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Maculeko and Others v S (A16/2010) [2011] ZAWCHC 83 (1 April 2011)

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Judgment: 1 April 2011

MIA, AJ:

[1] On 7 March 2007. fourteen accused appeared in the Regional Magistrate's Court and were convicted on 11 charges. They were sentenced on 6 June 2007. They were convicted of : count 1, robbery with aggravating circumstances and sentenced in terms of section 51 of Act 105 of 1997 to fifteen years' imprisonment; count 2, 3 and 4. attempted murder of three Fidelity guards and sentenced to ten years' imprisonment which was ordered to run concurrently with the sentence imposed on count one; count 5, failing to possess a permit as required in terms of section 32(1 )(a) of the Arms and Ammunition Act, Act 75 of 1969 for a machine gun and sentenced to 15 years' imprisonment of which twelve years' was ordered to run concurrently with the sentence imposed on count one; count 6 and 7, the attempted murder of Inspector Harmse and Inspector van der Mescht by shooting at them with firearms, counts 6 and 7 were taken together for the purpose of sentence and they were sentenced to ten years' imprisonment which was ordered to run concurrently with the sentence imposed on count one; count 8 and 9, the theft of two motor vehicles, which were taken together for the purpose of sentence and they were sentenced to ten years' imprisonment and four years' imprisonment was ordered to run concurrently with the sentence on count one; count 10, the unlawful possession of (77) x R5 cartridges, (115) x AK 47 bullet rounds and (32) x .38 bullet rounds and they were sentenced to six years' imprisonment of which four years' imprisonment was ordered to run concurrently with the sentence imposed in count one; count 11, being in possession of a S.56 x 45 Calibre LMS assault weapon and sentenced to three years' imprisonment which was ordered to run concurrently with the sentence imposed on count one. The effective sentence was 26 years' imprisonment.

[21 On 12 June 2007, the fourteen appellants appealed against their convictions and sentences and the regional magistrate refused leave to appeal. Thirteen appellants petitioned this court for leave to appeal and on 3 February 2009, Waglay J and Le Grange J granted leave to appeal against conviction and sentence. On 4 February 2011. the appeal against conviction and sentence came before us. Mr. J A du Plessis appeared on behalf of the appellants. Ms. M Marshall appeared for the State.

Background facts

[3] On 3 November 2001 Mr Herr parked his vehicle, a blue BMW 535i at

Green Acre shopping centre in Port Elizabeth. On his return to the vehicle about 40 minutes after completing his business, he found his motor vehicle had been removed. His vehicle was later used in an armed robbery as described below. On 5 December 2001 Mrs. van Antwerpen drove her husband's white BMW 735 to Walmer Boulevard for an appointment An hour later when she returned to her parking bay, the vehicle was gone. She did not see who took the vehicle. The vehicle was subsequently used in an armed robbery. In December 2001 the South African Police stationed at Mossel Bay contacted both owners to identify the vehicles which were recovered. The vehicles had been used in an armed robbery and were found abandoned on the N2. Both owners positively identified the vehicles as their own and found accessories missing such as the cigarette lighter and the ignition panel which was tampered with

Scene one

[4] On 6 December 2001. a Fidelity Cash Management Service Guard vehicle (hereafter the Fidelity van) conveying three guards travelled from Mossel Bay transporting cash. On the N2 after the bridge at Kleinbrakrivier the driver of the Fidelity van heard a loud sound. Immediately thereafter, the right back wheel burst. The driver of the Fidelity van observed a white BMW vehicle driving behind him. He further observed a blue BMW vehicle on his left. The white BMW vehicle now moved to his right hand side. One of the passengers in the white BMW leaned out of the window carrying an AK47 firearm. This passenger shot at the Fidelity van causing the window to shatter. The inner window was bullet proof and remained intact. The passenger in the white BMW continued shooting until the Fidelity van came to a standstill. One of the bullets aimed at the wheels ricocheted and penetrated the vehicle through the floor of the Fidelity van narrowly missing the driver and two guards.

[5] The occupants of both BMW vehicles got out and ordered the guards to get out of the van They pointed firearms at the Fidelity guards. They removed the driver and the guards' .38 Taurus revolvers and ordered them to lay face down on the ground. One of the guards was punched in the face when he opened the sliding door. Whilst on the ground, the robbers demanded to know where the blue bags were and shot at the ground between the guards. The group of robbers left with the bags of money and some cash boxes. The driver flagged down a passer by to report the robbery.

Scene two

[6] The guards were collected from the scene of the robbery and driven to a spot where the two BMW vehicles were abandoned. Bullets, cartridges and money trunks were found in and around the vehicles. The guards identified the vehicles as the same vehicles used in the robbery. While the guards were at the police station, giving statements, a group of men arrived who were alleged to be the robbers

Scene three

[7] After the guards reported the robbery, a team comprising of the Response Unit, a team from the SANDF and other branches of the SAPS went to 22 Mawawa Street. Kwanonqaba, in Mossel Bay. While driving to the address they were requested to intercept a yellow BMW that left the property. They stopped the yellow BMW and arrested the driver

[8] Upon arriving at 22 Mawawa Street, the police entered the property and identified themselves. They were met with gunfire and retreated. Inspector van der Mescht and Inspector Harmse then entered the house under gun fire from the appellants who were inside the house. They identified two of the appellants in the house who fired at them and at the team parked outside. Inspector Harmse and Inspector van der Mescht saw appellant three, in a white t-shirt and appellant fifteen wearing a yellow t-shirt shoot at the police. When Inspector van der Mescht realized that there were many occupants in the house, he withdrew and threw a shock grenade into the house. The appellants then exited the house with their hands in the air. The police entered and found money in blue bags, ammunition and firearms in full view lying around the house.

Ad conviction on count 1: Robbery with aggravating circumstances [9] The guards were not able to identify the appellants as the persons who robbed them at gun point. The Regional Magistrate considered all the evidence and concluded that the appellants who were found in possession of money and firearms at 22 Mawawa Street were the same persons who robbed the Fidelity

van. It is trite that an inference sought to be drawn must be consistent with all the proved facts. Further, it should exclude every reasonable inference other than the one sought to be drawn and there must be no doubt that the inference drawn is correct

[10] The driver testified that he and his colleagues signed for and booked out four .38 Taurus revolvers each loaded with six rounds of ammunition. These revolvers and blue money bags specific to Fidelity Cash Management Services that they were dispossessed of at scene one. were found at 22 Mawawa Street (scene three). This was not disputed. Under cross examination they suggested that the money and ammunition was planted by the police. This version was never confirmed under oath and is not evidence.

[11] A short time elapsed between the time of the robbery and when the appellants were arrested. The large sum of cash, the blue bags and firearms with matching serial numbers booked out to the guards were found at 22 Mawawa Street. Even though the guards were not able to identify the appellants as the robbers, the short time between the robbery occurring and the cash, firearms and ammunition being found in the appellants possession at 22 Mawawa Street as well as the resistance by the appellants when the police identified themselves lead to the conclusion that the only reasonable inference to be drawn is that appellants were involved in the robbery. There was no reason to shoot at the police or resist their entry onto the premises if they were not involved. The inescapable and only conclusion to be drawn is that the appellants were the robbers who shot at and robbed the Fidelity van. The proven facts are not capable of any other reasonable inference. (R v Blom 1939 AD 188)

Ad conviction on counts 2.3 and 4: attempted murder

[12] Counsel submitted on behalf of the appellants that the three counts of attempted murder on the Fidelity guards cannot stand as the guards travelled in an armoured vehicle and no shots were fired directly at the Fidelity guards. The driver's evidence was that the passenger leaning out of the white BMW shot at them directly. The outer glass shattered. The evidence of the driver was that a bullet did in fact penetrate the armoured vehicle and narrowly missed him. It is reasonable and foreseeable that shooting a lethal weapon aimed at a person will have fatal consequences. It is convenient to submit with the benefit of hindsight that a fatal result could not have ensued now that the appellants are aware that the inner window was bullet-proof glass. None of the appellants testified that they were aware that it was an armoured vehicle at the time that the shooting occurred. The passenger in the white BMW had the requisite intention to shoot at the Fidelity guards and a bullet in fact penetrated the vehicle.

[13] In S v Ngcamu 2011 (1) SACR 1 (SCA) at p7-8₍ in determining whether the accused had the mens rea to attempt to murder, Mthiyane JA stated:

"I also do not have difficulty with the conviction on the count of attempted murder in respect of Mabuza. Shots were fired at him from the getaway vehicle in order to discourage him from pursuing the Honda Ballade It matters not that he was in an armoured vehicle and that he did not believe that he was at risk of injury or death from this gunfire, as the bullets could not penetrate the armoured vehicle The shooter had the requisite criminal intent, even if they were attempting the

impossible."

In the present matter the same ratio finds application and on the facts of this case, a bullet did in fact penetrate the vehicle. Having regard to the aforegoing the appeal on the convictions on count 2. 3. and 4 must fail.

Ad conviction on count 5

[14] There was no evidence before the Court a quo that the appellants had the requisite permit required in terms of Section 32 (1) (a) of Act 75 of 1969. The appellants did not place this in issue on appeal.

Ad conviction on counts 10 and 11: Arms and Ammunition Act 75 of 1969

[15] Counsel submitted on behalf of the appellants on counts 10 and 11 that the State failed to prove that the appellants excluding appellants 3 and 15 had the intention to possess the ammunition and weapons found at 22 Mawawa Street through the detentors, namely appellants 3 and 15 and that the detentors possessed on behalf of the remaining appellants. He relied on S v Mbuli 2003(1) SACR 97(SCA) to conclude that they did not have joint possession of the firearms and ammunition.

[16] The evidence of Inspector Rhode was that firearms and ammunition were found in a sports bag at 22 Mawawa Street Some firearms were at a window and others were found at different places in the house. 77 x R5 bullets, 5 x AK47 magazine rounds and 115 x AK47 rounds were found at 22 Mawawa Street. The Fidelity guards four .38 Special revolvers which matched the serial numbers of the four .38 Special Taurus revolvers booked out to the Fidelity guards were also found at 22 Mawawa Street. The evidence of Inspector Harmse was that one of the appellants threw firearms to the other appellants who were in the house. He could not see the appellants other than appellants 3 and 15 from his point of observation. This was not disputed by the appellants.

[17] In S v Mtshemla and others 1994 (1) SACR 518 (A) at 522h Harmse J. makes it clear that a group may have a common purpose to possess a set of weapons. In S v Nkosi 1998(1) SACR 284 (T) at 286H-I, Marais JA stated that possession of firearms by the group can only be concluded when the state proves 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 members of the group to possess all the guns.^”

This test was approved and applied in Mbuli (supra), which was relied on by counsel.

[18] This requires that the State lead evidence that excludes the reasonable possibility that the detentors intended throughout to retain physical control of their individual firearms, without yielding to other members of the group the right to possess them and use them as they deem fit. In the absence of such evidence the appellants cannot be said to have had joint possession of the firearms and ammunition'. (Mbuli supra). The Fidelity guards testified that all the robbers had firearms at scene one. There was no act of disassociation by any of the group when shots were fired at the Fidelity van or the guards whilst they were lying on the ground At scene three Inspector Harmse's evidence was that appellant 15 threw firearms to the other appellants who were in the house. This demonstrates that appellant 15 envisaged the use of firearms by other members of the group and did not intend to have sole control over the weapons. It follows from the use of weapons at scene one as well as at scene three that the detentors had the intention to hold and use firearms on behalf of the group and that the appellants who used firearms did so on behalf of the group There was no disassociation from these acts by any of the appellants. The conclusion is thus unavoidable that they had a common purpose to possess and use the firearms for the planned robbery.

[19] The facts in Mbuli and Nkosi differ from the present case in that the appellants acted together and used firearms for the same purpose at scene one and the act of distributing the firearms at scene three by appellant 15, clearly indicates that he did not intend the firearms for his exclusive control and possession. It flows from these facts that all the appellants were aware that the planning of the robbery and escape required the acquisition and use of firearms.

[20) Having regard to the evidence in totality it is clear that the appellants had the intention to possess the firearms through the detentors and that the detentors held the firearms for the group as a whole There is no other reasonable inference to be drawn in the absence of a reasonable version put forward by the appellants. It was put to the state witnesses that the firearms and ammunition was planted on the premises by the SAPS. This submission was never supported by any further information and none of the appellants explained how this happened. This bold statement that the police planted shells and bullets at the two previous scenes and then planted the firearms, ammunition and cash at the third scene, implies a conspiracy that in the words of Nugent JA '[is] so complex and convoluted that it simply could not have occurred" see S v Mbuli 2003(1) SACR 97(SCA) at para 27.

[21] The Magistrate was correct in concluding that the only reasonable inference to be drawn is that the appellants had the intention to exercise possession of the firearms and ammunition and the appellants who had possession of the firearms and ammunition had the intention to hold such firearms and ammunition on behalf of the group. I am satisfied that there was joint possession involving the group as a whole and the specific detentors, or common purpose between the members of the group to possess all the guns. (See S v Mtshemla (supra) S v Nkosi (supra). S v Mbuli (supra)).

Ad conviction on count 6 and 7 : attempted murder on SAPS

[22] Mr. du Plessis, appearing for the thirteen appellants submitted that in view of Inspector Harmse only observing appellant 3 and 15 shooting at the police officers, the remainder of the appellants could not have been found guilty on this count. Ms Marshall, appearing for the State conceded this point. Mr du Plessis' submission was that in view of the three hours having passed from the time of the robbery it is arguable that the remaining appellants could not necessarily have had the intention to shoot at the police on the facts before the Court a quo. Mr du Plessis submitted and the State conceded that there was no evidence that the other appellants shot at the police. In the absence of reliable evidence it is not reasonable to conclude that the other appellants had the intention to shoot at the police Mr du Plessis submission finds support in S v Mgedezi and Others 1989(1) SA 687 at 705-706.

[23] I am persuaded that whilst all the appellants were on the scene it cannot be said that the only reasonable conclusion to be drawn from the proven facts is that appellants 1 to 14 excluding appellants 3 and 15 had the intention to shoot

Inspectors van der Mescht and Harmse. On these counts the State has not met its onus beyond reasonable doubt and appellants 1. 2. 4. 5. 6. 8. 9, 10. 11, 12. 14 and 15 should receive the benefit of the doubt. Appellant 4 was not before this Court on appeal, however, for the conviction to remain, would not be in accordance with justice I rely on an inherent review power in this regard and am of the view that the conviction and sentence relating to accused 4 should also be set aside

Ad conviction on counts 8 and 9: theft of the motor vehicles

[24] The appellants were not found in possession of the two BMW motor vehicles used in the robbery at scene one. It is clear however that the execution of the robbery entailed prior and detailed planning involving securing the motor vehicles. The suggestion that the evidence does not prove intention to steal was not pursued with any conviction by Mr. du Plessis appearing for the appellants and correctly so. Both owners stated that their vehicles were locked and no-one had permission to use the vehicles during this time. It is not disputed that these vehicles were the same vehicles used in the robbery.

[25] The Regional Magistrate correctly found that the successful execution of the robbery required considerable planning and preparation. This required that the motor vehicles be acquired. The person or persons who perpetrated the actual theft did so in furtherance of the robbery and for the benefit of the group to realise a common purpose, namely the robbery of the Fidelity guards at scene one. The cigarette lighters belonging to the BMW vehicles were found at 22 Mawawa Street. Shells and bullet heads found at the BMW vehicles were linked to the firearms found at 22 Mawawa Street through the ballistic report. There is clearly a link. The owner of the blue BMW specifically indicated that small items, such as the cigarette lighter, was removed. There is no indication that any of the appellants disassociated themselves from this act or the robbery. In finding that there was common purpose with regard to the robbery the appellants therefore had the intention to steal the two motor vehicles which was in preparation for the robbery.

Ad sentence.

[26] In determining the appropriate sentence, the Regional Magistrate had regard to all the offences in relation to the triad of factors applicable to sentencing. The difficulty in sentencing is alluded to in view of the minimum sentence being applicable to some counts while others had sentences laid down by statute. He also took into account the personal circumstances of each of the appellants before the court, the impact of the trial lasting for five years on their lives economically and socially and indicated that this would be taken into account in sentencing the appellants. He also acknowledged the hardship their families endured as a result of their being in custody for the duration of the trial.

[27] At the time of their arrest the appellant's ages ranged from 23 years old to 38 years old. Appellants had the following previous convictions, appellant 2 for use of a motor vehicle without the owners' consent, appellant 3 for theft and robbery, appellant 6 for assault, appellant 11 for robbery, appellant 12 for possession of an unlicensed firearm, and appellant 14 for robbery. Appellants 1, 5. 8. 10, 13 and 15 were first offenders. The Regional Magistrate took into account that the appellants had families and children. They lived in areas outside of Mosselbay and were separated from their families for the duration of the trial. During this time they lost loved ones and could not pay their last respects.

[28] The Regional Magistrate had regard to their educational qualifications, and noted that many of them had a secondary education and were employed prior to their arrest. In this regard he notes that there were no explanations tendered for the commission of the offence. He was of the view that each of the appellants were capable of advancing in life to better prospects without resorting to crime. In view of the absence of an explanation for the crime, the Regional Magistrate found that it was difficult to ascertain mitigating factors which may have been applicable and could be considered to reduce the sentence.

[29] Whilst there was an absence of mitigating factors, the Regional Magistrate had regard to various factors which he regarded as aggravating, namely that the operation required extensive planning, the theft of motor vehicles that occurred before the robbery, the procurement of a large number of firearms, the arrangement of a safe house to hide in. The extent of the planning and the scale of the robbery and the force used as well as the potential loss of lives at scene one as well as scene three were regarded as aggravating factors. The Regional Magistrate noted that whilst robberies had increased in frequency, that the scale of this kind of robbery in the area was unprecedented and in view of the increase in violent crimes, measures were necessary to protect society.

[30] Even though the appellants were incarcerated for five years the Regional Magistrate found that the lack of remorse and the absence of reasons explaining the conduct led to the conclusion that there were no circumstances which could be regarded as substantial and compelling to justify a deviation from the prescribed sentence. Notwithstanding his finding that there was an absence of substantial and compelling circumstances, the Regional Magistrate nevertheless took counts together for the purpose of sentence and ordered some sentences to run concurrently with others and thereby reduced the effective sentence to one of 26 years imprisonment.

[31] In S v Malgas 2001 (2) SA 1222 at 1232, Marais JA considered the

appellate jurisdiction with regard to sentence and said:

"A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellant Court is of course entitled to consider the question of sentence afresh. In doing so. it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance As it is said, an appellant Court is at large. However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate Court would have imposed had it been the trial court is so marked that it can properly be described as shocking', startling" or disturbingly inappropriate'. It must be emphasized that in the latter situation the appellate Court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation."

[32] I have considered whether there has been a misdirection by the Magistrate- Mr du Plessis submitted that the Magistrate did not take into account that the appellant's trial lasted for five years and this ought to have been regarded as a substantial and compelling factor so as to depart from the prescribed sentence. He submitted further that the effective sentence is excessive in view of the counts being closely linked to the common purpose namely, the robbery and that in view of the offences being so closely linked, the sentence on counts 2 to 11 ought to have run concurrently with the sentence on count 1. Mr du Plessts also submitted that the sentence on counts 5 to 10 were excessive and referred to the decision in S v Sibisi 1998 (1) SACR 248 (SCA) where the court imposed a sentence of 5 years of which 3 were suspended for a similar offence. The circumstances under which possession occurred may be a factor distinguishing the two cases however the effective sentence in each instance remains similar and in this regard I can find no misdirection.

[33] I am of the view however that insufficient weight was given to the five years that the appellants spent in custody awaiting trial. The trial court attributes the length of the trial to the fact that the appellants pleaded not guilty. This is an over simplification of the factors attributable to the delay. Notwithstanding that the court finds that the 5 years awaiting trial is the only factor which can be considered to serve as a mitigating factor which could reduce the prescribed term of imprisonment, it does not in fact apply this in relation to the prescribed sentence. In S v Brophy and Another 2007 (2) SACR 56 Schwartzman J noted:

"Time spent in prison awaiting trial is. at the very least, equivalent to time served without remission. In addition, such prisoners do not get the benefit of any presidential pardon. What cannot be disputed is that the lot of the awaiting-trial prisoner is harsher than that of a sentenced prisoner in that he or she cannot participate in the programmes that a prison may run What he or she is condemned to is a seemingly endless routine of boredom in the course of which he or she cannot earn any privileges for which serving prisoners can qualify by reason of good conduct. Judicial cognisance can also be taken of the gross overcrowding in prisons housing awaiting-trial prisoners."

[34] In view hereof it is appropriate that the 5 years which appellants spent in custody awaiting trial be regarded as a substantial and compelling factor and that the sentence on count 1 be reduced by 5 years. The remainder of the sentences remain unaffected in view of my finding that there was no misdirection in that regard. I am persuaded having regard to the facts above that there was misdirection on count 1 relating to all the appellants and appellants 1. 2. 5, 6, 8. 9, 10, 11 and 13 in respect of counts 6 and 7. The sentences on count 1 relating to all appellants and counts 6 and 7 in relation to appellants 1, 2, 5, 6, 8, 9. 10, 11 and 13 should be set aside in view of the appeal being upheld. The same applies in respect of appellant 4 on counts 1,6 and 7

[35] For the reasons given above the following order is made:

1. The appeal in respect of appellants 1, 2. 3, 5. 6, 8, 9, 10, 11, 12, and 13 against conviction on count one is dismissed.

2. The appeal in respect of appellants 1. 2, 3. 5, 6, 8, 9, 10, 11. 12 and 13 against sentence is upheld. The sentence in respect of accused 4 is reviewed. The sentence is set aside and replaced with the following order: Appellants 1, 2, 3. 5, 6. 8. 9, 10, 11, 12 and 13 and accused 4 are sentenced to 10 years imprisonment.

3. The appeal in respect of appellants 1, 2, 3. 5, 6, 8. 9, 10, 11, 12 and 13 against the conviction and sentence on counts two, three and four is dismissed.

4. The appeal in respect of appellants 1, 2, 3, 5, 6, 8, 9. 10. 11, 12 and 13 against the conviction and sentence on counts five, ten and eleven is dismissed.

5. The appeal in respect of appellants 3 and 12 against the conviction and sentence on counts six and seven is dismissed.

6. The appeal in respect of appellants 1, 2. 5. 6. 8. 9. 10, 11 and 13 against the conviction on count six and seven is upheld. The conviction and sentence in respect of appellants 1, 2, 5, 6, 8, 9, 10. 11. 12 and 13 is set aside.

7. The conviction and sentence in respect of appellant 4 is reviewed and set aside.

8. The appeal in respect of appellants 1. 2. 3. 5. 6, 8. 9. 10. 11, 12 and 13 against the conviction and sentence on counts eight and nine is dismissed.

9. The Registrar is directed to inform accused no. 4 through the Head of the Prison, where he is incarcerated, and the South African Criminal Record Centre, that the conviction and sentence on count 6 and 7 has been set aside and the sentence on count 1 is reduced to 10 years imprisonment. This order will reduce his effective sentence to 21 years imprisonment.

MIA, A J