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Rilityana v S (A493/2010) [2011] ZAWCHC 161 (4 March 2011)

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JUDGMENT

BLIGNAULT, J:

This is the judgment in the matter of Mxwandile Rilityana as appellant. Appellant was charged in the Regional Court at George on six counts. The first four counts flowed from certain incidents which took place on 14 September 2006 in Thembalethu, Zone 6. Appellant was acquitted on these four counts. The fifth count was that on 7 October 2006, he was unlawfully in possession of a firearm, namely a 7,65 millimetre pistol at Azizani, Zone 6. The sixth count was that he was unlawfully in possession of ammunition, to wit six cartridges (7,65 millimetres). Appellant was convicted on counts 5 and 6 and sentenced to five years imprisonment on both counts taken together.

Appellant appeals against his conviction with the leave of the magistrate. He does not appeal against his sentence. Appellant was accused 2 at the trial. Accused 1 was charged on the same first four counts, but acquitted on all four. Much of the evidence at the trial concerned the first four counts. It is not necessary to discuss it.

Ms Ntombizaki Mabula testified that the appellant arrived at her house in the early hours of the morning of 7 October 2006 and started to knock repeatedly on her front door. Her neighbours, Bongani and Lungani arrived. She went outside and saw that appellant was pointing a pistol at Bongani. These two neighbours grabbed appellant and they took his pistol from him. Appellant managed to run away before the police arrived. At some stage one Vuyane also arrived on the scene.

The next witness was Lungani Mtalami. He testified that early in the morning of 7 October 2006, he was woken up by his cousin, Bonzani, who stayed in the same house as he. They were neighbours of Ms Mabula. They saw that appellant was knocking on Ms Mabula's door. When Ms Mabula opened the door, appellant took out a firearm from the front of his body. He and Bongani tried to hold him inside the house, but he ran away. After a while, Elliot Feni, a detective in the South African Police Service arrived and they went to appellant's home, where he was arrested. The witness had meanwhile taken a firearm from appellant. He held on to it and handed it to the police.

Mr Vuyani Menzi said that he lived close to Ms Mabula. He tried to find out what was going on and was then told about appellant's conduct. He saw that appellant was begging two persons not to call the police and appellant promised to give them a firearm. It was decided to call the police anyway. He also said that he saw a firearm which was in Lungani's possession. They tried to detain appellant in the house, but he was unruly and later ran away. He returned later with a group of persons and demanded that the firearm be returned to him. Appellant then broke Lungani's window and took his music equipment.

Mr Elliot Vuzi Feni is a constable in the South African Police, stationed at George. On 7 October 2006, in the early hours of the morning, his cousin, Lungani, phoned him and reported an incident involving a firearm. At the address in question he found Lungani and Vuyani in possession of a firearm. They told him that they had been threatened by appellant with a firearm. All three of them went to appellant's house and found him there. He admitted that he had been involved in a quarrel. Appellant did not admit that the firearm was his or that he had threatened anyone.

The appellant also testified. His evidence was summarised in the judgment of the magistrate:

"Beskuldigde 2 het wel onder eed kom getuig, maar u het geen getuie geroep nie. U het kom getuig dat u die klaer, Mozair, glad nie ken nie. U was nooit daar by die betrokke winkel nie. U weet ook nie eens waar die winkel is nie. Dit is nou die gedeelte wat handel met die eerste vier klagtes."

In regard to his version, he summarised the evidence in respect of the incident at the house of Ms Mabula. He testified that he was there that evening, looking for his girlfriend. He said that he was unnecessarily attacked by Bongani and Lungani. He denied that he possessed a firearm or pointed it towards anybody. He said that this was a fabricated story.

The judgment of the magistrate was quite comprehensive. He dealt fully with the evidence of all the witnesses, firstly the witnesses on the first four counts and then he dealt with the evidence of the witnesses on the fifth and sixth counts, and in particular that of the appellant. In this regard he said the following:

"Mnr Rilityana u verweer ten opsigte van aanklag 5 en 6, dit is nou die gebeure daar by me Mabula se huis waar u beweerdelik dan in besit gevind is van die wapen is baie vaag. U ontken net dat u die wapen gehad het. Dit maak nie sin in die lig van die feite voor die hof nie. Indien dit nie u wapen was nie en wel in die besit was van Bongani en Vuyani, hoekom sal hulle die polisie laat kom? Hulle is dan in besit van die ongelisensieerde wapen, hoekom sal hulle die polisie se aandag daarop vestig? Daar is tog baie makliker maniere om uit Yi beweerde aanranding te kom. Meneer, u weergawe en bewerings ten opsigte van die voorval die aand van 7 Oktober 2006 is totaal onwaarskynlik en deurspek van leemtes. Hier is die staat se saak so sterk, dat die hof nie anders kan as om u weergawe te verwerp nie."

Counsel for appellant on appeal, submitted that there are material differences in the versions of the witnesses with regard to certain events. She mentioned two such contradictions. The first concerned the circumstances in which appellant managed to run away. The second concerned the colour of the firearm. I do not find it necessary to discuss these alleged contradictions in depth, in my view they are not material. In the prevailing circumstances one can hardly expect a witness to remember all aspects of the matter.

The magistrate made it clear what his findings were in regard to the facts and the credibility of the witnesses. In my view he did not misdirect himself or err in any way. In the absence of a misdirection or such an error, it is trite law the power of a court of appeal to interfere with a decision of a lower court, closely circumscribed.

In the result, APPELLANT'S APPEAL AGAINST HIS CONVICTIONS ON COUNTS 5 AND 6 IS DISMISSED. HIS CONVICTIONS ON COUNTS 5 AND 6 AND THE RESULTANT SENTENCES ARE CONFIRMED.

BLIGNAULT, J

SAMELA. J: I agree.

SAMELA, J