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[2020] ZASCA 98
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Leshilo v S (345/2019) [2020] ZASCA 98 (8 September 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 345/2019
In
the matter between:
MOSHIDI
DANNY
LESHILO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Leshilo v The State
(345/2019)
[2020] ZASCA 98
(8 September
2020)
Coram:
DAMBUZA, VAN DER MERWE, NICHOLLS JJA
and LEDWABA and GOOSEN AJJA
Heard:
Matter
disposed of without oral hearing in terms of
s
19
(a)
of
the
Superior Courts
Act 10 of 2013
.
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email, publication on
the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be have been at 10h00 on
8 September 2020.
Summary
:
Joint possession of illegal firearm and ammunition – principles
of common purpose not applicable – requirements of
joint
possession not proved beyond reasonable doubt – no evidence
that accused intended to possess firearm through physical
possessor.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Khumalo J and Holland-Mutter AJ sitting as
court of appeal):
1 Condonation for the
late filing of the appellant’s heads of argument is granted.
2 The appeal is upheld in
respect of count 2 and count 3 and the convictions on these counts
are set aside.
3 The appeal in respect
of sentence is upheld. The sentence of 15 years imprisonment is set
aside and is replaced with the following
sentence:
‘
The
appellant is sentenced to 5 years imprisonment on count 1, ante-dated
to 11 June 2014’.
JUDGMENT
Nicholls
JA (Dambuza and Van Der Merwe JJA and Ledwaba and Goosen AJJA
concurring):
[1]
The primary issue in this appeal is whether the appellant was in
joint possession of a firearm. The appellant, who was accused
1 in
the trial court, was charged with three counts. The first count was
house breaking with the intent to rob, and robbery with
aggravating
circumstances. A firearm was used in the commission of the offence.
The second and third counts were the unlawful possession
of the
firearm and the unlawful possession of ammunition, respectively.
[2]
On 11 June 2014, the regional court, Pretoria convicted the appellant
of the lesser offence of house breaking with the intent
to commit an
unknown offence, in respect of count 1. He was also convicted on
counts 2 and 3. For the purposes of sentencing the
three counts were
taken together and a sentence of 15 years imprisonment was imposed.
The appellant’s co-accused, who was
accused 2 in the trial
court, was acquitted on all counts on the basis that the state had
not proved his identity as one of the
perpetrators, beyond reasonable
doubt.
[3]
The regional court granted leave to appeal against sentence and
conviction. On 12 October 2017 the High Court, Gauteng
Division
dismissed the appeal in its entirety. Special leave was granted
by this Court both on conviction and sentence. The
appellant appeals
against his conviction only in respect of counts 2 and 3, and the
globular sentence of 15 years.
[4]
The facts briefly set out are as follows. The complaint, Mr Mahlangu
and his partner, Ms Maraba, ran an informal spaza shop
from their
home in Mamelodi East. When they went to sleep on the night of 27
August 2013, they left a cash sum of R1 700 on the
table. In the
early hours of the morning of 28 August 2013, at approximately 3h00,
two men entered their home while they were asleep
with their child.
[5]
According to Mr Mahlangu the first assailant to enter the house was
accused 2 who pointed a firearm at him. He recognised him
as one of
the customers who would buy airtime from their spaza shop from time
to time. This identification the trial court held
was insufficient to
ground a conviction. Mr Mahlangu jumped out of bed, threw a blanket
over the first intruder and wrestled with
him to get hold of the
firearm. In the ensuing struggle a shot went off. This prompted the
first assailant to flee. By this stage
another intruder, the
appellant, had entered the room. Mr Mahlangu pointed the firearm at
him and it appears there was a scuffle
over the firearm. At no stage
did the appellant possess the firearm.
[6]
The gunshot and the screams of Ms Maraba had awoken the neighbours.
Mr Nkosi, the next-door neighbour, went outside, thinking
the
attack was in his yard, but then rushed to the next-door house where
Ms Maraba opened the security door for him. He saw the
appellant in a
skirmish with Mr Mahlangu. The firearm was lying on the floor. He
managed to apprehend the appellant as he was trying
to exit the
security doors. He also picked up a cell phone which had been dropped
in the commotion. Mr Nkosi then went outside
and handed the appellant
over to members of the community who had gathered in the yard while
he went into his house to fetch his
cell phone and call the police.
When he returned, he found that the community had assaulted the
appellant and tied him to the gate
pole from his waist.
[7]
Ms Maraba confirmed Mr Mahlangu’s evidence that the appellant
came into the room after the first assailant had entered
and pointed
a firearm at them. After the first assailant fled leaving the firearm
in the possession of Mr Mahlangu, the appellant
had a skirmish with
her husband over the firearm and then tried to also run away. He was
apprehended by Mr Nkosi at the door and
taken outside
[8]
When the police arrived the appellant was handed over to them,
together with the firearm, the cell phone found in Mr Mahlangu’s
house and a bullet that had penetrated Mr Nkosi’s home. At
some stage the R1 700 disappeared from the table at Mr Mahlangu’s
home. None of the witnesses saw it being taken.
[9]
It is not disputed that the appellant gained entry to the premises by
removing a piece of corrugated iron from the structure,
with the
intention to commit a criminal act. The only issue for determination
on conviction is whether the appellant should have
been found guilty
of possession of an unlawful firearm and ammunition. A finding in the
appellant’s favour would impact on
the combined sentence of 15
years for all three offences.
[10]
There has been some confusion regarding the application of the
principles of common purpose and joint possession where firearms
are
utilised in the course of a robbery or a house breaking. Accused
persons are frequently convicted of robbery with aggravating
circumstances on the basis of common purpose, even if their role is
relatively minor. In the absence of proof of a prior agreement,
what
has to be shown is that the accused was present together with other
persons at the scene of the crime; aware that a crime
would take
place; and intended to make common purpose with those committing the
crime as evidenced by some act of association with
the conduct of the
others.
[1]
However,
the principles of common purpose do not find application when
convicting an accused for the unlawful possession of the
firearm used
in the same robbery. Instead it is the principles of joint possession
that apply.
[11]
The test for joint possession of an illegal firearm and ammunition is
well established. The mere fact that the accused participated
in a
robbery where his co-perpetrators possessed firearms does not sustain
beyond reasonable doubt, the inference that the accused
possessed the
firearms jointly with them. In
S
v Nkosi
it was held that this is only justifiable if the factual evidence
excludes all reasonable inferences other than (a) that the group
had
the intention to exercise possession through the actual detentor and
(b) the actual detentor 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.
[2]
[12]
This Court in
S
v Mbuli
[3]
pointed
out that where the offence is ‘possession’ of a firearm
(or in that case a hand grenade) it is not the principles
of common
purpose that have application, but rather those relating to joint
possession. A conviction of joint possession can only
be competent if
more than one person possesses the firearm. The court found that mere
knowledge by others that one member of the
group possessed a hand
grenade, or even acquiesced to its use in the execution of their
common purpose to commit a crime, was not
sufficient to make them
joint possessors thereof. In coming to its conclusion this Court
overruled its previous decision in
S
v Khambule
[4]
,
where it was held that the mere intention on one or more members of
the group to use a firearm for the benefit of all of them
would
suffice.
[13]
The Constitutional Court, in
Makhubela
v S
[5]
,
confirmed
the reasoning in various cases of this Court and, in particular, that
S
v Khambule
had been correctly overruled by
S
v Mbuli
.
[6]
As
observed by the Constitutional Court
[7]
there
will be few factual scenarios which meet the requirements of joint
possession where there has been no actual physical possession.
This
is due to the difficulty inherent in proving that the possessor had
the intention of possessing the firearm on behalf of the
entire
group, bearing in mind that being aware of, and even acquiescing to,
the possession of the firearm by one member of the
group, does not
translate into a guilty verdict for the others.
[14]
In this case the regional court found the appellant guilty on counts
2 and 3 on the basis that he must have known that the
first intruder
had possession of a firearm and acted in concert with him. The full
court correctly held that the doctrine of common
purpose was not
applicable but found the appellant guilty on the basis of joint
possession. Relying on a decision of that
division,
S
v Motsema
,
[8]
the
full court found that because the appellant entered after the first
intruder had ‘bridged’ his firearm this was
an indication
of his intention to benefit from the possession of the firearm
and the first intruder’s intention to
possess and use the
firearm for the benefit of the appellant. Therefore, so it was held,
the state had proved that the appellant
intended to possess the
firearm through the first intruder.
[15]
The reasoning of the full court cannot be supported. In this instance
an intention to possess the firearm on the part of the
appellant is
not the only inference to be drawn from the established facts. It is
common cause that the first intruder was the
one who possessed the
firearm and that the appellant was unarmed. Even accepting that
the appellant knew that his co-perpetrator
possessed the firearm and
knew that he would use it in the execution of a common purpose to
commit the housebreaking, he cannot
be considered a joint possessor,
on the principles set out in the cases above. Knowledge of the
firearm, and even acquiescence
to its use for fulfilling the common
purpose of robbery, is insufficient to establish guilt as a joint
possessor. There is no evidence
from which it can be said that the
only reasonable inference to be drawn is that the appellant intended
to possess the firearm
jointly with the physical possessor.
Accordingly, the appeal on conviction in respect of counts 2 and 3
should succeed.
[16]
This necessitates a consideration of the sentence of 15 years.
Globular sentences for multiple convictions are generally to
be
discouraged. They pose difficulties on appeal if one or more
convictions are set aside, as in the present matter. The interests
of
justice are better served when both the accused and society know and
understand exactly what sentence is being imposed for each
particular
offence.
[17]
The lesser offence of house breaking of which the appellant has been
convicted is subject to a prescribed minimum sentence
in certain
circumstances. Section 51(2)
(c)
(i)
of the Criminal Amendment Act 105 of 1997 prescribes a minimum
sentence of 5 years imprisonment for a first offender “if
the
accused had with him or her at the time a firearm, which was intended
for use as such, in the commission of such offence.”
Having
found that the appellant was, at no time, in possession of the
firearm, the provisions of s 51(2)
(c)
(i)
are not applicable.
[18]
It was submitted that consideration should be given to the fact that
the appellant was 20 years old at the time of the offence,
was a
first offender and spent 10 months in custody awaiting trial. In
addition, Mr Mahlangu was not badly injured, only suffering
a small
cut to his finger and only a single shot was fired during the
struggle for possession of the firearm.
[19]
These mitigating factors should be seen in context and weighed
against the aggravating factors. It must have been a terrifying
ordeal for Mr Mahlangu and Ms Maraba to wake up in the early hours of
the morning with a gun pointed to their heads. Their child
was
present. It was only due to Mr Mahlangu’s quick thinking that
the intruders were disarmed. Their takings from the spaza
shop were
never returned. Home invasions, especially where a firearm is used
are to be decried in the strongest terms. They inevitably
have
profound psychological effects and cause feelings of extreme
vulnerability. All South Africans are entitled to feel
safe in
the sanctity of their homes. This is a basic human right whether
one’s home is a corrugated iron structure, like
that of Mr
Mahlangu and Ms Maraba, or a palatial mansion.
[20]
On the facts of this case a sentence of five years in respect of
count 1 is entirely appropriate. This is so, even though the
minimum
sentencing regime is not applicable.
[21]
In the result the following order is made:
1 Condonation for the
late filing of the appellant’s heads of argument is granted.
2 The appeal is upheld in
respect of counts 2 and count 3 and the convictions on these counts
is set aside.
3 The appeal in respect
of sentence is upheld. The sentence of 15 years imprisonment is set
aside and is replaced with the following
sentence:
‘
The
appellant is sentenced to 5 years imprisonment on count 1, ante-dated
to 11 June 2014’.
_________________
C H NICHOLLS
JUDGE OF APPEAL
APPEARANCES:
Prepared
by: S Kruger.
Instructed
by: Justice Centre, Pretoria
Justice
Centre, Bloemfontein
Prepared
by: M Jansen van Vuuren
Instructed
by: The Director of Public Prosecution, Pretoria
The
Director of Public Prosecution, Bloemfontein
[1]
S
v Mgedzi
1989(1) SA 687 (A) at 705-706.
[2]
S
v Nkosi
1998 (1) SACR 284 (W).
[3]
S
v Mbul
i
2003 (1) SACR 97 (SCA).
[4]
S
v Khambule
2001 (1) SACR 501
(SCA).
[5]
Makhubela
v S, Matjeke v S
[2017]
ZACC 36
; 2017(2) SACR 665 (CC).
[6]
S
v Molimi and Another
[2006]
ZASCA 43
;
2006 (2) SACR 8
SCA para 38 which stated that
Khambule
was overruled by
Mbuli
;
see
Ramoba
v S
[2017] ZASCA 74
;
2017 (2) SACR 353
(SCA) para 11 wherein Mbha JA
said the principles of joint possession in relation to the crime of
unlawful possession of firearms
in instances of robbery committed by
a group of people are trite, the only question being whether there
was necessary intention
or animus to render the physical possession
of the guns to the group as a whole.
[7]
Makhubela
v S
para 55.
[8]
S
v Motsema
2012(2)
SACR 96 (GS) para 23 where it was held that the common purpose to
disarm the security guards embraced the intention on
the part of
each member of the group that the individual robbers who were to
take possession of the guards’ weapons did
so on behalf of the
entire group.