A former police reservist, Xolile Magwaca, has lost his Western Cape High Court bid to set aside his 2013 conviction for theft and unlawful possession of a firearm and ammunition.
Magwaca, who was sentenced to eight years’ imprisonment in December 2013, wanted his sentence reviewed because he claimed his right to effective legal representation was undermined by his attorney, to whom he gave a list of questions to ask the witnesses in the trial, but was ignored.
In his application, Magwaca also said the search of his property and the seizure of the firearm and ammunition was not in compliance with the Criminal Procedures Act and that the investigating officer failed to ascertain whether his fingerprints were found on the firearm.
Magwaca was a police reservist at Claremont police station from 2007 until his arrest on October 4, 2010. During this time, the firearm in question disappeared from police safekeeping at the station.
He was arrested by two police officers at his home in Zone 22 in Langa. The officers testified at the trial that during the search, in Magwaca’s presence, they found the gun and ammunition in a shopping bag under some blankets in the wardrobe.
In his statement on October 5, 2010, Magwaca admitted he had booked out the gun and the rounds of ammunition in October 2009 in his official capacity and said he had recorded this in the Occurrence Book at Claremont police station.
Magwaca claimed he forgot to return the firearm after his shift and had only discovered this fact on the train on his way home. Worried he would be in trouble at work, he hid the firearm in his wardrobe and proceeded to forget about it until the day he was arrested.
In his decision, Judge Robert Henney said he agreed with the magistrate’s finding that Magwaca was a poor and unconvincing witness, and there was no reasonable possibility Magwaca’s version of events could be true.
Regarding Magwaca’s allegation that he was not effectively represented by his advocate, Judge Henney said: “The record clearly shows that Magwaca actively took part in the proceedings and that the advocate steadfastly and without question or reservation, followed the applicant’s instructions.
“In my view, Magwaca has failed to show on the grounds as alleged, that the decision given by the regional magistrate, which resulted in him being found guilty, should be set aside on review, and the application to review and set aside the applicant’s convictions and sentence is dismissed.”
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