPORTABLE]
Case Number:
A404/2004
DATE: 30 MAY 2014
In the matter
between:
RUDOLPH
COTENBERG
.........................................................
Appellant
And
THE
STATE
............................................................................
Respondent
JUDGMENT
DELIVERED 30 MAY 2014
Coram: HENNEY J
ET DOLAMO J ET MANTAME J
DOLAMO, J:
(A) BACKGROUND
[1]
The appellant in this matter appeared in the Regional Court facing 4
counts relating to the contraventions of the provisions
of the now
repealed Arms and Ammunition Act 75 of 1969. These counts were,
possession of a fire-arm
[1]
and
ammunition
[2]
without being the
holder of a valid licence, pointing a fire-arm
[3]
,
and committing a nuisance by unlawfully discharging the said
fire-arm.
[2]
At some stage the counts were withdrawn against the appellant.
These counts were, however, later re-instated. The Appellant
having
been brought to Court with a summons issued in terms of the provision
of section 54 of the Criminal Procedure Act 51 of
1977 (the “CPA”).
On 1 November 2002, the 4 charges were put to Appellant. He
pleaded guilty to the possession
of the fire-arm and ammunition
counts, but not guilty to pointing the said fire-arm or causing a
nuisance by discharging it.
[3]
In his plea explanation in terms of section 112 (2) of the CPA, the
Appellant admitted that on 17 December 2000, he was found
in unlawful
possession of the fire-arm and ammunition, and that he did not have a
valid licence, or authorisation to be in of such
fire-arm
possession. He is alleged to have purchased the fire-arm from a
policeman who had promised to apply for a licence
on his behalf, and
who by then, had not yet obtained such licence for him. On the
counts of pointing a fire-arm and discharging
it in a public place,
Appellant’s plea explanation was, that he was on his way home
when he was attacked by a person or persons,
and in self-defence,
fired shots to ward off the unlawful attack.
[4]
At the end of a trial in which two state witnesses testified and
Appellant also testified in his defence, he was also found
guilty of
the counts to which he had pleaded not guilty. He was sentenced
on counts 1, 2 and 3, to imprisonment for 3 years.
All these counts
were taken together for purposes of sentencing. Appellant was
also cautioned and discharged on count 4.
I shall return in due
course to analyse the evidence led in the trial, the Magistrate’s
reasoning in rejecting the Appellant’s
version and convicting
him as charged, as well as the reasons for imposing a sentence of
direct imprisonment. I deal first
with the circumstances that
followed his conviction and which had led to the constitution of this
Full Court to hear the appeal.
[5]
Upon his conviction and sentence, the appellant gave notice of his
intention to appeal against his conviction and sentence.
He
also applied for, and was released on bail of R1000.00 pending
appeal. On 29 October 2004, the appeal came before a Court
of
appeal constituted by a Judge of this Court and an Acting Judge.
After hearing argument the appeal Court postponed the
matter
sine
die,
and
ordered that a correctional supervision report on the circumstances
of the appellant be obtained. After a lengthy delay,
allegedly
due to the changes in the department of correctional services, a
report was finally made available in 2005.
[4]
The matter, however, was never re-enrolled to have it finalise.
This Court was advised by Counsel for the State, Ms
Riley
,
that the failure to place the matter on the roll again, was due to an
administrative oversight in the office of the Director of
Public
Prosecutions. In the meantime, the permanent Judge retired, and
the Acting Judge according to available records never
returned to
act. It is also not clear whether he was appointed a permanent Judge
of this Court, or any other division. As
a result the Judge
President of this Division, relying on his powers in terms of the now
repealed Supreme Court Act
[5]
constituted the present full court/bench to deal with the unusual
circumstances of the case, and if appropriate, to dispose of
the
matter.
(B)
POINTS RAISED BY THE COURT
[6]
The peculiar circumstances of the matter raised the following
questions, and consequently, this Court requested the parties
to
address it as follows:
6.1
whether the previous court was seized with the matter when it
postponed it
sine die
for a correctional supervision report,
and if so,
6.2
whether this Court was lawfully constituted, and competent to deal
de
novo
with, and finalise the appeal in the light of the
unavailability of the previous court.
6.3
whether a Court in a criminal appeal can postpone a matter
sine
die.
[7]
This Court received useful heads of argument from Ms
De
Jongh
and Ms
Riley
for the Appellant and the respondent respectively. We are indebted to
them. Both Counsel submitted that, though the previous
Court
was seized of the matter, this Court was empowered to deal with it
de
novo,
in the light of the previous Court being unavailable. Ms
De
Jongh
,
for the Appellant, pointed out that section 14 of the Superior Courts
Act
[6]
does not have any
provision specifically dealing with a situation where all the Judges
of a previous Court were not available,
but nevertheless, submitted
that the matter must start
de
novo
before
this Court. Counsel was also of the view that a criminal appeal
Court can postpone a matter
sine
die
in
terms of its inherent powers, but only if the reason for such a
postponement cannot be resolved within a specific time, and it
is
indeterminate to the Court how long a time would be required.
[8]
Ms
Riley
submitted that though it was not clear in terms of which provision a
Court can postpone
sine
die
a criminal appeal, such practice has nevertheless developed. As
authority for the proposition that a Court may postpone a
matter
sine
die,
Counsel for the respondent cited the Supreme Court of Appeal Judgment
per Van Heerden and Pillay JJA (Mthiyane DP and Malan JA
concurring)
in
Brossy
v Brossy
[7]
,
an Eastern Cape Division judgment in
Toba
and Mendu v The State
[8]
,
and the judgment of the Full Court in this Division in
S
v Mazongolo
[9]
.
It was Respondents submission that this practice of postponing
sine
die
a
criminal appeal, if not closely monitored, may lead to the kind of
effect it had produced in this matter. On whether this
Court
can deal with the matter
de
novo,
Ms
Riley
referred us to a North Gauteng High Court (Pretoria) judgment in the
matter of
Thabo
McPherson Tshabalala v The State
[10]
,
where, after hearing an appeal the Court postponed the matter
sine
die
.
When it was re-enrolled, it came before another differently
constituted court. The Court, per Oosthuizen AJ, held
that “
we
see no reason why it should be postponed for a third time and why we
cannot entertain the appeal”.
Counsel submitted that it would be in the interest of justice that
this Court, as constituted, and based on its inherent
powers, deal
with and dispose of the matter.
[9]
I proceed to deal first with the procedural issues raised in this
matter. Corollary questions to the question as to whether
the
previous Court, which heard the appeal, and postponed it s
ine
die,
was seized with the matter, are whether this Court is lawfully
constituted, and if so, whether it should hear the matter
de
novo.
It
is trite law that a Court must be lawfully constituted to give a
valid judgment.
[11]
The
previous court which originally heard the matter on 29 October 2004,
(for the sake of convenience I shall henceforth
refer to it as the
“previous Court”) was constituted in terms of section 13
(2) (a) (i) of the Supreme Court Act
[12]
,
which provided that the Court of a provincial or local division
shall, except when it is in terms of any law required, or permitted
to be otherwise constituted for the hearing of any appeal against a
judgment, or order of an inferior court, be constituted before
not
less than two Judges. In terms of section 22 (a) and (b) of the
Supreme Court Act that Court had the power on the hearing
of an
appeal, to receive further evidence, either orally, or by deposition
before a person appointed by such division, or to remit
the case to
the Court of first instance, or the Court whose judgment was the
subject of the appeal, for further hearing, with such
instructions as
regards the taking of further evidence, or otherwise, as it deems
necessary. It also had the power to confirm,
or amend, or set
aside the judgment or order, which was the subject of the appeal, and
to give any judgment, or make any order,
which the circumstances may
require. Such powers of hearing further evidence, however, must
be used sparingly.
[10]
Pursuant to its powers as set out
supra
the previous Court
heard the appeal but, instead of confirming, amending or setting
aside the judgment which was the subject of
the appeal, ordered that
a correctional supervision report be obtained and, for this purpose,
postponed the matter
sine die.
It was fully entitled to
do so by virtue of its powers derived from the provisions of section
22 and in terms of its inherent powers.
After the correctional
supervision report was secured, the previous court ought to have
reconvened to dispose of the matter by
confirming, amending, or
setting aside the judgment appealed against, or give any order which
the circumstances may have required.
This however did not
happen, as pointed out
supra.
The problem in my view was
that the matter was not postponed to a particular date, but
sine
die
, with the result that there was no judicial supervision of
the progress made in the procurement of the requested supervision
report.
The result was that the matter fell through the cracks
resulting in this inordinate delay for a period of (10) ten years.
[11]
In the light of the delays brought about by the postponement of the
matter
sine die,
and exacerbated by the unavailability of the
previous Court, can this Court step in its place, and finalise the
matter, or hear
the matter
de novo?
In the repealed
Supreme Court Act and its replacement, the new Superior Courts Act,
which came into operation on the 23 August 2013,
there is no section
which deals specifically with a situation where both Judges who
constituted a Court, and did not finalise a
matter by giving a
judgment or order were no longer available. No provision was
made in any of the two acts for this eventuality
nor, as far as I
could determine, is there any case law dealing with a situation
similar to the present. The closest provision
of the Supreme
Court Act which dealt with a situation where a Court was depleted by
death, retirement, incapacity, or absence of
one or more of the
judges, but not all the Judges who constituted a previous Court, was
section 17 (2), which provides as follows:
“
(a)
if at any stage during the hearing of any matter by a full court, any
judge of such court dies or retires or is otherwise incapable
of
acting or is absent, the hearing shall, if the remaining judges
constitute a majority of the judges before whom it was commenced,
proceed before such remaining judges, and if such remaining judges do
not constitute such a majority, or if only one judge remains,
the
hearing shall be commenced de novo, unless all the parties to
the proceedings agree unconditionally in writing to accept
the
decision of the majority of such remaining judges or of such
remaining judge as the decision of the court”.
[12]
An equivalent provision which deals with a depleted Court in the
Superior Court Act is section 14 (5) which provides as follows:
“
If
at any stage during hearing of any matter by a full court, any judge
of such court is absent or unable to perform his or her
functions, or
if a vacancy among the members of the Court arises, that hearing must
–
(a)
if the remaining judges constitute a majority of the judges before
whom it was commenced, proceed before such remaining judges;
or
(b)
if the remaining judges do not constitute such a majority, or if only
one judge remains, be commenced de novo, unless all the
parties to
the proceedings agree unconditionally in writing to accept the
decision of the majority of the remaining judges or of
the one
remaining judge as the decision of the Court”.
[13] Can these
provisions be interpreted, or by analogy, extended to cover a
situation such as the present, where the previous Court
was depleted
to the extent that none of its Judges were available? A
purposive interpretation of the section is called for.
The
purpose of the sections 17 (2) of the repealed Supreme Court Act and
14 (5) was, and of the current Superior Court Act, is
in my view to
cater for three possible situations: where the majority of a
full Court, as it was constituted, were still
available, where the
majority was no longer available, and where only one Judge remained.
If the remaining Judges constituted
a majority, the matter will
proceed to finality in the normal way. Where the remaining
Judges do not constitute a majority,
and the parties do not agree
unconditionally in writing to accept the decision of the majority of
the remaining Judges as the decision
of the Court, or where only one
Judge remained, the inevitable was that the matter must commence
de
novo.
I cannot see why when all the Judges who constituted
the Court were no longer available, would the matter not start
de
novo.
A narrow interpretation of these sections could mean,
that a matter could start
de novo
where the remaining Judges
did not constitute a majority, but not where all the Judges were no
longer available. Such an interpretation
could lead to
absurdities. To avoid an absurdity, the relevant section in my
view, must be interpreted in such a way that
a matter will start
de
novo
where all the judges were no longer available. In the
circumstances, I am satisfied that this Court is properly constituted
and
therefore seized with this matter. Also, it would be
undesirable to send it back to the court
a quo
. The interest
of justice dictates that this Court deals with, and dispose of this
matter.
[14]
The next question is whether the previous Court was correct to
postpone the matter
sine die
while waiting for the
correctional supervision report. As Ms
Riley
pointed out
there are instances in our case law where the Courts have postponed a
criminal appeal
sine die.
For example in
Brossy v Brossy
(supra)
Van Heerden and Pillay JJA postponed
sine die
an
appeal involving a maintenance matter, which strictly speaking was
not a criminal appeal, to enable the appellant to complete
and
reconstruct the record of the proceedings in the maintenance court.
In S v Mazongolo (supra)
a Full Court of this Division, after
hearing an appeal against sentence (where leave to appeal against
conviction was refused) formed
the view that the appellant’s
conviction was not justified on the evidence before the Magistrate
postponed the appeal
sine die
to afford the appellant an
opportunity to apply to the President of the Supreme Court of Appeal
for leave to appeal against conviction.
[15]
It is evident that though there is no prohibition against postponing
a criminal appeal
sine die,
the process must be properly
managed and monitored to ensure that the matter is not lost in the
system. Even where, as in
this case, it was not clear when a
particular step which necessitated the postponement would be taken,
it would be proper to postpone
the matter to a specific date so as to
enable the Court to have judicial oversight on progress made, or the
lack thereof, and to
take appropriate steps where there is any undue
delay. Postponing an appeal
sine die
, where the
circumstances do not justify it may in certain instances lead to a
failure in the administration of justice and may
infringe on an
appellant’s right to a speedy trial. It is for this
reason that section 168 of the CPA enjoins a Court,
before which
criminal proceedings are pending to adjourn the proceedings to any
date on the terms which to the Court may seem proper,
and which are
not inconsistent with any provision of that Act. A criminal appeal
which is an extension of the trial cannot be dealt
with differently
unless the circumstances of a particular case call for a different
approach. To postpone
sine die
may lead to the kind of
delay experienced in this matter.
(C)
MERITS
[16]
I turn to deal with the merits of the appeal. Leslie October, a
member of the South African Police Service (“SAPS”)
stationed at Grassy Park, testified that on 17 October 2000, he was
on duty together with his colleagues, Khan and Smit, patrolling
in
the Grassy Park area, when they received a complaint of gangs with
fire-arms in Oribi Street. While proceeding to the
area they
received another report that a shooting had taken place. On
arrival they parked their patrol vehicle in 5
th
Avenue and
went to take different positions next to a prefabricated wall. This
was at the corner of 5
th
Avenue next to an open field.
Constable Khan, went with Smit to another corner at the opposite end
of 5
th
Avenue, and monitored the situation.
[17]
While so positioned, October heard the sound of gunshots.
Simultaneously he saw the Appellant emerging from the veld and
walking
towards Oribi Avenue, towards the direction where Constable
Khan, had taken his position. Appellant started firing shots towards
the veld while still walking in the direction of Constable Khan.
As he got closer to Constable Khan the latter came out and
fired a
warning shot. This brought appellant to a stop. October
then rushed to where Khan and the appellant were to
give support to
Constable Khan. Altogether he heard two shots being fired. The
first was before they took their respective
positions. These
came from the direction of the open veld. October was not certain
whether Appellant fired at Smit or not
because his attention was
focused on Khan as, according to him, was a sitting target. But
October later changed his version,
that he saw appellant turning and
firing a shot, to say that he actually did not see him firing, but
only heard the sound of a
gunshot. October also could not see
how the appellant held the firearm as he was walking. He
confirmed that the area
was a dangerous gangster area, but could not
tell what had happened prior to their arrival, which had triggered
the shooting.
October was, however, of the view that it was
unnecessary for appellant to fire shots. October said that when
confronted by Khan,
appellant went to lie on the ground.October went
to where appellant was lying and saw that he was injured. He could
not determine
where on his body the injury was because he was busy
controlling the crowd which had gathered on the scene.
[18]
In cross-examination, October admitted that the first gun shots did
not come from the Appellant, or any of the policemen on
the scene.
He also conceded that appellant could have been shot by unknown
people. He thereafter said that when appellant
fired, Inspector
Smit (apparently October intended to mean Khan) came out and
identified himself. October was not certain
whether appellant’s
shot were aimed at Smit, or at the people who were firing at him, but
concluded that he could have been
firing at the other people.
Appellant’s version, which was put to October, was that Khan
shot him thrice which he denied
and re-iterated that Khan only fired
one warning shot. October admitted that he could not see
whether appellant was hit by
the shot fired by Khan because he was
behind Appellant and Khan was in front of him.
[19]
Khan was also called as a witness. He testified that he was a
Constable in the SAPS and was stationed at Grassy Park
in the crime
prevention unit. He confirmed that he was on duty on 17
November 2000, and busy with crime prevention duties.
He and
his colleagues (October and Smit) received a call in connection with
a shooting complaint at approximately 24h30 and went
to attend the
scene, which was an open veld between Oribi and 5
th
Avenue, Lotus River. On arrival at the scene he and his
colleague took different tactical positions. He took his
position
at a corner which was closest to Strandfontein Road.
He had a clear view of the open veld. He saw a man (later
identified
as the appellant) coming towards him from the opposite
side of the open veld. As he was approaching he heard gunshots
and
could see that these were fired by the Appellant from the muzzle
flash of his fire-arm. He took cover behind a precast wall
as
he was not sure of the direction in which appellant was firing.
He heard more gunshots while still behind cover.
After a while
Khan stepped out to see what had happened to the person who was
approaching from the open veld. He saw appellant
coming towards
him with his fire-arm pointed at him.
[20] Khan testified
further that it was at this point that he came out and shouted that
he was a policeman and that appellant must
stand still.
Appellant did not heed this order, but continued to approach him with
his fire-arm still pointing in Khan’s
direction. Khan
then fired a warning shot in the direction of the veld. The
appellant dropped the fire-arm and went
down. While on the ground
appellant told him that he had been shot. Khan summoned his
colleagues for support and Smit came to his
aid. Khan took
possession of appellant’s fire-arm, which was a Norinco pistol
with three rounds of ammunition, and
found that its hammer had been
pulled back. Thereafter the Appellant was taken to hospital.
The fire-arm, was later
tested, and proved to belong to someone else,
and not the appellant. It was however, not reported stolen.
Khan admitted that
he did not know at whom appellant was firing nor,
was he sure who else was firing. He was however, certain that
appellant
was the only person in the veld at the time. In
cross-examination Khan conceded that it was possible that appellant
was firing
shots because somebody was firing at him, but denied that
the appellant did not point the fire-arm at him.
[21] After the close
of the state’s case appellant testified in his own defence.
As he had already pleaded guilty to
the unlawful possession of the
fire-arm and ammunition, he confirmed that he was walking in the veld
carrying this fire-arm when
he heard voices screaming obscenities at
him and ordering him to stop. He ignored the insults and
continued walking.
The next thing he heard shots being fired at
him. He alleged that about eight to fifteen shots were fired at
him. He
started running, pulled out his own fire-arm, and shot
back in an attempt to scare off his attackers. He alleged that
it
was necessary to fire back to defend himself. According to
him he fired two shots, and these brought the shooting which was
directed at him to a stop. As he turned a corner he came across
Khan who identified himself as a policeman. At that
time he was
running and his fire-arm was pointed to the ground. He denied
pointing the fire-arm at Khan or at any other person.
[22]
Under cross-examination, Appellant stated that the people who fired
at him were about 40 metres away, and near a street light
where he
could only see their silhouettes; that he could not have just walked
faster to avoid these people, but had to fire back
because they were
firing at him; that by shooting back, people stopped firing at him.
He also testified that Khan fired three
shots at him, and that these
were in close proximity of his lower limbs. On being shot at by
Khan, Appellant dropped his
fire-arm and went to the ground.
The last shot was fired while he was already lying on the ground.
(D)
MAGISTRATE’S FINDINGS AND ANALYSIS OF
EVIDENCE
[23]
The Magistrate, correctly in my view, held that there was little
which was in dispute between the state and the defence.
After
analysing the evidence of the two state witnesses, and that of the
appellant, in particular, the evidence of Khan that appellant
continued to point the fire-arm at him even after Khan told him that
he was a policeman, and that he must stop, and came to the
conclusion
that Appellant’s version, that he was not certain that Khan was
a policeman since he was not in uniform nor showed
him a badge, did
not make sense. The magistrate held further that Appellant’s
version that notwithstanding the fact
that he was not certain that
Khan was a policeman had yet put up his hands, also did not make
sense. Consequently he rejected
the whole of appellant’s
version and convicted him.
[24]
It is a trite principle in our law that in criminal proceedings the
prosecution has to prove its case beyond reasonable doubt;
that mere
preponderance of probabilities is not enough; that in view of this
standard of proof in a criminal case, a court does
not have to be
convinced that every detail of an accused’s version is true;
that it is permissible to test the accused’s
version against
the inherent probabilities but it cannot be rejected merely because
it is improbable. Accused’s version can
only be rejected on the
basis of inherent probabilities if it can be said to be so improbable
that it cannot reasonably possibly
be true.
[13]
[25]
The appellant’s version that he was fired at while walking in
the veld is to a large extent corroborated by that of the
state’s
witnesses. October testified that on arrival at the scene of
the shooting, and while he had taken cover behind
a prefabricated
wall he heard the sound of gun shots, and simultaneously saw
appellant walking in the veld in the direction of
Oribi Avenue.
At that point, appellant turned and fired two shots in the direction
of the veld. The shots he heard
before appellant fired came
from the side of Oribi Avenue. He was not sure at whom the
shots were aimed. October could
not see how appellant held his
fire-arm as he walked towards where Khan was stationed. He also
could not say what had happened
prior to the shooting which resulted
in the appellant firing shots in return. He was, however of the
opinion, that it was
not necessary for appellant to have fired these
shots since he was already close to Fifth Avenue, and could have
simply increase
his pace, and turned around the corner to relative
safety. He said so even though he acknowledged that this was an
area with
a high incident of criminal activities. He
conceded under cross-examination that the first shots he heard were
not
coming from the appellant but from the other side, and it is in
that direction that appellant directed his shots.
[26]
Khan, on the other hand, did not see the direction in which the
appellant fired his shots. He averred that he was not sure
who else
was firing the other shots that he heard while he had taken cover,
when he came out behind the precast wall, behind which
he had taken
cover. He said that he had seen the Appellant approaching with his
fire-arm pointing at him, and that it was at that
point that he
shouted “
police
” and ordered Appellant to drop his
fire-arm. The Appellant did not immediately drop his fire-arm, which
caused him to fire
a warning shot, where after the Appellant dropped
his fire-arm, went down and told him that he had been shot. He too
conceded that
appellant could have been fired at by other people.
[27]
It is immediately apparent from the evidence of October and Khan that
there were other people who were also firing shots. The
possibility
that these people were firing at Appellant therefore cannot be
excluded. The possibility that appellant fired in response
to such
fire cannot also be excluded. In the circumstances, it cannot be said
that Appellant’s version, that he fired in
self-defence was so
improbable as to be rejected as not being reasonably possibly true.
Self-defence in this circumstance excluded
the element of
unlawfulness from the charge of unlawfully discharging the fire-arm.
Appellant’s version, that he fired in
self-defence and that he
used means appropriate to the danger that confronted him is
reasonably possibly true. It cannot be held
against him that he
elected to fire back and not run faster, as October had suggested, to
what he regarded as safety. His version
that he fired in self-defence
cannot therefore be false. He accordingly should have been
acquitted on this charge.
[28]
On the count of pointing a fire-arm the Magistrate rejected the
appellant’s version that his fire-arm was pointing downwards
as
he was approaching where he came across Khan. In rejecting his
version, the Magistrate held that Appellant had contradicted
himself,
in that there was no clarity as to why Khan fired a second and third
shot when he was co-operating. In this respect, the
Magistrate held
that Appellant is alleged to have been hit by the second shot fired
by Khan while he had dropped his firearm, and
at the same time said
that he was not sure whether Khan was a policeman. This
according to the Magistrate corroborated Khan’s
evidence that
Appellant did not really want to co-operate when he was told the
first time to “
staan vas
”; that since appellant
was close to see that Khan was not in police uniform, he was close
enough for Khan to see the pointed
fire-arm. The only reasonable
inference to be drawn was that he did not heed Khan’s
instructions to stop and that appellant’s
version that,
although he did not think that Khan was a policeman, he nevertheless
put up his hands, but still three shots were
fired at him, did not
make sense.
[29]
I do not agree with the Magistrate’s interpretation of the
evidence on this aspect. Appellant testified that he
was
running and firing back at the people who were shooting at him.
When he came around the corner, with his fire-arm facing
downwards,
Khan screamed at him ‘
SAP, staan vas, jou wapen (sic)
”:
and that though Khan was not in police uniform, did not produce a
badge and appellant did not know that he was a policeman,
he still
obeyed his instructions. Appellant did not deviate from this version
under cross-examination. In this respect he
responded to
questions by the Magistrate as follows:
“‘
n
Hoek? Ja, en hy het toe voor my ingespring terwyl ek hardloop
met die vuurwapen wat na die grond gerig is en hy sê
my, “SAP,
staan vas, laat val jou vuurwapen!’. Ek skreeu vir hom
dit is ‘n wettige vuurwapen, maar ek gooi
my hande in die lug
in en sê toe weer, ‘staan, laat val jou vuurwapen!’
en hy skiet toe ‘n skoot deur my
bene, wat net mis is, en toe
laat val ek my vuurwapen, toe skiet hy my weer nog ‘n skoot en
toe ek lê op die grond,
toe gaan daar nog ‘n skoot af en
dit is deur my thighs”.
[30]
In addition Appellant disputed Khan’s version that he refused
to drop his fire-arm, and maintained that he had obeyed
Khan’s
instructions. The rest of Appellant’s cross-examination
related to his version that he was shot in his
leg by Khan which
version was said to have never been put to Khan, and why would Khan
shoot him while he was lying on the ground,
or with his hands up.
In the midst of this cross-examination about the number of shots
fired at him appellant stuck to his
version that he did not point his
fire-arm at Khan, and that Khan would have killed him if he had
continued to do so.
[31]
It is not correct, as the Magistrate found, that the area where Khan
stood was illuminated by a street light which enabled
appellant to
see that he was not wearing police uniform. The evidence of the
street light came when appellant described how
he noticed the people
who were firing at him. Appellant’s version, that he did
not point the fire-arm at Khan cannot
be rejected as so improbable as
to be false and is, in the circumstances, reasonably possibly true.
He ought to have been
acquitted on the charge of pointing a fire-arm
as well.
[32]
That leaves the question of the appropriate sentence to be imposed on
the appellant for the unlawful possession of the fire-arm
and
ammunition without a valid licence to which he pleaded guilty.
Appellant was sentenced to 3 years’ direct imprisonment
on
counts 1, 2 and 3 and to a warning and discharge on count four.
[33]
In his judgment on sentence the Magistrate regarded as aggravating
the fact that not only was he found in possession of the
fire-arm,
but also the manner in which he acquired it, namely, that he bought
it from a policeman: and that he fired “
willy nilly
”
in an area where innocent people could have been killed: The
Magistrate also stated that people in the area in question
were used
to just random shooting and killing of innocent people, and
that a policeman could have been shot and killed. The
community in
the area was sick and tired of the gangsters and expect the courts to
impose sentences on people like the Appellant
that would serve as
deterrent.
[34]
Against sentence it was argued on behalf of the appellant that the
trial court misdirected itself in over-emphasizing the interest
of
the community at the expense of the Appellant’s personal
circumstances. Ms
De
Jongh
argued that the appellant’s circumstances which were presented
to the court at the time of sentencing have since changed
for the
better, and that in the exceptional circumstances of the case, this
court should take into consideration his current circumstances
in
meting out an appropriate sentence. Ms
De
Jongh
found support for her submission in the judgment of Leach AJA in
S
v Michele and Another
[14]
and that of Lewis JA in
S
v
Jaftha
[15]
where the learned Judges held, respectively, that while an appeal
court would generally only consider the facts and circumstances
known
when sentence was initially imposed, the courts have recognised, that
in exceptional circumstances factors later coming to
light may be
taken into consideration on appeal where it is in the interest of
justice to do so, and where there was a delay of
ten years the state
accepted that the sentence should be revisited.
[35]
As a general rule, an appeal court may not interfere with a sentence,
unless there is a material misdirection by the trial
court, or unless
the sentence is startlingly inappropriate, with there being a
striking disparity between it and the sentence the
appeal court would
have imposed. Only if the appeal court is convinced that the
trial court exercised its sentencing discretion
improperly, or
unreasonably, would an appeal court interfere. The question in
this matter therefore is, whether in imposing
the sentence of three
years imprisonment the Magistrate exercised his discretion properly.
If not then this court is at liberty
to interfere.
[36]
The Magistrate considered the circumstances under which the Appellant
fired the shots as aggravating, in particular, in that
innocent
people could have been killed. His view, that the Appellant was
firing indiscriminately, was based on questions
which the Magistrate
himself asked, the Appellant namely, that Appellant could not see the
people at whom he was firing, and that
he blindly fired in the air,
with the result that anybody could have been struck. This
ignored the Appellant’s answers
to his questions, which was
that he had fired in the direction of the people who were firing at
him.
[37] The Magistrate
furthermore, and without any evidence being led, assumed that the
appellant was engaged in unlawful gangster
activities. The
circumstances under which the Appellant fired the shots, as indicated
supra
, were lawful in the sense that appellant was acting in
self-defence. The unlawful possession of the fire-arm is a
separate
matter and does not detract from the fact that he was acting
in self-defence. In misconstruing the evidence on the merits,
the Magistrate misdirected himself when it came to the imposition of
an appropriate sentence. I accordingly conclude that
the
Magistrate did not exercise his sentencing discretion properly, and
that this Court is entitled to interfere, and impose what
would be an
appropriate sentence in the circumstances.
[38] The submission
by Ms
De Jongh
that this court should look at the Appellant’s
personal circumstances and other factors which came to light after
sentencing
was supported by the state. In this respect Ms
Riley
, submitted that it would serve no purpose to send the
appellant to prison and that it appeared that the appellant had in
the interim
been rehabilitated and became a useful member of
society. This submission was based on the undisputed updated
version of
appellant’s personal circumstances. He was
older, and hopefully wiser, at age 34. He was still married and
three
of his children were still minors. He was employed as a
cleaner by the Department of Health and had completed Grade 12
through
part-time studies. He was actively involved in
community affairs, running a soccer team and providing religious
counselling
to prisoners. Most significantly appellant has not
re-offended.
[39]
I agree that sending Appellant to prison will not serve any purpose.
In considering what sentence will be appropriate
his current personal
circumstances will be taken into consideration. The inordinate
delay in finalising the matter is a significant
factor to take into
consideration. Appellant had to anguishly wait for ten years
for the matter to be finalised. He
was however not totally
without blame. He was, or ought to have been aware that his
appeal was not finalised, yet he took
no steps whatsoever to expedite
its conclusion. And this was, while out on bail, and not
hampered otherwise by the restrictions
of imprisonment. No
reason where advanced why he did nothing after the correctional
supervision was prepared to see to the
finalisation of the appeal.
In the circumstances I am, however, of the view that a sentence of a
fine coupled with a wholly
suspended sentence of imprisonment will be
an appropriate sentence.
(E)
ORDER
[40]
The order I propose therefore is the following:
1.
the appeal succeeds;
2.
the convictions of the appellant on count 3 and 4, i.e. pointing of a
fire-arm in contravention of section (1) (i) read with
sections 1 and
39 (2) (d) of the Arms and Ammunition Act, and causing a nuisance by
unlawfully discharging a fire-arm in contravention
of Regulation 2
read with Regulation 1, 4; and 5 of Provincial Notice 134/1974m, are
set aside;
3.
the sentence of 3 years’ imprisonment imposed by the Magistrate
is set aside and replaced with the following:
“
R3000-00
or 12 months imprisonment. A further 12 months imprisonment wholly
suspended for 3 years on condition the accused is not
found guilty of
a contravention sections 90; 91; 92; 93 and 94 of the Fire Arms
Control Act 62 of 2000”.
DOLAMO,
J
I
agree. It is so ordered.
HENNEY,
J
I
agree.
MANTAME,
J
[1]
In
contravention of section 2 read with sections 1; 39 and 40 of Act 75
of 1969
[2]
In
contravention of section 36 read with sections 1; 39 and 40 of Act
75 of 1969
[3]
In
contravention of section 39(1)(i) read with sections 1 and 39(2)(d)
[4]
No
specific date was mentioned nor was the report part of the record
before this court.
[5]
Act
59 of 1959
[6]
Act
10 of 2013
[7]
(Case
no 602/2011
[2012]
ZASCA
151
)
[8]
(Case
no CA and R962/2002)
[9]
S
v Mazangolo
2013 (1) SACR 564
(WCC)
[10]
(A74/2011)
[11]
See
S
v Gqeba and Others
1989 (3) SA 712 (A)
[12]
Act
59 of 1959
[13]
Per
Brand AJA (as he then was) in
S
v Shackell
2001 (4) SA 1
(SCA) at para 30
[14]
2010
(1) SACR 131 (SCA)
[15]
2010
(1) SACR 136
(SCA)