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[2019] ZAFSHC 64
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Thamae and Another v S (A264/2018) [2019] ZAFSHC 64 (21 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case No:
A264/2018
In the
matter between:
TSEPE
ERNEST
THAMAE
1
st
APPELLANT
TSELISO
SIMON
MOLOI
2
nd
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
NAIDOO, J
et
MOLITSOANE J
JUDGMENT BY:
NAIDOO
J
HEARD ON
:
11 MARCH 2019
DELIVERED ON:
21 MAY 2019
INTRODUCTION
[1] The appellants, together
with three others were convicted of contravening section 3, read with
other
relevant provisions of the Firearms Control Act 60 of 2000 (the
Act) and read with the relevant provisions of the Criminal
Procedure Act 51 of 1977 (the CPA) and the Criminal Law Amendment Act
105 of 1997 (the Minimum Sentences Act). They were charged
with one
count of Unlawful Possession of Firearms (count 1) and one count of
Unlawful Possession of Ammunition (count 2) in the
Regional Court,
Botshabelo. The firearms concerned were one 9mm Beretta semi-
automatic pistol with serial number D21939 with magazine,
one 9mm
Parabellum semi-automatic pistol with serial number 1c-0436 with
magazine and one 9mm Parabellum Vector semi-automatic
pistol with
serial number BBK 715 with magazine. The ammunition referred to in
count 2 were 8 x 9mm short calibre cartridges, 13
x 9mm Parabellum
cartridges and 8 x 9mm Parabellum cartridges. They pleaded not guilty
to the charges, but on 10 December 2014,
were convicted on both
counts and sentenced on 17 December 2014 to Fifteen (15) years’
imprisonment on count 1 and Three
(3) years’ imprisonment in
respect of count 2. The sentence in count 2 was ordered to run
concurrently with that in count
1. The appellants were declared unfit
to possess a firearm in terms of section 103(1) of Act 60 of 2000.The
appellants are before
us, having been granted leave to appeal against
their convictions and sentences by the court
a quo
. Mr P
Peyper represented the appellants in this court and Mr Lencoe
represented the state.
[2] I pause to mention that the
appellants before this court were accused 3 and 5 in the court
a
quo
. Accused 1, Teboho Edward Teleko, had earlier appealed
against his conviction and sentence, which appeal was upheld on 11
September
2017 by my colleagues Jordaan ADJP (as he then was) and
Lekale J. Accused 2 (Ntsane Daniel Ntsane) and accused 4 (Thakholi
Victor
Semuli), have not lodged appeals against conviction and
sentence.
BACKGROUND
[3] The version of the state in
this matter is that the police were on routine patrol duty in the
Botshabelo
area when they received information about a double cab
Ford Ranger vehicle coming from Lesotho, with six occupants. They
spotted
the vehicle and followed it to a certain spot and stopped the
vehicle. They noticed six male occupants in the vehicle and asked
them to alight. They made them lie down on the ground but one of the
occupants fled the scene and was not caught. The three police
officials searched the men and found wallets and cellular telephones
in their possession. The vehicle was then searched in the
presence of
the driver. One firearm was found at the top of the passenger seat
behind the driver, a second firearm was found in
a pouch behind the
front passenger seat and the third firearm was found under the front
passenger seat. The relevant authorities
were called to
undertake the necessary procedural steps at the scene and the
suspects were placed under arrest. The explanation
by the driver of
the vehicle, in relation to ownership of the firearms, was that the
firearms belonged to his friends.
[4] The version of the accused
in the trial court, narrated largely by accused 1, was that they had
come
from Lesotho on the morning of 5 April 2014 to attend a
traditional feast at the home of accused 4. They were there the whole
day
and in the early evening decided to go to a tavern to watch a
soccer game on television. After a while the tavern became too full
and noisy so they decided to go to another place. On their way there,
they were stopped by the police and all asked to alight from
the
vehicle and made to lie down. The police turned the vehicle they had
travelled in to face the police vehicle. The vehicle was
then
searched and three firearms were found in the vehicle. Accused 1 was
the driver of the vehicle and denied any knowledge of
the firearms.
He confirmed that the firearms were recovered in his presence and
said that the firearms were not shown to any of
the other accused at
any stage. They were then placed under arrest. This version was
confirmed by the rest of the accused, including
the two appellants
before us.
[5] The court
a quo
ably
and extensively set out the applicable law and undertook a
comprehensive analysis of the evidence before it. The conclusions
reached by the trial court were:
5.1 The version of the accused that
they were not in possession of any firearms or that they were unaware
of the
presence of the firearms is not reasonably possibly true;
5.2 Based on the evidence it is clear
that accused 1 had the necessary
animus
to possess the
firearms with his co-accused and that they had the intention to
possess the firearms on his behalf.
5.3 The positions of the firearms in
the vehicle exclude every other reasonable inference, except that the
accused,
as occupants of the vehicle, were joint possessors of the
firearms.
5.4 The state proved that all the
accused were detentors of the firearms and, therefore, the only
reasonable inference
that the court can draw, to the exclusion of all
other inferences, is that the accused as a group had the animus to
possess the
firearms.
5.5 The evidence points to a pooling
of the firearms by the accused and therefore excludes the reasonable
possibility
that any of the accused intended to retain control of the
individual firearms without yielding to the other members of the
group
the right to possess them and to use them.
[6]
In
this matter the appellants assail the judgment of the trial court on
a number of grounds the most important of these being that
the court
erred:
6.1 in finding that the state proved
its case beyond reasonable doubt;
6.2 in finding that the version of the
appellants that they were not aware of the firearms in the vehicle,
was
not reasonably possibly true;
6.3 in finding that there was
sufficient evidence to support the findings that the position of the
firearms indicate
that all the occupants of the vehicle must have
been aware of the presence of the firearms, that they were detentors
and joint
possessors of the firearms and had a common intent or
animus
to possess the firearms on behalf of the group.
6.4 in finding that the evidence
excluded the reasonable possibility that any of the accused intended
to
retain possession of the individual firearms without yielding to
the other members of the group the right to possess or use them.
[7]
It
is trite that the state bears the onus to prove the guilt of an
accused beyond reasonable doubt and that the accused person bears
no
onus to prove his innocence.
It is equally
trite that a
n appeal court
will not lightly interfere with the findings of the trial court and
will only do so if there is a misdirection on
the part of the trial
court in the application of the law or the facts. In my view, the
only issue in this matter is whether the
state proved beyond
reasonable doubt that the appellants were joint possessors of the
firearms that were recovered in the vehicle
in which they were
travelling. The trial court made several inferences, as I have
indicated above, which it declared to be the
only reasonable
inferences that could be drawn from the evidence presented to it. In
this regard it is useful to remind ourselves
of the dictum in the
celebrated case of
R
v Blom
1939 AD
188
,
where the court held at p202/3 that
“
In reasoning by inference
there are two cardinal rules of logic which cannot be ignored:
(1)
The inference sought to
be drawn must be consistent with all theproved facts. If it is not,
the inference cannot be drawn.
(2)
The proved facts should
be such that they exclude every reasonable inference from them save
the one sought to be drawn. If they
do not
exclude
other reasonable inferences, then there must be a doubt whether
the
inference sought to be drawn is correct.”
[8] The requirements in order to
prove joint possession were set out in
S v Nkosi 1998(1) SACR 284
(W),
where the court held that the conclusion of
joint possession is justifiable only if the evidence excludes all
other
inferences except the one to be drawn, namely:
(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
.
Nkosi
was considered by the Supreme Court of Appeal in
S
v Mbuli 2003(1) SACR 97 (SCA),
where it was
approved and applied. In
S v Ramoba 2017(2)
SACR 353 (SCA
),
Nkosi
was applied and
Mbuli
was
followed.
[9]
In
the present matter, the state led no evidence to show who had placed
the firearms in the vehicle, or that the occupants, including
the
appellants were aware of the presence of the firearms. The trial
court held that from the position in which the firearms were
found,
the occupants of the vehicle must have been aware of the firearms in
the vehicle. However, a careful examination of the
evidence shows
that this is not necessarily so. There is no evidence to suggest that
the firearm at the top of the back seat was
clearly visible or
whether it was covered with something thus obscuring it from view.
The firearms found in the pouch at the back
of the passenger seat and
the one found under the front passenger seat were clearly not visible
to the occupants in the car. It
is also undisputed that the vehicle
passed through the border of Lesotho into South Africa without
incident. It is fair to assume
that the firearms may not have been in
the vehicle at the time. The undisputed version of the appellants is
that they were in and
out of the vehicle several times during the day
in question. When they left the home of accused 4 to watch the soccer
match, it
was early evening and the occupants included a person they
did not know. This is the person that fled the scene when the vehicle
was stopped by the police.
[10] There is no evidence to the effect that
when the appellants and their co-accused were at the home of accused
4
or in the tavern watching the soccer match, no one had access to
the vehicle. It is therefore possible that someone could have placed
the firearms in the vehicle at that stage. The actual detentor of the
firearms is therefore unknown. If the appellants had no knowledge
of
the presence of the firearms in the vehicle, then they could not have
had the intention to possess the firearms through the
unknown
detentor. For the reason that the detentor is unknown, it cannot be
said that he/she intended to hold the firearms on behalf
of the
group. There is similarly no evidence that the occupants of the
vehicle were the detentors of the firearms. Even if there
was
evidence that one or more of the occupants were aware of the firearms
in the vehicle, such knowledge is not sufficient to justify
a finding
of joint possession.
[11] In my view, the evidence presented by
the state is insufficient to prove joint possession of the firearms
by the
appellants and other occupants of the vehicle, in terms of the
requirements set out in
Nkosi, Mbule
and
Ramoba
supra
.
That being so, the trial court misdirected itself in drawing the
inferences I have alluded to above, as the rules for inferential
reasoning in
Blom
supra
have not been correctly applied
in this matter. The inferences are not consistent with the proved
facts, which do not exclude all
other reasonable inferences
being drawn from such proved facts. The correctness of the inferences
drawn by the trial
court, are in my view doubtful. In the
circumstances the interference of this court is warranted in this
matter. The convictions
in respect of count 1 therefore fall to be
set aside. The ammunition referred to in count 2 was found inside the
firearms mentioned
in count 1, so that the convictions in respect of
count 2 also fall to be set aside.
[12] I pause to mention that the state
supported the contentions of the defence with regard to the state’s
failure
to prove its case in respect of joint possession of the
firearms, and did not support the convictions. Mr Lencoe, in
fulfilling
his ethical duty as an officer of the court, pointed out
that accused 2 and 4 have not appealed their convictions and
sentences
in this matter, and he surmises that the lack of funds
could well be the reason. He asserted that the same considerations as
apply
to the appellants in this matter also apply to accused 2 and
4.Furthermore, the conviction and sentence in respect of accused 1
were previously set aside. He implored the court to exercise its
inherent jurisdiction and in the interests of justice and equity,
to
also set aside the convictions and sentences in respect of accused 2
and 4. I am in agreement with his proposal, as it is clear
that
exactly the same reasons that call for the convictions of the
appellants in this matter to be set aside apply equally to accused
2
and 4. This court has the inherent jurisdiction to review judgments
of a lower court and, in my view, this is a fitting case
for this
power of the court to be invoked. The interests of justice also
dictate that accused 2 and 4 should be favoured with the
same
findings as are made in respect of the appellants herein.
[13] One other matter that requires mention
is the application for condonation filed by the appellants for the
late
filing of their Heads of Argument in this matter. The state did
not oppose the application on the basis that it was the state’s
opinion that the appeal enjoyed good prospects of success. In any
event, I am satisfied with the reasons advanced for the late
filing
of the Heads, and am of the view that condonation should be granted.
With regard to sentence, it is not necessary for me
to deal with that
aspect. If the convictions are to be set aside, then the sentences
will fall away.
[14] In the circumstances, the following order is
made:
14.1
The
late filing of the appellants’ Heads of Argument is hereby
condoned;
14.2
The appeal
against the convictions and sentences in respect of counts 1 and 2 is
upheld
14.3
The convictions
and sentences in respect of both appellants on counts 1 and 2 are,
accordingly, set aside;
14.4
The convictions
and sentences in respect of accused 2 (Ntsane Daniel Ntsane) and
accused 4 (Thakholi Victor Semuli), who appeared
as such in the trial
court, but who are not before this court, are set aside;
14.5
The Registrar of
this court is directed to forthwith bring this judgment to the
attention of
14.5.1 the Head of the Correctional Facility at
which Ntsane Daniel
Ntsane
(Ntsane) and Thakholi Victor Semuli (Semuli) are
being
held, and
14.5.2 Ntsane and Semuli;
14.6
The Registrar of
this court is also directed to take all the steps
necessary
to ensure the release from custody of the persons
mentioned
in paragraph 14.5.2 of this order.
S. NAIDOO,
J
I
agree
P MOLITSOANE J
On behalf
of Appellant:
Mr P Peyper
Instructed
by:
Peyper Austen Inc Attorneys
32 Second Avenue
Westdene
Bloemfontein
(Ref: P Peyper/TP0037)
On
behalf of Respondent: Adv.
Lencoe
Instructed
by:
The State