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[2010] ZAGPPHC 48
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S v Hodgkinson (910/06) [2010] ZAGPPHC 48; 2010 (2) SACR 511 (GNP) (15 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
Case
Number: 910/06
In
the matter between:
GEORGE
MARTIN
HODGKINSON
Appelant
and
THE
STATE Respondent
JUDGMENT
1.
This appeal demonstrates how easily the mighty apparatus of the
criminal law may be brought into operation and render results
that
are both unwarranted and unnecessary. This appeal represents the end
of a criminal trial that had its origin on the 11
th
December 2004. A seemingly innocuous practical joke was elevated, (if
that is the correct expression) to a grave offence that had
to be
tried in the Magistrates' Court, requiring at least four appearances
there, an application for leave to appeal against the
- rather
unfortunate - conviction and a hung Court of Appeal that necessitated
the referral to a Full Bench of the High Court,
resulting in an
acquittal after the appellant had obviously spent many thousand Rand
in legal costs. The court intimated that the
reasons for the eventual
decision would be supplied later. They follow below.
2.The
appellant was convicted in the Magistrates' Court for the district of
Pretoria North of a contravention of
Section 120
(6)(b) of the
Firearms Control Act 60 of 2000
and was sentenced to payment of a
fine of R 2 000, 00 or 90 days' imprisonment in default of payment.
The whole sentence was suspended
for three years on condition that
the appellant was not convicted of having contravened the said
section during the period of suspension.
3.The
appellant appealed with leave of the court
a
quo.
4.
His appeal was heard on the 17
th
March 2009, but as the members of that court could not agree, the
matter had to be referred to the full court, which upheld the
appeal
and set aside the conviction and sentence.
Section
120(6)(b)
of the
Firearms Control Act 6o of 2000
5.
Section 120 (6) of the Firearms Control Act 60 of 2000 ("the
Act")
reads as follows:
It
is an offence to point-
fa)
any firearm, an antique firearm or an airgun, whether or not it is
loaded or capable of being discharged, at any other person,
without
good reason to do so; or
(b) anything which is likely to lead a person to believe that it is a
firearm, an antique firearm or an airgun at any other person,
without
good reason to do so.
6. The
appellant was charged with both offences created by
this statutory
provision in the alternative. He was
convicted of the alternative
count.
The
facts
7.
The appellant is the owner and manager of a motor vehicle agency
known as Stetson Motors, doing business in Pretoria North.
8.
The complainant, Mr Phillemon Kupedi Molekwa, was employed as a
general labourer by the accused until the 11th December 2004.
9.
The appellant testified that a water pistol had been kept in the
office of this business for a considerable period of time prior
to
the incident that led to his prosecution.
10.
This water pistol was lying openly in the office and the appellant
and his employees, including the complainant, would indulge
in some
practical jokes from time to time and spray water on one another with
the water pistol.
11.
The presence of the water pistol on the premises was not only well
known to everybody who frequented the premises, including
the
complainant, it was also shaped in such a fashion that no reasonable
person would ever mistake it for a real firearm.
12.
The appellant is the licensed owner of a handgun that he normally
wears on his body for protection. According to the appellant,
its
shape and size differs completely from the appearance of the water
pistol. The real handgun needs to be cocked before it can
be fired.
13.
The appellant's description of the water pistol and the handgun is
supported by two employees who were called as State witnesses.
14.
The complainant alleged that he approached the appellant on the 11
th
December 2004 to enquire from him whether he, the complainant, could
occupy the flat that the appellant was having constructed
on the
business premises.
15.
The appellant was emerging from the bathroom at that moment, and when
the complainant spoke to him, the appellant turned around,
drew the
firearm, cocked it and pressed it against his stomach.
16.
He denied any knowledge of the water pistol on the premises and
insisted that the appellant had drawn the real firearm on him.
The
appellant was alleged to have acted in an aggressive fashion when
doing so.
17.
Complainant also denied under cross-examination that the appellant
had worn a jacket under which the real firearm would have
been
hidden.
18.
The appellant was supported by the two other State witnesses that
were called, Messrs Kruger and Ngubene, that a water pistol
was on
the premises and that the complainant himself had played with it in
the past.
19.
Mr Kruger furthermore confirmed the correctness of the appellant's
version as far as the events of the morning in question were
concerned, namely that the appellant had emerged from the bathroom
with the filled water pistol, clearly intent on squirting Mr
Kruger
with water when the complainant approached him from behind. The
appellant turned around and in the process pressed the water
pistol
against the complainant's body. The latter took fright, stepped back
and fell on his back, but laughed with everybody else
in the office
at the joke.
20.
The complainant came back after some time to enquire about the flat.
His request was turned down. He left later in the day and
did not
return.
21.
The appellant denied any intention of threatening the complainant or
anybody else.
22.
The trial magistrate refused an application in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
, in spite of the support
that the state witnesses gave to the appellant's version.
23.
The appellant did not contradict himself in the witness stand and
created the impression of an honest man who had intended no
harm to
the complainant and bore him no ill-will.
24.
The trial court accepted that the appellant had not pointed his real
firearm at the complainant and therefore acquitted him
of the charge
of pointing a firearm.
25.
The magistrate convicted the appellant of the alternative charge,
motivating the conviction as follows:
"The
state need not prove that the object which was pointed at the
complainant was a real gun. All they have to prove is that
the
complainant believed the object to be a gun..."
26. Bearing
in mind that the court rejected the complainant's
emphatic
evidence that he had been threatened with a
real firearm that had
actually been cocked in his presence
before it was pointed at him,
it is difficult to understand on
what basis the trial magistrate
held that the complainant had believed the toy pistol to be a real
gun.
The
interpretation of
section 120(6)(b)
0c
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27.
Apart from the aforegoing, the trial magistrate erred in the
interpretation of the statutory provision. The mens
rea
that
has to be proven for a successful prosecution of an alleged offence
in terms of
section 120(6)(b)
is clearly intent, not
culpa
or,
as the portion quoted from the trial court's judgment would suggest,
strict liability.
28.
The fact that the Legislature requires intent as the form of mens
rea
is
evident from the wording of the section,
'...without
good reason to do so."
This
phrase clearly suggests a conscious decision to point an object
resembling a firearm under circumstances that would justify
the
inherent threat this would constitute against the person at whom such
object is pointed.
29.
The verb "to
point"
similarly
describes a conscious, deliberate action. The Oxford Dictionary
(Google version) defines the word as
"direct
someone's attention in
a
particular
direction by extending one's finger; direct or aim (something)".
30.
The present statute's predecessor, Act 75 of 1969, expressly provided
that the pointing of a firearm had to be wilful to constitute
the
statutory offence; see S
v
Sam
1980
(4) SA 289
(T); compare further
R
v Humphries
1957
(2) 233 (N) and S
v
Van Antwerpen
1976
(3) SA 399
(T).
31.
The present provision is differently worded, but it is clear that the
Legislature did not intend to introduce a different test
of
mens
rea.
32.
The trial court failed to appreciate that intent was an essential
element of the offence the appellant was charged with.
33. The
conviction and sentence were therefore set aside.
Dated at
Pretoria on this 15 day of June 2010.
E
BERTELSMANN
Judge
of the high Court
W
RC Prinsioo
Judge
of the High Court
E
M Makgoba
Judge
of the High Court