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[2021] ZAKZPHC 9
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Zulu v S (AR44/18) [2021] ZAKZPHC 9 (3 February 2021)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO. AR447/18
In the matter between:
KUMBULANI
ERIC ZULU
APPELLANT
and
THE
STATE
RESPONDENT
This judgment
was handed down electronically by circulation to the parties’
representatives by email, and released to SAFLII.
The date and time
for hand down is deemed to be 12h00 on 3 February 2021
ORDER
The
following order is issued:
(a) The appeal against the conviction
respect of counts 4, 5, 6 (possession of unlicensed firearms)
and 7
(possession of ammunition), is upheld.
(b) The conviction and sentences
imposed on 11 April 2016 in respect of counts 4, 5, 6 and 7 are
hereby set aside.
JUDGMENT
Chetty
J (Chilli J concurring):
[1]
The appellant was indicted together with five others on three counts
of
robbery with aggravating circumstances where firearms and violence
were used in the commission of the offences. During the commission
of
the offences, the perpetrators deprived their victims of cash,
airtime vouchers and various cell phones. The accused were
also
charged with three counts of possession of unlicensed firearms in
terms of the
Firearms Control Act 60 of 2000
, together with a further
count pertaining to the unlawful possession of 19 live rounds of
ammunition. The three firearms in question
were found inside a VW
Polo with registration, [….] (‘the Polo’) being
the vehicle in which the appellant and
his co-accused were travelling
at the time of their arrest.
[2]
At the conclusion of the trial, accused six, who was the driver of
the
Polo, was found not guilty and discharged. The appellant
and his co-accused were found guilty on three counts of robbery with
aggravating circumstances; three counts of possession of unlicensed
firearms and one count of unlawful possession of ammunition.
In
respect of the robberies, all the accused were sentenced to ten
years’ imprisonment. In respect of counts 4, 5 and
6
pertaining to the possession of unlicensed firearms, the appellant
and his co-accused were sentenced to five years’ imprisonment
on each count, with the sentences to run concurrently. In
respect of count 7 pertaining to the unlawful possession of
ammunition,
the appellant and his co-accused were sentenced to two
years’ imprisonment. The appellant was sentenced to an
effective
period of 17 years’ imprisonment.
[3]
The appellant applied for leave to appeal against his convictions and
sentence, which application was dismissed by the trial magistrate. He
then petitioned this court for leave to appeal against the
convictions and sentence in respect of counts 1 to 7. On 21
August 2018 the petition was refused. Undeterred, the appellant
then applied for special leave to the Supreme Court of Appeal (‘the
SCA’). On 29 November 2019 the SCA upheld the appeal
and set
aside the decision of this court dismissing the petition.
[1]
The SCA granted leave to appeal in respect of counts 4, 5, 6 and 7.
The matter accordingly comes before us on appeal in respect
of those
counts alone. [4] The facts of the matter are relatively
straightforward. The appellant was legally represented
at his trial
and pleaded not guilty to the charges against him. The evidence of
the various State witnesses was to the effect that
on 19 February
2015 the appellant together with three other males entered the
business premises of Ms Nazreen Ali, known as Hawkers
Paradise, and
after pretending to be legitimate customers one of the accused pulled
out a firearm and pointed it at her head, demanding
a cell phone.
The perpetrators then left with an amount of R1 400 in cash as well
as R400 in airtime vouchers. According
to the owner of the business,
the robbers fled when an employee, Mr John Blessing Mbasu, also known
as Lameek Musa, came to her
rescue. He managed to flee out of
the shop and summon assistance from others nearby. However, they were
unable to confront
the robbers, who were armed. The State also led
evidence that Lameek Musa and Nhlakanipho Tshowuphile were accosted
at gunpoint
on 19 February 2015 and robbed of their cell phones. All
of the complainants testified that they had subsequently been
contacted
by the police who informed them that the perpetrators of
the robbery had been arrested. They had been asked to identify the
items
stolen at the police station. All of the complainants gave
evidence pointing out the respective accused who had participated in
the robbery, and those who were carrying firearms at the time. The
appellant was accused two in the trial court.
[5]
The State lead evidence of the various police officers who
apprehended
the accused, including the appellant, along the N2
Highway on 19 February 2015. The evidence of the police
officers was to
the effect that they were on patrol duty in the
vicinity of the Gateway Interchange and the M41 off-ramp when they
received information
that a robbery had taken place in the area of
Blackburn village, and that the suspects had fled in a blue VW Polo
with registration
ND388263. Inspector Govender testified that he was
in his patrol car on the highway when he observed the Polo travelling
passed
them at a high speed. He recognised this as the vehicle
that they were meant to be looking out for, and engaged his siren
and
set off in pursuit of the vehicle. When the driver of the vehicle
failed to pull over, Inspector Govender fired at the tyres
of the
vehicle, bringing it to a halt on the side of the highway. He,
together with his colleague Inspector Naicker approached
the
stationary vehicle with the occupants inside. Accused six was the
driver of the Polo. The appellant was seated in the back
seat, behind
the driver. All of the occupants were pulled out of the vehicle by
the officers and made to lie on the ground, where
they were
handcuffed and placed under arrest on suspicion of being involved in
the robberies. During this time, the arresting officers
were joined
by other colleagues from the metro police, who had been called as
backup.
[6]
All of the police officers who testified were consistent in their
evidence
that once the occupants of the Polo had been removed from
the vehicle, they were searched before being handcuffed. The police
officers
testified that they observed the firearms inside the
vehicle. One firearm was found in the passenger seat in the front of
the vehicle,
which Inspector Govender described as a silver and black
pistol. In the back seat, on the left, was a black revolver and
directly
behind the driver’s seat, was a black pistol.
Inspector Govender also testified that there was a blue bag inside
the vehicle,
which he said was filled with money, made up of coins
and notes. He also stated that it included airtime vouchers and a
single
live round of ammunition. It is not entirely clear whether the
bag was found on the floor inside the vehicle or on the seat. Once
the suspects had been placed under arrest, an officer from the
forensic department of the SAPS attended the scene and took
fingerprints,
from the vehicle and the firearms, obtaining DNA swabs
and photographs of the scene. Inspector Govender confirmed that the
silver
and black pistol found on the passenger side of the front
vehicle contained six live rounds, and that five live rounds were
found
in the revolver and seven live rounds in the remaining pistol,
found in the rear. A total of 18 live rounds were found in the three
firearms, with another round of ammunition found in the bag. None of
the suspects gave any explanation for the money or the firearms
and
ammunition found in the vehicle. The suspects were taken to the
Greenwood Park police station where they were formally charged.
The
firearms, ammunition, cell phones and money recovered at the scene
were recorded as police exhibits in the SAP13.
[7]
This appeal is confined to the appellant’s conviction on the
counts
of possession of firearms and ammunition. In a rather terse
judgment, the trial court was satisfied that the appellant and his
co-accused had been properly identified as having robbed the three
complainants on 19 February 2015 at gunpoint and threatened them
with
violence. It found that the evidence of the complainants and the
police officers was credible and reliable, and could not
be
criticised. The court rejected the version of the appellant
that he was innocently walking along the N2 Highway, and while
hitchhiking after spending the day at the Sibiya casino, was offered
a ride by the driver of the Polo. The appellant’s evidence
was
that there were three other occupants in the motor vehicle at the
time. These other occupants too, by some coincidence, also
happened
to be hitchhiking on the N2 when they were offered a lift by the
vehicle driven by accused six, which happened to be heading
to
KwaMashu, being the destination where all of the occupants were
going. The appellant testified that he suddenly
heard
gunshots after which the vehicle was brought to a halt and all the
occupants, including the driver and himself, were pulled
out of the
vehicle by the police. They were handcuffed and made to lie on
the ground. The appellant as well as his co-accused
denied any
knowledge of the firearms which were found inside the vehicle in
which they were travelling.
[8]
The trial court was correct in dismissing the claim by the appellant
and
his coaccused that they were innocent passengers in the Polo, who
all happened to be in the vehicle at the wrong time. The
court
correctly rejected their versions as a fabrication and properly
convicted accused one to five of robbery. However,
the court
went further and concluded that the mere presence of the firearms in
the Polo was a sufficient basis for convicting the
appellant and his
co-accused on the counts of unlawful possession of firearms and
ammunition. The trial court said the following
in its judgement:
‘
Insofar
as counts 4, 5, 6 and 7 are concerned, they involve the unlawful
possession of firearms. There were three firearms that
were actually
found in this car and all these firearms were actually connected to
the passengers in the car and not the driver.
So the State is asking
the Court to draw an inference that they all possessed the firearm
and that would be a reasonable inference
bearing in mind that these
same people were involved and seen with firearms the same people
during the robbery, so even if the
one had the firearm the other also
possessed . . . [indistinct]
The
Court finds therefore that all five accused before court have been
incriminated and proved to have been involved in the commission
of
the robberies which are count 1, count 2, count 3 and therefore the
Court finds the five accused before court GUILTY ON ALL
COUNTS AS
PLEADED.’
[9]
As the SCA pointed out in paragraph 8 of its judgment setting aside
the
refusal of the petition, it was on the basis of the
aforementioned reasoning that the appellant contends that the trial
court wrongly
convicted him on counts 4, 5, 6 and 7 relying on the
doctrine of joint possession. In dealing with this aspect, the SCA
said the
following:
‘
As
at the time of the appellant’s conviction, the legal position
pertaining to the doctrine of joint possession had already
been
clarified as follows in
S
v Kwanda
:
‘
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
, 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 (
animus
)
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”. Nugent JA, in
S
v Mbuli
, referred to
the above quoted passage from Nkosi and commented that Marais J had
“set out the correct legal position”.
In
Mbuli
,
the appellant and his two coaccused 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”.’
(footnotes omitted)
[10]
I endorse the views expressed by the SCA that the trial court was
perhaps unaware of the
judgments referred to in the paragraphs quoted
above in relation to the doctrine of joint possession. The trial
court, having been
satisfied that there was sufficient evidence to
convict the appellant of his participation on three counts of
robbery, simply accepted
that because the appellant was part of the
group of robbers and an occupant in the vehicle in which his
co-accused were travelling,
he must be guilty of possession of the
three firearms and ammunition. It is clear from the evidence that
there were six occupants,
including the driver, at the time of their
arrest. It is also not in dispute that none of the firearms were
found in the actual
physical possession of any of the occupants.
[11]
There is no evidence on record to indicate that the appellant
physically possessed any
of the firearms during the course of the
robberies, or while he was an occupant in the Polo. While the police
witnesses gave evidence
that the forensic department had been called
out to the scene and took DNA swabs from the firearms, there is no
indication as to
what became of this forensic exercise. One of
the officers who testified clearly stated that once the suspects had
been taken
out of the vehicle, none of the officers touched or
contaminated any of the evidence including the firearms.
[12]
There is no evidence on record linking the appellant to the actual
possession of any firearm
recovered at the scene. At best for the
State, Inspector Govender testified that he removed the appellant
from the rear seat of
the Polo. However, there is no evidence
from Inspector Govender that in doing so he immediately noticed the
firearm where
the appellant had been sitting. One would assume that
it would have been entirely consistent for the officer to have said
that,
on removing the appellant from the car, he found that the
appellant had been sitting on the firearm or that it was in the
immediate
vicinity of where the appellant had been seated in the
vehicle. None of the police witnesses were able to shed any further
light
on the appellant’s possession of any of the firearms.
[13]
The foundation of the trial court’s conviction of the appellant
on counts 4, 5, 6
and 7 was joint possession, in other words, that
the only inference to be drawn from the presence of the three
firearms inside
the car was that all of the accused at some point had
jointly possessed the firearms. The trial court regrettably did not
explain
the basis for that conclusion. The test for joint possession
of an illegal firearm and ammunition was set out in
S v Nkosi
1998 (1) SACR 284
(W) 286H-I where the court stated that it must be
possible to properly infer from the established facts that:
(a)
the group had the
intention (
animus
)
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.
Only
if both requirements are fulfilled can there be joint possession
involving the group as a whole and the detentors . . .
to
possess all the guns.’
[14]
In
Leshilo v S
(345/2019)
[2020] ZASCA 98
(8 September 2020),
para 11, the court held that ‘[t]he mere fact that the accused
participated in a robbery where his coperpetrators
possessed firearms
does not sustain beyond reasonable doubt, the inference that the
accused possessed the firearms jointly with
them’.
[15]
As stated earlier, three firearms were found in a vehicle with six
occupants. The
magistrate failed to provide any reasoning
leading to the conclusion that the appellant was guilty of possession
of all three of
the firearms, let alone any one of them. Where an
accused has not been found in actual physical possession of a
firearm, and where
the State relies on joint possession, the legal
requirements for a conviction have been clearly established. The
Constitutional
Court, in
S v Makhubela & another
2017 (2)
SACR 665
(CC), para 46, endorsed the test in
S v Nkosi
, which
I have referred to above. In
Nkosi
, it was common cause that
there was physical possession of three guns by the three robbers
individually. The only question was
‘whether there was the
necessary mental intention or
animus
to render their physical
possession of the guns possession by the group as a whole’.
[2]
[16]
It bears repeating that only if the State has established that the
group had the intention
to exercise possession through one or more of
the group
and
those who had possession did so on behalf of the
group, would the requirements for a conviction be established. In
S
v Ramoba
2017 (2) SACR 353
(SCA), the appellant had been
convicted of three counts of unlawful possession of firearms; the
first count was in respect of a
pistol and the other two counts were
in respect of two rifles. On appeal, the court held that, in respect
of the pistol, there
was no evidence as to who put it inside the
vehicle (in which it was found) and no evidence as to whether the
appellant was aware
that it was inside the vehicle. The court held
that there was no evidence to establish joint possession of the
pistol; it stated:
‘
.
. . there are no facts from which it can be inferred that the
appellant had the intention to possess the Norinco pistol through
the
actual detentor thereof, who is in any case unknown, and whether or
not the person who put it inside the Isuzu bakkie intended
holding it
on behalf of the group, including the appellant.’
[3]
However,
the court found that there was sufficient evidence regarding the
charge of joint possession of the rifles. The court reasoned
as
follows, in para 19:
‘
There
is thus undisputed direct evidence to the effect that at the time Mr
Abu was robbed of his Isuzu bakkie, the appellant was
in possession
of one of the automatic rifles that were used in the entire episode.
It is so that when the appellant and the other
two males were seen
walking in a row away from the bakkie, he was not carrying any
firearm but was only carrying a money container.
The only reasonable
inference that can be drawn from the proven facts is that the
suspects, along the way, had taken turns carrying
the rifles.
Further, I do not have the slightest doubt that at the time they were
seen walking in a line, the two suspects who
were armed were
protecting the appellant who was unarmed and was carrying the stolen
loot. The fully automatic weapons were clearly
possessed by the
robbers for themselves and for each other.’
[17]
See also
S v Molimi & another
[2006] ZASCA 43
;
2006 (2) SACR 8
(SCA) and
S
v Kwanda
2013 (1) SACR 137
(SCA). The Court in
S v
Makhubela
, para 49, referred to
S v Molimi
, stating the
following:
‘
In
Molimi
,
the Supreme Court of Appeal upheld the appellants' convictions in the
court a quo of murder and robbery, but overturned their
convictions
for unlawful possession of firearms and ammunition. The Supreme Court
of Appeal said:
“
Counts
5 and 6 relate to the unlawful possession of firearms and ammunition.
It is common cause that the appellants at no stage
had physical
possession of any firearms themselves. Despite this, they were
convicted on these counts. The State sought to defend
these
convictions on the basis of the decision by this Court in
S
v Khambule
where it
was held that the common intention to possess firearms jointly may be
inferred in the circumstances of a particular case.
. . .
It
follows that
Khambule
was overruled by
Mbuli
, and is no
longer good law. The State's reliance on it is therefore misplaced.
Having failed to meet the requirements as stated
in
Nkosi
, the
State had not established any basis for the conviction of the
appellants. The convictions on these counts must therefore also
be
set aside.”’ (footnotes omitted)
It
would appear that the trial court in the present matter followed the
line of reasoning in
S v Khambule
2001 (1) SACR 501
(SCA),
which is no longer sound.
[18]
Applying the test established in
S v Nkosi
and endorsed in the
above cases, I am of the view that, since the firearms were only
observed once all the suspects had been taken
out of the vehicle,
there is no evidence from which it can be inferred that the appellant
had the intention to exercise possession
over any of the firearms,
particularly as there is no evidence before the court as to who the
‘
actual detentor
’
[4]
was.
[19] At important point to make
in this regard is that unlawful possession is a
‘circumstance crime’, not a ‘consequence crime’,
and the doctrine of common purpose does not apply to the
crime of
unlawful possession. This is explained in
S v Makhubela &
another
2017 (2) SACR 665
(CC), as follows:
‘.
.
. the application of the
doctrine of common purpose differs in relation to “consequence
crimes”, such as murder, and
in relation to “circumstance
crimes”, such as possession. Burchell in
Principles
of Criminal Law
differentiates between the two as follows:
“
The
common-purpose rule is invoked in the context of consequence crimes
in order to overcome prosecutorial problems of proving the
normal
causal contribution between the conduct of each and every participant
and the unlawful consequence. Strictly speaking, the
rule has
no
application
in the
context of criminal conduct consisting only of circumstances.”’
[5]
(emphasis added).
[20]
The trial court failed to apply its mind to the well-established test
set out in
S v Nkosi
in order to conclude that joint
possession was the only inference that could be drawn from the facts.
The fact that the appellant
was properly convicted of robbery does
not automatically translate into a conviction on the counts of
possession of firearms and
ammunition. Much more is required.
In the result, the convictions on counts 4, 5, 6 and 7 are not in
order.
[21] I therefore make the
following order :
(a)
The appeal against the conviction respect of counts 4, 5, 6
(possession
of unlicensed firearms) and 7 (possession of ammunition),
is upheld.
(b)
The conviction and sentences imposed on 11 April 2016 in respect of
counts
4, 5, 6 and 7 are hereby set aside.
CHETTY J
Appearances:
For the
appellant:
L Barnard
Instructed by:
Advocates’
Chambers
Tel:
(033) 845 3525
Fax:
(033) 394 3734
Cell:
083 225 8122
E-mail:
adv@group6.co.za
For the
respondent:
K Essack
Instructed by:
Director of Public
Prosecution, Pietermaritzburg
Date of hearing:
29 January 2021
Date of
Judgment
03 February 2021
(electronically)
[1]
Zulu v The State
(529/19)
[2019] ZASCA 166
(29 November
2019).
[2]
S v Nkosi
1998 (1) SACR 284
(W) 286G.
[3]
S v Ramoba
2017 (2) SACR 353
(SCA) para 15.
[4]
S v Nkosi
(above) 286H.
[5]
S v Makhubela & another
2017 (2) SACR 665
(CC), para 47.