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[2011] ZASCA 50
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Kwanda v S (592/10) [2011] ZASCA 50; 2013 (1) SACR 137 (SCA) (30 March 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
C
ase No:
592/10
In the matter between:
JOHANNES KWANDA
....................................................................
Appellant
and
THE STATE
....................................................................................
Respondent
Neutral citation:
Kwanda
v State
(592/10)
[2011] ZASCA 50
(30 March 2011)
Coram:
STREICHER, BOSIELO
and THERON JJA
Heard: 15 March 2011
Delivered: 30 March 2011
Summary:
Arms
and ammunition ─ Unlawful possession of firearms and ammunition
in contravention of s 32 of Arms and Ammunition Act 75
of 1969 ─
Joint possession ─ The state must establish facts from which it
can be inferred that the group had intention
(
animus
)
to exercise possession of firearms through actual detentor and actual
detentor had the intention to hold on behalf of the group.
___________________________________________________________
ORDER
On appeal from:
North
Gauteng High Court (Pretoria) (Els and Mojapelo JJ sitting as court
of first instance):
The conviction of the appellant
on the charges of contravening ss 32(1)(a) and 32(1)(e) of the Arms
and Ammunition Act 75 of 1969,
and the sentences imposed in respect
thereof, are set aside.
___________________________________________________________
JUDGMENT
THERON JA (STREICHER and BOSIELO
JJA concurring)
[1] The appellant was one of
several accused who stood trial in the Regional Court, Springs, on
various charges related to conspiracy
to commit armed robbery at the
Springs branch of ABSA bank (the bank). The appellant was convicted
of conspiracy to commit armed
robbery and various contraventions of
the Arms and Ammunition Act 75 of 1969 (unlawful possession of
firearms and ammunition) and
sentenced to an effective term of
imprisonment of 35 years. On appeal, the High Court (the then
Transvaal Provincial Division)
(Els and Mojapelo JJ), confirmed the
convictions in respect of three of the counts: conspiracy and
contravening ss 32(1)(a) and
32(1)(e) of the Act (unlawful possession
of a firearm and ammunition) and set aside the remaining convictions.
The appeal court
also reduced the effective term of imprisonment to
25 years. The appellant appeals against his conviction of unlawful
possession
of a firearm and ammunition, with the leave of this court.
[2] It is therefore not necessary
to deal with the facts relating to the conviction on the count of
conspiracy save in so far as
they are relevant to a determination of
this appeal. The evidence showed that members of the South African
Police Service had received
information about a planned robbery at
the bank. On 15 April 2000, before the robbery could be carried out,
the appellant and his
co-accused were arrested.
[3] Immediately prior to his
arrest, the appellant had been the driver of a white Nissan Maxima
vehicle. Two passengers, Isaac Zikalala
(accused 10 in the trial
court) and Sipho Mahlenche, were with the appellant in the vehicle.
Mahlenche was seated next to the appellant
in the front passenger
seat. It was common cause that Mahlenche was in possession of an
AK47, the subject matter of this appeal.
There was some dispute as to
whether the appellant was aware of the firearm in Mahlenche’s
possession. Mahlenche absconded
during the course of the trial. It
was further common cause that the appellant at no stage had physical
possession of the firearm
and its ammunition.
[4] The only
question on appeal is whether the state had established that the
appellant possessed the firearm jointly with Mahlenche.
In this
regard the state must prove that the appellant had the necessary
mental intention (
animus
)
to possess the firearm. I accept, for the purpose of this judgment,
that the appellant conspired with his co-accused to rob the
bank.
[5] The fact
that the appellant conspired with his co-accused to commit robbery,
and even assuming that he was aware that some of
his co-accused
possessed firearms for the purpose of committing the robbery, does
not lead to the inference that he possessed such
firearms jointly
with his co-accused. In
S
v Nkosi
,
1
Marais J said
that such an inference is only justified where ‘the state has
established facts from which it can properly be
inferred by a Court
that: (a) the group had the intention (a
nimus
)
to exercise possession of the guns through the actual detentor and
(b) the actual detentors had the intention to hold the guns
on behalf
of the group’.
2
Nugent JA, in
S
v Mbuli
,
3
referred to
the above quoted passage from
Nkosi
and commented
that Marais J had ‘set out the correct legal position’.
4
In
Mbuli
,
the appellant and his two co-accused were charged with and convicted
of being in possession of a hand grenade that had been found
in their
vehicle shortly after they had robbed a bank (this is the only charge
of relevance to this matter). Nugent JA found that
the evidence did
not establish that the appellant and his co-accused had possessed the
hand grenade jointly and that it was possible
that the hand grenade
had been possessed by only one of them. Nugent JA concluded with
these words:
‘
I
do not agree that the only reasonable inference from the evidence is
that the accused possessed the hand grenade jointly. It is
equally
possible that, like the pistols, the hand grenade was possessed by
only one of the accused. Mere knowledge by the others
that he was in
possession of a hand grenade, and even acquiescence by them in its
use for fulfilling their common purpose to commit
robbery, is not
sufficient to make them joint possessors for purposes of the Act. The
evidence does not establish which of the
accused was in possession of
the hand grenade and on that charge, in my view, they were entitled
to be acquitted.’
5
[6] Adopting
the reasoning in
Nkosi
and
Mbuli
,
and even if the appellant was aware that Mahlenche was in possession
of the firearm, such knowledge is not sufficient to establish
that he
had the intention to jointly possess the firearm with Mahlenche. In
this matter there are no facts from which it can be
inferred that the
appellant had the necessary intention to exercise possession of the
firearm through Mahlenche or that the latter
had the intention to
hold the firearm on behalf of the appellant.
[7] The conviction of the
appellant on the charges of contravening ss 32(1)(a) and 32(1)(e) of
the Act and the sentences imposed
in respect thereof, are set aside.
___________________
L Theron
Judge of Appeal
APPEARANCES
APPELLANT: F van As
Instructed by Pretoria Justice
Centre, Pretoria;
Bloemfontein Justice Centre,
Bloemfontein.
RESPONDENT: (Ms) P Vorster
Instructed by the Director of
Public Prosecutions,
Pretoria;
The Director of Public
Prosecutions, Bloemfontein.
1
1998
(1) SACR 284
(W).
2
At
286g-i.
3
2003
(1) SACR 97
(SCA).
4
Para
71.
5
Para
72.