About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2011
>>
[2011] ZASCA 86
|
|
Xabendlini v S (608/10) [2011] ZASCA 86 (27 May 2011)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case
No: 608/10
In
the matter between:
MANDLA
XABENDLINI
.................................................................
Appellant
a
nd
THE
STAT
E....................................................................................
Respondent
Neutral
citation:
Xabendlini
v State
(608/10)
[2011] ZASCA 86
(27
May 2011).
Coram:
HARMS
DP, MALAN and THERON JJA
Heard:
24
May 2011
Delivered:
27
May 2011
Summary:
Arms
and Ammunition – Pointing a firearm in contravention of s
39(1)(i) of the Arms and Ammunition Act 75 of 1969 –
Pointing -
What constitutes – Wider interpretation that offence not only
committed when firearm is pointing directly at
person concerned is
preferred as it accords with the intention of the legislature.
______________________________________________________________
___
ORDER
______________________________________________________________
___
On
appeal from:
Western
Cape High Court (Cape Town) (McDougall AJ
with
Thring J concurring
,
sitting as a court of appeal)
The appeal is
dismissed.
_____________________________________________________________
___
JUDGMENT
______________________________________________________________
__
THERON
JA
(HARMS
DP and MALAN JA concurring):
[1]
The
appellant and his co-accused were charged in the Regional Court (Cape
Town) with robbery, theft, unlawful possession of a firearm
and
ammunition and the pointing of a firearm. The appellant was convicted
already on 10 December 1999 on all the counts despite
his plea of not
guilty and was sentenced to an effective term of 20 years’
imprisonment. On appeal, the Cape Town High Court
on 2 March 2003 set
aside the convictions relating to unlawful possession of a firearm
and ammunition. The appellant appeals against
his conviction in
respect of the pointing of a firearm, with the leave of the high
court which was granted on 7 June 2010. (We
refrain from commenting
on its reasons for granting condonation and leave.)
[2] The
question on appeal is what constitutes the pointing of a firearm for
the purposes of the then applicable s 39(1)(i) of the
Arms and
Ammunition Act 75 of 1969. Section 39(1)(i), which was introduced
by s 6 of the Arms and Ammunition Amendment Act 16
of 1978, made it
an offence for any person to wilfully point any arm, air rifle or air
revolver at any other person.
[3] The
facts giving rise to this appeal are briefly the following. John
Thompson and Jean Badenhorst had been employed as security
officers
by Fidelity, a company involved in the transportation, delivery and
collection of money. They were on duty on the morning
of 4 June 1998,
and had delivered money to Woolworths in Adderley Street, Cape Town.
As they were leaving Woolworths they were
attacked and robbed of an
empty metal money container and the firearm which Badenhorst had in
his possession.
[4] A
taxi driver, Moegamat Bowers, who had been parked in Strand Street,
near the entrance to Woolworths, had noticed three males,
one of whom
had been armed with a firearm, enter Woolworths through the entrance
normally reserved for the receiving of goods.
He later observed the
three men running out of the store carrying a metal trunk and leaving
the scene in a white Ford Bantam bakkie.
Bowers pursued the bakkie as
it drove off.
[5] Sergeants
Nicholas du Toit and Richard Beesley had stopped at a nearby traffic
light controlled intersection when they were
alerted to the robbery
and the involvement of the bakkie. They then pursued the bakkie. At a
further traffic light controlled intersection,
two males alighted
from the bakkie and ran into a nearby train station. While in pursuit
of the bakkie, the police officers fired
shots directed at the wheels
of the bakkie. They noticed a passenger in the bakkie, (later
established to be the appellant) pointing
a firearm at them. The
police then fired shots directly at the appellant, whereafter he
disappeared from their view. The bakkie
crashed into another vehicle
and a short while later was forced to stop. The two occupants, the
appellant and his former co-accused,
were arrested.
[6
] There
has, to date, been conflicting interpretations by the courts of s
39(1)(i) and its predecessor, s 114 of the General Law
Amendment Act
46 of 1935 which read:
‘
Any
person who knowingly and without lawful cause points a firearm or an
air gun or air pistol at any other person shall be guilty
of an
offence .
. . .’
In
R
v Humphries
1957 (2) SA 233
(N), Selke J stated that the phrase 'pointing a
firearm' (as used in s 114) was less precise than aiming a firearm.
The learned
judge held that ‘pointing a firearm’ did not
mean the deliberate and careful taking of aim with the idea of
hitting
a person with the shot if one were fired, but that it rather
embraced ‘the notion of directing the firearm towards a person
in such a way that, if it were discharged, the bullet would either
strike that person or pass in his immediate vicinity’.
1
Williamson J (van Deventer J concurring) in
S
v Van Zyl
1993 (1) SACR 338
(C) held a somewhat different view and concluded
that the offence of pointing a firearm at a person, as envisaged by s
39(1)(i)
was only ‘committed when the firearm is pointed
directly at the person concerned so that if discharged the bullet
would hit
the victim’.
2
More recently, in
S
v Hans
1998 (2) SACR 406
(E), Erasmus J found that it was irrelevant for the
purposes of s 39(1)(i) whether the weapon, if discharged, would have
injured
any person. The court reasoned that it was therefore not
necessary to introduce, as Williamson J in
Van
Zyl
had, such a requirement in determining the meaning of the section.
3
[
7] In
Van
Zyl
,
the court adopted a narrow interpretation of the word ‘point’,
as meaning pointing at a person in such a manner that
if the firearm
was discharged, the person would be struck. A wider interpretation
was favoured in
Humphries
and
Hans
.
In my view, the wider interpretation is to be preferred. First, it
accords with the intention of the legislature which is to protect
the
public from the dangers associated with the handling and use of
firearms and the resultant fear induced in the mind of the
person at
whom the firearm is pointing that he would or could be struck.
4
It is trite that the words of a statute must be given its ordinary,
grammatical meaning having regard to the text as a whole.
The
offending conduct, in terms of s 39(1)(i), is the pointing of a
firearm. As was noted in
Hans
,
it is not necessary that the weapon is cocked or loaded, or even that
it is capable of discharging ammunition. The mere pointing
of a
firearm, at another person, constitutes the offence. The current
formulation of the relevant section confirms this position.
Act 75 of
1969 was repealed in its entirety and replaced by the
Firearms
Control Act 60 of 2000
.
Section 120(6)
of the latter Act, which
creates the offence of pointing a firearm, reads:
‘
It is an offence
to point—
a) 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.’
Second
,
on the narrow interpretation it would not always be possible, to
prove that the bullet, if discharged, would have struck the person
at
whom the firearm was pointed. Erasmus J in
Hans
,
recognised the impracticality of this approach:
‘
Op
dié uitleg
sal die artikel weinig impak hê.
Eerstens
:
dit beperk die teoretiese trefwydte van die bepaling tot 'n mate wat
die Wetgewer na my oordeel nooit bedoel het nie. Op dié
uitleg
sal 'n persoon wat op 'n teiken aanlê, maar dan mis skiet, of
sou mis geskiet het indien hy die sneller getrek het,
nie sy geweer
“op” die teiken “gerig” het nie −
al is hy 'n geoefende skut wat met noukeurige
doelgerigtheid gekorrel
het. Gesonde verstand sê vir jou dat so 'n gevolg indruis teen
die Wetgewer se bedoeling soos uitgespreek
in die bewoording van art
39(1)(i).
Tweedens
:
die betekenis wat die
Van
Zyl
-uitspraak
aan die begrip “rig op” toesê, sal die toepassing
van die artikel erg aan bande lê. Probleme
met bewys sal die
verbod in die praktyk beperk tot gevalle waar 'n persoon direk deur
'n afgevuurde koeël getref is, óf
waar die wapen trompop
gerig is. In alle ander situasies sal dit bykans onmoontlik wees om
te bewys dat die koeël 'n persoon
sou getref het indien dit
gevuur was; of, as die wapen nie gelaai was nie, dat 'n denkbeeldige
koeël 'n persoon sou getref
het indien dit afgevuur was. Die
uiters eng vertolking van die artikel sal gevolglik, na my oordeel,
die oogmerke van die Wet grootliks
verydel.’
5
Third
,
I endorse the view expressed by C R Snyman that the specific harm
sought to be combated by the legislature, namely, inducing fear
in
the mind of the person at whom the firearm is directed, would exist
irrespective of proof that the bullet, if discharged, would
have
struck or missed him or her.
6
[8
] Every
case must ultimately be determined with reference to its facts. I
turn now to the facts of this matter. The police officers
were
travelling close behind and in pursuit of the bakkie in which the
appellant and his former co-accused were travelling. The
police
officers had fired shots at the bakkie. The occupants of the bakkie
were, or must have been aware that they were being
pursued by the
police. The police officers noticed the appellant pointing a firearm
at them. They were uncertain whether they would
have been struck by a
bullet fired by the appellant. Sergeant du Toit testified that that
possibility existed. Sergeant Beesley
said in evidence that he could
not express an opinion on whether any bullet fired would have struck
them or their vehicle. What
is clear, however, is that the
appellant’s pointing of the firearm in their direction induced
the belief in their minds that
they were going to be shot at. The
police officers retaliated by shooting at the appellant. The
appellant’s motive in pointing
the firearm at the police
officers could only have been to impede their pursuit of him and his
companion and to evade arrest. In
the circumstances, the appellant’s
conviction is supported by the evidence.
[
9]
The appeal is dismissed.
_______________
L V THERON
JUDGE OF APPEAL
APPEARANCES:
APPELLANT:
....................................
C
Stamper
.............................................................
I
nstructed
by Legal Aid, Cape Town
.............................................................
Legal
Aid South Africa, Bloemfontein
RESPONDENT:
................................
M
M Tsheole
............................................................
Instructed
by Director of Public Prosecution, Cape Town
............................................................
Director
of Public Prosecution, Bloemfontein
1
R v
Humphries
1957 (2) SA 233
(N) at 234F-G.
2
S v Van Zyl
1993 (1) SACR 338
(C) at 340G-H.
3
S v Hans
1998 (2) SACR 406
(E) at 411H-412A.
4
C R Snyman
Criminal Law
5ed
(2008) p 467.
5
S v Hans
1998 (2) SACR 406
(E) at 411D-G.
‘
This
interpretation will severely limit the impact of the section.
First: it limits the theoretical effect of the section in
a manner
which the Legislature, to my mind, could never have intended. On
this interpretation a person who aimed at a target
but then missed
or would have missed the target if he had pulled the trigger, would
never have "pointed" his firearm
"at" the
target. – even if he was an expert marksman who had taken
careful aim. Common sense dictates that such
a result would go
against the intention of the Legislature as expressed in the wording
of s 39(1)(i). Second: the meaning ascribed
to the term "pointed
at" in Van Zyl would seriously limit the application of the
section. Evidentiary problems would,
in practical terms, limit the
prohibition to incidences where a person was hit by a bullet fired
directly at him, or where the
firearm was pointed at point-blank
range. In all other situations it would be virtually impossible to
prove that the bullet
would have struck the person if it had been
fired, or, where the firearm had not been loaded, that an imaginary
bullet would
have struck the person had it been fired. This
extremely narrow interpretation of the section would, in my mind,
frustrate the
intention of the Legislature.’
6
C R Snyman
Criminal Law
5ed
(2002) p 467.