S v Shikwambane and Another (190/2003) [2003] ZASCA 120 (21 November 2003)

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[2003] ZASCA 120
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S v Shikwambane and Another (190/2003) [2003] ZASCA 120 (21 November 2003)

IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
CASE NO: 190/2003
In the matter between:
HAPPY SHIKWAMBANE FIRST
APPELLANT
BEN
MASISO SECOND
APPELLANT
and
THE STATE
RESPONDENT
CORAM: MTHIYANE, NUGENT and CONRADIE JJA
HEARD: 21 NOVEMBER 2003
DELIVERED: 21 NOVEMBER 2003
SUMMARY
Joint possession of a hand grenade – Whether there
was a contravention of s32 (1)(c) of the Arms and Ammunition Act 75
of 1969.
JUDGMENT
MTHIYANE JA:
[1] The facts in this appeal are dealt with in a
judgment delivered by this Court on 8 June 2002 in the case involving
the appellants’
co-accused, one Mr Muziwakhe Mbuli aka ‘The
People’s Poet’. The case is reported as
S v Mbuli
2003
(1) SACR 97
(SCA).
[2] The appeal of Mbuli succeeded in relation to his
conviction on a charge of possession of a hand grenade in
contravention of s32
(1) (c) of the Arms and Ammunition Act 75 of
1969.
[3] In the reported judgment in paragraph 72 at 115 of
the Report Nugent JA (with whom Marais and Zulman JJA concurred)
stated that
he did not agree that the only reasonable inference from
the evidence was that Mbuli and his co-accused (the two appellants in
the
present matter) had possessed the hand grenade in question
jointly. He continued at 115f
‘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 on that charge,
in my view, they were entitled to be acquitted.’
[4] He continued at paragraph 73
‘Earlier in this judgment I drew attention to the fact that the
only appeal that is before us is that of the appellant. [Mbuli]
The
appeals of Skwambane and Masiso have lapsed but they are capable of
being revived. It would be potentially prejudicial if we
were to
reinstate their appeals
mero motu
in order to set aside their
convictions on this charge (assuming that it was competent to do so)
and I propose instead to direct the
Registrar of this Court to refer
this judgment to the Legal Aid Board with a request that appropriate
steps be taken to bring their
appeals before this Court, at least in
relation to this charge.’
[5] This has been done – hence this appeal before us.
[6] I agree with Nugent JA that all the accused in the
Mbuli case were entitled to be acquitted in relation to the hand
grenade and
counsel for the respondent has not sought to persuade us
to the contrary. In fact counsel for the respondent does not support
the
conviction.
[7] Accordingly the following order is made.
The appeal is allowed.
The convictions and sentences of the first and second
appellants on the charge of contravening s32(1)(c) of the Arms and
Ammunition
Act 75 of 1969 are set aside.
-----------------------------
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
NUGENT JA
CONRADIE JA