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[2018] ZASCA 161
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Khumalo v S (1262/2017) [2018] ZASCA 161 (28 November 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 1262/2017
In
the matter between:
SANELE
SELBY
KHUMALO APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Khumalo v The State
(1262/2017) ZASCA 161 (28 November
2018)
Coram:
Ponnan, Seriti, Saldulker and Mbha JJA
and Mothle AJA
Heard:
8 November 2018
Delivered:
28 November 2018
Summary:
Criminal
law and procedure – conviction – unlawful possession a
firearm – appeal against conviction – leave
to appeal
refused by trial court – petition in terms of
s 309C
of the
Criminal Procedure Act 51 of 1977
– evidence establishing that
firearm was a semi-automatic – no prospects of success in
contemplated appeal against
conviction.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Tlhapi and Louw JJ sitting as court of appeal):
The
appeal is dismissed.
JUDGMENT
Mbha
JA (Ponnan, Seriti, Saldulker JJA and Mothle AJA concurring):
[1]
The appellant was convicted in the regional court sitting in Piet
Retief, Mpumalanga (the trial court) on three counts. On count
1,
theft of a Norinco 9 mm firearm and six rounds of ammunition, he was
sentenced to four years’ imprisonment. On count 2,
unlawful
possession of an unlicenced firearm in terms of
s 3
read with
ss 1
,
103
,
117
,
120
(1)
(a)
and
s 121
read with schedule 4 and s 151 of the Firearms Control Act
60 of 2000 (the Act), he was sentenced to ten years’
imprisonment.
On count 3, unlawful possession of ammunition, he was
sentenced to one year imprisonment. The court ordered the sentences
to run
concurrently and the appellant is therefore currently serving
a sentence of ten years’ imprisonment.
[2]
The appellant’s application to the trial court for leave to
appeal against conviction was dismissed. He then petitioned
the
Gauteng Division of the High Court, Pretoria (the high court) in
terms of s 309C of the Criminal Procedure Act 51 of 1977 (the
CPA)
for leave to appeal. Leave to appeal was granted in respect of
sentence only by Tlhapi and Louw JJ.
[3]
The appellant thereupon petitioned this court in terms of
s 16(1)
(b)
of the
Superior Courts Act 10 of
2013
[1]
for special leave to appeal the high court’s
order dismissing the petition for leave to appeal against the
conviction. On
2 November 2017 the two judges of this court, who
considered the petition, granted the appellant special leave to
appeal against
the dismissal by the high court of his petition
against conviction.
[4] The
issue to be determined by this court is thus whether the appellant’s
application for leave to appeal to the high court
ought to have
succeeded. Accordingly, what this court has to decide is whether or
not the high court was correct in dismissing
the appellant’s
petition to it. If that court erred, then this court will set aside
the order of the high court; grant the
appellant leave to appeal and
refer the matter back to the court a quo to hear the appeal in
respect of conviction on its merits.
Put
differently, what we are required to determine is whether or not
there are reasonable prospects of the appellant’s appeal
against his conviction succeeding. The test has been framed in the
following terms:
[2]
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision based on the facts and the law that a court
of
appeal could reasonably arrive at a conclusion different to that of
the trial court. In order to succeed therefore, the appellant
must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote but
have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that
the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must in other words, be a sound, rational
basis for
the conclusion that there are prospects of success on appeal.’
[5]
At the commencement of the hearing before this court, counsel for the
appellant correctly conceded that the convictions in respect
of
counts 1 and 3 for theft and the unlawful possession of ammunition
respectively were proper and that the contemplated appeal
to the high
court against conviction would be directed solely in respect of count
2. I turn briefly to consider the facts giving
rise to the
conviction. It is common cause that the appellant, a taxi driver, was
in the employ of the complainant Mr Mzuleki Daniel
Nkosi. On the
morning of 19 March 2014, Mr Nkosi left his firearm containing six
rounds of ammunition inside his Nissan Tiida motor
vehicle. He then
returned to his house to collect money for petrol from his wife. In
the meantime the appellant moved the vehicle
from inside the yard and
parked it outside the premises. He similarly moved other taxi
vehicles and thereafter left in his assigned
minibus taxi. Upon
discovering that the firearm was missing, the complainant then went
to the police station to lay a charge of
theft of the firearm against
the appellant.
[6]
On 21 March 2014 the complainant returned to the police station and
reported that the appellant had been seen in possession
of the stolen
firearm at the taxi rank. He then accompanied members of the South
African Police Service to the taxi rank. The police
officers searched
the appellant’s vehicle in his presence but did not find the
firearm. The appellant was taken to the police
station and upon being
told that he well knew what the police were looking for, he took them
back to the vehicle where he produced
the firearm and handed it to
the police. In the presence of the appellant and the police, the
complainant positively identified
the firearm as his property, which
now contained four live rounds of ammunition.
[7]
The appellant’s version was that he discovered the
complainant’s firearm in his assigned minibus taxi while he was
looking for a wheel spanner in the process of changing a tyre. His
intention was to return it to the complainant but was arrested
before
he could do so. He speculated that the complainant’s grandson
may have placed the firearm in the taxi.
[8]
The basis of the challenge against the conviction in respect of count
2 is that although the appellant admitted he was in possession
of the
complainant’s firearm, the State failed to prove beyond a
reasonable doubt that the firearm in question was a semi-automatic
firearm. Counsel for the appellant submitted that the admission
notwithstanding, it was still incumbent upon the magistrate to
satisfy himself that the firearm was indeed a semi-automatic as
defined in the Act.
[3]
[9] In
my view this submission cannot succeed. The charge sheet provided:
‘…
the accused did unlawfully have in
his possession the following firearm to wit Norinco 9mm without
holding a licence, permit or
authorization issued in terms of the Act
to possess that firearm.
Possession of
Semi Automatic Firearm
.’ (my
emphasis)
The
State thus clearly alleged that the firearm was a semi-automatic. The
formal admission by the appellant was an admission in
respect of the
firearm, the subject of the charge, namely a semi-automatic firearm.
In addition, immediately after the firearm
was found in the
appellant’s possession, the complainant positively identified
it through the serial numbers.
[10]
In light of these facts, it was no longer necessary, in my view, for
the State to lead further evidence to prove that the firearm
was a
semi-automatic firearm. (See
S v Thembalethu
[2008]
ZASCA 9
;
[2008] 3 All SA 417
(SCA) para 13).
[11]
It is clear that there are no reasonable prospects of the proposed
appeal against the conviction in respect of count 2 succeeding.
[12] In
the result the appeal against the high court’s refusal of the
appellant’s petition against conviction, is dismissed.
_______________
B H Mbha
Judge of Appeal
APPEARANCES:
For
Appellant: M van Wyngaard
Instructed
by: B P Ndaba Attorneys, Benoni
c/o
Legal Serve Centre, Bloemfontein
For
Respondent: P W Coetzer
Instructed
by: Director of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
[1]
Section 16(1)
(b)
states:
‘Subject to s 15(1), the Constitution and any other law –
…
(b)
an appeal against any decision of a Division on appeal to
it, lies to the Supreme Court of Appeal upon special leave having
been
granted by the Supreme Court of Appeal….’
[2]
S v Smith
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) para 7.
[3]
‘Semi automatic’ means self-loading but not capable of
discharging more than one shot with a single depression of
the
trigger.