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S v Ndukuzakhemvelase (202/95) [1998] ZASCA 35 (19 May 1998)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 202/95
In the matter between
HOLLY NDUKUZAKHEMVELASE  Appellant
and
THE STATE        Respondent
CORAM: SMALBERGER, NIENABER et MARAIS
DATE HEARD: 19 May 1998 DELIVERED: 19 May 1998
JUDGMENT
MARAIS JA

2
MARAIS JA
The appellant was convicted in a Regional Court of possession of an AK
47 rifle (count 1) and 29 live rounds of AK 47 ammunition (count 2). He was sentenced to an effective 6 years imprisonment. With the leave of the court a quo which dismissed his appeal against both the convictions and the sentences, he appeals to this court.
The facts relating to the incident which gave rise to the charges against the appellant appear from the judgment of the trial court and the court a quo. The issue is essentially one of credibility. Two policemen, Sgt Johnston and Const Luthuli, testified on behalf of the State. There were a number of discrepancies in their respective versions of the events. The trial magistrate accepted the evidence of Johnston where they differed. The only reasonable inference to be drawn from Johnston's evidence is that the appellant possessed

3 the AK 47 and ammunition at the time of the incident.
The appellant denied such possession. He gave a version of the events that lacks plausibility. He even went so far as to deny that any AK 47 was found at the time of the incident. It is conceded that his denial in this regard is false. This must inevitably detract from his credibility.
In the absence of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong (S v Hadebe and Others 1997(2) SACK 641 (SCA) at 645 e - f). I am unpersuaded that the magistrate misdirected himself in any material respect in his assessment of the evidence, or that his factual findings were clearly wrong.
The magistrate was alive to the discrepancies in the evidence presented by the State and gave them due consideration. He had the advantage of seeing and hearing the witnesses and the appellant testify. The appellant was plainly

4 not telling the truth in important respects as to what happened, as was conceded
by his attorney at the trial and by his counsel both in the court a quo and in this
court. However, the contention was that he might foolishly have lied in certain
respects in the belief that he could cast greater doubt on the State's case by
doing so, but that his denial that he was in possession of the AK 47 rifle and the
ammunition might reasonably be true.
It was implicit in the appellant's case that Sgt Johnston had decided to
frame him and that, as luck would have it, he happened to have in the police
vehicle an AK 47 weapon which could be used for the purpose. The magistrate
pointed out that if Johnston was prepared to commit perjury to obtain a
conviction against the appellant, it is most unlikely that he would have
contented himself with merely giving the circumstantial evidence which he did.
He would have claimed that he saw the appellant holding the gun. That is fair
comment and deprives the suggestion that Johnston sought to fabricate evidence

5 to ensnare the appellant of any plausibility. Counsel sought to develop the
hypothesis by referring to the failure to find fingerprints on the weapon; to
Johnston's evidence that he removed the magazine before the fingerprint expert
arrived; and to the fact that Johnston had shot and killed one of the other
occupants of the car, that the other had fled, and that the appellant was the only
person left who was available to be charged. It was also stressed that Johnston
was a single witness in respect of critical aspects of his testimony and that the
exercise of special caution in evaluating his evidence was necessary. Both
courts were aware that Johnston was a single witness in certain respects and it
has not been shown that there was any want of caution in evaluating his
evidence.
The other submissions to which I referred a moment ago were also made
in the court a quo. They were duly considered and rejected for good and
sufficient reason and no useful purpose would be served by restating them.

6 Counsel for the appellant felt constrained to concede that it was
inherently improbable that the AK 47 rifle was "planted" by the police, and that,
as he put it, one was driven to accept that it had been in the vehicle the appellant
was driving. However, that gave rise, so he argued, to the possibility that it was
in the possession of one or other of the other two occupants of the vehicle. That
is sheer speculation and not in accord with the evidence of either Johnston or
the appellant. It provides no justification for rejecting the direct evidence of
Johnston that he found no weapons in the car. In my view, no adequate grounds
have been advanced for disturbing the magistrate's assessment of the evidence
and the appeal against the convictions must fail.
I turn to the question of the sentences. The sentence imposed in respect
of count 1 was 5 years imprisonment and in respect of count 2, 2 years
imprisonment of which 1 year was ordered to run concurrently with the sentence
imposed in respect of count 1. That resulted in an effective sentence of 6 years

7 imprisonment.
The offences committed were undoubtedly serious - see S v Sibisi
1998(1) SA 248 (SLA) at 251 f- i. The appellant did not give any explanation
for his possession of the AK 47 and ammunition which could serve to mitigate
the offences. That was a grave omission and it disabled the court from finding
that mitigating circumstances in that respect existed. The appellant's personal
circumstances were to his credit. He was 42 years of age at the time, had no
previous convictions, and was on the face of it a respectable citizen. The fact
remains that the unexplained unlawful possession of this type of weapon which
has been involved in so much of the carnage which has been experienced in SA,
and in Natal in particular, is a most serious offence and requires to be met with
firm punishment. The magistrate has not been shown to have misdirected
himself in deciding not to suspend any portion of the minimum sentence of 5
years imprisonment prescribed by the relevant legislation for a conviction of

8
unlawfully possessing a weapon such as this. The sentence of 5 years is
undoubtedly severe, but not unreasonably so. No grounds exist for interfering with it.
The sentence imposed in respect of the second count is another matter. It was conceded by counsel for the State that it has almost invariably been the practice of the courts to order such sentences in their totality to run concurrently with the sentence imposed for unlawful possession of the firearm to which the ammunition relates in circumstances in which an accused is found in possession of both firearm and ammunition simultaneously. It was also conceded that there is no good reason why it should not have been done in this case. The practice is obviously based upon the reasonable premise that the offences are so intertwined that it would be artificial and productive of unfairness to deal with them in any other way.
The court a quo was under the erroneous impression that that had been

9 done in this case. In fact it was not so, as I have said. Only 1 year of the 2 years
imposed in respect of the ammunition count was ordered to run concurrently.
In my view, the magistrate misdirected himself in this respect and an adjustment
of the sentence is called for.
I would dismiss the appeal against both convictions and the sentence
imposed in respect of count 1. I would allow the appeal against the sentence on
count 2 by altering it to read that the entire sentence is to run concurrently with
that imposed in respect of count 1.
R M MARAIS JUDGE OF APPEAL
SMALBERGER JA: I agree. It is so ordered. NIENABER JA: I agree.

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