About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 744
|
|
Fidelity ADT (Pty) Ltd v Minister of Police and Others (85810/2017) [2018] ZAGPPHC 744 (6 February 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
Appeal Case No:
A383/2016
Court a
quo
Case No:
14/0509/2011
Date of hearing:
15 February
2018
Date of judgment:
23 March
2018
In
the appeal between:
ALPHEUS
MPHAHLELE
Appellant
and
THE
STATE
Respondent
JUDGMENT
DIEDERICKS (AJ)
[1]
On
the 19
th
of September 2012 the Appellant pleaded not guilty in the Regional
Court, Pretoria on the following charges:
1.
Count
1:
Robbery with aggravating
circumstances, read with the provisions of Section 51(2) of the
Criminal Law Amendment Act, Act 105 of
1997;
2.
Count
2:
Robbery with aggravating
circumstances, read with the provisions of Section 51(2), Act 105 of
1997 ;
3.
Count
3:
Robbery with aggravating
circumstances, read with the provisions of Section 51(3), Act 105 of
1997;
4.
Count
4:
Unlawful possession of a firearm;
5.
Count
5:
Unlawful
possession of ammunition.
[2]
The
Appellant was convicted as charged on the 17
th
of July 2013 by the Presiding Magistrate, Mr. T.J. Ndwandwe.
[3]
On
the 15
th
of October 2015 Appellant was sentenced as follows:
1.
Counts
1, 2 and 3 were taken together for imposition of sentence. A period
of 10 (ten) years of imprisonment was imposed;
2.
Count
4, 12 (twelve) months of imprisonment;
3.
Count
5, 3 (three) months of imprisonment.
[4]
The
Appellant petitioned to the High Court of South Africa, Gauteng
Division, Pretoria for leave to appeal. On 13 May 2016 leave
to
appeal was granted by the Honourable Judges Jordaan and Maumela in
respect of conviction and sentence on Counts 4 and 5.
[5]
The
salient facts underlying the charges on which the appeal is based is
that on the 26
th
of January 2011 the Appellant was in the company of three other
assailants (co-accused). They robbed a bread delivery vehicle on
three occasions. The robberies took place shortly after the bread was
delivered at certain shops and cash was available in the
vehicle.
Throughout each of these robberies only one of the robbers was in
possession of a firearm and a second robber was in possession
of a
knife. At all three robberies the Second Accused (the Appellant being
Accused No. 1 in the Court a
quo)
was
in possession of the firearm and Accused No. 4 was in possession of
the knife.
[6]
After
the last robbery the police intervened, causing the robbers to flee
on foot, whereafter they sought hiding places at a nearby
house. The
police apprehended Accused No. 2, who was in possession of the
firearm in the outside toilet on the premises of the
said house,
whilst he had the firearm in his possession. Another Accused was
arrested while he was running away and the Appellant
was arrested
whilst hiding inside the house.
[7]
It
must be said that the
modus operandi
of the Accused was very much the
same in all three robberies and each Accused. had the very same role
to play in each of the said
robberies.
[8]
On
account of the above, it was then found that the Accused was in joint
possession of the said firearm and therefore that the Appellant
was
guilty on Counts 4 and 5, i.e. the unlawful possession of a firearm
and ammunition.
[9]
At the trial both advocates for Appellant and the Respondent relied
on the case of
S.
v. Mbule,
2003(1) SACR
(SCA)
specifically in the paragraph where the Court held as
follows:
"What is prohibited by
section 2 (with regard to firearms) and section 32(1)(c) (with regard
to explosives) of the Arms and
Ammunition Act,
75
of 1969, is the existence of
a
state of affairs (i.e. having
possession of an armament, or a firearm, as the
case
may be) and the conviction will be
competent only if that state of affairs
is
shown to exist. That state of affairs
will exist simultaneously in respect of more than one person if they
have common (or joint)
possession of the offending article. Their
contravention of the relevant section in those circumstances does not
arise from an
application of the principle of common purpose (which
is concerned with liability for joint activity), but rather from an
application
of ordinary principles relating to joint possession.
Common purpose, and joint
possession,
both require that the parties
concerned shared
a
common
state of mind but the nature of that state of mind will differ in
each
case.
The
issues
which
arise in deciding whether
a
group
possessed firearms or explosives must be decided with reference to
the answer to the question whether 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. Only if both requirements are
fulfilled can there be joint
possession involving the group
as
a
whole and the detentors.
"
[10] The
above
dictum
actually emanates from the decision of
S.
v. Nkosi,
1998(1) SACR 284 (W) at p. 286 H-
Land it
was a
dictum
of Marais J.
[11]
This
dictum
(except for the reference to common
purpose) was approved by the Supreme Court of Appeal in the
above-mentioned case of
S. v.
Mbule,
2003(1) SACR
97
(SCA) at p. 115 B
-
C where Nugent JA indicated that in his view Marais J had correctly
set out the legal position. However, Nugent JA, after pointing
out
that a mere intent on on the part of a group to use weapons for the
benefit of all of them would not suffice for a conviction,
also said
the following :
"[72] In the present
case the Trial Court found
as
a
matter of inference that those requirements had been fulfilled in
respect of all the accused in relation to the hand grenade.
Although
the correctness of that finding was placed in issue when the accused
appealed, it was not dealt with expressly by the
Court a quo. 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 that charge, in my view, they were entitled to
be acquitted."
[12]
The above principles were again
revisited in the matter of
S. v.
Makhubela
&
Another,
2017(2) SACR 665 (CC),
this
time by the Constitutional Court. The following remarks in this
regard were made at
paragraphs 45 to
48:
"[45] What remains
are the Applicants' convictions for the unlawful possession of
firearms and ammunition, that is, counts
4 and
5.
It is common cause that they did not
have any firearms in their
possession.
....
They were, however, convicted of
these charges in the trial court on the basis of the doctrine of
common purpose.
[46] In convicting
the Applicants for unlawful possession of firearms and ammunition on
the basis of the doctrine of
common purpose, the trial court departed
from settled iuris prudence. The test for establishing liability for
the possession of
firearms and ammunition
was
established in
S.
v. Nkosi
as follows:"
[13] The
Constitutional Court then repeats the
dictum
mentioned above
and proceeds as follows in paragraph [47]:
"[47]
This test has since been cited with approval in numerous judgments of
the High Court and the Supreme
Court of Appeal. In these judgments,
the courts have found perpetrators guilty of crime involving the use
of firearms on
the
basis of the doctrine of common purpose, but nevertheless found that
the perpetrators could not be found to be guilty of the
unlawful
possession of firearms on the basis of this doctrine. The test takes
into account the fact that 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 that 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 of circumstances." "{72] In the present
case the Trial Court found
as
a
matter of inference that those requirements had been fulfilled in
respect of all the accused in relation to the hand grenade.
Although
the correctness of that finding was placed in issue when the accused
appealed, it was not dealt with expressly by the
Court a quo. 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 that charge, in my view, they were entitled to
be acquitted.'
[48]
Burchell defines unlawful possession of
a
firearm as an example of a
'circumstance crime' in relation to which the principle of common
purpose cannot strictly apply in the
same manner in which it applies
to 'consequence crimes'."
[14] In
paragraph [50] the Constitutional Court goes further to mention as
follows:
“
[50]
The
Supreme Court of Appeal followed
a
similar approach in
Kwanda
when it held that: '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 purposes of committing the
robbery, does not lead to the inference that he possessed
such
firearms jointly with his co-accused'.
”
[15] The
Constitutional Court thereafter proceeds to mention various other
cases with similar
facts and comes to the conclusion that there is
thus in that particular case insufficient factual basis to sustain
the conviction
of unlawful possession of firearms and ammunition on
the basis of the doctrine of common purpose.
[16]
I am of the view that the Magistrate
in
casu
erred in applying the doctrine
of common purpose to the crimes of possession of a firearm and
ammunition and thereby applied the
doctrine of common purpose to the
required joint possession principle.
[17]
Under the circumstances the appeal is
upheld and the convictions in respect of unlawful possession of
firearms and ammunition cannot
stand and must be set aside. Therefore
the conviction and sentences on Counts 4 and 5 are set aside. The
appeal against these convictions
(Counts 4 and 5) therefore succeeds
and so does the sentence on these charges. The setting aside of the
sentences, however, will
have no practical effect on the Appellant's
incarceration in terms of the sentences imposed on him in respect of
Counts 1, 2 and
3.
F. DIEDERICKS
ACTING JUDGE OF THE GAUTENG
DIVISION, PRETORIA
I
agree
B. WANLESS
ACTING JUDGE OF THE GAUTENG
DIVISION, PRETORIA