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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case number: AR344/2022
In the matter between:
SIBUSISO SIBONGISENI MABASO APPELLANT
and
THE STATE RESPONDENT
ORDER
On appeal from : Regional Court, lngwavuma (Mr MA Khum alo sitting as court of
first instance) it is ordered:
1. The appeal against the conviction and sentence on count 1 is dismissed.
2. The conviction and sentence on count 1 is confirmed.
3. The appeal against the conviction and sentence on count 3 is upheld . The
following conviction is substituted in its stead:
'The accused is found guilty of contravening s 3(1) read with s 120(1 )(a) of
the Firearms Control Act 60 of 2000, being the unlawful possession of a
firearm, a 9mm calibre, the exact make unknown, on 11 February 2013.'
4. The appeal against the conviction and sentence on count 4 is upheld. The
following conviction is substituted in its stead:
'The accused is found guilty of contravening s 90 read with s 120(1)(a) of the
Firearms Control Act 60 of 2000, being the unlawful possession of two rounds
of ammunition, being one 9x19mm and one unidentified calibre.'
5. The sentences imposed in respect of counts 3 and 4 are set aside and
replaced with:
'The sentences on counts 3 and 4 are taken as one for purpose of sentence
and the accused is sentenced to four years' imprisonment.'
6. The sentences imposed on counts 3 and 4 are antedated to 19 April 2016.
7. The sentences imposed on counts 3 and 4 will by operation of law be served
simultaneously with that imposed on count 1.
JUDGMENT
Hadebe AJ and Henriques J (separate concurring):
Introduction
[1] This is an appeal against the convictions and sentences imposed upon the
appellant by the Regional Court, lngwavuma. The appellant was charged as follows:
(a) Count 1: Murder (read with the provisions of s 51(1) of the Criminal
Law Amendment Act 105 of 1997 (the CLM) ) it being alleged the murder was
planned and/or premeditated;
(b) Count 2: Conspiracy to commit murder;
(c) Count 3: Unlawful possession of a semi-automatic firearm; and
(d) Count 4: Unlawful possession of ammunition.
[2] He was convicted on counts 1 an d 4 as charged. On count 3, he was
convicted for contravening s 3 of the Firearms Control Act 60 of 2000. He was
acquitted on count 2. On count 1, he was sentenced to undergo life imprisonment;
on count 3, he was sentenced to undergo seven years' imprisonm ent and on count 4,
he was sentenced to undergo three years' imprisonment. The sentences on counts 3
and 4 were ordered to run concurrently with the sentence imposed on count 1.
[3] The appellant brought an application for leave to appeal his convictio ns on
counts 3 and 4, which was granted by Mr B Milner, who had not presided at the trial
in the court a qu o. In relation to count 1, the appellant has an automatic right of
appeal in terms of the provisions of s 309(1 )(a) of the Criminal Procedure Act 51 of
1977 (the CPA).
[4] In preparation for the appeal, the parties' legal representatives filed their
respective heads of argument. The main focus of these heads of argument related to
the conviction and sentence on count 1. In light of this, at the hearing of the appeal,
the parties' legal representatives were directed to file supplementary heads of
argument, specifically addressing the convictions and sentences on counts 3 and 4,
which they subsequently did.
The convictions
The grounds of appeal on conviction
[5] The appellant raised inter alia the following in the heads of argument as his
grounds of appeal:
(a) The court a quo misdirected itself in finding that although he knew of
the statement that was taken by Captain Nyawo, he had provided the
contents of the statement and had signed the statement.
(b) The court a qu o failed to properly consider the conclusions of the
evidence of Mr Clayton.
(c) The court a qu o misdirected itself by focusing exclusively on the
evidence of Mr Clayton in its judgment, which favoured the res pondent and
which demonstrated bias towards the appellant.
(d) The court a quo misdirected itself in finding that cellphone number 0[…]
belonged to the appellant.
(e) The court a quo misdirected itself in finding that the appellant was the
person who shot and killed the deceased.
(f) The court a quo misdirected itself in finding that the appellant was in
the unlawful possession of a firearm and ammunition.
[6] A consideration of the evidence presented in the court a quo is necessary at
this juncture before dealing with the respective grounds of appeal.
The evidence in the court a quo
[7] During the trial of the appellant in the court a qu o, the respondent led the
evidence of several witnesses, among them being Ms Ellen Phumzile Gumede (Ms
Gumede), who was married to the deceased, and Mr Cocks Mthembu (Mr Mthembu),
a neighbour of the deceased, who travelled with the deceased to his workplace at
the Umhlathuze Municipality. The appellant and Ms Gumede had a relationship
before the offences were commi tted. The marriage relationship between the
deceased and Ms Gumede was estranged.
[8] Ms Gumede was arrested after the death of the deceased and testified as a
witness in terms of s 204 of the CPA. She testified that she had informed the
appellant shortly before the deceased was murdered that she wished to terminate
her relationship with him. This was after she realised her daughter had become
aware of her relationship with the appellant. Ms Gumede informed the appellant
about her intention to terminate th eir relationship. The appellant did not want her to
end the relationship and informed her that the deceased already knew about their
relationship and many people were talking about it. He indicated that he would shoot
her and the deceased to end the talkin g. Ms Gumede's response was that the
appellant should rather shoot her instead of the deceased, as the deceased had
done nothing wrong.
[9] On 10 February 2013, a day before the deceased was killed, the appellant
and Ms Gumede met at her home which she sh ared with the deceased. The
appellant informed Ms Gumede that he would call her around 20h00 on the same
day and around 03h00 to 04h00 the following morning to find out if the deceased
was at home. Ms Gumede testified that on that night, she left her cellp hone in
another room, and did not receive or answer any calls from the appellant. On the
following day, 11 February 2013, whilst she was inside the house which she shared
with her husband, she heard a gunshot after her husband had gone outside their
with her husband, she heard a gunshot after her husband had gone outside their
home, preparing to go to work. She was called by Mr Mthembu to come outside.
When she went outside, she saw her husband lying on the ground. The police
attended the scene and removed his body. She had never spoken to the appellant
after the death of her husband. At the end of the trial, the court a quo discharged her
from prosecution in terms of s 204 of the CPA.
[10] Mr Mthembu, whose evidence was not disputed, testified that he had called
the deceased before the shooting, as they were to travel together that morning to
work. The deceased had told him to enter the deceased's yard. Upon doing so, he
witnessed the shooting of the deceased but could not identify the shooter.
[11] The post -mortem was prepared by Dr Francois Alwyn van Niekerk (Dr van
Niekerk), a district surgeon on 12 February 2013, after examining the body of the
deceased. The cause of death of the de ceased was recorded as being a gunshot
wound, the entry wound being at the back of the head and the exit wound to the
deceased's face below the right eye. In addition, it was also noted that the deceased
had sustained a gunshot wound through the right hand . The post-mortem report, as
well as an affidavit in terms of s 212(4) of the CPA, were admitted into evidence
without leading the evidence of Dr van Niekerk.
[12] The respondent, in addition, relied on a confession made by the appellant to
Captain Nyawo on 1 October 2013. In the confession, the appellant recorded that he
was defending himself when he killed the deceased, as the deceased had tried
several times to kill him. He narrated how he had planned to kill the deceased. In the
confession, the appellant placed himself at the scene of the crime and confirmed that
he shot the deceased twice on the day in question. A trial -within-a-trial was not held,
despite the appellant disputing the admissibility of the statement. What was
pertinently disputed by the appellant was the content of the statement and that his
signatures appeared on the respective pages of the statement.
[13] The respondent called Mr Elwyn Roland Clayton (Mr Clayton) from the
Forensic Science Laboratory, who is employed inter alia as a n examiner at the
Forensic Science Laboratory, who is employed inter alia as a n examiner at the
Questioned Document Unit, to testify about the report he compiled, given the
appellant's challenge to the signatures on the confession. He testified that he was
requested to conduct a comparative analysis of the signatures on three sets o f
documents. The first being the original statement dated 1 October 2013, marked
S1(1) to S1(9), a written statement consisting of three pages, marked Q1(1) to Q1(3)
(which were the questioned documents), and specimen signatures of the appellant,
marked S2 and S3. He was requested to only do a comparison of the signatures
between Q1(1) to Q1(3) with the acknowledged signatures of the accused S1(1) to
S1(9) and S2 and S3.
[14] He testified that it is not uncommon for signatures to be generally inconsistent
with each other in respect of design, considering the seriousness of the document,
which may have been caused by nervousness, fatigue or stress. He testified that it is
not common for an individual to have more than one signature. He further testified
that the signatures in the second document that was signed by the appellant appear
to have been written at a relatively fast speed. Based on his comparison he
concluded that
'... the fundamental differences between the acknowledged signatures marked S1.1
to S1.9 and the requested specimen signatures marked S2 and S3 provide strong
support for the proposition that the latter signatures are in all likelihood deliberately
disguised rather than the product of a different writer.'
[15] What is of relevance is that, interestingly, the requested specimen signatures
S2 and S3 were completely different to S1(1) to S1(9), which were the
acknowledged signatures.
[16] The respondent also called Ms Lynette van Zyl (Ms van Zyl), who was
employed by Vodacom. She was called t o testify about the cellphone records that
were requested by the investigating officer in terms of s 205 of the CPA. The
application was for cellphone numbers 0[…]2, 0[…]3 and 0[…], and IMEI number
3[…]. She testified that accordi ng to the cellphone records for cellphone numbers
0[…]2 and 0[…], there were several communications during the night on 10 February
2013. Also, on 11 February 2013, there was a call made to 0[…]2 from 0[…]. The
communication between the aforesaid numbers continued until 05h59, even after the
death of the deceased.
[17] The witness was also requested to plot the distances of certain towers to the
[17] The witness was also requested to plot the distances of certain towers to the
appellant's homestead. The Nibela Telkom tower and the appellant's homestead
were 1.3 k ilometres apart and from the appellant's homestead to the deceased's
home was 930 metres. At crucial times, the 082 number pinged off the Nibela
Telkom tower and the 072 number pinged off the Khuleni Beacon tower. The
evidence of this witness was not challenged by the appellant.
[18] The respondent called Sergeant Ntshangase, the investigating officer who
obtained the cellphone numbers of the deceased's wife and the appellant to forward
them to the expert, Ms van Zyl. He obtained the cellphone numbers from the
deceased's wife. He further testified that the cellphone numbers 0[…]2 and 0[…]
belonged to the deceased's wife and the appellant, respectively. When asked how
he knew this, he stated that firstly, he was informed by the deceased's wife; an d
secondly, the identity number of the appellant corresponded with the identity number
that was used to RICA cellphone number 0[…]. His evidence was corroborated by
the deceased's wife when she was recalled to confirm that she gave her cellphone
numbers and that of the appellant to Sergeant Ntshangase. Ms van Zyl, when she
testified, confirmed that, according to Vodacom's records, these were the appellant's
and the deceased's wife cellphone numbers.
[19] The appellant elected to exercise his right to remain silent, closed his case
and called no witnesses in his defence.
Submissions by the appellant on the convictions
[20] Mr Tengwa, who appeared for the appellant, argued that the learned
magistrate was wrong in finding that the respondent had proved the guilt of the
appellant beyond a reasonable doubt. He further argued that the court a quo erred in
accepting the ev idence of Mr Clayton, which was inconclusive. I find it difficult to
accept this argument, as Mr Clayton came to the conclusion that there was a
likelihood that the specimen signatures were deliberately disguised. There is no
evidence to gainsay Mr Clayton's evidence.
[21] It was submitted for the appellant in the supplementary heads of argument,
that the court a quo should have considered the fact that no firearm and ammunition
that the court a quo should have considered the fact that no firearm and ammunition
were recovered from the appellant's possession and although the appellant was the
shooter, this was insufficient to sustain the convictions on counts 3 and 4.
[22] It was further submitted that the court a quo had found that the respondent did
not prove that the firearm used was a semi -automatic firearm. It was argued that
despite the shortcomings, the court a quo misdirected itself in finding the appellant
guilty on counts 3 and 4.
Submissions by the respondent on the convictions
[23] Ms Mlondo, who appeared for the respondent, argued that its witnesses
corroborated each other in material respects. The statement of the appellant
amounted to a confession which confirmed the version of the deceased's wife, Ms
Gumede. Relying on S v Boesak,1 it was submitted that although the appellant has a
right to remain silent and is under no obli gation to testify, it did not mean that there
were no consequences attached to his decision. It was lastly submitted that the
evidence, when considered holistically, was sufficient to prove the guilt of the
appellant beyond reasonable doubt.
[24] In its s upplementary heads, the respondent submitted that there was no
evidence by the appellant suggesting that he had a licence, permit or any form of
authority, authorising him to possess a firearm of any calibre. It was also submitted
that it was undisputed th at the deceased died as a result of a gunshot wound to the
head and that the only inference that can be drawn is that the appellant was in
possession of a firearm which he used when he shot and killed the deceased as well
as ammunition2 as envisaged in the Firearms Control Act 60 of 2000 (the Firearms
Act). It is for these reasons submitted that the court a quo was accordingly correct in
convicting the appellant on counts 3 and 4.
Analysis
[25] In Mnyandu v Padayachi,3 the court stated that:
1 S v Boesak [2000] ZACC 25; 2001 (1) SACR 1 (CC).
2 The respondent referred to 15 cartridges. This appears to be an error as count 4 refer to two live
rounds of ammunition.
3 Mnyandu v Padayachi 2017 (1) SA 151 (KZP) para 28.
'It is trite that a court of appeal will not interfere with the findings of fact and
credibility of the trial court unless it is apparent from the record that the court a
quo either materially misdirected itself or erred to the extent that its findings
are vitiated and fall to be set aside.'
[26] The court a qu o found that the respondent had proved its case beyond
reasonable doubt and convicted the appellant on the counts that are the subject of
this appeal. The court a quo found that the evidence of the respondent through its
witnesses was given in a straightforward manner. The witnesses impressed the court
as being honest. It was satisfied that the truth had been told when one considered
the evidence holistically.
[27] The court a quo was satisfied that the confession by the appellant was freely
and voluntarily made, and without any undue influence. It found that the respondent
succeeded in proving beyond reasonable doubt that the confession was made in
terms of the requirements of s 217(1) of the CPA and was therefore admissible.
Relying on the confession, the court a quo found that the appellant had the motive to
kill the deceased, as recorded in his confession.
[28] As discussed above, Mr Tengwa conceded that the statement of the appellant
constituted a confession, in compliance with s 217 of the CPA. The statement was
made to Captain Nyawo, who had no interest in the matter. He could not have made
up what is contained in the statement. The content of the confessi on is consistent
with the evidence of the deceased's wife, Ms Gumede. It is worth noting that the
appellant did admit in the confession that he was the person who killed the deceased.
The court a quo considered the evidence led by the respondent holistically, including
the findings in the report of Mr Clayton that there was a like lihood that the specimen
signatures were deliberately disguised. Having considered the concession by the
signatures were deliberately disguised. Having considered the concession by the
appellant's counsel and the content of the confession, I am not able to discern any
misdirection by the magistrate on count 1. In my view, there is no merit in the
grounds of appeal for the conviction on count 1 - the magistrate correctly found that
the confession was made freely and voluntarily. Consequently, he correctly
convicted the appellant of murder read with s 51(1) of the CLAA.
[29] In relation to counts 3 and 4, no firearm was recovered. The main difficulty
with the respondent's case, in particular count 3, was the fact that the appellant was
charged with the possession of a semi -automatic firearm, despite the firearm not
having been recovered nor tested.
[30] A firearm is defined in the Firearms Act as follows:
"'firearm" means any-
(a) device manufactured or designed to propel a bullet or projectile through
a barrel or cylinder by means of burning propellant, at a muzzle energy
exceeding 8 joules (6 ft-lbs);
(b) device manufactured or designed to discharge rim -fire, centre -fire or
pin-fire ammunition;
(c) device which is not at the time capable of discharging any bullet or
projectile, but which can be readily altered to be a firearm within the meaning
of paragraph (a) or (b);
(d) device manufactured to discharge a bullet or any other projectile of a
calibre of 5.6 mm (.22 calibre) or higher at a muzzle energy of more than 8
joules (6 ft -lbs), by means of compressed gas and not by means of burni ng
propellant; or
(e) barrel, frame or receiver of a device referred to in paragraphs (a), (b),
(c) or (d), but does not include a muzzle loading firearm or any device
contemplated in section 5.'
[31] The respondent submitted in the supplementary heads th at there is no
evidence by the appellant to suggest that he had a licence, permit or any form of
authority, authorising him to possess a firearm of any calibre, as required in s 250 of
the CPA. It was further submitted that the only reasonable inference, w hich can be
drawn from the proven facts, is that the appellant used a firearm to shoot the
deceased. The respondent submitted further that it is an undisputed fact that the
deceased died as a result of a gunshot wound to the head. In its supplementary
heads, the respondent referred to 15 spent cartridges which represent ammunition,
as envisaged in the Firearms Act. This appears to be a typographical error, as there
as envisaged in the Firearms Act. This appears to be a typographical error, as there
is no evidence suggesting that there were 15 spent cartridges. In fact, the appellant
stated in his statement that he shot the deceased twice. His version is supported by
the findings in the post-mortem report.
[32] The learned magistrate reasoned that the instrument used was indeed a
firearm and the possession thereof by the appellant of such instrument was in
contravention of the Firearms Act. The court a quo found that the inference of guilt
based on the strong evidence is the only reasonable inference to be drawn from the
facts of this case. In my view, the magistrate, in his judgment, did adhere to the well-
established test as set out in R v Blom4 as follows:
'(1) The inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. I f they do not exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.'
[33] Having regard to the evidence of Mr Mthembu, who saw the shooting, albeit
that he could not identify the shooter; the appellant who confirmed in his confession
that he shot the deceased twice; and that the post -mortem report which confirmed
that the deceased was killed as a result of a gunshot, I am of the view that the
respondent has discharged the onus to prove that the appellant was in possession of
an unlicensed firearm and ammunition and not a semi -automatic firearm as alleged
in the charge sheet. However, as will become apparent in the concurring judgment,
there are issues with the way in which the convictions on cou nts 3 and 4 were
worded. I agree with what has been stated in the concurring judgment and the
correct convictions will have to be stipulated.
The sentences
The grounds of appeal on sentence
4 R v Blom 1939 AD 188 at 202-203.
[34] The grounds of appeal on sentence, as recorded in the application for leave to
appeal, are as follows:
'a. The sentence imposed upon the accused is manifestly excessive;
b. The sentence is so far outside the range of appropriate sentence;
c. The court erred in overemphasizin g the interest of the community at
the expense of the interest of the accused;
d. The sentence given to the accused was harsh and disproportionate to
the crime committed and also to the personal circumstances of the accused;
e. The court erred in stating t hat there were less substantial and
compelling circumstances to deviate from the prescribed minimum sentences
in terms of the Criminal Law Amendment Act 105 of 1997;
f. The court never even took time to know or to investigate the personal
circumstances of the accused person before sentencing.'
Proceedings in the court a quo
[35] During sentencing, the appellant did not testify in mitigation of sentence and
elected to make submissions through his legal representative from the bar. It was
submitted on his be half that he was 30 years of age with no pending charges and
had no previous convictions. He survived on odd jobs and had five children who
were financially dependent on him.
[36] It was submitted before the court a quo that it must consider the appellant 's
personal circumstances as a whole as constituting substantial and compelling
circumstances justifying a deviation from the mandatory minimum sentence on count
1. In addition, the court a quo must consider the duration spent by the appellant in
custody f rom the time of his arrest until the finalisation of the case, being from 1
October 2013 to 19 April 2016.
[37] The court a quo took into account that the appellant did not show remorse. It
found that there were many aggravating factors which far outweigh ed the mitigating
factors. Some of the aggravating factors included the fact that the deceased was
killed in his backyard at his home, and that the children and relatives must have seen
the deceased lying in a pool of blood. The court found that there w ere no substantial
and compelling circumstances to deviate from the prescribed minimum sentence on
count 1.
Analysis
[38] It is trite that the imposition of sentence is pre -eminently a matter that falls
within the discretion of the trial court, and that a court of appeal will only interfere in
certain distinct circumstances. Such circumstances may present themselves if t he
sentencing court did not exercise its discretion appropriately, or if it exercised it
unreasonably. Also, in circumstances where the sentence imposed is adversely
disproportionate to the offender, the crime committed and the legitimate needs of
society. Reiterating this principle, Khampepe J stated the following in S v Bogaards:5
'An appellate court's power to interfere with sentences imposed by courts
below is circumscribed. It can only do so where there has been an irregularity
that results in a failur e of justice; the court below misdirected itself to such an
extent that its decision on sentence is vitiated; or the sentence is so
disproportionate or shocking that no reasonable court could have imposed it.'
(Footnotes omitted.)
[39] Notwithstanding tha t there may not be an obvious material misdirection, an
appellate court may be entitled to interfere with a sentence imposed by a trial court if
'the disparity between the sentence of the trial court and the sentence which the
appellate Court would have im posed had it been the trial court is so marked that it
can properly be described as "shocking", "startling" or "disturbingly inappropriate"'.6
[40] Regarding the period spent in custody whilst awaiting trial, the Supreme Court
of Appeal held in S v Radebe and another7 that the period spent awaiting trial cannot,
5 S v Bogaards [2012] ZACC 23; 2013 (1) SACR 1 (CC) para 41.
6 S v Malgas 2001 (1) SACR 469 (SCA) para 12.
7 S v Radebe and Another [2013] ZASCA 31; 2013 (2) SACR 165 (SCA) para 14.
on its own, constitute substantial and compelling circumstances justifying a
departure from the prescribed minimum sentence. Lewis JA observed that:8
'... the period in detention pre -sentencing is but one of the factors that should
be taken into account in determi ning whether the effective period of
imprisonment to be imposed is justified: whether it is proportionate to the
crime committed.'
[41] Consequently, the submission advanced for the appellant that the period
spent in custody on its own amounts to substant ial and compelling circumstances
warranting a departure from the prescribed minimum sentence falls to be rejected.
The crime of which the appellant was rightly convicted has become a pandemic in
our society. In my view, there are no substantial and compell ing circumstances
justifying a deviation from the prescribed minimum sentence of life imprisonment on
count 1.
[42] In relation to count 3, there is no doubt that the appellant was in possession of
an unlicensed firearm and ammunition. In terms of s 121, read with schedule 4 of the
Firearms Act, the maximum sentence for the unlawful possession of a firearm is 15
years. In this matter, the magistrate imposed a sentence of seven years in count 3.
In relation to count 4, he imposed a sentence of three years imprisonment.
[43] Having read the separate concurring judgement I am in agreement that the
appeal against the sentences on counts 3 and 4 will have to be upheld and agree
with the reasons contained therein and the new sentences imposed.
Henriques J (separate concurring judgment)
[44] I have read the main judgment and concur in the findings, save to add the
following in relation to counts 3 and 4. The court a quo convicted the appellant of the
8 Ibid.
possession of an unlicensed firearm as opposed to a semi automa tic firearm and the
unlawful possession of ammunition. He was sentenced to a sentence of seven years
imprisonment on count 3 and in relation to count 4, the court a quo imposed a
sentence of three years imprisonment.
[45] Counts 3 and 4, as set out in the charge sheet, read as follows:
'Count 3:
2.1 That the accused is guilty of the offence of contravening the provisions
of Section 3 read with Section 1, 103, 117, 120(1)(a), Section 121 read with
Schedule 4 and Section 151 of the Firearms Control Act, 60 of 2000, and
further read with Section 250 of the Criminal Procedure Act 51 of 1977 and
Section 51(2) of the Criminal Law Amendment Act 105 of 1997 - Possession
of a Semi-Automatic Fire-Arm.
In that 11 February 2013 and at or near Kwa -Nibela, in the Regional Division
of KwaZulu Natal the accused did unlawfully have in his possession the
following firearm, to wit 9x19mm calibre pistol without holding a licence,
permit or authorisation issued in terms of the Act to possess that firearm(s).
Count 4:
2.2 That the accused is guilty of the offence of contravening the provisions
of Section 90 read with Sections 1, 103, 117, 120(1)(a), Sections 121 read
with Schedule 4 and Section 151 of the Firearms Control Act, 60 of 2000 and
further read with Section 250 of the Criminal Procedure Act 51 of 1977 -
Possession of ammunition
In that on or 11 February 2013 and at or near Kwa -Nibela Area in the regional
division of KwaZulu -Natal the accused did unlawfully have in his possession
ammunition to wit 2 x live rounds without being the holder of:
(a) a licence in respect of a firearm capable of discharging that ammunition;
(b) a permit to possess ammunition;
(c) a dealer's licence manufacturer's licence, gunsmith's licence, import,
expprt or in- transit permit or transporter's permit issued in terms of this Act;
(d) or is otherwise authorised to do so.'
[46] In the supplementary heads of argument, the appellant submitted that:
(a) Despite finding that the appellant was the shooter, the cour t a quo
ought to have acquitted the appellant as no firearm and ammunition were
recovered from the appellant.
(b) The ballistic evidence that the fired bullet was a 9mm calibre was
insufficient to establish the type of 9mm pistol used.
(c) The respondent h ad charged the appellant with possession of a semi -
automatic firearm and the court a quo, having found the respondent had not
proved the firearm to be a semi-automatic firearm, misdirected itself in finding
him guilty of the possession of a firearm in c ontravention of s 3 of the
Firearms Act.
[47] The respondent, correctly in my view, submitted that it had discharged the
onus of proving the appellant was in possession of a firearm in contravention of s 3
of the Firearms Act and two rounds of ammunition. What it did not do was establish
that the firearm was a semi -automatic one, the make thereof, as well as the calibre
of one of the rounds of ammunition.
[48] The respondent elected not to lead any evidence in relation to the calibre and
type of firearm, as it is common cause that it was not recovered. The only evidence
presented was the handing in of exhibit 'O', which is an affidavit in terms of s 212 of
the CPA by Warrant Officer Nolwazi Mzimela, a forensic analyst employed at the
Ballistics Unit of the Forensic Science Laboratory. Warrant Officer Mzimela took into
custody an evidence bag containing one fired bullet on 11 March 2013 and on
examination thereof, found that the bullet was a 9mm calibre.
[49] In convicting the appellant, the court a quo relied on circumstantial evidence
in finding that the appellant was in possession of a firearm, namely, the results of the
post mortem completed by Dr van Niekerk, which reflected a gunshot wound to the
deceased's right hand and a gunshot wound to the head of the deceased, with the
bullet found below the right eye. Based on inferential reasoning, coupled with the
bullet found below the right eye. Based on inferential reasoning, coupled with the
appellant's confession that he had shot the deceased, the court a quo concluded that
the appellant was in possession of a firearm.
[50] In its judgment on conviction, the court a quo was mindful of the fact that no
firearm was recovered from the appellant and concluded that
'The State must have chosen to proceed with the contravention of Section 3
and 90 of the Firearms Control Act 60 of 2000 on the basis of the argument
that if the Court finds that the accused was the shooter in respect of count 1,
he must have been in possession of a firearm which had ammunition which
he possessed illegally.'
[51] In rejecting the respondent's contentions that the appellant was in possession
of a semi-automatic firearm, the court a quo found that such inference was not easily
drawn as
'evidence has to be led that such firearm was indeed a semi-automatic firearm.
If no evidence is led, the State ought to have filed a ballistics report to say that
the fired cartridge was fired from the firearm which was self -loading but not
capable of discharging more than one shot with a single depression of the
trigger and this w ould have triggered the operation of Section 51(2) of the
Criminal Law Amendment Act 105 1997.'
[52] The court a qu o, relying on unreported judgments of the Northen Cape
Division of the High Court, as well as S v Filani9 and S v Matinisi,10 was of the vi ew
that it would be more appropriate to convict the accused of possession of a firearm in
contravention of s 3 of the Firearms Act, as 'it was satisfied that the instrument used
was indeed a firearm'.
[53] In relation to count 4, the court a quo was of th e view that as the appellant
had confessed to Captain Nyawo that he had shot the deceased twice with a firearm,
consequently, by virtue of inferential reasoning, he must have been in possession of
two live rounds of ammunition.
9 S v Filani 2012 (1) SACR 508 (ECG) (Filani).
10 S v Matinisi 2010 JDR 1334 (ECG) (Matinisi).
[54] The evidence presented in the court a quo established the following proven
facts namely:
(a) That the deceased in this matter died as a result of a gunshot wound to
the head.11
(b) That it was the appellant who shot and killed the deceased.
(c) That the fired cartridge found at the crime scene was fired from a
firearm, namely, a 9mm calibre pistol.12
(d) That the fired bullet was designed to be fired from a centrefire
firearm.13
[55] It is trite that the duty of the respondent is to prove beyond reasonable doubt
that the instrument used by the appellant in the commission of the offence in this
matter was a firearm as defined in s 1 of the Firearms Act.
[56] The definition of a fi rearm has been extensively quoted in the main judgment.
Section 1 of the Firearms Act defines 'ammunition' as the 'primer or complete
cartridge' and 'cartridge' in turn is defined as 'a complete object consisting of a
cartridge case, primer, propellant and bullet'.
[57] The Firearms Act has its own penalty provisions. Section 90, read with s 121
and schedule 4, prescribes the maximum periods of imprisonment which a court can
impose. In respect of a contravention of s 3, the maximum period of imprisonment i s
that of 15 years. The Firearms Act contains certain presumptions in chapter 15,
which operate in relation to the possession of a firearm and/or ammunition.
[58] The relevant provision for purpose of this matter is s 117(3)(c), which reads as
follows:
'In any criminal proceedings against a person where it is alleged that such
person has injured or killed another person or has damaged property
11 The record, exhibit 'Z2' at page 432.
12 The record, exhibit 'G' at page 326.
13 The record, exhibit 'O' at page 312.
belonging to another person, the following circumstances will, in the absence
of evidence to the contrary which ra ises a reasonable doubt, be sufficient
evidence that such person participated in the injury, killing or damage, where
it is proved that-
…
(c) as a result of such discharge, a person was injured or killed, or property
was damaged.'
[59] In my view, havi ng regard to the various decisions, the court a quo correctly
concluded that the provisions of the CLAA would only apply in circumstances where
the respondent proved that the firearm was a semi -automatic firearm. As already
mentioned, the Firearms Act has its own penalty provisions.
[60] In Matinisi, although no firearm was found, the full bench relied on the
evidence of two witnesses who testified that the appellant had approached them
after the shooting with a request to 'hide a firearm'.
[61] Filani dealt with the definition of a firearm, as envisaged in the predecessor to
the Firearms Act, being the Arms and Ammunition Act 75 of 1969. The facts in Filani
were distinguishable - there was no forensic report on the cartridge recovered from
the scene, no photographs were handed in of the 'hole in the wall' where it had been
'struck by a projectile'. The court found that14
'Had the bullet point and cartridge been subjected to forensic analysis, then,
depending on the results of such analysis, the state ma y well have been able
to establish that the projectile had been fired from a device falling within the
ambit of the definition of "firearm".'
[62] The State in Filani had submitted that in the absence of forensic evidence, the
weapon discharged or propell ed a missile with enough force or velocity for it to be
14 Filani at 515D-E.
used for offensive purposes and it fell within the definition of a firearm. The court
held that:15
'In my view, however, given the increased technical nature of the various
definitions of 'firearm' co ntained in the later and current Act, such a finding
cannot be made in the absence of expert evidence to that effect. Certainly, it
is not a matter of which this court may take judicial notice. The state failed to
lead any such expert evidence and accordin gly failed, in my view, to
discharge the onus upon it.'
[63] I agree with the sentiments of Binns -Ward J in S v Jordaan and Others,16 that
while the reasoning in Filani is difficult to fault on its given facts, it would 'give rise to
uncomfortably anomalous results if applied as a general doctrine'. The SCA in S v
Sehoole17 has held
'Whilst it is undoubtedly so that a ballistics report would provide proof that a
specific object is indeed ammunition, there is no authority compelling the
State to produce suc h evidence in every case. Where there is acceptable
evidence disclosing that ammunition was found inside a properly working
firearm, it can, in the absence of any countervailing evidence, be deduced to
be ammunition related to the firearm. Needless to say, each case must be
judged on its own particular facts and circumstances.'
[64] The court a quo correctly did not utilise the CLAA sentencing provisions. As
already mentioned, the Firearms Act has maximum sentences set out in the penalty
provisions for a contrav ention of either s 3 or s 4. The CLAA provides for various
minimum sentences. I align myself with the sentiments expressed by the SCA in S v
Motloung,18 which read as follows:
'The two statutes must also be read in the context of Parliament's wish to
increase sentences. The words "(n)otwithstanding any other law" have
remained in place, despite the amendment to the Criminal Law Amendment
15 Filani at 515F-G.
16 S v Jordaan and Others 2018 (1) SACR 522 (WCC) para 101.
15 Filani at 515F-G.
16 S v Jordaan and Others 2018 (1) SACR 522 (WCC) para 101.
17 S v Sehoole [2014] ZASCA 155; 2015 (2) SACR 196 (SCA) para 19.
18 S v Motloung [2016] ZASCA 16; 2016 (2) SACR 243 (SCA) para 21.
Act on 13 November 2008. The Firearms Control Act, which came into effect
on 1 July 2004, introduced a distinction betwee n fully automatic and semi -
automatic firearms and the contraventions relating to these weapons. It is
apparent that, in passing this legislation, Parliament considered any offence
relating to the possession of an automatic or semi automatic firearm,
explosives or armament as being a serious offence. In providing for enhanced
penal jurisdiction for particular forms of an already existing offence, the
legislature does not create a new type of offence. See S v Legoa 2003 (1)
SACR 13 (SCA) ([2002] 4 All SA 373; [2002] ZASCA 122) para 18.'
[65] Having regard to the post -mortem report, the court a qu o was correct in
finding that the appellant was in possession of a firearm in contravention of s 3 in the
absence of an explanation or in the absence of the appella nt disputing this in the
court a qu o and also correctly concluded that at the time, given the number of
gunshot wounds and the recovery of a bullet, the appellant was in possession of two
rounds of ammunition.
[66] In discharging its onus, the respondent only required that the bullet point as
well as the cartridge be subjected to forensic analysis and depending on the results
of such analysis, the respondent may well have been able to establish that the
projectile had been fired from a device falling withi n the ambit of the definition of
'firearm'.19
[67] When considering the totality of the evidence, there is no evidence by the
appellant to suggest that he had a license, permit or any form of authority,
authorising him to possess a firearm of any calibre. Further to that, it remains an
undisputed fact that the deceased died of a gunshot wound to the head, which
seemed to be common cause, as the post -mortem report, exhibit 'Z2', was admitted
by consent.
19 See Filani at 5150.
[68] It is submitted that the only reasonable inference that can be drawn from the
proven facts in this matter, is that the appellant, at the time that he shot and killed the
deceased, used a firearm, proven to be a 9mm pistol, as per exhibits 'G' and 'O'.
[69] Given the specific wording of the offences in the charge sheet, the court a quo
ought to have, when convicting the appellant, specified the exact charges on which
he had been convicted to align with the proven facts. Count 3 in the charge sheet
reflects that the appellant was in possession of a 9x19mm calibre pistol and count 4
reflects that he was in possession of two live rounds. Given that no firearm was
found, save for the calibre being known from the one 9 mm bullet recovered, the
convictions on counts 3 and 4 would have to be substituted to correctly reflect what
he was found in possession of in relation to these two counts.
[70] When sentencing the appellant in respect of counts 3 and 4, the court a quo
held the following:
'Taking into account that the Court has decided in respect of count 3, the
minimum sentences are not applicable in respect of count 3. The normal
sentence prescribed in terms of the Firearms Control Act is applicable in
respect of count 3.'
[71] It then proceeded to impose a sentence of seven years' imprisonment on
count 3 and three years' imprisonment on count 4 and directed those sentences to
run concurrently with the sentence on count 1. The judgment on sentence is silent on
the reasoning which the court a quo embarked upon to impose such sentences and
one is not able to glean from the judgment on sentence why the court a quo
refrained from imposing the m aximum sentences, which are prescribed in terms of
Firearms Act and what factors it considered and what it took into account in imposing
the sentences it did in respect of the convictions on counts 3 and 4. As a
consequence, given the applicable legal p rinciples referred to hereinbefore in the
consequence, given the applicable legal p rinciples referred to hereinbefore in the
main judgment, we are entitled to interfere.20
20 S v Malgas 2001 (1) SACR 469 (SCA) para 12; S v Sadler 2000 (1) SACR 331 (SCA) para 10.
[72] That then brings me to the appropriate sentence. It is common cause that the
offences in counts 3 and 4 arise from one incident, the murder, and are closely
related in time and space to such offence. Although the court a qu o ordered the
sentences to run concurrently with that imposed on count 1, and the outcome does
not alter the sentence which the appellant is to serve, it is in the interests of justice
that this court properly considers the sentences, given the failure by the court a quo
to provide any reasons for the imposition of the sentences it did.
[73] It would appear that the court a quo failed to have proper regard to the fact
that the convictions on cou nts 3 and 4 arise from the same incident and are closely
related in time and space to that. As a consequence, on appeal the convictions and
sentences on counts 3 and 4 warrant interference in relation to the proper wording of
the convictions and the substitution of the sentences on counts 3 and 4.
Order
[74] In the result the following orders will issue:
1. The appeal against the conviction and sentence on count 1 is
dismissed.
2. The conviction and sentence on count 1 is confirmed.
3. The appeal against t he conviction and sentence on count 3 is upheld.
The following conviction is substituted in its stead:
'The accused is found guilty of contravening s 3(1) read with s
120(1 )(a) of the Firearms Control Act 60 of 2000, being the unlawful
possession of a fir earm, a 9mm calibre, the exact make unknown, on
11 February 2013.'
4. The appeal against the conviction and sentence on count 4 is upheld.
The following conviction is substituted in its stead:
'The accused is found guilty of contravening s 90 read with s 120(1 )(a)
of the Firearms Control Act 60 of 2000, being the unlawful possession
of two rounds of ammunition, being one 9x19mm and one unidentified
calibre.'
5. The sentences imposed in respect of counts 3 and 4 are set aside and
replaced with:
'The sentences on counts 3 and 4 are taken as one for purpose of
sentence and the accused is sentenced to four years' imprisonment.'
6. The sentences imposed on counts 3 and 4 are antedated to 19 April
2016.
7. The sentences imposed on counts 3 and 4 will by operation of law be
served simultaneously with that imposed on count 1.
HENRIQUES J
CASE INFORMATION
Date of Hearing: 8 November 2024
Date Judgment Reserved: 9 December 2024
Date of Judgment: 07 October 2025
For Appellant: Mr M Tengwa
Instructed by: Legal Aid South Africa
178 Hoosen Haffejee Street
Pietermaritzburg
Email: MzothandoT@legal-aid.co.za
For Respondent: Ms TL Mlondo
Instructed by: Directorate of Public Prosecutions:
KwaZulu Natal
Pietermaritzburg
Email: TMlondo@npa.gov.za
This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand down is
deemed to be 9h30 on 7 October 2025.