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[2018] ZAGPPHC 693
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Ramoshaba v S (A698/2016) [2018] ZAGPPHC 693 (12 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:
A698/2016
Court a
quo
Case No:
SH 726/10
Date of Hearing: 12 February 2018
Date
of Judgment: 23 March 2018
In
the appeal between:
PHINEAS
RAMOSHABA
Appellant
and
THE
STATE
Respondent
JUDGMENT
DIEDERICKS
(AJ)
[1]
The Appellant (Accused 3 in the trial) was charged in the Regional
Court, Benoni,
on charges of robbery with aggravating circumstances,
contravention of Section 3 of the Firearms Control Act, Act 60 of
2000 (possession
of an unlicensed firearm) and a further Count 3,
i.e. contravention of Section 90 of the Firearms Control Act, Act 60
of 2000 (possession
of ammunition).
[2]
On
the 11th of March 2013 Appellant was convicted on Counts 1 and 2 and
sentenced to 15 (fifteen) years imprisonment on Count 1
and 1O (ten)
years imprisonment on Count 2.
[3]
Following
his petition to the Judge President of the Gauteng High Court,
Appellant was, on 19th August 2016, granted leave to appeal
against
the conviction and sentence on Count 2.
[4]
At the outset and when starting his argument, counsel for Appellant
pointed out that
on the 8th of September 2015 the appeal against
conviction in respect of Count 2 of the Appellant's Co-Accused,
Accused 1, 2 and
4 was upheld in the High Court, Gauteng.
[5]
The
judgment in that case, case number A162/2015 was then made available
to me to peruse. That was a judgment by my brother Fourie
(J) with
which my sister Hassim (AJ) agreed. Notwithstanding the contents of
the judgment of my brother Fourie and the conclusions
drawn therein,
I have perused the papers and listened to the arguments.
[6]
The
central issue to be decided is whether it was proven beyond
reasonable doubt that all the Appellants had the intention to
exercise
joint possession of the firearm in question.
[7]
The
salient facts of this case is briefly that on the day in question the
Appellants entered a hardware shop where one of them pointed
a
firearm at a customer demanding the keys of her car. The other
Appellants were busy assaulting people inside the shop and forcing
them into a storeroom. Various items were then taken, whereafter the
Appellants left in the motor vehicle of the customer who was
pointed
with a firearm.
[8]
The
Appellants were followed by another motor vehicle driven by a member
of a security company. The Appellants then decided to abandon
their
motor vehicle in an attempt to run
away,
but they were arrested shortly
thereafter. A firearm was then found on the pavement next to the
Appellant's stolen getaway motor
vehicle. This was a 9-mm Parabellum
semi-automatic pistol with ammunition. The fingerprints of the Second
Accused were found on
the abandoned motor vehicle nearby the position
where the firearm was retrieved. The Appellant was Accused No. 3 in
the Court a
quo.
[9]
The
Magistrate concluded as follows with regard to joint possession of
the firearm:
"From their evidence it is quite clear
that a firearm
was
found
on the scene. It appears that most likely that specific firearm was
used by Accused 2 as his fingerprint was found on the
left front door
of the Sentra. This is, however, an incident where it is quite clear
that all participants of the robbery knew
that one of them was in
possession of this said firearm and they all agreed to that. The
possession of the said firearm can therefore
be allocated to all
participants of the said property.
"
[10] On
appeal it was argued on behalf of the Appellant that joint possession
was not proven
and that the Magistrate has misdirected himself in
this regard. During argument I was referred to case law dealing
predominantly
with
common purpose.
Both Appellant and
Respondent relied on the same case law dealing predominantly with
common purpose, the case law are as follows:
S
v
Mzwempi,
2011(2) SACR 237
(ECM),
S.
v.
Mgedezi
&
Others,
2011(2) SACR 237 (ECM), also
S.
v.
Mgedezi
&
Others,
1989(1) SA 686 (A) and
S.
v.
Safatsa
&
Others,
1988(1)
SA 868.
[11]
None of the parties referred to the case
of
S.
v.
Nkosi,
1998(1) SACR 284 (W)
or to the case of
S.
v. Mbule,
2003(1) SACR 97
(SCA).
[12]
In
S.
v.
Nkosi,
1998(1) SACR 284 (W)
at 286 H to L
Marais J said the
following with regard to the intention to exercise point possession:
"The issues which arise in deciding
whether the group (and hence the Appellant) possessed the guns must
be decided with reference
to the answer to the question whether the
State has established facts from which it can be 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, or common
purpose between the members of the group possess all the guns.
"
[13] This
dictum (except for the reference to common purpose), was approved
by the Supreme Court of Appeal in
S.
v. Mbule,
2003(1) SACR
97
(SCA) at 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
intention on the part of a group to use weapons for the benefit of
all of them will not suffice for a conviction.
He also said the
following in this regard:
"[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."
[14]
In
the present matter the Court
a quo
found as a matter of inference that
all the requirements referred to above have been fulfilled. I cannot
agree with this conclusion.
The fact that the fingerprints of the
Second Accused were found on the·1eft front door of the motor
car does not justify
the only reasonable inference that he is
therefore the person who possessed the firearm. It could have been
anyone of the other
Accused who possessed the firearm.
[15]
Furthermore,
the possibility that the firearm was possessed by only one of them
does not justify the inference that they all had
as a group the
intention to exercise possession of the firearm through the actual
possession of one of them. Mere knowledge, as
pointed out by JA
NUGENT by the others that one of them was in possession of a firearm
is not sufficient to make them all joint
possessors.
[16]
For
these reasons I am of the view that the Magistrate might have
misdirected himself in this regard and therefore the appeal should
succeed.
[17]
Under
the circumstances, I make the following order:
1.
The
appeal in respect of Count 2 (unlawful possession of a firearm) is
upheld and the conviction and sentence of the Appellant on
Count 2
only are hereby set aside.
P.M MABUSE
JUDGE OF THE GAUTENG DIVISION, PRETORIA
I
agree
F. DIEDERICS
ACTING JUDGE OF THE GAUTENG DIVISION,
PRETORIA
Advocate
for Appellant:
Adv JP van der
Westhuizen
Advocate
for Respondent
Adv M Botha