S v Parkins

• Jurisdiction: South Africa
• Judgment Date: 27 October 2016
• Citation: 2017 (1) SACR 235 (WCC)

S v Parkins
2017 (1) SACR 235 (WCC)

2017 (1) SACR p235

Citation	2017 (1) SACR 235 (WCC)
Case No	A 113/16
Court	Western Cape Division, Cape Town
Judge	Henney J and Smuts AJ
Heard	October 14, 2016
Judgment	October 27, 2016
Counsel	J van der Berg for the appellant.; G Wolmarans for the state.

Flynote : Sleutelwoorde

Jurisdiction — Res judicata — Requirements for — Whether issue estoppel to B be accepted in criminal law — Court not deciding, as not appropriate case.

Evidence — Hearsay — Weight to be attached to — Deceased, after having been shot, telling police sergeant (who knew both deceased and C accused) that accused had shot him, giving his nickname and first name — Evidence corroborated by ballistic evidence — Hearsay evidence sufficient to convict accused of murder.

Headnote : Kopnota

In convicting the appellant on one count of murder, two counts of possession of D 9 mm semi-automatic pistols, and one count of possession of ammunition for the two pistols, the regional magistrate took into account the hearsay statement of the deceased, as well as evidence of a search of the appellant's wife's home, which revealed the presence of the firearms.

The appellant contended that the evidence of the search should not have been admitted, as in a previous case against him (in respect of another fatal E killing involving the use of one of the pistols) another regional magistrate had concluded that the same search had been improperly conducted and the evidence inadmissible, as it had infringed his constitutionally protected rights. It was argued that the matter was res judicata and that the court should recognise issue estoppel as part of South African criminal law. A further objection to the hearsay statement was that it was, in either event, F unreliable and insufficient to sustain a conviction against the appellant. The statement in question was made to a police sergeant at the scene of the shooting, where the official (who knew both the deceased and the appellant) had asked the deceased who had shot him, and the deceased had answered, 'Dit was Kleinkop.' The sergeant had then asked him which 'Kop' it was, to which the deceased had replied 'Bradley' (the appellant's first name). G

Held, as to issue estoppel, that, in deciding to develop the common law in this instance, the court had to tread carefully, lest unintended consequences followed. In such a clearly legislated context, it should not lose sight of the imperative that the legislature was the major engine for law reform, rather than the judiciary. Even on the assumption that the court was able to do so, which finding it was not making in this particular case, there were cogent reasons not to do so. (Paragraph [38] at 244f–g.) H

Held, further, that the regional magistrate's findings in the other shooting case were procedurally fatally flawed, in that he had raised the matter mero motu without giving the parties an opportunity to address him before making his finding. (Paragraph [41] at 245d–e.)

Held, further, that, even though the search in the present case was without a I warrant, the police had the permission of the appellant's wife to conduct the search, and the appellant himself had not objected to the search being conducted. Their denial at the time was rather a denial of any knowledge of the firearms and ammunition found. The regional magistrate accordingly was correct in admitting this evidence against the appellant. (Paragraph [44] at 246b–d.) J

2017 (1) SACR p236

Held, as to the hearsay statement, that the correct procedure for the admission of the evidence A would have been by way of a trial-within-a-trial, as proposed by the state, and not as the court did by determining the admissibility and its value at the same time. (Paragraph [53] at 248a–c.)

Held, further, that it was so unlikely that, at the residence of the person to whom the deceased referred as 'Kleinkop' or 'Bradley', whom he accused as the B person who had shot him, two firearms would be found, linked by means of ballistic evidence to that same shooting incident, that, in the absence of an answer, it had to be considered to have been proven beyond reasonable doubt. (Paragraphs [71]–[72] at 252c–e.) Appeal dismissed.

Annotations:

Cases cited C

Reported cases

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2002 (1) SACR 79 (CC) (2001 (4) SA 938; 2001 (10) BCLR 995; [2001] ZACC 22): dictum in para [36] applied

Jacobson v Havinga t/a Havingas 2001 (2) SA 177 (T): referred to

Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) ([1995] 1 All SA 517): dictum at 674C – D applied D

Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another 2014 (5) SA 297 (SCA): dictum in para [26] applied

R v Blom 1939 AD 188: dictum at 202 – 203 applied

S v Khumalo [2012] ZAGPJHC 141: distinguished

S v Motlhbane and Others 1995 (2) SACR 528 (B) (1995 (8) BCLR 951): E distinguished

S v Mpungose and Another [2011] ZASCA 60: distinguished

S v Msimango and Another 2010 (1) SACR 544 (GSJ): distinguished

S v Mthetwa 1972 (3) SA 766 (A): dictum at 768 applied

S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; F [2002] 3 All SA 760; [2002] ZASCA 70): dictum in para [50] applied

S v Ramavhale 1996 (1) SACR 639 (A): dicta at 649c – e applied

S v Reddy 1996 (2) SACR 1 (A): referred to

S v Seemela 2016 (2) SACR 125 (SCA): distinguished

S v Shaik and Others 2007 (1) SACR 247 (SCA) (2007 (1) SA 240; [2007] 2 All SA 9): dictum in para [171] applied

S v Van Willing and Another [2015] ZASCA 52: applied. G

Case Information

J van der Berg for the appellant.

G Wolmarans for the state.

H An appeal against a conviction in a regional magistrates' court on charges of murder and the unlawful possession of firearms and ammunition.

Order

The appeal against conviction in respect of all the charges is dismissed.

Judgment

Henney J and Smuts AJ:

Introduction

[1] The appellant was convicted in the regional court sitting at Wynberg J on the following charges:

2017 (1) SACR p237

Henney J and Smuts AJ

[1.1]

Count 1: Murder committed on 23 February 2008 at Sandown A Lane, Athlone, in that the court found that he unlawfully and intentionally killed Donovan Cupido (the deceased) by shooting him with a 9 mm Tanfoglio semi-automatic pistol, serial No AB 02086 (the Tanfoglio).

[1.2]

Count 2: Possession of the firearm, as mentioned above, B without being the holder of a licence to possess such firearm in contravention of s 3 of the Firearms Control Act, [1] at the same time, date and place mentioned in count 1.

[1.3]

Count 3: Possession of one 9 mm Norinco semi-automatic pistol with serial No 408336 (the Norinco) in contravention of C s 3 of the Firearms Control Act, at the same time, date and place as mentioned in count 1.

[1.4]

Count 4: Possession of 15 rounds of 9 mm ammunition in contravention of s 90 of the Firearms Control Act, also at the same time, date and place as mentioned in count 1. D

[1.5]

These charges emanate from a shooting incident where the deceased was found to have been shot and killed by the appellant. The facts and circumstances surrounding this incident, to which we will refer as the first shooting incident, are set out below. E

[1.6]

Two further charges emanated from an incident occurring on 29 May 2008 at XYZ Barrowdale Close, Parklands, the residence of the appellant at the time of his arrest. These are:

[1.6.1]

Count 5: A further charge in contravention of s 3 of the F Firearms Control Act. He was found guilty of possession of the same Tanfoglio as mentioned in count 1 above, except that, in respect of this charge, he was found to be in possession thereof on 29 May 2008. In respect of this charge, he was also found guilty of being in unlawful possession of the Norinco and a G 9 mm semi-automatic Taurus pistol (the Taurus).

[1.6.2]

Count 6: This is a further charge of possession of ammunition in contravention of s 90 of the Firearms Control Act, also committed on 29 May 2008 H at XYZ Barrowdale Close, Parklands. We will refer to this as the search-and-seizure incident.

The appellant was convicted on all these charges on 9 December 2013 and sentenced by regional magistrate Govuza on 23 April 2014. I

[2] During this time the appellant was also standing trial with two other accused, also in the regional court sitting at Wynberg, before regional magistrate Langa, on the following charges:

2017 (1) SACR p238

Henney J and Smuts AJ

[2.1]

A Count 1: Murder committed on 22 April 2008 at Kudu Street, Athlone. It was alleged that he killed EV, a female person, by shooting her with a firearm.

[2.2]

Count 2: Possession of a firearm of which the make and model were unknown to the state, also in contravention of s 3 of the Firearms Control Act, on the same date, time and at the same B place as mentioned in the first charge, without holding a licence to possess such firearm.

[2.3]

Count 3: Attempted murder. It was alleged that he intended to kill RM by shooting at him with a firearm, at the same time, date and place as mentioned in count 1.

[2.4]

C Count 4: Possession of seven rounds of 9 mm ammunition and two .40 Smith & Wesson-calibre rounds of ammunition in contravention of s 90 of the Firearms Control Act.

[3] This trial started on 10 June 2009 before regional magistrate Langa and on 20 October 2011 the appellant was found not guilty on all D four charges by him. We will refer to this as the second shooting incident.

[4] It is common cause that the Tanfoglio and the Norinco that were found at XYZ Barrowdale Close, the residence of the appellant, were linked by means of ballistic evidence to the incident that happened on 23 February 2008 in which the...