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[2009] ZAGPPHC 69
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S v Malandule and Others (A143/09) [2009] ZAGPPHC 69 (2 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
DATE:
02 March 2009
MAGISTRATE
KAMANYAZANE
Case
No: K653/08
Magistrate's
serial no: 74/08
High
Court Ref No: 1937
THE
STATE VS THEMBINKOSI VINCENT MALANDULE AND OTHERS
REVIEW
JUDGMENT
BOTHA
J:
The four accused were
convicted of the unlawful possession of a firearm (contravening
section 1 of Act 60 of 2000)
They were found outside a
motor vehicle of which accused one had been the driver. The vehicle
was found parked outside a car wash
at 01h00. Accused one confirmed
to the police that it was his vehicle and consented to it being
searched. The firearm was found
on the driver's seat. When asked
whose firearm it was accused one said that it belonged to accused
two, three and four. Accused
three said that it belonged to accused
one. The four accused were arrested.
Accused one gave a plea
explanation to the effect that he had given accused two, three and
four a lift. They were then stopped by
young men who forced them out
of the car. Accused four overpowered the attacker who had a firearm.
That person fled, leaving the
firearm behind. They were still
considering what to do with the firearm when the police arrived.
Accused two gave a plea explanation
confirming that the firearm was
left behind by a robber. Accused three confirmed that they got a lift
and that there were robbers.
Accused four explained that they had to
fight (with the robbers) lest accused one should suspect them.
The police evidence was
that the accused did not mention an attempted robbery and did not lay
any charge at the local police station.
None of the accused gave
evidence.
The magistrate stated in
his reasons that he did not believe the plea explanations of the
accused. He relied on the presumption
contained in section 117(2) of
Act 60 of 2000.
I shall quote section
117(2):
(2) Whenever a
person is charged in terms of this Act with an offence of which the
possession of a firearm or ammunition is
an element, and the State
can show that despite the taking of reasonable steps it was not able
with reasonable certainty to link
the possession of the firearm or
ammunition to any other person, the following circumstances will, in
the absence of evidence to
the contrary which raises reasonable
doubt, be sufficient evidence of possession by that person of the
firearm or ammunition where
it is proved that the firearm or
ammunition was found-
(d) in or on a
vehicle and the person was, at the time-
(i)
the
driver of the vehicle;
(ii)
the
person in charge of the vehicle;
(iii)
in
control of all the goods on the vehicle;
(iv)
the
consignor of any goods in or among which the
firearm or ammunition
was found;
(v)
the
only person who had access to the firearm or
ammunition;
(vi)
the
employer of the driver of the vehicle and present
on the vehicle;
or
(vii)
over
the age of 16 years and present on the vehicle;
The state advocates in
their memorandums support the conviction of all four accused.
The magistrate correctly
rejected the plea explanations. They conflicted with the explanations
given to the police. If they were
true the accused would have
reported the alleged attempted robbery.
The question is whether
the presumption contained in section 117(2) justifies the conviction
of all or any of the accused.
The presumption created
in section 117(2) deals with various situations where a firearm is
found without a direct link to a specific
person. The wording of the
subsection is elaborate and clearly aimed at surmounting the
considerations that led to its predecessor
in Act 75 of 1969 being
declared unconstitutional in
S
v
Mbatha
1996(1) SACR 371(CC)
Assuming that section
117(2) is constitutionally sound. I still do not think that it
displaces general logic. It also does not make
the considerations
that were considered in cases like
S
v
Mbuli
2003(1) SACR 97 SCA
and
S
v
Molimi
2006(2) SACR 8 SCA
irrelevant.
It surely is a
possibility that the four accused were in joint possession of the
firearm. But it is equally possible that it was
only in the
possession of one of them, or two or three of them.
In this case the fact
that the firearm was on the driver's seat, together with the false
explanations to the police and the court
and the absence of evidence
under oath, justifies the inference, to the exclusion of any other
reasonable inferences, that accused
one at least, being the driver of
the vehicle, whether alone or together with someone else, was in
possession of the firearm. In
the case of the other accused, it
cannot be inferred with equal certainty that any of them must have
been in possession of the
firearm. Even if any of them possessed it
jointly with accused one, it cannot be determined who they were.
In the circumstances the
convictions of accused two, three and four must be set aside.
There is no reason not to
confirm the sentence of accused one.
The following order is
made:
1. The conviction and
sentence of accused one are confirmed.
2. The convictions and
sentences of accused two, three and four are set aside.
C
BOTHA
JUDGE
OF THE HIGH COURT
I
agree
B.R
DU PLESSIS
JUDGE
OF THE HIGH COURT