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[1995] ZASCA 102
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S v Ndwalane (400/94) [1995] ZASCA 102 (19 September 1995)
Case No 400/94 /mb
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter of:
MAKHANDA AARON NDWALANE
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: HEFER, NESTADT JJA et SCOTT AJA
HEARD
: 4 SEPTEMBER
1995
DELIVERED
: 19 SEPTEMBER 1995
JUDGMENT
SCOTT AJA/
....
2
SCOTT AJA
:
The appellant was one of five persons charged before Squires J and two
assessors, sitting in the Circuit Local Division for the Southern
District of
Natal, with seven counts of murder and three counts of attempted murder. In
addition, the appellant, on his own, was
charged with two offences under the
Arms and Ammunition Act, No 75 of 1969 ("the Act"). He was acquitted on the
counts of murder
and attempted murder, but convicted on both counts of
contravening the Act. These counts were, first, contravening s 2 by unlawfully
possessing two 7.62 mm Heckler and Koch G3 rifles and second, contravening s 36
by possessing 15 rounds of ammunition which were
found in the magazine of one of
the rifles. The rifles were handed in as Exhibit 1 and Exhibit 3 and it is
convenient to refer to
them as such. The counts were taken together for the
purpose of sentence and the appellant was sentenced to 8 years imprisonment.
The
3
appeal, with the necessary leave, is against both the conviction and the
sentence.
All but one of the counts on which the appellant was
acquitted arose out of an attack on a minibus containing some ten people by a
group of armed men who fired shots into the vehicle in circumstances which
indicated an intention to kill the occupants. The incident,
which appeared to
have been politically motivated, occurred on 4 July 1992 in the Bhomela ward
near Port Shepstone, KwaZulu-Natal,
and at a place not far from the home of the
appellant who is the chief of what was described in evidence as the Nsimbini
tribe. On
7 July 1992 both rifles were found in the appellant's house. Ballistic
evidence established that three spent cartridges found about
20 metres in front
of the minibus after the attack had been fired from Exhibit 3. This was also the
rifle which contained the rounds
forming the subject of the second count under
the Act.
4
It was common cause that both rifles had been issued by the KwaZulu
Government to Mr Gilbert Ndwalane, the brother of the appellant.
According
to the permits, they were to be used for
the purpose of protecting he property of the KwaZulu Government. As chairman of
the tribal
authority of which the appellant is the chief, Mr Gilbert Ndwalane
was authorised to possess weapons of this kind which had been
issued to him and,
in turn, issue them to deserving permit holders after they had received training
at Ulundi. It appears that one
of the rifles, Exhibit 1, had previously been
issued to a Mr Momomo Ndwalane who was an induna in the area. After his death in
1991
the weapon disappeared but was later recovered by the police. On 22 June
1992 it was returned to Mr Gilbert Ndwalane who wished to
re-allocate it to
another induna. But before he could do so certain documentary approval was
required from Ulundi. The other rifle,
Exhibit 3, had been issued by Mr Gilbert
Ndwalane to his
5
brother Ernest. The latter subsequently left the area to live in Durban
and the rifle was returned to Mr Gilbert Ndwalane. This occurred
long before the
attack on 4 July 1992. It was accordingly not in dispute that during the period
referred to in the indictment, viz
4 to 7 July 1992, Mr Gilbert Ndwalane was
lawfully entitled to be in possession of both rifles.
The evidence relating to the counts in question was largely confined to
that of two witnesses. The one was Warrant Officer Breedt,
the investigating
officer. The other was Mr Gilbert Ndwalane. The latter was originally to be a
State witness, but was eventually
called as a witness for the defence. The
appellant, himself, did not give evidence.
Mr Breedt testified that on 7 July 1992 he received a radiotelephone call
from members of The Special Branch Unit from Port Shepstone
who were at the
appellant's house where they had found a person in possession of a handgun. He
said he immediately went with his
6
constable assistant to the appellant's house where he assumed control of
the situation. He explained that a few days previously he
had seen the appellant
in a motor car in which there was a G3 rifle. He accordingly asked him if he was
in possession of any G3 rifles.
The appellant, he said, thereupon went into his
house and returned with Exhibit 3. According to Mr Breedt there were 15 rounds
in
the magazine. He said he asked the appellant if there were any other firearms
of the same calibre in the house and on being told
there were not, he proceeded
to search the house. During the search he noticed that the appellant appeared to
be nervous and while
in the main bedroom glanced up at the ceiling on a few
occasions. Mr Breedt said he observed that there was a break in the ceiling.
He
climbed on a chair and discovered another rifle, Exhibit 1, in the ceiling. He
testified that the appellant told him that he knew
nothing about this weapon. Mr
Gilbert Ndwalane disputed that it was Mr Breedt who had
7
discovered the two rifles at the appellant's house on 7 July 1992. He
said that he was present when Mr Breedt arrived and by that
time the other
policeman had already taken possession of the firearms. He said he saw them
counting the rounds taken from the magazine
and there were twenty and not
fifteen rounds. Nonetheless, he acknowledged that both rifles were being kept at
the appellant's house.
He said that Exhibit 3 was kept in a wardrobe in the
appellant's bedroom. He did not dispute that the appellant was aware of this
and
acknowledged in cross-examination that he had personally entrusted the appellant
with the safe-keeping of the weapon while he,
Gilbert, was away. So far as
Exhibit 1 was concerned, he said that after receiving it from Mr Breedt (on 22
June 1992) he brought
it to the appellant's house. The latter was not there so
he handed it to the appellant's wife and asked her to put it away pending
the
arrival of documents from Ulundi at which stage he proposed issuing it to an
induna.
8
He said Mrs Ndwalane then took the rifle into a bedroom and that he,
Gilbert, did not know what happened to it after that. The dispute
as to the
number of rounds of ammunition found in the magazine of Exhibit 3 may have been
of some significance with regard to the
counts on which the appellant was
acquitted but it is of little consequence in so far as the contravention of the
Act is concerned.
As previously mentioned, Mr Gilbert Ndwalane was entitled to be in
possession of both Exhibits 1 and 3. The explanation he gave for
why they were
kept at the appellant's house was not seriously challenged by the State and was
accepted by the Court a quo. He said
that his kraal had been burned down and he
had turned to his brother, the appellant, to provide him with accommodation. He
worked
in Durban as a security guard. Each week he did two day shifts followed
by two night shifts. He would then, he said, return to the
appellant's house for
two days a week.
9
As chairman of the tribal authority he was essentially the appellant's
assistant and while at his house the two of them would attend
to the affairs of
the tribe together. The Nsimbini tribal court house had also been burnt down in
the violence which plagued the
area. This occurred sometime in 1990. He said
that all tribal affairs had thereafter been conducted at the appellant's house.
With
regard to the rifles, he explained that ordinarily he would have kept them
locked up in the court house, but after the fire it was
convenient to keep them
at the appellant's house where other property which pertained to the tribe was
also kept.
With regard to the dispute concerning the circumstances in which the
rifles were discovered, the Court a quo accepted the evidence
of Mr Breedt in
preference to that of Mr Gilbert Ndwalane. Squires J, in delivering the judgment
of the Court, described Mr Ndwalane
as an "unimpressive" witness who was
"unconvincing in content and plainly
10
uncomfortable in demeanour, and with powerful motives to exculpate his
brother, the accused." It appears from the record that Mr Ndwalane's
evidence
concerning the discovery of the rifles was initially vague and ambivalent. It
was only in cross-examination and again while
being reexamined that he
unequivocally asserted that the firearms had been discovered and taken into the
possession of the police
prior to the arrival of Mr Breedt. This evidence was
also in conflict with his earlier confession that he saw the appellant hand
Exhibit 3 to Mr Breedt. In the circumstances, I can see no basis for interfering
with the finding of the Court a quo on this issue,
nor did Counsel for the
appellant attempt to advance any reason for doing so.
The issue, however, is not of much importance. As previously mentioned,
it was common cause that both rifles were being kept at the
appellant's house.
Although Squires J did not specifically refer to the
11
presumption contained in s 40(1) of the Act it is implicit in the
judgment
that reliance was placed upon it. The section reads:
"40(1) 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 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 presumption is far reaching
and places upon an accused
person proved to fall within its ambit the burden of proving on a
balance
of probabilities that he was not in possession of the article in
question.
(See S v Makunga and Others 1977(1) SA 685 (A) at 698 H - 699
B.)
Mr Padayachee, who appeared for the appellant both in this Court and in
the Court below, categorised the presumption as being "unjustifiable
and
irrational" and initially sought to attack it on the ground that it was
unconstitutional. The appellant however was convicted
and
12
sentenced prior to 27 April 1994, being the date upon which the
Constitution (Act 200 of 1993) came into operation, and it has since
been held
by the Constitutional Court that in such circumstances an appeal is to be
disposed of without reference to Chapter 3 of
the Constitution. (See S v Mhlungu
and Others
[1995] ZACC 4
;
1995 (7) BCLR 793
(CC) at 813 - 814 (para 41).)
Mr Padayachee submitted that the appellant had, in any event, discharged
the burden imposed upon him by the presumption in as much
as the evidence
established that the firearms and ammunition were at all times in the lawful
possession of Mr Gilbert Ndwalane who,
when not away at work, lived at the
appellant's house. Counsel argued that in coming to the conclusion that the
appellant had been
in possession of the firearms, the Court a quo had in the
circumstances placed too wide a construction on the word "possession" in
s 2 and
s 36 of the Act.
Section 1(1) of the Act provides that unless the
context
13
otherwise indicates:
"'possession' includes 'custody' and 'possess' shall be construed
accordingly"
The significance of the definition becomes
apparent when regard is had to
the common law. A distinction is drawn between civil possession
(possessio civilis) and natural possession (possessio naturalis).
Both
comprise two elements; a physical element (corpus) and a mental
element
(animus). In the case of civil possession the animus consists of
the
intention on the part of the possessor to hold the article or object
in
question for himself as if he were the owner (animus possidendi),
while
in the case of natural possession 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 (see S v Adams 1986(4) SA 882 (A) at 890 H
-
I). In both cases, the physical element, that is to say, the physical
control
or custody (detentio) over the article may be exercised by the
possessor
14
himself or by someone else on his behalf. (See R v Binns and Another
1961
(2) SA 104
(T) at 107 D and 108 A - D.) Not surprisingly the term "possession"
when used in penal statutes has in the past frequently given
rise to
difficulties, mainly because in common parlance the term is frequently used in
relation to a person who merely exercises
custody or control over an article on
behalf of another. In each case it has been necessary to decide whether in the
context in which
it is used in the statute, the term is to be given this
extended meaning or whether it is to be confined to its meaning at common
law.
Where, as in the present case, the word "possession" is defined so as to include
"custody", the ambiguity is, however, largely
removed (cf S v Brick
1973 (2) SA
571
(A) at 579 H). That the word "possession" in the Act is intended to be given
its wider meaning so as to include one who merely exercises
physical control on
behalf of another becomes even clearer if regard is had to the provisions
of
15
s 8(l)(b), which, prior to its amendment in 1993, read as
follows:
"8 (1) Any person not being under the age of 16 years or not being a
disqualified person may, with the prior consent of the holder
of a licence to
possess an arm and for such period as such holder may permit, have such arm in
his possession, without holding any
licence, provided
-
(a)
(b) such person has the arm in his possession -
(i) in the immediate vicinity of the licence holder
or
while on any land belonging to or lawfully
occupied by the licence holder;"
The need of the Legislature to expressly authorise the possession
referred to in the proviso is the clearest indication of the wide
meaning to be
given to the term "possession" as used in the Act. Indeed, if the word were to
be construed in the manner suggested
by Mr Padayachee the proviso would have
been unnecessary. (See in relation to the previous Act, No 28 of 1937, S v Essop
1967 (4) SA 625
(T) at 626 D - 627 D.)
It follows that in order to escape conviction the appellant
was
16
obliged to establish on a balance of probabilities that he was not in
"possession" of the firearms in the sense discussed above. This
he clearly
failed to do. On the contrary, it was common cause that Exhibit 3 had been
entrusted to him. As regards Exhibit 1, the
probabilities are that he was aware
of its presence in the ceiling rather than that he was not. The appeal against
the conviction
on both counts must therefore fail.
Turning to the appeal against sentence, Squires J, in imposing a period
of imprisonment of 8 years, emphasised the appellant's previous
convictions and
the penalty provided for in the Act. Both factors are undoubtedly of importance.
It appears that in 1987 the appellant
was declared to be unfit to possess a
firearm for a period of 10 years following his conviction on two counts of
attempted murder
involving the use of a revolver. In 1990 he was convicted of
possessing an unlicensed firearm and ammunition and was sentenced to
two years
effective imprisonment.
17
In terms of s 39(2)(a) of the Act and by reason of the appellant's
possession in the present case of more than one firearm, the sentence
prescribed
was imprisonment for a period not exceeding ten years. A further aggravating
Feature was undoubtedly the extent of the
violence involving the use of firearms
which plagues the area in which the offences were committed, although it does
appear that
the appellant had played a role in attempting to restore peace to
the area.
Nonetheless, the sentence of 8 years imprisonment strikes
me as unduly harsh having regard to the particular circumstances in which
the
offences were committed. It was common cause that the appellant's brother, Mr
Gilbert Ndwalane, was lawfully entitled to be in
possession of both weapons and
that it was his intention in due course to allocate them to some suitable
person. It was also not
in dispute that both Mr Gilbert Ndwalane's own kraal and
the tribal court house had been burnt down in
18
the ongoing violence. Ordinarily he would have kept the weapons under
lock and key at the court house, but this was not possible.
There is nothing to
suggest that the appellant possessed the weapons and ammunition for his own
benefit. On the contrary, the evidence
suggests that he was no more than a
custodian. In my view the failure on the part of Squires J to give any or
adequate weight to
these circumstances amounted to a misdirection entitling this
Court to impose sentence afresh.
Mr Padayachee suggested a wholly suspended sentence of imprisonment. I
cannot agree. The appellant has a previous conviction for the
same type of
offence and for which he was sent to prison for two years. In my view a sentence
of three years imprisonment would be
appropriate in all the
circumstances.
In the result the appeal against the conviction on both counts fails. The
appeal against sentence succeeds and the sentence of 8 years
19
imprisonment is set aside and replaced with a sentence of 3 years
imprisonment, both counts being taken together for the purpose of
sentence.
D G SCOTT
HEFER JA)
- Concur NESTADT JA)