S v Zungu and Another (CA 117/2003) [2003] ZANWHC 68 (11 November 2003)

CASE NO. CA 117/2003

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

LUCKY ZUNGU 1ST

APPELLANT

PRINCE MAGULE 2ND

APPELLANT

and

THE

STATE RESPONDENT

_______________

JUDGMENT

MOGOENG JP.

Introduction

[1] The Appellants appeared in the Regional Court at Ga-Rankuwa on charges of (1) robbery with aggravating circumstances; (2) attempted murder; (3) possession of a firearm without a license; and (4) possession of ammunition without a license to do so. They were convicted of robbery with aggravating circumstances and found not guilty and discharged of all other charges. An effective term of 10 years imprisonment was imposed on each of the Appellants. This is an appeal against conviction only. Before I deal with the merits of the appeal, I consider it to be necessary to give a brief factual background to the appeal. Background [2] The version of the State which was given by Mr Thomas Mojane (the Complainant) is that on 27 April 2002, Ms Kedibone Maluleka, a certain John, Bopsile and Zondi were at a certain tavern consuming liquor as a group of friends. Although the two Appellants were also at the same tavern, they were seated a distance from the above group. [3] The Complainant and his friends left the tavern at about midnight. The Appellants followed them. Eventually the second Appellant pointed a firearm at John and robbed him of an amount of R200.00. At that time, the Complainant left the scene of the robbery. [4] When the Complainant was about 12-15 paces from the scene of that robbery, the first Appellant confronted him with a firearm, pointed it at him and demanded money from him. The Complainant pushed the first Appellant. As a result, the first Appellant slipped and fell. He rose and fired three shots towards the ground. One of those shots struck the foot of the Complainant and injured him. The first Appellant then dispossessed the Complainant of R40.00 and fled.

[1] The Appellants appeared in the Regional Court at Ga-Rankuwa on charges of (1) robbery with aggravating circumstances; (2) attempted murder; (3) possession of a firearm without a license; and (4) possession of ammunition without a license to do so. They were convicted of robbery with aggravating circumstances and found not guilty and discharged of all other charges. An effective term of 10 years imprisonment was imposed on each of the Appellants. This is an appeal against conviction only. Before I deal with the merits of the appeal, I consider it to be necessary to give a brief factual background to the appeal.

Background

[2] The version of the State which was given by Mr Thomas Mojane (the Complainant) is that on 27 April 2002, Ms Kedibone Maluleka, a certain John, Bopsile and Zondi were at a certain tavern consuming liquor as a group of friends. Although the two Appellants were also at the same tavern, they were seated a distance from the above group.

[3] The Complainant and his friends left the tavern at about midnight. The Appellants followed them. Eventually the second Appellant pointed a firearm at John and robbed him of an amount of R200.00. At that time, the Complainant left the scene of the robbery.

[4] When the Complainant was about 12-15 paces from the scene of that robbery, the first Appellant confronted him with a firearm, pointed it at him and demanded money from him. The Complainant pushed the first Appellant. As a result, the first Appellant slipped and fell. He rose and fired three shots towards the ground. One of those shots struck the foot of the Complainant and injured him. The first Appellant then dispossessed the Complainant of R40.00 and fled.

[5] This version is corroborated by Ms Kedibone Maluleka in material respects. [6] The defence version is that the first Appellant did meet the Complainant in a passage. The members of the local Community Policing Forum (the CPF) then emerged and chased after some of the people who were with either the Complainant or the first Appellant or both of them shortly before the fight between the Complainant and the first Appellant took place. Only the first Appellant and the Complainant were left behind. The Complainant repeatedly smacked the first Appellant who hit back. The Complainant then produced a firearm. The first Appellant grabbed his hand. A struggle ensued. It culminated in a gunshot being fired. The first Appellant pushed the Complainant. The Complainant fell and the first Appellant fled. The merits [7] The following issues are common cause or undisputed: The first Appellant and the Complainant were together in a certain passage at Winterveldt on 27 April 2002; Some kind of a fight or struggle took place between them; A gunshot(s) was fired by one of them; The Complainant was injured by that shot on his left leg; The very next day the Complainant went to the first Appellant’s parental home alleging that the first Appellant had injured him (the Complainant).

[5] This version is corroborated by Ms Kedibone Maluleka in material respects.

[6] The defence version is that the first Appellant did meet the Complainant in a passage. The members of the local Community Policing Forum (the CPF) then emerged and chased after some of the people who were with either the Complainant or the first Appellant or both of them shortly before the fight between the Complainant and the first Appellant took place. Only the first Appellant and the Complainant were left behind. The Complainant repeatedly smacked the first Appellant who hit back. The Complainant then produced a firearm. The first Appellant grabbed his hand. A struggle ensued. It culminated in a gunshot being fired. The first Appellant pushed the Complainant. The Complainant fell and the first Appellant fled.

The merits

[7] The following issues are common cause or undisputed:

The first Appellant and the Complainant were together in a certain passage at Winterveldt on 27 April 2002; Some kind of a fight or struggle took place between them; A gunshot(s) was fired by one of them; The Complainant was injured by that shot on his left leg; The very next day the Complainant went to the first Appellant’s parental home alleging that the first Appellant had injured him (the Complainant).

[8] What is in dispute are the issues relating to: Who was the aggressor between the first Appellant and the Complainant? Who of them was in possession of a firearm? Who fired a gunshot(s) and why? Was the Complainant dispossessed of his R40.00 by the first Appellant without his consent or not? [9] The learned trial Magistrate made adverse credibility findings against the Appellants and favourable credibility findings for the State witnesses. He saw all these witnesses. He was steeped in the atmosphere of the trial and was in a better position to make credibility findings than this Court. I cannot find any basis for interfering with his credibility findings.

[8] What is in dispute are the issues relating to:

Who was the aggressor between the first Appellant and the Complainant? Who of them was in possession of a firearm? Who fired a gunshot(s) and why? Was the Complainant dispossessed of his R40.00 by the first Appellant without his consent or not?

[9] The learned trial Magistrate made adverse credibility findings against the Appellants and favourable credibility findings for the State witnesses. He saw all these witnesses. He was steeped in the atmosphere of the trial and was in a better position to make credibility findings than this Court. I cannot find any basis for interfering with his credibility findings.

[10] The only bases on which Ms Khwinana challenged these findings are that the Complainant and Kedibone contradicted each other with regard to whether it was dark or there was moonlight on the day of the incident and also with regard to whether Zondi and Bopsile were present at the time when John and the Complainant were allegedly robbed. These contradictions do exist. I, however, agree with Mr De Leeuw that they are not material. It is common cause that the State witnesses and the Appellants knew each other and it is at least possible that they were all present at the time when it is alleged the misunderstanding(s) arose. Whether it was dark or not is relevant to the question of identity. In this case all the important role-players (the first Appellant in particular) admit that they were at the scene of the shooting at some stage. None of the Appellants claim to have been mistakenly identified at any stage. This is what renders the question of visibility highly immaterial. Whether or not Zondi and Bopsile were present when any of the alleged incidents arose is also immaterial. The only incident worthy of our attention is the alleged robbery of the Complainant in this matter. Zondi and Bopsile are nothing more than possible State or defence witnesses, known to all the parties. Anybody wishing to call them could have called them to make whatever point it/he wanted to make. In

any event, both the Complainant and the second Appellant agree that at least Bopsile was with the Complainant and Kedibone. Kedibone was in all likelihood mistaken regarding whether or not Zondi and Bopsile were in their company when any of the alleged incidents took place between the Appellants and the Complainant’s group. In sum, nothing really turns on Zondi and Bopsile and the contradiction regarding whether they were present or not when the incident took place is irrelevant. I am satisfied that it is not necessary to deal with the other so-called contradictions relied on by the Appellants, suffice it to say that they are clearly without merit. [11] Both Appellants testified that members of the fearsome CPF caused people, other than the first Appellant and the Complainant, to run and that they chased after those people. No reason was given as to why the first Appellant and the Complainant did not flee and why the CPF members did not chase after them just as they did with the others. This version is not only highly improbable but clearly a lie. The Magistrate gave sound reasons for not believing the Appellants. [12] I am satisfied that the first Appellant was correctly convicted and his conviction is confirmed. I turn now to deal with the second Appellant.

[10] The only bases on which Ms Khwinana challenged these findings are that the Complainant and Kedibone contradicted each other with regard to whether it was dark or there was moonlight on the day of the incident and also with regard to whether Zondi and Bopsile were present at the time when John and the Complainant were allegedly robbed. These contradictions do exist. I, however, agree with Mr De Leeuw that they are not material. It is common cause that the State witnesses and the Appellants knew each other and it is at least possible that they were all present at the time when it is alleged the misunderstanding(s) arose. Whether it was dark or not is relevant to the question of identity. In this case all the important role-players (the first Appellant in particular) admit that they were at the scene of the shooting at some stage. None of the Appellants claim to have been mistakenly identified at any stage. This is what renders the question of visibility highly immaterial. Whether or not Zondi and Bopsile were present when any of the alleged incidents arose is also immaterial. The only incident worthy of our attention is the alleged robbery of the Complainant in this matter. Zondi and Bopsile are nothing more than possible State or defence witnesses, known to all the parties. Anybody wishing to call them could have called them to make whatever point it/he wanted to make. In

any event, both the Complainant and the second Appellant agree that at least Bopsile was with the Complainant and Kedibone. Kedibone was in all likelihood mistaken regarding whether or not Zondi and Bopsile were in their company when any of the alleged incidents took place between the Appellants and the Complainant’s group. In sum, nothing really turns on Zondi and Bopsile and the contradiction regarding whether they were present or not when the incident took place is irrelevant. I am satisfied that it is not necessary to deal with the other so-called contradictions relied on by the Appellants, suffice it to say that they are clearly without merit.

[11] Both Appellants testified that members of the fearsome CPF caused people, other than the first Appellant and the Complainant, to run and that they chased after those people. No reason was given as to why the first Appellant and the Complainant did not flee and why the CPF members did not chase after them just as they did with the others. This version is not only highly improbable but clearly a lie. The Magistrate gave sound reasons for not believing the Appellants.

[12] I am satisfied that the first Appellant was correctly convicted and his conviction is confirmed. I turn now to deal with the second Appellant.

[13] It is common cause that the second Appellant was not with the first Appellant when the latter allegedly robbed the Complainant of his money. The second Appellant did nothing whatsoever to associate himself with the first Appellant when he attacked the Complainant.

The Complainant himself testified that the second Appellant was not present when the first Appellant attacked him. This is confirmed by Kedibone. There is therefore absolutely no basis for convicting the second Appellant of the robbery of which the Complainant is the victim. The second Appellant appears to have committed robbery only against John. Since the second Appellant was not charged of the robbery relating to John, that charge was obviously not before the learned Magistrate. The question of the guilt of the second Appellant clearly does not arise. Even if it were to be accepted that both Appellants produced firearms and pointed them at both John and the Complainant before the first Appellant and the Complainant met in the passage (as Kedibone seems to suggest), there would still be a doubt about the guilt of the second Appellant. I would give him the benefit of the doubt. For these reasons, I am satisfied that the appeal by the second Appellant must be upheld and that his conviction and sentence must be set aside. Order [14] In the circumstances I make the following order: The appeal by the first Appellant is dismissed and the conviction and sentence are confirmed; and

[13] It is common cause that the second Appellant was not with the first Appellant when the latter allegedly robbed the Complainant of his money. The second Appellant did nothing whatsoever to associate himself with the first Appellant when he attacked the Complainant.

The Complainant himself testified that the second Appellant was not present when the first Appellant attacked him. This is confirmed by Kedibone. There is therefore absolutely no basis for convicting the second Appellant of the robbery of which the Complainant is the victim. The second Appellant appears to have committed robbery only against John. Since the second Appellant was not charged of the robbery relating to John, that charge was obviously not before the learned Magistrate. The question of the guilt of the second Appellant clearly does not arise. Even if it were to be accepted that both Appellants produced firearms and pointed them at both John and the Complainant before the first Appellant and the Complainant met in the passage (as Kedibone seems to suggest), there would still be a doubt about the guilt of the second Appellant. I would give him the benefit of the doubt. For these reasons, I am satisfied that the appeal by the second Appellant must be upheld and that his conviction and sentence must be set aside.

Order

[14] In the circumstances I make the following order:

The appeal by the first Appellant is dismissed and the conviction and sentence are confirmed; and

The appeal by the second Appellant is upheld, the conviction and sentence are set aside and he is discharged. ______ M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT I agree ______ A.A.

LANDMAN

ACTING

JUDGE OF THE HIGH COURT

The appeal by the second Appellant is upheld, the conviction and sentence are set aside and he is discharged.

______

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

I agree

______

A.A.

LANDMAN

ACTING

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 24 OCTOBER 2003

DATE OF JUDGMENT : 11 DECEMBER 2003

COUNSEL FOR APPELLANTS : MS E.N.B. KHWINANA

COUNSEL FOR RESPONDENT : ADV A.F. DE LEEUW

ATTORNEYS FOR APPELLANTS : KHWINANA ATTORNEYS

ATTORNEYS FOR RESPONDENT : THE

DIRECTOR OF PUBLIC PROSECUTIONS