Case Review: Evidence
| Jurisdiction | South Africa |
| Author | Nicci Whitear-Nel |
| Pages | 229-233 |
| Published date | 19 August 2019 |
| Date | 19 August 2019 |
| Citation | (2005) 18 SACJ 229 |
Case reviews
229
Evidence
NICCI WHITEAR-NEL
University of KwaZulu-Natal
Expert evidence : semi automatic weapon
The case of
S v Nkosi
2004 (2) SACR 486 (W) came before the High Court
S v Nkosi 2004 (2) SACR 486 (W) came before the High Court S v Nkosi
as an appeal against conviction and sentence. The appellant was convicted,
inter alia
, of possession of a pistol. Two policemen had testifi ed for the
state, and had asserted that the pistol was ‘semi-automatic’ in nature. As a
result, the court
a quo
applied the minimum sentence provisions of s 51
of the Criminal Law Amendment Act 105 of 1997; possession of a semi-
automatic pistol being listed in Part II of Schedule 2 of the Act, and thus
warranting a minimum sentence of 15 years’ imprisonment.
The two policemen did not qualify themselves as experts who were able
to distinguish between automatic, semi-automatic, or manual fi rearms.
The High Court held that the court
a quo
was not entitled to assume they
were experts by virtue of their status as policemen, and held they would
still have had to qualify themselves, like all expert witnesses. In addition,
the witnesses did not give any reasons for their asser tion that the pistol
was semi-automatic. The High Court thus found that the state had not
proved that the weapon was semi-automatic in nature, and thus that there
was no basis for the application of the minimum sentence legislation.
It is interesting to compare this case with that of
S v Metu
1995 (2)
SACR 681 (A), where the then Appellate Division was prepared to take
judicial notice of the fact that an AK47 could operate as a machine gun.
The Appellate Division did caution, however, that the state should not be
careless about proving the qualities of possibly less well known weapons.
The judge in
Nkosi’s
case was frank about the fact that he had no personal
knowledge of the distinction between automatic, semi-automatic, and
manual fi rearms – and held that as a judge sitting in a court of appeal
it would have been entirely inappropriate to solicit this information
from counsel from either or both parties. The judgment in the case of
S v Sukwazi
2002 (1) SACR 619 (N) in which Combrinck J dealt in some
S v Sukwazi 2002 (1) SACR 619 (N) in which Combr inck J dealt in some S v Sukwazi
detail with the differences between semi-automatic and manual weapons
shows the complexities involved in making the distinction, and bears out
the caution shown by the judge in
Nkosi’s
case.
(2005) 18 SACJ 229
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