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 IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: A488/2017  

In the matter between:

ERIC BANGO                                                                                            FIRST APPELLANT

NHLANHLA MALOPE                                                                             SECOND APPELLANT

WISEMAN MAZIBUKO                                                                           THIRD APPELLANT

and

THE STATE                                                                                                 RESPONDENT

JUDGEMENT

Tsautse AJ

INTRODUCTION 

[1] This is an automatic appeal against conviction and sentence brought in terms of s 309 (1)(a)(ii) of the Criminal Procedure Act 51 of 1997 in so far as it relates to Appellant 1 and 3, as they were sentenced to undergo an effective term of life imprisonment and other sentences. Appellant 2 was granted leave to appeal his conviction and sentence as he was sentenced to 7 effective years’ imprisonment for possession of unlicensed firearm which was 5 years imprisonment and possession of ammunition was 2 years, and the appeal is opposed.  

THE APPELLANT’S GROUNDS FOR APPEAL

[2]            The appellants have appealed their conviction on the sufficiency and quality of the evidence that the Court a quo used to convict them and sentence them and they have raised the following:  

2.1.  A point in limine that the Court a quo was incorrectly constituted as it did not follow the dictates of section 93ter (1) of the Magistrate Court Act 32 of 1944, which calls for a Magistrate to hear the matter with assessors.  

2.2.  The evidence of pointing out of the firearms admitted irregularly.

2.3.  That the Court a quo incorrectly applied the doctrine of joint possession in respect of the firearms offence conviction. 

2.4.  On behalf of appellant three, the sentence imposed on him was inappropriate

 

BACKGROUND. 

[3]            It is alleged that in the night of the 18th of August 2012, the Govender family had decided to go out to buy crisps and cool drinks, and as they were coming out of their gate, whilst waiting for the gate to close, they were approached by three unidentified men. These men pointed firearms at the Govender family and ordered them to come out of the motor vehicle and go back into the house. 

 

[4]            Mr Govender led evidence that two of three men threatened them and in one instance shot his brother and started to rob the family of their possessions. Whilst they were busy loading the goods they were robbing the Govender into a vehicle, Mr Govender noticed a police vehicle slowly coming to a halt behind his vehicle that was parked near the gate in the driveway through the window of the bedroom they were locked in. 

 

[5]            Mr. Govender averred one of three unidentified men was not in the house but was standing guard outside of the house. As the police vehicle was coming to a standstill, Mr Govender heard shots from the street and he realised that this man who was standing outside on the street was shooting at the police vehicle, and eventually killing the police officers, Warrant Officer Moagi and Constable Tshakela. 

 

[6]            As the Govender vehicle was now parked in by the police van, the men started to transfer their loot into the police vehicle and they escaped in the police vehicle, leaving the two deceased police officers outside of the Govender's house. It later transpired that they also took the police firearms that were issued to them, a 9MM firearm, and R5 rifle. The Govender family called the police to the scene of the incident.

 

[7]            It was further averred that on the night of 18 August 2021, Mr. Oupa Rudolph Mokoena was driving his Toyata Tazz in the vicinity of Solam Park. He was stopped by a police vehicle which motioned him to stop, and he pulled his vehicle in a bus stop.

The person who alighted the police vehicle had a big firearm in his hand, and he asked Mr Mokoena to open his boot. In that meanwhile the one who had alighted from the passenger side of the police vehicle demanded the car keys from Mr Mokoena and took them. They transferred the goods from police vehicle to Mr Mokoena’s vehicle and they drove off with his Toyota Tazz vehicle. Mr Mokoena was later found by a person who was patrolling the street and they called the police. 

 

[8]            The police led evidence that when they arrived at the Govender’s home, they were met with the gruesome murdered Warrant Officer Moagi and Constable Tshakela, and they noticed that their service firearms that were issued to them were missing. 

 

[9]            The investigating officer heavily relied on the informers to be led to the three appellants. The first appellant was arrested in Mpumalanga, the second appellant was arrested in Wolmaransstad and the third appellant was arrested in Snake Park in

Soweto.

 

[10]        It is common cause that there is no evidence linking the appellants to the scene of the crime, that is at Govender’s house as well as that of the robbery of the vehicle of Mr Mokoena. The Court a quo heavily relied on circumstantial evidence that will be discussed in full hereunder. 

 

[11]        The State led evidence of how the police lifted the fingerprints of the third appellant from the police vehicle that was driven by the two deceased police officers which was used as a getaway vehicle by the unidentified three men. The State also led evidence that the third appellant’s motor vehicle was seen driving near Mr. Govender’s house during the time of the incident. This vehicle was later found abandoned in the tavern near the third appellant’s house. 

 

[12]        The State also adduced evidence of the cell phone records which indicated that the cell phone registered in the name of the third appellant was used in the area of the scene of the incident before and after the incident. 

 

[13]        The State also led evidence that the Toyota Tazz of Mr. Oupa Rudolph Mokoena was found abandoned at the residence of the third appellants neighbours, which was unoccupied. 

 

[14]        The police led evidence that the informant led them to the house of Mr. Mthethwa and Mrs Mdluli, who on arrest were turned into witnesses in terms of section 204 of the Criminal Procedure Act. Mr Mthethwa testified that he was handed the firearm by the third appellant whom he knew, and took it to Mrs Mdluli who also testified she received the unlicensed firearm from Mr Mthethwa who received it from the third appellant. She handed over the R5 SAPS assault rifle robbed from the deceased police officer with serial number 331667 with live 15 rounds as well as a 9mm Z88 pistol belonging to one of the deceased police officers with serial number Q084784.

 

[15]        Captain Macau led evidence of how they investigated the two vehicles that were in at the Vereeniging Police station, a Police Nissan Bakkie and Hyundai Elantra. He led evidence that the fingerprints from the first appellant were uplifted from Hyundai belonging to the third appellant, which was observed in the vicinity of the crime scene and later found abandoned at a tavern.

 

[16]        Constable Mofokeng led evidence that when they arrested first appellant he took them to Mr Daniel Macupe, and when the police were still trying to determine if he knew the second appellant, the first appellant interjected and advised him that they were there to collect the firearm. Mr Macupe testified that he had taken the firearm to Mr Rodney Mabulane, who also led evidence that they were also arrested by the police who were investigating this matter and turned into s204 witnesses. He averred that they were handed a firearm by the first appellant. The firearm, a 9mm parabellum pistol with a magazine and 14 live rounds was found in the ceiling of Mr Mabulane. Its serial number was filed off, and it is the same firearm that was used in the murder of the police officers.  

 

[17]        The State also led evidence that one of the firearms that was issued to the deceased police officers was found at the second appellant’s home after the second appellant took the police to his home to point it out. The firearm, a Z88 9MM pistol with serial number Q12680 was found in the ceiling of the outside bathroom. 

 

[18]        The appellants testified in their defence denying that they were at the scene of the incident on the 18^th of August 2012. The court a quo outrightly rejected their evidence and accepted the state version and further accepted that there was no direct evidence adduced by the State to link the appellants to the commission of the crimes that they were charged with.  

 

[19]        The judgment of the court a quo points that there was no direct evidence that linked all the accused to the scene of the incident. It details the circumstantial evidence and related evidence that it used to link the appellant to the offense and succinctly spells out how it arrived at the conviction, addressing the evidence that was adduced during trial and ultimately the sentence. 

 

Point in Limine

[20]  I now turn to deal with the points raised by the appellants in their appeal and heads of argument. The appellants raised a point in limine that the court a quo did not adhere to the dictates of section 93(1) of the Magistrate's Court Act, as it did not address and allow the appellants an opportunity to have assessors during trial as they were charged with murder. Section 93(1) provides as follows: -

(1) The judicial officer presiding at any trial may, if he deems it expedient for the administration of justice

(a)        before any evidence has been led; or 

(b)       in considering a community-based punishment  in respect of  any person  who has been  convicted of  any offence, summon to  his assistance any  one or two  persons who, in his opinion,  may be  of assistance  at the trial of the  case  or  in  the determination  of  a proper sentence,  as  the case may  be, to sit with him  as  assessor  or  assessors: Provided  that  if an accused  is standing  trial in  the court  of  a regional division  on a  charge  of murder, whether together with  other charges  or  accused or not, the judicial officer shall  at  that  trial be  assisted by two assessors unless such  an  accused requests  that the trial be  proceeded with  without assessors, whereupon the judicial officer may  in his  discretion summon  one  or  two assessors to assist  him.

 

[21]  This section requires that where the accused is tried for murder, the trial must be heard by a magistrate with two assessors. The court a quo brought this requirement of section 93(1) to the attention of the appellants^[1], before the commencement of the proceedings and the appellants clearly indicated that they would proceed without assessor. 

 

[22]  In Gayiya v The State^[2], Mpati J held that “the right to decide whether the Court can proceed without the assessors’ rest with the accused and if they elect not to, the Magistrate could in exercising the discretion, sitting alone, have constituted the quorum”. Therefore, the assertion that the court a quo never attended to the dictates of section 93 (1) of the Magistrate's Court Act is baseless as the appellants retained the right to dispense with this requirement and they opted for no assessors. 

 

CONVICTION AND SENTENCE

[23]  I will now move to address the conviction and sentence. The appellants are appealing their conviction, addressing the sufficiency and quality of the evidence that the court used to arrive at a verdict of a conviction. Adv Van As, counsel for the appellants argued that the court a quo misdirected itself that the state has proven its case beyond reasonable doubt. He argued the circumstantial evidence that the Court a quo relied upon, was not sufficient for the court to arrive at a decision of a conviction. 

 

[24]  It is trite law that a court of appeal will not interfere with the trial court’s decision regarding a conviction unless it finds that the trial court misdirected itself as regards its findings or the law. In S v Hadebe and Others^[3] the court stated that:

“Before considering these submissions it would be as well to recall yet again that there are well-established principles governing the hearing of appeals against findings of fact.  In short, in the absence of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong.”

 

[25]  This position was reaffirmed by the Supreme Court of Appeal in the case of S v Monyane and Others^[4] where the court stated that: 

“This court’s power to interfere on appeal with the findings of fact of a trial court are limited…” (See also: S v Francis 1991 (1) SACR 198 (A) at 204e)

 

[26]  I accept that a detail of the evidence that was adduced at the trial proceedings against the three appellants was left unchallenged and this evidence linked the appellants to the scene of the incident. The evidence of the Section 204 witnesses and the evidence of the fingerprints that were admitted as there was no contrary evidence that the seal bags might have been tampered with, was carefully considered by the Court a quo. This evidence was sufficient to prove that the appellants were indeed the men, who first robbed the Govender home and continued to kill the police officers who were at the scene of the robbery. It was also sufficient to prove that they stole the vehicle from Mr Mokoena which was later found abandoned, and also that they were in possession of the firearms and ammunition to which the s204 witnesses pointed out and gave evidence on. In my view, the totality of this evidence proved beyond reasonable doubt that the appellants were the three unidentified men who committed the above offences. 

[27]  I further accept the credibility finding made by the court a quo when deciding not to go ahead with a trial within a trial to confirm the informal pointing out where all the accused went to point out the firearms to the Section 204 witnesses as having been well considered. The appellants negated the need of a trial within a trial to determine the admissibility of the pointing out as they denied that they carried out the pointing out of the firearms. I fully concur with the Court a quo that the appellants had all the opportunity to cross examine the evidence that was placed before them regarding the pointing out.

 

[28]  I further accept the credibility finding of applying the doctrine of common purpose and joint possession as appellant three had appealed against the courts using this principle. In the judgement the Court addressed the principle of joint possession of the firearm that was used in the commission of count seven and eight. The Court placed its reliance in arriving at this decision on the principles enunciated in State v Mbuli^[5] 

 

[29]  The test for establishing liability for the joint possession of a firearm and ammunition where there is more than one perpetrator was established in S v Nkosi^[6] and confirmed by the Constitutional Court in S v Makhubela^[7]  to be the

following:  

“The issues which arise in deciding whether the group (and hence the appellant) possessed the guns must be decided with reference to the answer to the question whether the State has established facts from which it can properly be inferred by a Court that:

(a)        the group had the intention (animus) to exercise possession of the guns through the actual detentor and

(b)       the actual detentors had the intention to hold the guns on behalf of the group.

Only if both requirements are fulfilled can there be joint possession involving the group as a whole and the detentors, or common purpose between the members of the group to possess all the guns.”

 

 

[30]  Taking into account all the evidence that was presented, this court will reiterate on what the court stated in S v Reddy & others^[8]  that:  

“In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at 202-203, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such

“that they exclude every reasonable inference from them save the one sought to be drawn”

[31]  I am of the view that the current matter passed the two tests proffered in the two cardinal rules of Blom (supra), and by applying the test in R v Blom, the appellants had the requisite animus to establish joint possession as envisaged in the case of Nkosi, that the court a quo in evaluation of the evidence considered all the evidence placed before it. I am satisfied that the facts that dealt with the possession of the firearms used on the night of 28 August 2012, justify an inference that all the appellants had the necessary animus to establish possession.  

 

[32]  It is my view that the Court a quo took into consideration all the necessary evidence of different witnesses when it concluded that the State has proven its case beyond a reasonable doubt. Accordingly, all the appellants were properly convicted. 

 

[33]  I now turn to deal with sentence imposed on the appellants. The appellants contend that the court a quo did not carefully consider all relevant mitigating factors, and erred in not ordering that the sentence should run concurrently. However, when one considers the level of detail that the court a quo addressed substantiating evidence during sentencing, it is evident that it applied its mind and took into cognisance the pre-sentence reports of each appellant, as well as the victim impact report.

 

[34]  The second appellant was sentenced to seven years effective imprisonment, whereas the statutory sentence for possession of a firearm is 15 years and the possession of ammunition is 5 years. The first and the third appellants were convicted to life imprisonment for the gruesome murder of two police officers. There is no doubt in my mind that the court a quo properly applied its mind in this matter. There is substantial evidence to link the appellants to the offense and the court considered all the circumstances during the sentencing stage.  

 

[35]  In dealing with the court’s approach in appeals against sentence, Boshielo JA in Mokela v The State^[9] stated that: 

 

“This salutary principle implies that the appeal court does not enjoy carte balance to interfere with sentence which have been properly imposed by a sentencing court”.  

[36]  The first and third appellants were warned of the provisions of Act 105 of 1997 which is normally referred to as the Minimum Sentences Act. The offence of murder for which they were convicted and sentenced for, carries a term of life imprisonment. To avoid this sentence, the appellants had to satisfy the court a quo that substantial and compelling circumstances existed which justify the imposition of a lesser sentence than the prescribed minimum sentence of life imprisonment. The court a quo did not find such circumstances. 

[37]  The general principles governing the imposition of a sentence in terms of the Minimum Sentences Act as articulated by the Supreme Court of Appeal in S v Malga^[10]  cannot be ignored. Referring to the case of Malgas, the court in S v Matyityi^[11] reaffirmed that:

“The starting point for a court that is required to impose a sentence in terms of Act 105 of 1997 is not a clean slate on which the court is free to inscribe whatever sentence it deems appropriate, but the sentence that is prescribed for the specified crime in the legislation”. 

 

 

[38]  I am of the view that the submissions made on behalf of the appellants as regards sentence cannot stand. There was no evidence placed before the court a quo to justify the imposition of a lesser sentence than the prescribed sentence of life imprisonment against the first and third appellants, on the count of murder. The court a quo considered the personal circumstances of the appellants when it imposed the sentence on the appellants. Having done that, the court a quo was also mindful of the warning given in Malgas supra that the court should not deviate from imposing the prescribed sentences for flimsy reasons. With that in mind, it is important to heed to the purpose for which legislature was enacted, when it prescribed sentences for specific offences which falls under section 51(1) for which the appellants have been convicted and sentenced for.  

[39]  The court a quo was also mindful of the so-called “triad” factors pertaining to sentence as enunciated in S v Zinn^[12] namely: ‘the crime, the offender and the interests of society’. The court also had due regard to the judicial purposes of punishment, which are deterrence; prevention; retribution and rehabilitation as stated in the case of S v Rabie^[13]

 

[40]  I therefore do not agree with the submission that the court a quo did not carefully consider all relevant mitigating factors of the appellants. In this regard, NUGENT JA in S v Swart^[14] had the following to say:  

 

“In our law, retribution and deterrence are proper purposes of punishment and they must be accorded due weight in any sentence that is imposed. Each of the elements of punishment is not required to be accorded equal weight, but instead proper weight must be accorded to each according to the circumstances. Serious crimes will usually require that retribution and deterrence should come to the fore and that the rehabilitation of the offender will consequently play a relatively smaller role”. 

 

[41]  In S v Ro and Another^[15]  the majority of the supreme court of appeal held

that: 

“To elevate the personal circumstances of the accused above that of society in general and the victims in particular would not serve the well-established aims of sentencing, including deterrence and retribution”. 

 

[42]  Having given proper and due consideration to all the circumstances, this court cannot fault the decision of the sentencing court nor can it be said that the sentence imposed was shocking or unjust.  We cannot find any misdirection in the court a quo’s finding that there are no substantial and compelling circumstances justifying a deviation from the prescribed minimum sentence in respect of the first and third appellants. We are of the view that the court a quo did not misdirect itself in imposing the prescribed sentence of life imprisonment on the count of murder. 

 

[40] I accordingly make the following order: -

The appeal against conviction and sentence on behalf of all appellants is dismissed

 

T. A. Tsautse. 

Acting Judge of the High Court of South Africa.

 

 

 

I agree.

 

 

PD. Phahlane

Judge of the High Court of South Africa.

 

 

APPEARANCES

For the Appellants:             : Adv F. Van As

Instructed by:                      : Legal Aid South Africa 

                          Email: francoisv@legal-aid.co.za 

 

For the Respondent             : Adv P W Coetzer

Instructed by                        : Office of the DPP (Gauteng Division, Pretoria)

                                             Email: pcoetzer@npa.gov.za 

 

Date of hearing:                    : 18 August 2021                                           

Date of judgment:                 : 30 November 2021                                                         

 

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