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[1986] ZASCA 82
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S v Adams (91/86) [1986] ZASCA 82; [1986] 2 ALL SA 602 (A) (26 August 1986)
I
N THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the appeal of:-
ADAM ADAMS
appellant
versus
THE STATE respondent
Coram
: CORBETT, VILJOEN, BOTHA, JJA, GALGUT et NICHOLAS,
AJJA.
Date of hearing
: 13 May 1986
Date of judgment
: 26
Aug.1986
JUDGMENT
CORBETT JA
:
The appellant, a 32-year-old teacher from Riebeeck
West, was convicted in the Wellington Magistrate's Court of being in possession
of certain dangerous weapons. to wit a pair of scissors, a wheel spanner and a
broken cake knife, in contravention of sec. 2(1) of
the Dangerous Weapons Act 71
of 1968 ("the Act"). He was sentenced
/ to
2
to a fine of R120 or 60 days imprisonment. He appealed
against the conviction to the Cape Provincial Division, but his appeal was
dismissed and that Court refused leave to appeal. Such leave was, however,
granted on appellant 's petition to the Chief Justice.
At appellant's trial before the
Magistrate
the only persons to give
evidence were Const. W M van Zyl of the South African Police, who was called by
the State, and the appellant
himself, who testified in his own defence,
Const. Van Zyl's evidence was shortly to the following effect. On a
Sunday evening in November 1983 and while he was on duty he received
a complaint
of a disturbance in Flamingo Street in Wellington. He went there and on arrival
found the appellant in the street. It
appeared to Van Zyl that appellant had
been involved in a fight. His shirt was torn. In his right hand he held a wheel
spanner, a
pair of scissors and the handle and blade
/ of
3
of a broken cake knife. Appellant was under the influence
of liquor and very boisterous ("baie oproerig") and began shouting at persons
in
the house nearby, evidently upbraiding them for calling the police for "sulke
nonsens" . Van Zyl took possession of the articles
held in appellant's right
hand and arrested him. The appellant was also found to have certain pills in his
possession.
As to appellant's condition on the evening in question, Van Zyl
conceded that he was very drunk and at one stage leant against a
fence. He could
nevertheless walk; and did walk when Van Zyl took him to the police van.
Appellant spent the night in the police
cells and Van Zyl saw him again the
following morning, by which time he had sobered up. Appellant then asked Van Zyl
why he was in
gaol (He did not appear to know or remember why he had been
arrested.) Van Zyl told him that he had been arrested for being in possession
of
dangerous weapons. Appellant did
/ not
4
not know what weapons he had had in his possession and
asked to see them. Van Zyl gained the impression that appellant's ignorance
was
genuine and he showed appellant the alleged weapons. Appellant further told Van
Zyl that he could recall drinking the previous
evening with friends who lived in
Flamingo Street, but could recall nothing thereafter.
In regard to possession of the alleged weapons, Van Zyl testified that
when he walked up to the appellant the latter was holding all
three articles in
his one hand. He made no attempt to hide them; and did not resist or attempt to
retain the articles when Van Zyl
took them from him. The following passage in
Van Zyl's evidence under cross-examination is of considerable
importance:
"V. Sou u se besk. het geweet dat hy die wapens kan gebruik, bewustelik
geweet het?
A. Hy het goed in sy hand gehad, maar niemand gedreig daarmee nie, maar kon
dit in hand gehou het en nie be-wus daarvan gewees het
nie."
/ Prior
5
Prior to that,
in evidence- in- chief, Van Zyl had said:
"Besk. was onder invloed van drank op daar die stadium. Hy kon die
volgende dag niks onthou van wat hy gehad het by horn nie. Besk.
was bewus van
wat hy gedoen het, maar volgende dag kon hy niks onthou
nie."
And in reply to
questions by the Magistrate Van Zyl opined that on the evening in question
appellant had understood what he, Van Zyl,
had said to him.
In his evidence appellant described visiting friends in Flamingo Street
on the day in question and drinking a large amount of intoxicating
liquor. He
also took certain pills, medication for bronchial asthma, from which he is a
sufferer. At a certain stage his host produced
a bottle of K.W.V. brandy and
poured him a drink. From there on he could not remember what happened or how
many tots of brandy he
consumed. He vaguely remembered seeing Const. Van Zyl and
being taken away by him; but he could not remember what he and the policeman
said to one another, nor that he had
/ shouted
6
shouted to the people in the house. He slowly came to in
the police cells, but could not understand why he was there or why his shirt
was
torn. The following morning he asked the police why he had been arrested and was
told that he was being charged with the possession
of dangerous weapons. He
asked what the weapons were and was shown them. He stated in this
regard:
" Ek onthou nie dat ek in besit was van wapens voor hof nie - ek was nie
bewus van wat ek by my gehad het nie, kon enige iets wees,
moes polisieman glo.
Ek weet self nie wat ek met die wapens wou maak nie. Ek weet nie of ek die
wapens in my hand gehad het nie."
As to his state of intoxication he testified that he had never before
drunk so much on one occasion. The pills which he took made
him drowsy, but he
was unable to say whether they aggravated his state of intoxication.
Under cross-examination he admitted that
the
wheel spanner belonged to him and was
normally kept in the
/ boot
7
boot of his motor-car, which had been parked in front of
his friend's house; but he was unable to explain from where the pair of
scissors
and the broken cake knife had come. He was unable to say how any of these
articles had come into his possession. He normally
kept the keys of his
motor-car on his person.
In his reasons for judgment the Magistrate said that Const. Van Zyl made
a good impression on the Court and found him to be a credible
witness. The
appellant, on the other hand, was found to be an unimpressive witness, who,
although intelligent, attempted to evade
questions and, in the Court's judgment,
did not tell the whole truth. In advancing reasons for this latter conclusion
the Magistrate
stated, firstly, that he could not accept that if the appellant
was as drunk as he alleged and could not remember anything the next
day, he
would have been able to unlock the boot of his motor-car and take out the wheel
spanner.
/ There
8
There is, of course, no evidence that on this particular
occasion the wheel spanner was in the boot of appellant's motor-car; nor
was
there any evidence to show that, if it was, appellant took it out; or that, if
he did take it out, at what stage of the day in
question and in what state of
insobriety he did so.
Secondly, the Magistrate found it very strange under the circumstances
that the appellant could vaguely remember Const. Van Zyl being
there, but could
not remember anything further. Without proper expert evidence I do not think
that evidence of a vague partial recollection,
or conversely a patchy amnesia,
induced by alcohol can be summarily rejected.
Thirdly, the Magistrate said:
"Besk.
het dreigend teenoor die ander mense daar opgetree volgens die Konstabel, maar
nie teenoor hom (die Konst.) nie."
/ In
9
In this regard the Magistrate misdirected himself. What
Van Zyl actually said, as appears from one of the above-quoted passages from
the
record, was that the appellant had the articles in his hand, but threatened
no-one with them. A similar misdirection appears
later in the Magistrate's
reasons, when he said:
"Sy optrede daar dui duidelik op 'n man wat moeilikheid gehad het met
mense daar vir wie hy kwaad was en
sou
aanrand volgens Konstabel". (My
italics.)
Const. Van Zyl is
recorded as having merely said —
"As ek hom daar gelos het,
kon
hy iemand seergemaak het". (My
italics.)
The same
misdirection is to be found in the Magistrate' s summing up of Van Zyl's
evidence.
The Court further made the points:
(a)
that had the appellant not known what was happening he would have behaved
differently to the constable and would not have co-operated
with him; and (b)
that it could be accepted that the appellant
/ did
10
did not drink as much as he alleged in evidence. The Magistrate
accordingly concluded:
"Die hof is oortuig dat die besk. wel onder die invloed van drank was,
maar ook bo redelike twyfel oortuig dat besk. baie goed geweet
het wat hy
doen."
The relevant portion of sec. 2(1) of the Act provides:
"Any person who is in possession of any dange
rous weapon
shall be guilty of an offence,
unless he is able to prove that he at no time
had any
intention of using such weapon.... for
any unlawful
purpose "
And sec. 1 defines a "dangerous weapon" as meaning:
" any object, other than a firearm,
which is likely to cause serious bodily in jury if it were used to
commit an assault."
The width of this definition has from the beginning caused much
difficulty in the interpretation and practical application of the
Act (see eg.
the discussion in
/ S
v Matseare
11
S v Matseare and Others
1978 (2) SA 931
(T), at pp
934-8) and it is surprising that in the 18 years since its enactment no
endeavour has been made by the Legislature to
amend the Act in such a way as to
meet these difficulties. Taken literally, the definition results in virtually
everyone in South
Africa being in possession of a dangerous weapon and being
guilty of a contravention of sec. 2(1) of the Act, unless he is able to
prove
(in a court of law) that he at no time had any intention of using such weapon
for an unlawful purpose. It is difficult to believe
that the Legislature
intended so drastic a result.
Be that as it may, sec. 2(1) clearly postulates that for the offence to
be committed the person concerned must be in possession
of a dangerous weapon.
In
S v Nabo
1968 (4) SA 699
(E) KOTZE J (as he then was), EKSTEEN J
concurring, held, with reference to sec. 2(1) of the Act, as follows (at p 700
F):
/ "In
12
" In die afwesigheid van 'n uitdruklike aan-duiding dat blote fisiese
bewaring belet word, is ek van mening dat die uitdrukking 'besit'
in sub-art.
(1) van art. 2 van die Wet in sy gewone sin van fisiese bewaring sowel as die
bedoeling om te besit (
animus possidendi
) uitgele behoort te word. (
R.
v Amies
,
1930 T.P.D. 151
;
R v Koza
,
1933 T.P.D. 203
;
R.v.Seboko
and Another
1936 A.D. 173
; R
. v. Kasamula
,
supra
op bl.
257.)"
This decision was approved by the Full Bench of the Eastern Cape Division
(MUNNIK, CLOETE and KOTZE JJ) in the case of
S v Mbulawa
1969 (1) SA 532
(E), at p
535 D. (See also
S v R
1971 (3) SA 798
(T), at
p
(at p 700 H) 803.) In
Nabo
's case/ the Court evidently
interpreted
animus possidendi
,
in relation to a
weapon, as meaning —
" die bedoeling om dit te besit
in die sin dat hy dit wou behou "
In general the concept of "possession" ("besit"), when found in a penal
statute, comprises two elements, a physical element (
corpus
) and a mental
element (
animus
).
/
Corpus
13
Corpus
consists either in direct
physical control over the article in question or mediate control through
another. The element of
animus
may be broadly described as the intention
to have
corpus
,
ie to control, but the intrinsic quality of such
animus
may vary, depending upon the type of possession intended by the
statute. At common law a distinction is drawn between civil possession
(
possessio civilis
) and natural possessxon (
possessio naturalis
) .
Under the former the
animus possidendi
consists of the intention on the
part of the possessor of keeping the article for himself as if he were the
owner. Under the latter
the
animus
need merely consist of the intention
of the possessor to control the article for his own purpose or benefit, and not
as owner. In
penal statutes, however, the term "possession" would seldom, if
ever, be construed as
possessio civilis
and this may, therefore, be left
out of account. In the case of certain such statutes it has been held
that
/ "possession"
14
"possession" connotes
corpus
and an
animus
akin to that
required for
possessio naturalis
. In others the courts have interpreted
"possession" to comprehend
corpus
plus the
animus
to control,
either for the possessor's own purpose or benefit, or on behalf of another (this
latter alternative being equivalent
to what is often termed "custody" or
detentio
) or as meaning "witting physical detention, custody or control"
(see
S v Brick
1973 (2) SA 571
(A), at p 580 C). In Brick's case, which
concerned the possession of indecent or obscene photographic matter in
contravention of
sec. 2(1) of Act 37 of 1967? OGILVIE THOMPSON CJ (delivering
the majority judgment of
this Court) stated (at p 580 C-D):
"Once it is shown that the holder was aware of the existence of such
photographic matter in his detention custody or control, it
is not, in my view,
essential for a conviction under sec. 2(1) of the Act that the State should - as
was held in
S. v. R.
-affirmatively prove that the holder intended to
exercise control over the photographic matter in question for his own purpose or
benefit."
/
(Generally
15
(Generally as to the above see also
R v Binns and Another
1961 (2)
SA 104
(T);
S v R
1971 (3) SA 798
(T); and the dissenting judgment of
JANSEN JA in
S v Brick
,
supra
, at pp 581-3.)
In
S v Brick
OGILVIE THOMPSON CJ further pointed out that (at p
579 H) —
"The precise meaning to be assigned to the word 'possession' occurring in
a penal statute is often a matter of considerable difficulty.
The difficulty may
sometimes be lessened if the word is used in association with 'custody'. In the
ultimate analysis, however, the
decision vitally depends upon the intention of
the Legislature as reflected in the context of the particular statutory
enactment
concerned. "
As I read the decision in
Nabo
's case,
supra
, the Court
there held that "possession" ("besit") in sec. 2(1) of the Act meant
possessio
in the narrow sense, akin to natural possession, and not in the
wider sense, which would include mere physical
detentio
or custody, even
though witting. Having regard to the provisions
/ of
16
of the Act - and in particular the drastic nature
of sec. 2(1), read with the definition of "dangerous weapon" -there is much to
be
said for this interpretation. On the facts of the present case, however, it
is not necessary to decide this issue. Whether "possession"
in sec. 2(1) be
construed as
corpus
together with
animus possi-dendi
, in the sense
of an intention to exercise control for the possessor's own purpose or benefit,
or as the witting custody described
in
S v Brick
, the alleged possessor
must at least be aware that he has the weapon concerned in his physical control.
As a basic minimum there
must be this mental element. Moreover, under sec. 2(1)
the
onus
is clearly on the State to prove that the accused person was in
possession of a dangerous weapon, and this
onus
would include the burden
of establishing beyond a reasonable doubt the existence at the relevant time of
this mental element. And
I would add that this mental element is something
different from that required in order to con-
/ stitute
17
stitute
mens rea
(see
S v Smith
1965 (4) SA 166
(C), at pp
169H - 172E;
S v Job
1976 (1) SA 207
(NC), at p 208 C-G;
S v
Hanekom
1979 (2) SA 1130
(C), at pp 1135 C - 1136 A;
S v Gentle
1983
(3) SA 45
(N) at p 46 H;
S v Young
(4) SA 120 (ZSC), at pp 122 H - 124 A;
S v Qunta
(3) SA 334 (C), at pp 337 H - 338 D).
I return now to the facts of the present appeal. The Magistrate found
that on the evening in question the appellant was in possession
of the three
alleged dangerous weapons. There is no question that the appellant had physical
detentio
of the wheel spanner, the pair of scissors and the broken cake
knife when Const. Van Zyl found him standing in Flamingo Street; and
for the
purposes of my judgment I shall assume in favour of the State that these
articles constituted dangerous weapons in terms
of sec. 2(1) of the Act. (And
for convenience I shall hereafter refer to them as "the weapons".) But did the
State establish beyond
a reasonable doubt that
/ at
18
at the time appellant had the required
animus
?
Were it so that the evidence established that at the time the appellant
was sober, the inference that he had the required
animus
would be
inescapable. But the evidence shows, that he was not sober. The Magistrate found
that the appellant was "onder die invloed
van drank". Const. Van Zyl, who
actually observed the appellant at the time, agreed in his evidence that
appellant "was baie dronk".
The Magistrate did not address himself specifically
to the question as to whether, in his inebriated state, the appellant had the
necessary
animus
to found possession. He contented himself with a general
finding that appellant "baie goed geweet het wat hy doen", which I suppose,
by
implication, would include a finding that appellant was aware of the fact that
he had the weapons in his custody. But the Magistrate's
finding that the
appellant knew what he was doing, and his apparent
/ rejection
19
rejection of appellant's evidence in regard to his amnesia, was to a
substantial extent founded upon certain subsidiary findings,
which, as I have
already indicated, amounted to misdirections. As to the other points mentioned
in the Magistrate's reasons for judgment,
which I have listed (a) and (b) above,
while it may well be that the appellant exaggerated somewhat in describing the
amount of liquor
consumed by him, I do not find point (a) particularly cogent or
of much assistance in determining the essential issue, viz. whether
appellant
had the necessary
animus
in regard to the weapons- Finally, the
Magistrate did not, in his reasons, deal with certain significant evidence given
by Const.
Van Zyl in this regard. I have already quoted this evidence and I
shall shortly discuss it in more detail. Accordingly, in my view,
the reasons
given by the Magistrate for finding that the appellant possessed the weapons do
not convince. The evidence must, therefore,
be reviewed to see whether his
conclusion was
/ well
20
well founded, bearing in mind that the
onus
was on the State to
prove such possession.
In my opinion, the evidence reveals a number of factors, which cast
doubt on whether at the relevant time the appellant was aware
of his
detentio
of the weapons, These are:
At the relevant time the appellant was very drunk. This, as I have
indicated, was the evidence of Const. Van Zyl. And the appellant
himself
testified that he had never before drunk so much on one occasion.
On the following morning the appellant could not remember much after
having been served with KWV brandy; and had no recollection
of the reasons for
his arrest or of having been in possession of the weapons. This was appellant's
evidence; and substantiation
is to
/ be
21
be found in the fact that this is what he told Const. Van Zyl on the
"morning after" and that Const. Van Zyl was of the impression
that the claimed
amnesia was genuine. And, in my view, the fact that appellant could vaguely
remember seeing Van Zyl and being taken
away by him does not necessarily detract
from the trustworthiness of appellant's evidence as to amnesia. It was not shown
by the
State that an amnesia induced by excessive consumption of alcohol could
not be patchy in this way. Naturally an amnesia of this nature
does not
necessarily show that in his state of drunkenness the appellant did not know
what he was doing (cf.
S v Van Zyl
1964 (2) SA 113
(A), at pp 120 H - 121
A;
S v Chretien
1981 (1) SA 1097
(A), at pp 1104 H - 1105 A, 1108 C); but
it does suggest this as a possibility.
/ (3) This
22
(3) The issue is not whether in general appellant
was
behaving involuntarily and in a state
of automatism, but in particular whether he was so aware of his
detentio
of the weapons as to have the necessary
animus
.
(4) In answer to a question put in cross-examination,
Van
Zyl stated (I have already quoted this evi
dence, which was not
referred to by the Magis
trate) that it was possible that appellant
was
holding the weapons in his hand without being
aware
of the fact. It is true that this is
an inference drawn by Van Zyl, but he after all was there, saw the
appellant and was in the best position to draw conclusions from
the appellant's
conduct.
(5) There is something very strange in the
fact that
appellant was found holding this
/ odd
23
odd assortment of weapons in one hand. This rather bizarre behaviour
affords some support for the inference that appellant's mind
was not directed to
the holding and control of these weapons.
In all the circumstances I am not convinced that the State discharged
the
onus
of establishing the necessary
animus
on appellant's part
so that his physical
detentio
of the weapons constituted possession
thereof. Appellant ought consequently to have been acquitted by the
Magistrate.
Since writing the above I have had the opportunity to read the judgment
prepared in this matter by my Brother Nicholas. In my judgment
I have assumed in
favour of the State that the objects alleged to have been possessed by the
appellant on the night in question were
dangerous weapons. Having read my
Brother's judgment, I am persuaded. for the reasons stated by him, that the
State failed to show
that
/ these
24
these objects did constitute dangerous weapons. Consequently on this
ground too the appellant was entitled to his acquittal -
The appeal
is accordingly allowed and appellant's conviction and sentence are set
aside.
M M Corbett
BOTHA JA) CONCUR
GALGUT AJA) CONCUR.
GALGUT
AJA)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
ADAM ADAMS APPELLANT
and
THE STATE RESPONDENT
CORAM
: CORBETT, VILJOEN, BOTHA, JJA, GALGUT et NICHOLAS,
AJJA
HEARD: 13 MAY 1986
DELIVERED: 26 AUGUST 1986
JUDGMENT
VILJOEN, JA
I have had the benefit of reading
the
judgments of my colleagues Corbett JA
and Nicholas
AJA/.....
2. AJA. While I agree that the appeal should
succeed,
I have arrived at this conclusion for reasons
which differ from theirs.
This appeal raises once more the question
of the accountability at law of a person who commits a proscribed act under the
influence
of liquor. In my view the problem in the present case is not whether
the appellant had the required
animus possidendi
or whether the objects
in question were dangerous weapons. It is whether the appellant was criminally
responsible.
No psychiatric evidence was adduced in the present
case but there are a sufficient number of decisions in this and other Courts
which deal with
the effect of intoxication in relation to
the
commission of offences from which principles of
law/
3. law may be extracted for application to the facts
of this case. A fairly recent case which I regard as a leading decision
is that of
S v Chretien
1981(1) SA 1097(A). At 1104 Rumpff CJ comments
upon a passage in the judgment of Vessels J in
R v Bourke
1916 TPD 303
at
305. Dealing with the range of possibilities between the
ebriosus
(the
"smoordronk" person) and the person who is only slightly under
the
influence of liquor the learned Chief Justice
remarks that the term
"smoordronk" can itself have various gradations. If a person is injured by a
muscular movement of a dead drunk
("papdronk") person which is by reason of the
latter's state of
intoxication merely an involuntary and not a con
scious/
4
scious movement, the intoxicated person cannot
be
said to have committed any act at all; in criminal
law an act ("handeling") can only be an act if it
is mentally controlled. The involuntary muscular
movement of a dead drunk ("papdronk") person is not
so controlled and it is pointless in such a case to
philosophise about guilt. Nor does the question
of criminal responsibility ("toerekeningsvatbaarheid")
arise for consideration. The other extreme is the
case of a person who has imbibed so little liquor
that it cannot be said to have had any significant
effect on his mental faculties. In between
these two extremes, says the learned Chief Justice,
there is a great variety of instances of acts
committed under the influence of liquor - acts
which/.....
5
which prima facie are indicative of an intention-
to attain a certain goal or effect a certain re-
sult. These instances give rise to the question to
what extent the intoxicated person appreciated the serious-
ness of his act or his inhibitions have disintegra-
ted ( 1104 E - H). The view of the learned Chief
Justice is,therefore, that, unless the person
concerned is dead drunk ("papdronk"), he retains
the capacity to control his mental faculties in
the sense of being able to form an intention. The
only inquiry then is whether he is criminally re-
sponsible or not. At 1106 the learned Chief Justice
cites a passage from Hall
General Principles of
Criminal Law (2nd ed Indianapolis 1960) 553
which/
6 which was referred to in the third edition of
De Wet & Swanepoel
Strafreg
at 119. The same passage,
together with another passage at 537 from the same work, appears in footnote 122
of the fourth edition
of the work of De Wet & Swanepoel at 125. The textual
comment to which the footnote relates is that it is not realised, at least
not
in English practice, that in the case of intoxication the question to be
considered is not one of intent but one of criminal
responsibility. The entire
footnote reads as follows:
"122 Sien ook
Hall
op
cit
bl 537 waar hy
verklaar: ' the above judicial view
does not take account of the fact that the grossly intoxicated harm-doer
behaved without normal understanding or control of his
conduct. Rather
obviously, harms committed by such
persons/
7.
persons do not reveal wild aimless movement, but conduct adapted to
attain specific goals. But this is far from signifying that the
defendant
actually had the required
mens rea
, e g the behaviour of a psychotic
homicide is also end-directed. The fact that the state of mind and lack of
inhibition of a grossly
intoxicated person closely approximate that of a
psychotic person should be the paramount datum in the determination of the
relevant
penal liability.' Sien ook op
cit
bl 553-4 waar Hall onderskei
tussen die papdronke (wat nie kan handel nie) die ligdronke en die
sterkbesopene, en wel soos volg:
'We must, for the present purpose, eliminate
the two extremes, i e slight intoxication .... and intoxication so gross as to
induce
complete loss of control or even stupor, in which condition motor
activity of any kind is simply impossible. In the cases relevant
to the present
problem the defendant is in a state of intoxication between these extremes. What
we have to deal with is not incapacity
to perform simple acts or such an
obliteration of cognitive functions as to exclude any degree of purposive
conduct, but instead
a severe blunting of the capacity to understand the moral
quality of the act in issue,
combined/. . .
8.
combined with a drastic lapse of inhibition. As has been suggested, this
closely resembles, if it is not identical with, insanity.'
Ook Gordon op cit bl
400 skyn te besef dat mens by dronkenskap met 'n
toerekeningsvatbaarheids-probleem te doen net."
I
appreciate that the view held by De Wet & Swanepoel and by this Court in
Chretien's
case can hardly be reconciled with other expressions of
opinion in judgments of this Court. In
R v Pethla
1956(4) SA 605, for
instance, Hoexter JA, after having referred to Roman Dutch authorities and in
particular to Van der Linden
Handboek
2 1 5 said at 608 F:
"Our modern law takes a different view of the effect of drunkenness in
certain cases; it recognises that the mind of an accused
may be so obscured or
affected by
the
consumption/......
9.
consumption of alcohol that he is incapable of forming the intention to kill
which must be proved in a charge of murder."
The learned
Judge of Appeal made this remark in the context of dealing with the onus. He
expressed the opinion that it would be dangerous
to attach much weight to the
views of the Roman Dutch authorities to the effect that the onus was on the
accused because they regarded
intoxication merely as a factor to be taken into
consideration for the purposes of mitigation of sentence. I shall deal in more
detail
with this and other cases when considering below the question of the
onus.
In my view the concept of criminal
responsibility/.....
10. responsibility should clearly be distinguished from
the intent which the State has to prove in trials relating to offences
in which intention is a re quisite. Criminal responsibility
is a prerequisite
for criminal liability. See Strauss 1974
T H R H R
234 and
S v
Lesch
1983(1) SA 814(0) 823(A - E).
I do not suggest that
(except for purposes of referring the accused to an institution for observation)
a separate enquiry should be
embarked upon to determine the issue of criminal
responsibility, but when it is raised as a defence, this issue should be
considered
first. Intent encompasses the element of
mens rea
("wederregtelikheidsbewussyn")
See De Wet en Swanepoel op
cit
152-4 , Snyman
Strafreg/......
11.
Strafreg 184. Unless the wording of the statute
creating the offence is such as to cast the onus
on the accused of proving, on a balance of probabi-
lities, the absence of this elementum essentiale,
the "guilty intention" (which is the phrase used in
R v Ndhlovu
1945 AD 369
at 385), the onus of
proving
it would be on the State. But in my view the
mens rea
which has to be so proved must be mens
sana. Demetrio Tsafendas clearly had the
intention to stab Dr Verwoerd to death but he was
not of sane mind. He was, therefore, not criminally
responsible and could not be held criminally liable
Cf the words of Hall quoted above " the be-
haviour of a psychotic homicide is also end-
directed ." In/.....
12
In deciding the issue of criminal re-
sponsibility the criteria contained in s 78(1)
of Act 51 of 1977 have to be applied. The develop-
ment of the concept of criminal responsibility
has a long history in our law. That history is
set out in the report of the Rumpff Commission
(RP 69/1967) 3 1-25. See also Viljoen Tydskrif
vir Regswetenskap (Jaargang 8 Nommer 2 November
1983) 123 in fine - 128. At first the only
criterion was the so-called right and wrong test
In due course the second criterion,the so-called
irresistible impulse" test,was recognised and
added. The history culminated in the enactment
of s 78(1) of Act 51 of 1977 ("the Act") as a
result/......
13. result of the recommendations by the Rumpff
Commission. Both tests have undergone some refinement and extension.
Before the enactment the tests were applied in this Court in
S v Van Zyl
1964(2) SA 113(A) but had the judgment been given after the enactment, it
would probably have been different in respect of the second
test (see 121 G - H)
because the Rumpff Commission pointed out that the term "irresistible impulse",
in signifying a sudden flare-up
of emotion, was too narrow. As a result s
78(l)(b) of the Act was couched in wider language. See
S v Kavin
1978(2)
SA 73KW) at 737 A - B.
I referred above to the remarks
of
Hoexter JA in
Pethla's
case in
the context
of/.....
14
of the onus of proof. With great respect, if one
approached the problem from the angle of criminal responsibility, I have grave
doubts
whether the decision in that case was correct. As De Wet & Swanepoel
op
cit
point out at 110 our law has not progressed to the stage of
answering in a satisfactory manner the question as to what mental faculties
a
person must possess to be criminally responsible. The matter is approached from
a negative point of view of deciding what persons
must be regarded as not being
criminally responsible. They point out that very little assistance is to be
derived from the old authorities.
Only
recently the question of what
mental faculties
must/
15. must be absent before a person can be said not to
be criminally responsible has been answered in clearer language in
certain other systems. In this regard, they say, the absence of
such qualities
are still linked to one or other condition ("gesteldheid") of the person
concerned. They proceed to deal with youthfulness,
insanity, drunkenness and
factors causing strong emotional uphea-vals such as, for example, anger and
provocation. The authors referred
to are, in my view, quite right. We refer to
"defences" such as "insanity" and "intoxication" and fail to deal with them
under the
general heading of criminal responsibility.
At present our law, at least in so far as judicial
pronouncements/ . . ..
16
pronouncements go, is that save in the case
of
insanity, which is an exception to the general
rule, the onus is on the State to prove the re-
quisite intention. See R v Ndhlovu
1945 AD 369
In R v Kaukakani
1947 (2) SA 807(A)
Davis AJA who
prepared the judgment of the court in Ndhlovu's
case decided that when drunkenness is raised as
a defence the onus is on the accused to prove it
by a preponderance of probabilities. In this
latter case, as appears from the last paragraph
of the judgment of Davis AJA, the Chief Justice
(Watermeyer CJ) and Greenberg JA who also sat in
Ndhlovu's
case, although they did not sit in
Kaukakani's
case, authorised Davis AJA to say
that
they concurred in the result. The decision
in/.....
17.
in
Kaukakani's
case was, however,
criticised subsequently in
R v Innes Grant
1949(1) SA 753(A) in which
case both Watermeyer CJ and Greenberg JA sat. In the
Innes Grant
case
Centlivres JA suggested that in so far as what was said by Davis AJA in
Kaukakani's
case may be construed as indicating that when an accused
alleges that, owing to drunkenness, he did not have that specific intent,
the
onus is on him to negative that intent, might require revision in view of the
well-recognised rule that the onus lies throughout
on the State to prove all the
allegations in the charge which are necessary to constitute the crime alleged.
To the same effect was
R v Taylor
1949(4) SA 702(A) at 712 in
fine
- 713. See also
R v Huebsch
1953(2) SA 561(A) 565 in
fine
- 566.
Thereafter followed
Pethla's
case to which I have referred above and
which appears to have settled the law on the
question/....
18
question of onus.
If I am right in the view that in a case
where intention is an element of the offence the
mens rea
which the State has to prove is the
mens
rea
("wederregtelikheidsbewussyn") of a sane
mind,
there can logically be no reason why a distinction
should be drawn between the lack of criminal
capacity because of insanity or such lack due to
any other cause.
Section 78(1) of the Act provides
only
for mental illness or mental defect,-
which implies
conditions of some permanence or duration. That
was how the Rumpff Commission interpreted its terms
of reference. In spite of these narrow terms of
reference/.......
19.
reference the Rumpff Commission did, nevertheless,
apply
its mind to the onus in respect of drunkenness.
The following paragraph
(10.53) appears in the
Rumpff Commission's report:
"Die Appèlhof het in
R v Ndhlovu
,
1945 AD 369
die stelling
herbevestig wat deur die House of Lords gemaak is in die saak
Woolmington
v
The Director of Public Prosecutions
,
[1935] UKHL 1
;
1935 AC 462
dat die las om al die
elemente van die misdaad te bewys, op die vervolger rus. Die vereiste gesindheid
van die dader -wat aanleiding
gee tot sy toerekenings-vatbaarheid - is 'n
element van die misdaad. In die
Woolmington
saak, en in ons reg, word op
die algemene stelling 'n uitson-dering gemaak ten opsigte van kranksinnigheid en
indien 'n beskuldigde
kranksinnigheid beweer, rus die las op die beskuldigde om
dit te bewys met 'n oorwig van waarskyn-likhede. Daar word o a van die
standpunt
uitgegaan dat daar 'n vermoede is dat die mens normaal is en dat op 'n
beskuldigde
dus/....
20
dus die las rus om die vermoede te
weerlê."
The word "gesindheid" which is trans-
lated as "intention" in the English text of the
report cannot give rise to ("aanleiding gee tot")
a person's criminal responsibility. It gives
rise to his guilt. With respect, in my view it
appears as if the Commission fell into the
trap against which De Wet & Swanepoel op cit
110 warn: "Die vraag of die persoon toerekenings-
vatbaar was en die vraag of hy met 'n bepaalde
gesindheid gehandel het, word nog nie duidelik van
mekaar onderskei nie. Die toerekeningsvatbaar-
heidsvraag het te doen met die persoon se geestes-
vermoens, en is 'n selfstandige vraag naas die
vraag/......
21. vraag of die persoon met die een of ander gesind-
heid gehandel net." See also J C de Wet in 1957
T H R H R
90 -
93. If in the case of "insanity" the law proceeds from the premise that a person
is a normal person, in other words that his
mental faculties function normally,
there is no reason why the same principle should not apply in the case of the
intoxicated person.
In
Chretien's
case supra Rumpff CJ said that the
evidence of lack of criminal capacity must be clear and suggested at 1106 C a
possible review
of the decisions dealing with the onus. Had the Rumpff
Commission been consistent it would, I suggest with , respect, have come to
the
conclusion that in all cases
in which a defence of lack of criminal capacity is
raised/
22
raised the onus is on the accused. De Wet
&
Swanepoel op
cit
130 express the view, correctly
in ray opinion, that in all cases in which
criminal responsibility, whether it be by reason
of insanity or any other cause such as intoxi-
cation, of an accused is an issue the onus ought to
be the same. They argue, however, that in spite
of the presumption that every person is in his
sound mind until the contrary be proved, criminal
responsibility is an indispensable prerequisite
for criminal liability which should be proved by
the State (see 119 fn 93). On the other hand,
however, there is the risk that if people who
commit offences under the influence of liquor
were/......
23
were too readily acquitted for failure by the
State to prove the criminal responsibility of an
accused beyond a reasonable doubt (for that is
the burden which rests on the State) the law might
be brought into disrepute. See Chretien supra 1103
E - F and 1105 in fine. To say that in these
popular defence cases,under which the lack of
criminal capacity as a result of intoxication
would fall, the evidence should be scrutinised
carefully means very little, in my view. I
suggest that if our Courts had not in the past
approached the matter from the point of view of
whether the accused could "form the intention",
all cases dealing with the onus on the issue of
criminal/.....
24
criminal responsibility would have been harmonious
and "insanity" would not have acquired the status
of an "exception." However, at the moment I am
a voice crying in the wilderness and until such
time as this Court may review the law I have
to accept that the onus to prove criminal respon-
sibility is on the State.
I turn now to the facts of the
present
case. Subject to considerations of
criminal re-
sponsibility any court of law would, in my view,
have been justified in coming to the conclusion
that the element of mens rea had been proved by
the State. In the context of s 2(1) of Act 71 of
1968/......
25. 1968 the mens
rea
which is an element of the
offence consists (a) in the knowledge (actual or constructive) by an
accused person that (b) he possesses a dangerous weapon. (J
R L Milton
South
African Criminal Law and Procedure
3 184
As to (a), the
circumstances under which the appellant was found by constable van Zyl to have
been in possession of the objects
which are detailed in the judgment of Corbett
JA justify the inference that he was at the time involved in some sort of
confrontation
with his hosts or other guests at the home to which he had been
invited and that he had equipped himself
with these objects with the
intention, should
occasion/.....
26
occasion demand it, of using them against the
people or some of them there present.
In regard to (b), it is true that
the
objects which the appellant had in his
hand were
an "odd assortment" of objects or a "motley
trio of objects" as Corbett JA and Nicholas AJA
respectively described them, but, regard being
had to the circumstances prevailing, it cannot
be seriously doubted that they were "dangerous
weapons" as envisaged by the Dangerous Weapons
Act No 71 of 1968. See S v Matseare and Others
1978(2) SA 931(T) 936 B - D. The appellant did
not attempt to prove that he at no time had any in-
tention of using these weapons or objects for any
unlawful/...
27. unlawful purpose. His defence was that he was
affected by liquor he had consumed and tablets which he had taken for
asthma to such an extent that he had no recollection of the
events in which he
was involved. He accepted what constable van Zyl told him. The magistrate
held:
"Sy optrede daar dui duidelik op 'n man wat moeilikheid gehad net met
mense daar vir wie hy kwaad was en sou aanrand vol-gens Konstabel.
Hy het
presies geweet met wie hy moeilikheid het, teenoor die konstabel was sy optrede
heeltemal anders. Hy het geluister na wat
vir hom gesê is deur konstabel,
dit verstaan en kon daar-oor besluit en het ook ingesien dat dit die beste sal
wees om in vangwa
te klim, iets wat die hof nie sou verwag van 'n man wat so
dronk was dat hy nie geweet het wat hy doen
nie."
Subject to the misdirection in
this
passage/...
28. passage which Corbett JA points out, namely,
that "sou aanrand" should read "kon aanrand," the finding cannot, in my
view, be faulted.
Even though the appellant could not on the next
morning remember much of what had happened the previous day the facts show, be
fuddled
though his mind might have been, purposive conduct on his
part.
On my view of the facts the following remark made by Rumpff C
J in
Chretien's
case 1104 H applies peculiarly to the appellant:
"Iemand kan as 'erg besope' beskryf word maar tog so optree dat hy
skynbaar rasio-neel optree. Hy mag selfsvergeet net wat hy gedoen
net maar sy
gees net wel sy handeling beheer, al is dit dan dat sy inhibisies erg deur drank
verminder is."
See also/..
29
See also R v Innes Grant 1949(1) SA 753(A) 767
and S v Van Zyl 1964(2) SA 113(A) 118 A - B.
There was no evidence of the circumstan-
ces prevailing and the cause of the trouble
between him and the other people present at the
home of his hosts and had the onus been on him
to prove on a balance of probabilities that he
was not criminally responsible, I might have
concluded that on neither criterion had the
onus been discharged. On the first crite-
rion there is sufficient evidence, in my view,
from which an inference may be drawn that he
appreciated what he was doing even though he
regarded the whole matter as trivial, as is to be
deduced from the following evidence of constable van Zyl
"V Wat/
30
"V Wat se hy aan ander persone?
A Hy sê
julle bel die polisie vir sulke nonsens."
Applying the second criterion and
accep-
ting that the onus is on the State,
it has not been
proved, in my view, that he was criminally respon-
sible. He was very drunk. His aggressive and
objectionable behaviour was completely out of
keeping with that of a guest at the home of his
hosts and one inference which may legitimately and
reasonably be drawn is that he behaved in the manner
in which he did because he was incapable of acting in
accordance with an appreciation of the wrongfulness
of his acts. His inhibitions were completely
disintegrated. The appellant must, therefore,
be/...
31
be given the benefit of the doubt.
For these reasons I would uphold
the
appeal.
JUDGE OF APPEAL
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the matter between:
ADAM ADAMS
Appellant
AND
THE STATE
Respondent
CORAM: CORBETT, VILJOEN, BOTHA, JJA, GALGUT et NICHOLAS, AJJA
HEARD: 13 May 1986
DELIVERED
: 26 August 1986
JUDGMENT
NICHOLAS, AJA
I concur in the judgment of CORBETT JA. For my
part, however, I would not have assumed that the wheel span-
ner......
2
ner, the pair of scissors and the broken cake knife constituted
dangerous weapons in terms of ss. (1) of s. 2. of the
Dangerous Weapon
Act
, No 71 of 1968. The sub-section reads:
"2.(1) Any person who is in possession of any dangerous weapon ... shall be
guilty of an offence, unless he is able to prove that
he at no time had any
intention of using such weapon ... for any unlawful purpose, and shall on
conviction be liable to a fine not
exceeding two hundred rand or to imprisonment
for a period not exceeding twelve months or to both such fine and such
imprisonment."
In terms of s. 1 -
"1. In this Act, unless the context other wise indicates - '
dangerous
weapon
' means any object, other than a firearm, which is likely to causer
serious bodily injury if it were used to commit an assault;
Reference.....
3
Reference will also be made to s. 4(1) which provides:
"4.(1) Whenever any person above the age of eighteen years is convicted of
an offence involving violence to any other person and
it has been proved that he
killed or injured such other person by using a dangerous weapon or a firearm, he
shall, ... notwithstanding
anything to the contrary in any law contained, be
sentenced to imprisonment for a period of not less than two years and, if he is
so convicted by a magistrate's court, not exceeding eight years, and may in
addition to any such punishment, be sentenced to a whipping
not exceeding ten
strokes.
Provided "
The courts have experienced problems in the con struction and
application of these provisions. A major difficulty has arisen from
the fact
that the definition of. "dangerous weapon" covers many objects which are not
normally
used
4
used as weapons and would not be referred to as
dangerous weapons in ordinary speech. Thus, DIDCOTT J said in
S v Mnguni
1977(3) SA 63 (N) at p. 66 D-E:
"... as was observed in
S v Nabo
, 1968(4) SA 699(E) at p. 701 D-E, the
definition literally covers a somewhat heavy walking-stick, the lock and chain
of a schoolboy's
bicycle, a housewife's broom and a bricklayer's trowel. Each is
an 'object' which, if it happened to be used to commit an assault,
would be
likely to cause serious bodily injury. The same no doubt goes for vol. 1 of
Butterworths'Statutes. '
Amicus Curiae
' suggested as much in a forceful
criticism of the legislation entitled 'The Big Stick', which appeared in (1969)
86
SA Law Journal
, at p. 486. One may add to the list one's table, one's
chair, one's typewriter and, subject only to the range of one's imagination,
all
sorts of other things in daily and generally peaceful use."
See ....
5
See also
S v Xaba
1976(1) SA 42 (N) at p. 43 C-D.
Interpretation
clauses of a similar kind have been the subject of judicial criticism in
England.' See
Craies on Statute Law
, 7th ed., pp 313-314:
"Interpretation clauses frequently fall under severe judicial criticism from
failure to observe the valuable rule never to enact under
the guise of
definition. In
R v Commissioners under the Boilers Explosion Act
1882,
the question arose whether a steam pipe conducting steam to a pumping engine in
a mine from a boiler on the surface was a boiler
within the meaning of the 1882
Act, i.e. 'a closed vessel for generating steam, etc.' The court went somewhat
far in deciding that
it was, and Lord Esher M.R. said:'The draftsman has gone
upon what, in my mind, is a dangerous method of drawing Acts of Parliament.
He
has put in a section which
says.....
6
says that a boiler shall mean something which is in reality not a boiler.
This third section of the Act is a peculiarly bad specimen
of the method of
drafting which enacts that a word shall mean something which in fact it does not
mean.
1
And the same judge said in
Bradley v Baylis
, with
reference to the Municipal Registration Act 1878 and the Representation of the
People Act 1867: 'It seems to me that nothing
could be more difficult, nothing
more involved, than these statutes, and that that difficulty arises from the
fact of Parliament
insisting upon saying that things are what they are not' by
saying that 'a dwelling-house' shall mean 'a part of a dwelling-house
'...."
One way of applying the definition of "dangerous weapon" is to make a bodily
substitution of the de finition for the words "dangerous
weapon" in s. 2(1),
which would then read:
"Any......
7
"Any person who is in possession of
any object, other than a fire arm
,
which is likely to cause serious bodily injury if it were used to commit an
assault
... shall be guilty of an offence."
Although it is not stated in so many words, that seems to have been the
approach in cases reported hitherto. See, for example,
S v Seleke en
Andere
1976(1) SA 675(T) at p. 685, where it was held that in order to
determine whether an object was a dangerous weapon for the purpose
of s.2(l),
the question which the Court has to answer is this: Is the object without regard
being had to what was caused by it, an
object which is likely, when used, to
cause serious bodily harm if it were used to commit an assault?
Cf
.
S
v Matseare & Others
1978(2) SA 931 (T) at pp. 934 to 936.
To
7A
To apply the definition in that way would have
the result
that virtually every person in the Republic would
prima
facie
be guilty of a contravention of s. 2(1), and so be
liable to prosecution, with the ignominy and inconvenience
which that would entail. That is a result which the legis-
lature could not have contemplated. Parliament was con-
cerned in this section to strike at the source of the un-
lawful use of weapons which was endemic in some parts of
the country, especially in the Western Cape, by extending
the definition of a dangerous weapon, and introducing higher
penalties......
8
penalties for the unlawful possession thereof.
Cf. S v Diedericks en
Andere
1969(3) SA 270 (K) at 273 A-B;
S v Mtengile
1972(3) SA 796 (C)
at 797 G. It was not concerned to cast the net so wide as to catch the just
along with the unjust, and involve
innocent persons in the toils of the criminal
law by making it
prima facie
an offence to be in possession of any object
whatsoever which was likely to cause serious bodily injury if it were used to
commit
an assault. It was suggested in
S v Xaba
(
supra
) at p.
46:
"I am inclined to think that the dif ficulties in applying the definition of
a dangerous weapon to sec. 2(1) are more apparent than
real. If a working man is
going about his ordinary affairs and carrying his tools to work
or....
9
or if a cricketer is carrying his bat to the cricket ground it seems to me
inconceivable that any peace officer would arrest him
for being in breach of
sec. 2(1) and if he were in fact prosecuted it is obvious that he would have
very little difficulty in discharging
the
onus
placed upon him by the
section. If, on the other hand, he was carrying a cane knife during a public
disturbance or was carrying a
sharp chisel concealed in his pocket at a shebeen
he might with good cause be charged and he might have some difficulty in
discharging
the
onus
requiring him to establish that he had no intention
of using the object for an unlawful purpose. Every case must inevitably depend
on its own circumstances . "
I do not think that it is relevant to the construction of s. 2(1) that
arrest in cases of innocent possession would be unlikely
or that a prosecution
would fail. In
S v Brick
1973(2) SA 571(A) JANSEN
JA said at p. 582 D: . _
"In
10
"In regard to administrative restraint or
nominal sentences tempering the wind, I can do no better than adopt the words
of Lord
REID (
Warner v Metropolitan Police Commissioner
(1968) All E.R.
356
(H.L.) at p. 366 B):
'I dissent emphatically from the view that Parliament can be supposed to
have been of the opinion that it could be left to the discretion
of the police
not to prosecute, or that if there was a prosecution justice would be served by
only a nominal penalty being imposed.'"
I do not think, therefore,that bodily substitution is the proper way of
applying the definition. In
Town Council of Springs v Moosa & Another
1929 AD 401
DE VILLIERS ACJ said at p. 417:
"... An interpretation clause has its uses, but it also has its dangers, as
it is obvious from the present case. To adhere to the
definition regardless
of.....
11
of subject-matter and context might work the
gravest injustice by including cases which were not intended to be included.
"
At p. 416 reference was made to the observation of LORD DENMAN C J in
The Queen v The Justices of Gloucestershire
112 E.R. at p. 554:
"But we apprehend that an interpretation clause is not to receive so rigid a
construction; that it is not to be taken as substituting
one set of words for
another, nor as strictly defining what the meaning of a word must be under all
circumstances ..."
In my view the construction of s. 2(1) is to be approached from the starting
point of the ingredients of the offence which it created.
They are (a)
possession
of a (b)
weapon
which is (c)
dangerous
.
Although
12
Although the Act defines the composite expression "dangerous
weapon", there is no definition of "weapon"
simpliciter
. The meaning of
the word and of the corresponding Afrikaans word "wapen" was discussed in
S v
Mtengile
(
supra
) , where VAN ZIJL J said at p. 797 C-H:
"In art. 1 van die Wet word die uit-drukking 'gevaarlike wapen -dangerous
weapon' omskryf. Die Afrikaans lees: 'gevaarlike wapen
... enige voorwerp,
behalwe 'n vuurwapen, wat waarskynlik ernstige liggaamlike letsel sal
ver-oorsaak indien dit gebruik sou word
om 'n aanranding te pleeg'. Die Engels
lees:
'Dangerous weapon ... means any object, other than a firearm, which is likely
to cause serious bodily injury if it were used to commit
an assault.
1
Hierdie omskrywing bepaal nie wat 'n wapen is nie. Dit bepaal alleen die
aard van 'n 'gevaarlike - dangerous' wapen.
Dit
13
Dit gee nie voor om die betekenis van die woord 'wapen - weapon' te
definieer nie. Om uit te vind wat die betekenis van hierdie
woord is, moet ons
die ge-bruikte prosedure volg en die woord in erkende woordeboeke naslaan. Die
Afri-kaanse Woordeboek het nog
nie by die letter 'W' uitgekom nie, maar die
Kern
-
woordeboek van Afrikaans
deur de Villiers, Smuts en Eksteen
gee die volgende om-skrywing van '
wapen
': 'strydmiddel'. Die
Woordenboek der Nederlandse Taal
het ook nog nie by 'W' uitgekom nie. Van
Dale,
Groot Woordeboek der Nederlandse Taal
, gee die volgende omskry-wing
van 'wapen':
'Strydwerktuig, voorwerp bestemd om iemand letsel toe te
brengen of wel om zich er-mee te verdedigen.'
The
Oxford English
Dictionary
gee die volgende omskrywing:
'weapon' - An instrument of any
kind used in warfare or in combat to attack and overcome an enemy'..
en
Webster,
Third New International Dictionary
gee die volgende:
'weapon'
14
'weapon'- An instrument of offensive or defensive combat:
something to fight with; something (as a club, sword, gun or grenade) used
in
destroying, defeating, or physically injuring an enemy'.
Dit is die doel waarmee 'n ding gebruik word wat dit '
n
wapen maak.
Vuur, water, geluide, elektriese strome en ander be-stralinge kan wapens genoem
word as hulle gebruik word om mee aan
te val of te verdedig, d.w.s. as hulle as
'n stryd-middel gebruik word 'or used as an instrument of combat in offence in
attack or
defence
1
. Die Wet was bedoel om die bereidheid van die
kleurlinge om mekaar met gevaarlike wapens aan te val, met swaar strawwe op te
dreig."
See also
S v Nduneni
1972(3) SA 799 (C) at p. 802.
In its ordinary
meaning "weapon" covers any object which is designed for use as a weapon (e.g.
swords, spears, daggers, bayonets,
battle axes), and also any object which,
although
15
although not designed for use as a weapon, is
used or in-
tended to be used as a weapon. For a grouping of weapons
in categories, see
S v Matseane
(supra) at p. 936 E-H.
Where under s. 4(1) the question arises whether
the
accused has used a weapon which was dangerous, regard
is had to the actual use of the object concerned. (With
the exception of
S v Magwaza & Others
1976(4) SA 281 (N),
all of the cases referred to by counsel in this appeal were
cases in which the State contended that s. 4(1) was applic-
able. )
In a case under s. 2(1) (which penalises
mere
possession) that test is not available where
any use of the
object is prospective only. In such a case what must be
considered.....
16
considered is whether; the object is possessed
qua
weapon,
or for some other reason. That is something that is
normally to be inferred from the nature of the object and
the circumstances in which it is possessed. Cf.
S v
Matseare
(supra) at p. 936 D to 937 H.
So in the illustration given in the passage
from
Xaba
quoted above, the inference could not be drawn
that either a man going about his ordinary affairs and carry-
ing his tools to work, or a cricketer carrying his bat to
the cricket ground, was in possession of a weapon; whereas
that inference would readily be drawn in the case of a man
carrying a cane knife during a public disturbance, or a man
carrying a sharp chisel concealed in his pocket in a shebeen,
In......
17
In a prosecution under s. 2(1), it is for the
State to prove that the person charged was in possession of a weapon. That
having been
proved, recourse is then had to the definition in order to determine
whether it was a "dangerous weapon". By this approach, a sensible
meaning is
given to s. 2(1), which is consonant with the object of the provision, does not
result in any absurdity, and does not
ignore the definition.
In the present case, the State proved only that
the
accused, who was in a highly intoxicated and noisy con
dition, was openly
holding in one hand a wheel spanner, a
pair of scissors, and what appears to
have been a broken cake
knife. There was nothing to indicate, what (if
anything) the accused
had
18
had in mind to do with this motley trio of objects. Con-
sequently the State failed to prove an ingredient of the
offence charged, and the accused should have been acquitted
on this ground.
H C NICHOLAS, AJA