Ndwandwe and Another v S (AR646/14) [2015] ZAKZPHC 38 (20 August 2015)

Ndwandwe and Another v S (AR646/14) [2015] ZAKZPHC 38 (20 August 2015)

The appeal court found that the convictions for robbery with aggravating circumstances, possession of firearms and ammunition, and attempted murder could not be sustained due to insufficient evidence. The State failed to prove beyond reasonable doubt that the appellants intended to permanently deprive the taxi owner of his vehicle, that they jointly possessed the firearms, or that they participated in the attempted murder of the police officers. The application of the presumption in section 117(2) of the Firearms Control Act was incorrect, as the State did not take reasonable steps to link possession to any individual. However, the conviction for kidnapping was upheld, as the evidence...

Citation
[2015] ZAKZPHC 38
Parties
Appellant: Sidingo Sifundo Ndwandwe; Appellant: Sibongiseni Duma; Respondent: The State
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
20 August 2015
Case Number
AR646/14
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld in part; convictions and sentences for robbery, possession of firearms and ammunition, and attempted murder set aside; conviction and sentence for kidnapping confirmed.
Judges
Olsen, V Naidoo
Legal Topics
Kidnapping, Robbery With Aggravating Circumstances, Possession of Firearms, Attempted Murder, Firearms Control Act Presumption, Credibility of Witnesses
Criminal Law Kidnapping Robbery With Aggravating Circumstances Possession of Firearms Attempted Murder Firearms Control Act Presumption Credibility of Witnesses

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Parties

Sidingo Sifundo Ndwandwe

Appellant

Sibongiseni Duma

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the convictions for robbery with aggravating circumstances, possession of firearms and ammunition, and attempted murder were supported by evidence beyond reasonable doubt.
  2. 2 Whether the conviction for kidnapping was properly sustained on the State's case.
  3. 3 Whether the presumption in section 117(2) of the Firearms Control Act was correctly applied by the trial court.

Ratio Decidendi

The appeal court found that the convictions for robbery with aggravating circumstances, possession of firearms and ammunition, and attempted murder could not be sustained due to insufficient evidence. The State failed to prove beyond reasonable doubt that the appellants intended to permanently deprive the taxi owner of his vehicle, that they jointly possessed the firearms, or that they participated in the attempted murder of the police officers. The application of the presumption in section 117(2) of the Firearms Control Act was incorrect, as the State did not take reasonable steps to link possession to any individual. However, the conviction for kidnapping was upheld, as the evidence...

Court Disposition

Appeal upheld in part; convictions and sentences for robbery, possession of firearms and ammunition, and attempted murder set aside; conviction and sentence for kidnapping confirmed.

Orders

  • The appeals are upheld in part.
  • The convictions of the appellants on Counts 1 (robbery with aggravating circumstances), 3 and 4 (possession of firearms and ammunition), and 5 to 9 (attempted murder), and the sentences imposed in respect of those convictions, are set aside.