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[1994] ZASCA 50
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S v Mtshemla and Others (51/93) [1994] ZASCA 50 (29 March 1994)
Case No 51/93
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
RICHARD MTSHEMLA
First Appellant
SAMUEL MOTLOUNG
Second
Appellant
JACKSON TYANINI
Third Appellant
and
THE STATE
Respondent
CORAM:
JOUBERT, KUMLEBEN, F H GROSSKOPF, HOWIE JJA et VAN COLLER
AJA
HEARD:
22 March 1994
DELIVERED:
29 March 1994
JUDGMENT
HOWIE, JA
2
HOWIE JA,
The three appellants were convicted in a regional court
of contravening the Arms and Ammunition Act, No 75 of 1969 ("the Act"). It
was
held that they had been in illicit possession of an AK 47 rifle and 34 rounds of
ammunition in conflict with s 32 (1)(a) and
a 36 of the Act respectively. They
were sentenced to terms of imprisonment. They appealed unsuccessfully to the
Transvaal Provincial
Division against their convictions but were granted leave
by that Court to pursue the present appeal.
It was common cause at the trial that the appellants were the occupants of a
motor car travelling along the N3 highway near Heidelberg
on the afternoon of 26
October 1990; that when the car stopped some distance short of a Defence Force
road-block second appellant
threw a
3
bag containing the weapon and ammunition in question out of
the left rear
door on to the gravel shoulder of the
roadway; that the car was then driven off; that it was
stopped at the roadblock where the appellants were arrested
and questioned; that the AK 47 was a weapon referred to in
s 32 (1)(a) of the Act; and that the appellants were not
in lawful possession of an arm capable of firing the
ammunition.
In support of the appellants' plea of not guilty
their attorney stated their defence as being that they were
unaware, when the bag was ejected, that it contained the
firearm and ammunition.
On the strength of the facts which were common
cause the State relied at the trial on the presumption in
s 40(1) of the Act. It reads thus:
"Whenever in any prosecution for being in possession of any article contrary
to the provisions of this Act, it is proved that such
article has at any time
been on or in any
4
premises, including any building, dwelling, flat, room, office, shop, structure,
vessel, aircraft or vehicle, or any part thereof,
any person who at that time
was on or in or in charge of or present at or occupying such premises, shall be
presumed to have been
in possession of that . article at that time, until the
contrary is proved."
The magistrate held that the
State was entitled to rely on
this presumption and that it placed an onus on
each
appellant to prove (in the context of the plea explanation)
the essential fact that he was ignorant of what the bag
contained. Only the first and second appellants
testified. The magistrate found their evidence untruthful
and therefore inadequate to discharge the onus upon them.
It followed, he found, that their evidence certainly could
not avail the third appellant, who had chosen not to
testify. In consequence the conviction of each appellant
was inevitable.
The Court a quo considered that the presumption
had been correctly applied by the magistrate and upheld the
5
convictions.
In this Court counsel for the appellants submitted that s
40(1) had been misconstrued by the magistrate and the Court below and that
it
was not open to the State to rely on the presumption until it had first been
shown beyond reasonable doubt that each appellant
was throughout aware that the
firearm and ammunition were in the car.
That submission is not tenable. In the first place, whether the words "have
in possession" in s 32(1) of the Act, or the words "be
in possession" in s 36,
are to be construed as denoting corpus together with the intention to exercise
control for one' s own benefit,
or are to be construed as "witting physical
detention, custody or control" (see S v Brick, 1973(2) SA 571(A) at 580C) the
alleged
possessor of the illicit article in question "must at least be aware
that he has the (object) concerned in his
6
physical control": S v Adams 1986(4) SA 882(A) at 891 F-G. As pointed out in
the last-mentioned case at 891 H-I, this necessary mental
element is not the
same as that required in order to constitute mens rea.
In the second place, if an accused is required to disprove possession it must
follow that he must negative that mental element; he
must show that he was
unaware that he had the illicit article under his physical control. That, of
course, is the very defence raised
here.
And that the appellants were indeed required to disprove possession is clear
from this Court's decision in S v Makunga and Others
1977(1) SA 685(A). In that
case the 8 accused men were found asleep in a hut in the course of a police
raid. In searching the hut
in the presence of the accused, the police found an
FN rifle, 6 other firearms, a toy pistol and a variety of ammunition. The trial
Court, whose decision is reported as S v Mukunga and
7
Others 1976(3) SA 193 (N), found that the FN rifle, and
ammunition for it,
had been in the possession of the sixth
accused; that no single accused had
possessed more than
one firearm; and that they did not jointly possess all
the '
ammunition. The guilt of the sixth accused having been
determined,
the remaining question concerned the liability
of the other seven accused in respect of the other six
firearms.
After referring to the wording of the
presumption
and stating that the onus it placed on
an accused was open
to discharge not only on his evidence but all the relevant
evidence, this Court proceeded to state the following in
the course of its judgment (see 698H-699B):
"It was contended by Mr Fuller in argument before the Court a quo that
accused nos. 1, 2, 3, 4, 5, 7 and 8 had established by a preponderance
of
probabilities that no one of them possessed the FN rifle or the ammunition for
it. It was, furthermore, established that no one
of them possessed more than one
of the remaining articles found in the hut (i e, six firearms and a toy
8
pistol). It followed, so it was contended, that it was established that one of
the seven accused was in possession of the toy pistol,
and since that accused
remained unidentified, none of the above-mentioned seven accused could be
convicted. The contention was rejected
by the Court a quo, and rightly so in my
opinion. Counsel's contention would undoubtedly have been sound if the onus to
prove possession
of any one firearm by any particular accused rested on the
State. In my opinion, however, the Court a quo adopted the correct approach
in
the light of the provisions of sec 40(1 ) of the Act, i e, there was an onus on
each one of the seven accused to establish by
a preponderance of probabilities
that he was not in possession of any one of the six firearms found in the hut.
In my opinion, no
one of the accused succeeded in discharging that onus. The
mere fact that on the evidence it was probable that one unidentified accused
was
in possession of the toy pistol is wholly insufficient to discharge the onus
which rested on each one of the seven
accused."
Accordingly, applying the
law as stated in the
Adams and Makunga cases, the onus was upon each appellant
in the present case to establish on a balance of
probabilities that he was
not in possession of the rifle
and ammunition and this entailed proving that he was
9
unaware of their presence in the bag.
Before assessing whether the appellants' onus was discharged, it remains, as
far as the relevant law is concerned, to deal with the
decision in S v
Tshabalala 1988(4) SA 883 (W). Although this case was not relied upon by
appellants' counsel in arguing the appeal,
it was referred to in both counsel's
heads of argument. It was also considered by the Court a quo which decided not
to follow it.
The three accused in the Tshabalala case were charged under the Act in a
magistrate's Court with the unlawful possession of a pistol.
While they were
travelling in a van the pistol was seen by a police patrol being thrown out of
the passenger's window. Initially
all the accused denied any knowledge of the
pistol but at the trial two alleged having seen the other accused throwing an
object
out of the driver's window. The magistrate
10
relied on the presumption in convicting all the accused.
The judgment of
the Witwatersrand Local Division on appeal
(van der Walt J, Harms J concurring) proceeded (at 885 E)
as follows:
"Ek het egter h probleem met die toepassing van die vermoede ten aansien van al
drie insittendes van die bakkie. Die artikel meld
nie 'elke' of 'enige' persoon
nie, maar verwys slegs na 'n persoon'. In die strafreg kan 'besit' omskryf word
as direkte fisiese
besit of indirekte besit deur middel van h agent, met 'n
meegaande bedoeling van die besitter om beheer oor die voorwerp uit te oefen
(S
v Adams
1986 (4) SA 882
(A) op 890G-891H).
Al wat
die vermoede in art 40(1 ) doen is dat, waar daar geen getuienis teen 'n
beskuldigde van direkte fisiese besit is nie, besit
vermoed word indien die
beskuldigde 'n persoon is soos waarna die artikel verwys. Met ander woorde, dit
vergemaklik die Staat se
bewyslas. Die besit wat daar vermoed word, is besit
soos hierbo omskryf. Dit volg dus dat, sonder bewys van enigiets meer aan die
kant van die Staat, slegs een persoon uit hoofde van die vermoede fisiese besit
met die bedoeling om te beheer oor daardie artikel
kan uitoefen. Waar daar
meerdere persone is waarop die vermoede betrekking kan he en minder artikels as
die aantal persone of slegs
een vuurwapen (soos in hierdie geval) moet die
11
Staat lets meer bewys om die vermoede teen meerdere persone te laat geld.
Wat die Staat dan verder moet beweer in die klagstaat en bewys, is feite
waarvan 'n gemeenskaplike opset aan die kant van al die persone
wat aangekla
word, om die vuurwapen te besit of om dit te gebruik, gesamentlik te gebruik,
afgelei kan word. Na my mening kan art
40 nie so vertolk word dat die vermoede
van besit sonder meer teen meer as een persoon gelyktydig geld nie. Waar S v
Mukunga and
Others 1976(3) SA 193 (N) dui op so 'n vertolking, kan ek, met
respek, nie daarmee saamstem nie. Die feite in daardie saak is egter
aanduidend
van 'n gemeenskaplike opset om wapens te besit vir gebruik in voortslepende
stamgevegte in die gebied van Msinga, veral
aangesien die beskuldigdes in
daardie saak gelyktydig by die hut aangekom het, gaan slaap het en die
vuurwapens in die hut rondgele
het of gestaan het toe hulle slapend daar
aangetref was deur die polisie. In daardie omstandighede sou die vermoede van
besit wel
meerdere persone kan tref, want die feite word aangevul, soos ek
aangedui het.
In hierdie appèl was geen sodanige getuienis nie. Slegs 'n vuurwapen
wat by die linkerkantste venster van 'n bakkie uitgegooi
is waarin daar drie
persone was. Van die grootste belang is die feit dat die Staat uitdruklik dit
gestel het in besonderhede verskaf,
dat daar nie op 'n gemeenskaplike opset om
te besit staatgemaak word
12
nie.
Die vermoede kan derhalwe net geld teen een van die drie insittendes en die
Staat kon nie daarin slaag om te bewys teen wie die vermoede
moet geld nie. Na
my mening is die saak nog teen appellant nog teen beskuldigdes nrs 2 of 3 bewys
en behoort die appèl te
slaag."
Quite
obviously the attention of the Court in Tshabalala's case was not drawn to this
Court's decision in Makunga's case or to the
fact that the English text of the
Act (the signed text) refers not to "a person" but to "any person".
Quite apart from the provisions of s 6(b) of the Interpretation Act, No 33 of
1957, in terms of which, unless the contrary intention
appears, words in the
singular include the plural, it is manifest that the above-quoted dictum of this
Court in Makunga's case is
decisive of the proposition that the presumption
applies irrespective of the number of accused or the number of illicit articles
in issue. One may add, briefly, that
13
there is nothing in the wording of s 40(1) of the Act, properly interpreted,
which supports the construction set out in the Tshabalala
judgment at 885 H-I.
As pointed out in S v Gxokwe and Another 1992(1) SACR 267(C) at 273 i -274 b (in
which matter, incidentally,
this Court's decision in Makunga's case was also not
referred to) the interpretation adopted in Tshabalala's case necessarily
involves
the incorporation of words into the section which the legislature
clearly did not intend, expressly or impliedly, to include. It
also overlooks
the fact that possession can be not merely direct or mediate but also joint.
For all these reasons Tshabalala's case was, in my respectful view, wrongly
decided.
Turning to the evidence relative to the appellant's knowledge of what the bag
contained, the officer in charge of the roadblock, Lt
Goosen, testified as
14
follows in recounting an explanation which he said
appellants proffered during questioning after their arrest:
"Hulle het vir ons gesê dat hulle die vuurwapen by hulle gehad het en
hulle was op pad na Heidelberg polisiestasie om dit in
te handig en toe hulle
die padblokkade gewaar het hulle horn uitgegooi omdat hulle bang was dat hulle
dalk afgekeer sou word."
Under cross-examination it was put to Goosen
that
appellants were not fluent in Afrikaans and
would deny
giving that explanation. He said that they were fluent
and that this was indeed what they had said. He then
added:
"Ek kan net aan u noem, aan die hof noem dat hulle ook gesê het dat hulle
die vuurwapen opgetel het. Dat hulle die sak langs
die pad gewaar het en die
vuurwapen opgetel het en toe op pad was om horn in te
handig."
Referred to the fact that in
his initial account
of appellants' alleged explanation he omitted saying that
they claimed to have picked up the weapon, Goosen
acknowledged his omission but maintained that this was
15
indeed what the appellants had said. It was then put to him that the
appellants would also deny having offerred this further information.
The only
other State witness was a rifleman named Muller who had been posted in a
position some kilometres ahead of the roadblock
as a member of what was referred
to as a stopper-group. The function of this group, so one infers, was to watch
out for precisely
the sort of incident that occurred when the progress of the
car in question was interrupted so that the bag could be ejected.
Muller said that after the car had driven off he went to the bag. He parted
the sides of its opening with the barrel of his service
rifle and then saw the
AK 47 and the ammunition inside. One of his colleagues then reported the find by
radio to Goosen's personnel,
thus leading to the car's subsequently being
diverted and stopped when it reached the roadblock. In cross-
16
examination it was put to Muller that the bag had been locked but he denied
that.
From the defence evidence it transpired that the first and third
appellants were trade union officials and that second appellant was
a shop
steward in the employ of a company that had shortly before dismissed a number of
workers. A meeting was held in Johannesburg
on the day in question to discuss
the dismissal. All the appellants attended. At that meeting a committee was
elected to deal with
the problems of the dismissed workers. Because most of the
latter lived in Ratanda township at Heidelberg, that was where the appellants
-
who were either involved with, or members of, the elected committee - were bound
on the occasion referred to by the State witnesses.
For the purposes of their
journey the car in which they were travelling had been lent to them by its
owner, Johannes Mashiloane.
17
Focusing specifically on the first appellant's evidence, he said in chief
that as he emerged from the meeting a man named Bongani
told him that there was
a bag inside the car which contained his (Bongani's) axe. He asked the first
appellant to look after it for
him. It was when the roadblock was spotted that
first appellant (who was in the front passenger's seat) recalled Bongani's
request
and, not wishing to court any trouble should they be stopped at the
roadblock, he asked second appellant to throw the bag out. He
said that he only
learnt that there was an AK 47 in it after he had been arrested. He maintained
that it was not true that they had
told Goosen that they were taking the weapon
to the Heidelberg police station. He said they were not asked whose firearm it
was or
who the owner of the car was.
Asked under cross-examination what arrangement Bongani had made to retrieve
the axe, the first appellant
18
said nothing was discussed; he merely assumed that because both Bongani and
the second appellant lived in a place named Zonke, the
car, and thus the axe,
would be taken there by. the second appellant. The first appellant said he did
not check that the bag was
in the car or where it was in the car. Nor did he
tell the other appellants about it; he forgot all about the axe, until he saw
the
roadblock. Not even second appellant remarked on the bag's presence as far
as he could recall and it is appropriate to mention in
this connection that it
emerged during the second appellant's evidence that the bag was approximately
700 millimetres in length and
took up virtually the entire left rear foot well.
As a result, and because it was a small car, the second appellant sat in the
centre
of the rear seat both before and after they dropped a third passenger at
Vosloorus.
Asked why he wanted so urgently to get rid of the
19
axe, the first appellant said he did not want the axe to be found because
they could have been arrested for possessing it. Faced with
the suggestion that
they could simply have said that it belonged to Bongani and they were looking
after it for him, he altered his
stance and said that the real reason was that
they were in a hurry to get to the meeting at Heidelberg and to have to explain
all
about the axe at the roadblock would make them late. His third version, a
short while later, was that they could not give any explanation
at all because
they were assaulted.
Referred to Goosen's evidence, the first appellant said he could not remember
that Goosen spoke to him or that he even saw Goosen.
Asked why the assault
accusation had not been put to Goosen, the first appellant said that his
attorney was aware of the assault
aspect because the appellants had instructed
him to lay a charge against those responsible for the assault. Questioned
20
further on this subject by the magistrate, the first appellant said that the
assault occurred just after they were asked where the
firearm came from and
before they could give any answer. In fact, so he said, they were not given any
chance to answer; instead,
they were told what to say.
The second appellant's evidence was that he was given the car keys by
Mashiloane after the meeting in Johannesburg. He chose not to
drive, however,
because he did not have his public driving permit with him. He therefore
unlocked the car and got into the rear seat.
He was already there when the other
appellants got in. He saw the. bag but did not touch it or comment oil it. Asked
why he sat in
the centre of the rear seat he said he was able in that position
to speak to the third appellant who was driving. When the first
appellant told
him later to jettison the bag he did so without question. Only
21
thereafter did he hear mention that the bag contained an axe.
When the
prosecutor enquired why he did not tell their interrogators at the roadblock the
simple story that he had been told by the
first appellant to eject the bag, he
said he was not asked that. When the same question was put to him by the
magistrate, he said
he did in fact give that explanation. Asked why he did not
move the bag to make more room for himself when he entered the car, he
replied
that although it was in his way he was able to sit comfortably enough.
The aforegoing survey of the relevant evidence clearly demonstrates the
self-evident inherent improbabilities in the defence case.
If the appellants
were indeed requested to look after the bag there is no reason to think that
Bongani was unaware of the contents
or their obvious significance and value.
That he should have
22
made absolutely no arrangement as to when and. where he would recover the gun
and ammunition is extraordinary; For. all: he knew,
the appellants might have
looked inside the bag, realised the implications and have taken fright,
roadblock or no roadblock. In that
event they could have disposed of the bag.
either in the manner they eventually did or by throwing it into the veld where
it might
have been found only much later, if ever.
In the seconds place, if the first appellant did think the bag contained just
an axe, there was really no convincing reason why he
would have wanted to get
rid of it. That he in fact had no reason is obvious from his prevarications. As
to the allegation that they
were asked about the origin of the firearm but not
afforded any chance to reply this is plainly absurd. That the second appellants
made no comment or
23
enquiry regarding the bag which must have been in his way
to an
inconvenient extent, is also far-fetched. So, too, '
is his omission to ask any questions about the reason for
the bag's
disposal.
As if these features were not enough in themselves effectively to prevent the
discharge of the appellants' onus, their alleged ignorance
as to the contents of
the bag was countered primarily by evidence of Goosen, that they knew it was a
firearm, but also the evidence
of Muller, who said the bag was readily capable
of being opened and inspected.
No sensible explanation suggests itself why Goosen would have fabricated a
fundamentally exculpatory explanation for their possession.
If he was intent
upon advancing the prosecution's cause a more incriminating account would have
been more likely. And there is nothing
to show that when he came to testify he
knew what the
24
defence was, thus laying the foundation for the - possible suggestion that he
contrived an account that would destroy it.
Having considered all the
evidence it. may justifiably be said that the magistrate was entitled to reject
the defence evidence as
false beyond reasonable doubt. But it is unnecessary to
go so far. It suffices to say that the evidence of the first and second
appellants
was markedly improbable both inherently and by comparison with the
State evidence. And, one notes again, the third appellant did
not testify. The
onus upon all the appellants was therefore not discharged and it follows that
they were correctly convicted.
25
The appeal is consequently dismissed.
C T HOWIE,
JA
Joubert, JA )
Kumleben, JA ) concur
F H Grosskopf,.JA )
Van Coller,
AJA )