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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No.: CA&R520/01

Date delivered:

In the matter between:

LEON MATWA Appellant

and

THE STATE Respondent

J U D G M E N T

LEACH, J:

Arising out of an incident which occurred at Kwazakhele, Port Elizabeth on 28 October 1999, the appellant was tried on a charge of murder (count 1) as well as two counts of attempted murder (counts 2 and 3), the unlawful possession of a firearm in contravention of s. 2 of Act 75 of 1969 (count 4) and the unlawful possession of a quantity of ammunition in contravention of s. 36 of the latter Act (count 5). It was the State’s case that during the course of that evening he had unlawfully shot and killed on Mute Mbuyiselo Roqo, and that he had also attempted to kill the latter’s girlfriend, one Sandisa Mabesa, as well as one Khethi Sikani by shooting them. The firearm and ammunition which he had allegedly used to commit these crimes were the subject of the charges under Act 75 of 1965.

The appellant was subsequently arrested on 24 November 1999. It is alleged that a further six .22 caliber bullets were found in his possession when he was taken into custody which gave rise to a further charge under s. 36 of the Act being brought against him (count 6).

The appellant pleaded not guilty to all charges. The State failed to lead any evidence relevant to the alleged attempted murder of Khethi Sikani and the appellant was therefore acquitted on count 3. He was, however, convicted on all of the remaining charges. In respect of the murder (count 1) he was sentenced to 10 years imprisonment of which 3 years was suspended for 5 years on condition that he is not convicted of murder or of an offence of which assault is an element committed during the period of suspension and for which he is sentenced to imprisonment without the option of a fine. In respect of the attempted murder conviction, he was sentenced to 5 years imprisonment, although the magistrate ordered that sentence to run concurrently with the sentence imposed on count 1. The appellant’s convictions under Act 75 of 1969 were taken together for the purpose of sentence, and he was cautioned and discharged him on those three counts. The magistrate further issued an order under s. 12 (2) of Act No. 75 of 1969 declaring the appellant unfit to possess a firearm.

The appellant was therefore effectively sentenced to 7 years direct imprisonment with a further 3 years imprisonment being suspended on the condition that I have mentioned. Presumably recognizing the startling leniency of his sentence, an issue to which I shall later return, the appellant now appeals to this Court solely against his convictions.

The principal state witness, and the only witness to identify the appellant as the person responsible for the shootings that occurred on 28 October 1999, was the complainant on count 2, Ms Mabesa. A 21 year old young woman, she had been the girlfriend of the deceased at the time. According to her, she had been at her home on the evening in question when the deceased arrived in a motor vehicle. He was in the company of three others, one of whom she alleged was the appellant. Although it was the first time for her to meet him, she learned that the appellant was known by the name of “Koko’ . She agreed to accompany the deceased to his home and climbed into the vehicle which, so she testified, was then being driven by the appellant. They firstly took one of the other passengers to his home before setting off in the direction of the house of the deceased.

It was at this stage that things took ant unusual turn. The appellant asked the deceased to direct him to his home but, instead of doing so, the deceased led him to another house. When the appellant realised that the deceased had lied to him, he asked where he in fact lived. At this stage Ms. Mabesa directed the appellant to the deceased’s house. On stopping outside the house, the appellant ordered the deceased and Ms Mabesa to alight but the deceased stated that he would not do so until he had received an item of property which belonged to him. This immediately led to a confrontation between the deceased and the appellant who promptly climbed out of the vehicle, opened the door next to the deceased and pulled him out. The deceased then told the appellant that if he wanted him to go, he should just give him his property. The appellant refused to do so and then produced a firearm which he handed over to the remaining passenger in the vehicle who drove off, leaving the appellant, the deceased and Ms Mabesa standing in the street.

The appellant and the deceased then set off in opposite directions but the deceased’s neighbour, one Mzukizi, arrived on the scene at that stage and joined the appellant. Meanwhile the deceased and Ms. Mabesa had entered the yard of the deceased’s home but, before entering the house itself, the deceased turned around and went back after the appellant and Mzukizi. Ms Mabesa followed him into the road and, at a distance, saw him talking to the appellant and Mzukizi. Words were apparently being exchanged. She approached them and was eventually able to persuade the deceased to return with her to his home. As they were doing so, she noticed the appellant following them. The appellant then shouted at the deceased who stopped and asked him what he wanted. At this, the appellant asked whether the deceased wanted to see what sort of person he was, and produced a firearm. According to Ms Mabesa, she and the deceased decided to take no notice of him and so they turned and walked away. As they did so, the appellant fired a number of shots and the deceased collapsed to the ground. The appellant then walked up to where the deceased was lying and, standing over him, cold-bloodedly shot him at short range in the head.

According to Ms Mabesa, the appellant then turned to her and asked her why she was just standing there. She asked what he was intending to do to her and, when he did not reply, she turned and ran. As she was running away, the appellant shot her in the back and she fell. She ended up lying on her side and he shot her again, this time in the arm. He then approached and, standing over her, shot her in the head before walking away. Ms Mabesa described how she had been able to struggle to the deceased’s house where she met his mother before she lost consciousness. She was taken to hospital where she was detained for several weeks. On admission to hospital, it was ascertained that she sustained a gunshot wound to the left temple, the bullet having entered and exited without having breached the skull bone. She had also been shot through the left arm and had sustained a gunshot wound entering on the left side of the neck and exiting at the left scapular. It is clear from this that she was extremely fortunate to have survived.

The deceased was not so fortunate. He died at the scene. At post-mortem examination, it was found that he had been shot twice in the back. One of those bullets had passed through the left lung before exiting at the upper left chest. The deceased had also been shot in the face, the bullet having entered in the vicinity of the right eye before passing upwards into the brain. The cause of his death was described as being gunshots causing loss of blood and brain damage.

In any event, the police later arrived on the scene where they took certain photographs and prepared a scale plan. They also took possession of six spent .22 calibre shells, which they plotted on their plan. The next morning they visited Ms Mabesa in hospital and she gave them a detailed description of her assailant, including details of how he had been dressed and that he had a light complexion. She also told them that he was known by the name of Koko.

As a result of this description and with the aid of an informer, on 24 November 1999 the police finally traced the appellant to a regional court in Port Elizabeth where he was appearing on another charge. He was taken into custody and taken to the police station. According to the evidence given by a policeman in the court a quo, one Gadebe, the appellant was searched shortly after he had been detained and six .22 calibre bullets were found in his wallet. As I have mentioned, it was his possession of this ammunition that was the basis of the sixth charge brought against him.

The appellant’s defence amounted to a bare denial of all of the allegations against him. He denied having been together with the deceased and Ms Mabesa on the evening of 28 October 1999 or that he had assaulted them, and he further denied that any ammunition had been found in his possession at the time of his arrest. Not only did he allege that the State’s evidence in regard to this latter allegation was nothing more than a blatant fabrication, but he went on to allege that shortly after he had been taken into custody, Ms Mabesa had arrived at the police station in the company of the deceased’s mother and a number of other companions. He stated that he was then shown to them and asked whether they knew him, to which a woman who was accompanying Ms Mabesa replied in the negative. With that, Gadebe, told Ms Mabesa that he was the person who had been arrested and that his name was Koko, and it was therefore his explanation that she had identified him as her assailant due to this incident.

Mr Hattingh, who appeared on the appellant’s behalf (both at the trial and in the appeal before this Court) conceded, correctly in my view, that his allegation that the complainant had seen him at the police station was false. The appellant was clearly an unsatisfactory witness whose evidence was correctly rejected by the magistrate. There is therefore no room for this Court to find that the magistrate erred in accepting that the appellant had been in possession of six .22 calibre bullets at the time he was arrested and, indeed, while Mr Hattingh did not abandon the appeal against the conviction on count 6, I did not understand him to seriously persist in contending that the appellant had not been shown to be guilty. However, he forcefully argued that even if the appellant had been an untruthful witness, the State’s case had fallen short of establishing beyond a reasonable doubt that the appellant was the person responsible for the shooting of the deceased and Ms Mabesa.

In advancing his argument in regard to this latter issue, counsel laid particular emphasis upon a number of factors, namely: (a) that Ms Mabesa had been the only witness to the incident who had testified at the trial, (b) that she had not identified the appellant at any time after the shooting until such time as she testified in court, (c) that her identification of the appellant in court was therefore nothing more than a so-called “dock identification” and (d) that 22 months had elapsed since the incident occurred until she testified. In the light of these factors, counsel argued, firstly, that the dock identification was not admissible against the appellant and, secondly, that even if it was, there had been such a lapse of time between the incident itself and the dock identification that the identification could not be regarded as being sufficiently reliable to found a conviction.

It is, of course, well established that it is necessary to approach with considerable caution a so-called “dock identification” where the witness, while testifying, points out the offender sitting in the dock as the person responsible. In S v Maradu 1994 (2) SACR 410 (W) Blieden J, with whom Nugent J (as he then was) concurred, was faced with such an identification. After stating that the danger of an identification in these circumstances is the same as that created by a leading question as it suggests the answer desired, the learned judge went on to conclude that as leading questions are inadmissible, there is no reason why dock identification should also not be inadmissible, save in special circumstances.

I would observe as an aside that the problem flowing from a test of “special circumstances” is, of course, that it tends to lead to a build up of a body of case law on what constitutes such circumstances which may well not be of great assistance due to the evidence in each case being likely to vary in quality (as to which, see the speech of Lord Widgery C.J. in Reg. v. Turnbull [1977] QB 224 (CA) at 231). But, with due respect to the learned judges in the Maradu case, if the ratio of the judgment is to prescribe that a dock identification should only be admissible where there are special circumstances (which may possibly be the case where there has been a prior identification of the accused by the witness, for example at an identity parade), I feel the decision goes too far. Indeed, in Ebrahim v Minister of Justice 2000 (2) SACR 173 (W) at 175 d-g Blieden J subsequently found it necessary to place a gloss upon what he had said in S v Maradu, supra by stating

…because certain remarks made by me in S v Maradu 1994 (2) SACR 410 (W) at 414a are relied upon, I think it is necessary for me to explain the use of the word 'inadmissible' as it appears in the passage referred to. I mean that a dock identification by itself is just as inadmissible as the answer to a leading question - it carries no weight. A reading of Maradu's case illustrates this. The witness who was called to identify the accused in that case said that he was able to do this because the accused was in the dock. He had no independent recollection of the man concerned and could not describe him. The passage of his evidence quoted in the judgment at 413D - G clearly demonstrates this. As I stated in Maradu's case, once the witness in that case saw the accused in the dock, on his own evidence, he felt reassured in his identification of him, even though, according to him, this may not have been the position were he not there.

The identification evidence of the various witnesses who identified the applicant in the present case is very different to that of the State witness in Maradu's case and cannot be disregarded as was the case in Maradu.”

In S v Daba 1996 (1) SACR 243 (E), a judgment with which I agreed, Kroon J quoted from Blieden J’s judgment in Maradu’s case without commenting on the correctness of the statement that a dock identification is inadmissible as evidence. The Daba judgment should not be understood as silent approval for that statement. The judgment is concerned with the weight to be given to evidence on identification which, in turn, depends on its context in the light of the facts and circumstances of the case and not with its admissibility.

My conclusion is that in a case such as the present, the question in issue is not the admissibility of the dock identification but the evidential value to be placed thereon. Where a witness identifies an accused in the dock, it forms part of the evidential matter upon which the case must be decided and I see no reason in principle to exclude it solely due to it having been done in court. In many, if not the majority of cases coming before our courts, the first occasion a witness has to identify the offender is when he or she gives evidence. The admissibility or otherwise of evidence cannot be determined by having regard to the degree of seriousness of the offence upon which an accused is tried, and it is wholly impractical to suggest that the police should, for example, be obliged to hold an identification parade for the material witnesses to attend in each and every minor case of disputed identity in order to render their identification of the accused admissible at a subsequent trial ( cf. May Criminal Evidence 4^th ed. at 372).

Notwithstanding the dangers attendant thereon, I therefore do not see why a dock identification should be ignored or that it should be regarded as being inadmissible. Interestingly, the position in England appears to be that evidence of a dock identification is legally admissible, although there is a discretion for it to be excluded if the prejudicial effect of the evidence outweighs its probative value (see May op cit. at 371). Similarly, in my view, a dock identification is admissible in this country although the weight which is to be afforded thereto will vary depending upon all the circumstances. A spontaneous identification made by a witness may possibly carry more weight than a case where the prosecutor specifically asks the witness whether the person in the dock is the person who committed the deed. And the evidence of a witness who had but a fleeting glance of an unknown perpetrator in poor conditions of visibility a long time before testifying will, of course, have little, if any, probative value whereas the evidence of a close friend of the accused in respect of a protracted incident which occurred in conditions of perfect visibility a relatively short time before, may be thoroughly convincing (in this latter scenario, it would for example hardly matter that the identifying witness had not had the opportunity of identifying the accused again before testifying). No fixed rules can be laid down. In each and every case the judicial officer must decide upon what weight, if any, is to be afforded to the dock identification, regard being had to all the material circumstances - including those prevailing when the initial observation took place as well as those under which the identification in court is made. But to exclude evidence of identity as inadmissible purely on the basis of it being tendered in the presence of the accused in the dock is, in my respectful view, incorrect.

In the present case, for some unexplained reason, no identification parade was held at which Ms Mabesa was asked to identify the appellant. Of course, the case cried out for an identification parade to be conducted once the appellant had been taken into custody and the failure to hold such a parade bears the unmistakable hallmark of slovenly police work. But, in the light of what I have said above, that factor alone does not seem to me to justify the exclusion of the complainant’s identification of the appellant from the evidential material that the magistrate was called upon to take into account. The appellant’s contention that Ms Mabesa’s identification of him was inadmissible must therefore fail and I therefore turn to consider whether, in the light of all the circumstances, her identification was sufficiently reliable to establish the appellant as being her assailant.

It is, of course, always necessary for a court to approach the evidence of identification with caution (S v Nthetlwa 1972 (3) SA 766 (A) at 768 A) especially where faced with a dock identification with its well known attendant problems. Moreover, just as the confidence and sincerity of the witness are not sufficient (S v Mehlape 1963 (2) SA 29 (A) at 32 F) so neither is the honesty of the witness in identifying a person by itself a guarantee of correctness (S v. Ndika & Others 2002 (1) SACR 250 at 256 f-g). The judicial officer must therefore scrutinize evidence of identification closely in order to be satisfied that the witness in fact has a recollection of the person concerned which goes beyond a mere impression (S v Maradu, supra at 412 e). In doing so, the objective circumstances attending the observation of the person and the state of mind of the observer are critical (Ndika’s case, supra). In this regard, factors such as the length of time the witness had the offender under observation, the distance at which the observation was made, the conditions of visibility at the time, whether the observation was impeded any way, whether the witness had seen the accused before (and, if so, how often), the period that elapsed between the original observation and the subsequent identification, whether there exists any material discrepancy between the description of the accused given by the witness to the police went first seen by them and the accused’s actual appearance (this list is not intended to be exclusive) are of crucial importance. All these factors go to the quality of the identification evidence and should be borne in mind in considering whether the identification can be regarded as sufficiently reliable.

It is bearing the above in mind that the appellant’s contention that the magistrate erred in accepting as Ms Mabesa identification of him as the responsible person must be considered. At the outset, although it was the first time for her to meet him, it is clear that Ms Mabesa had been in the appellant’s company for a fairly considerable time that evening before the shooting took place. This is therefore not one of those cases where one has to deal with “the ghastly risk run in cases of fleeting encounters” (the phrase used by Widgery CJ in Reg. v Oakwell [1978] 1 WLR 32 at 36 - 37). In addition, and most importantly, Ms Mabesa was able to name the appellant and it is clear from a reading of the record that he did not dispute that he was known as “Koko”, it seemingly having been his case that it was a matter of pure coincidence that the person responsible had the same name. Furthermore, not only was Ms Mabesa able to give a full description of the appellant and his clothing, a description which, together with his name, assisted the police in later arresting him, but it also appears to be common cause that, in describing him to the police shortly after the incident, she stated that he was of light complexion, a fact confirmed by the appellant in testimony. In turn, his explanation that he had been of dark complexion at the time but had become of light complexion while in custody, was specious.

All these factors militate against a false identification. Nevertheless, sight must not be lost of the fact that this was a dock identification. It is also necessary to take into account that the complainant admitted that she had been sitting in court prior to the hearing when the appellant was first brought in and that she had therefore seen him in police custody before she entered the court in order to testify.

On the other hand, it is also of some importance that Ms Mabesa did not point out the appellant in response to a question from the prosecutor or the magistrate. Rather, her identification of him occurred spontaneously when she was initially asked to describe what had happened, in response to which she both named the appellant and pointed to him as having arrived with the deceased when he came to fetch her from her house. Although undue weight should not be afforded thereto, the circumstances under which the identification was made do, to some degree, alleviate the dangers attendant upon a dock identification.

It appears from the magistrate’s judgment that he approached Ms Mabesa’s evidence with caution. Having enjoyed the advantage of seeing the witnesses testify, he was in a far better position than this Court to assess credibility and to make findings of fact. As I have said, it is extremely unfortunate that the police did not arrange a proper identification parade after the appellant was taken into custody. It is also a material consideration that a lengthy period of 22 months elapsed from the date of the incident until the identification took place in court. Nevertheless, notwithstanding these deficiencies, bearing all the other features that I have mentioned in mind, including the lengthy period of observation available to Ms Mabesa and her ability to both describe and name the appellant, it has not been shown that the magistrate erred in accepting her evidence of identification. Indeed, I am of the view that the magistrate reached the correct conclusion in that regard. That being so, this appeal must be decided on the basis that the appellant was indeed properly and reliably identified as being Ms Mabesa’s assailant and, as Mr Hattingh correctly conceded, should that be the case, the appellant was properly convicted on all four counts relating to the events of 28 October 1999.

In the light of my earlier finding in regard to the appellant’s possession of ammunition when he was taken into custody, the end result is that the appeal against the appellant’s conviction must fail on all counts. However, notwithstanding the appellant having limited his appeal to the merits of his convictions, it is necessary to deal with the question of sentence.

Even where an appeal is brought solely against conviction, this Court retains the inherent power to increase sentence in appropriate cases (see for e.g. S v. Kirsten 1988(1) SA 415 (A) at 421F). As Thring J said in S v. Sonday & Another 1995 (1) SA 497 (C) at 506H - 507A :

“In criminal cases which come before it on appeal this Court has a duty, not only to the appellants concerned, but also to society as a whole. That duty is, broadly speaking, and subject to certain rules and qualifications, to see to it that miscarriages of justice which may have occurred in the courts a quo are set right. Thus, towards an appellant or an accused whose case comes before this Court on automatic review, this Court has a duty, inter alia, to set aside a conviction or a sentence which this Court finds to be vitiated by misdirection, or a sentence which this Court finds to be shockingly or strikingly or disturbingly too severe and, in appropriate circumstances, to substitute a proper sentence. Towards society, this Court's concomitant duty is to ensure, in all cases with which it is properly seized on appeal, that proper and adequate sentences are imposed, so that society can be appropriately protected against criminal activities, inter alia, by the deterrent effects of those sentences. A sentence which is shockingly or strikingly or disturbingly too light is as much a miscarriage of justice as one which is shockingly or strikingly or disturbingly too heavy.”

As this Court was of the prima facie view that this might be one of those cases, notice was given to the appellant that we wished to hear argument on the issue in accordance with the established practice in that regard (as to which, see Sonday’s case supra, at 502-3

In considering whether the sentences imposed upon the appellant were startlingly inappropriate, one must of course bear his personal circumstances in mind. He is a young man. Born on 18 October 1980, he was therefore some 19 years of age at the time of the material events. He was a first offender who, having achieved a standard 9 education, was in gainful employment at the time. He had been in custody awaiting trial for about 2 years before his conviction.

The offences of which the appellant made himself guilty were, however, extremely severe. Although one can accept that his decision to shoot the deceased arose out of the ill feeling which appears to have grown between them during the course of the evening, it is clear that after the initial shooting which left the deceased helpless on the ground, he must have harboured direct intent to kill when he went and stood over the deceased and shot him in the head. Similarly, his action in shooting Ms Mabesa in the back, and then in the head, speaks only for him having had the direct intention to kill her. This latter offence, too, was therefore a most serious crime. As was said in S v Human 1979 (3) SA 331 (E) at 337 (a passage followed and applied in S v Nel & Another 1980 (4) SA 28 (E) at 36):

“Attempted murder, or assault with intent to murder, is, in our law, a most serious crime. Any crime which has the effect of holding human life cheap cannot be seen otherwise than in a serious light more particularly where the motivation is that of deliberate intent in contradistinction to negligence.”

Importantly, the murder was an offence envisaged in Part II of Schedule 2 to the Criminal Law Amendment Act No. 105 of 1997 while the attempted murder constituted an offence as envisaged by Part IV of that schedule. That being so, in terms of Section 51 (2)(a) of that Act, as the appellant was a first offender, the magistrate was obliged to impose a minimum sentence of 15 years imprisonment unless there were substantial and compelling circumstances as envisaged by s. 51 (3)(a) of the Act which justified the imposition of a lesser sentence. Similarly, in respect of the attempted murder, the magistrate was obliged to impose a minimum sentence of 5 years imprisonment unless there were such substantial and compelling circumstances.

In imposing sentence, the magistrate appears to have found that there were such substantial and compelling circumstances in respect of the murder but that no such circumstances existed in respect of the attempted murder. As the two offences were committed under virtually identical circumstances, it is difficult to see how the magistrate was able to reach such a decision. More importantly, however, is the fact that there were clearly no such circumstances justifying a lesser sentence and the magistrate erred in finding to the contrary.

In terms of s. 51 (3)(a) of the Act the magistrate, on being satisfied that substantial and compelling circumstances justifying the imposition of a lesser sentence existed, was obliged to enter them on the record. In doing so, the magistrate found that the appellant’s youth, the absence of premeditation and the circumstances of the incident, taken together, were such to justify a departure from the prescribed minimum. He did not detail the particular circumstances under which the incident occurred which he took into account but, as I have said, the deceased died as a result of the appellant cold-bloodedly shooting him in the head with direct intent to kill. If one bears in mind that the legislature intended s. 51 (2)(i) to apply to first offenders over the age of 16 years, the appellant’s age, his absence of previous convictions and the circumstances under which the shooting took place, clearly did not constitute substantial and compelling circumstances justifying a lesser sentence than that laid down in the legislation. The legislature, through the prescribed sentences it has laid down, requires a severe, standardised and consistent response from the courts unless there are truly convincing reasons for a different response (see: S v Abrahams 2002 (1) SACR 116 (SCA) at 121 f – g). As was observed by Marais JA in S v Malgas 2001 (2) SA 1222 (SCA) at 1235 H – 1236 E, the legislature has set a severe, standardised response which should not be departed from lightly or for flimsy reasons.

The fact that there are in casu no substantial and compelling circumstances justifying the imposition of a lesser sentence than that prescribed by the legislature is self evident, and was indeed acknowledged by appellant’s counsel. The magistrate clearly misdirected himself in finding that such circumstances did exist and, in the light of his misdirection, this Court faces the duty of itself sentencing the appellant. In doing so, it must consider what is an appropriate sentence and impose no heavier a sentence than that which the magistrate should have imposed.

In regard to this latter issue, the upper limit of the regional court’s criminal jurisdiction is a sentence of 15 years imprisonment. However, by reason of the proviso to s. 51 (2) the magistrate was entitled to impose a sentence of up to 5 years longer than the minimum sentence of 15 years imprisonment prescribed for the murder. That being so, the magistrate was obliged to impose no less than 15 years imprisonment but was authorized to impose up to 20 years imprisonment.

Taking the circumstances under which the shooting took place, in particular the cold blooded direct intent to kill the deceased displayed by the appellant when he stood over him and shot him in the head, together with the appellant’s personal circumstances, the lengthy duration of his incarceration as an awaiting trial prisoner and the other factors that I have mentioned in this judgment, I am of the view that a sentence of at least 17 years imprisonment should have been imposed by the magistrate. That being so, the magistrate’s sentence in respect of the murder conviction must be set aside and substituted with a sentence of 17 years imprisonment.

Turning to the attempted murder conviction, the magistrate was obliged to impose a minimum sentence of 5 years imprisonment, a sentence which he then imposed. However, in the light of the direct intent which the appellant had to kill Ms Mabesa, and the circumstances under which the shooting took place, that sentence in my view is wholly inadequate and startlingly inappropriate. To avoid a miscarriage of justice it is, in my view, necessary to set aside that sentence and to replace it with a sentence of 10 years imprisonment.

I turn now to consider the sentences imposed in respect of the convictions under Act 75 of 1965. While I can understand why the two offences which were committed on 28 October 1999 were taken together by the magistrate for purposes of sentence, there was no reason for him to have taken them together with the conviction of unlawful possession of ammunition on 24 November 1999 which took place at a wholly different time and place. It has often been stressed that it is undesirable to take counts together for the purpose of imposing punishment, especially where an appeal in respect of one count might succeed. But whether taken together or separately, a caution and discharge in a case such as this bears no proportion to the severity of the offence.

It hardly needs to be recorded that this country is plagued by violent crime in which, all too often, unlawful firearms and ammunition are used. Consequently, the courts are obliged to impose salutary sentences for this type of offence, and although there can of course be no customary sentence as each case must be considered upon its own particular facts and circumstances, fairly lengthy periods of imprisonment are generally imposed in cases of this nature. In the present case there is no reason to depart from that general approach.

In my view, a sentence of 3 years imprisonment would be an appropriate sentence to impose in respect of the unlawful possession of a firearm on 28 October 1999, a period of 12 months imprisonment would be appropriate in respect of the unlawful possession of ammunition on that day, and a further 12 months imprisonment is appropriate in respect of the unlawful possession of ammunition on 24 November 1999. The magistrate’s sentence of a caution and discharge is alarmingly disproportional to a proper sentence. It gives rise to a sense of shock and is not a sentence which a reasonable court would have imposed. It must therefore be set aside and replaced with the sentences that I have mentioned.

It then becomes necessary to consider the cumulative effect of these sentences. The total period of imprisonment which the magistrate should have imposed for the appellant’s five convictions is 32 years. That is too heavy a sentence, notwithstanding the severity of the offences of which the appellant made himself guilty, and it is necessary to tailor their effect by ordering them to run concurrently to such an extent that the appellant is not unduly harshly punished. In my opinion, this can be achieved by directing that half the period of imprisonment imposed in respect of the attempted murder conviction as well as 2 of the 3 years imprisonment imposed in respect of the unlawful possession of a firearm and the two sentences of 12 months imprisonment imposed in respect of the unlawful possession ammunition, should run concurrently with the 17 years imprisonment imposed in respect of the murder conviction. That being so, the appellant will be obliged to serve an effective period of 23 years imprisonment.

In the result, the appeal against the appellant’s convictions in the Court a guo is dismissed. The sentence imposed by the magistrate is, however, set aside and is replaced with the following:

(a) Count 1 (murder)

- 17 years imprisonment.

(b) Count 2 (attempted murder)

- 10 years imprisonment

(c) Count 4 (unlawful possession of a firearm)

- 3 years imprisonment.

(d) Count 5 (unlawful possession of ammunition)

- 12 months imprisonment

(e) Count 6 (unlawful possession of ammunition)

- 12 months imprisonemtn.

(f) Half of the sentence imposed on count 2, two years of the sentence imposed on count 3 and the whole of the sentences imposed on counts 4 and 5 are to run concurrently with the sentence imposed on count 1 so that the effective period of imprisonment is 23 years.

(g) The above sentence is antedated to 20 August 2001, being the date upon which sentence was imposed in the court a quo.

(h) The magistrate’s order under s, 12 (2) of Act No. 75 of 1969, declaring the appellant unfit to possess a firearm, is confirmed.

_________________________
L.E. LEACH

JUDGE OF THE HIGH COURT

JONES, J:

I agree.

_________________________
R.J.W. JONES

JUDGE OF THE HIGH COURT

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