S v Dube

• Jurisdiction: South Africa
• Judge: Didcott J
• Judgment Date: 05 May 1994
• Counsel: A M Sarantos for the appellant D K Johnson for the State
• Citation: 1994 (2) SACR 130 (N)
• Court: Natal Provincial Division

Didcott J:

The appeal which we have heard and must now decide results from a criminal trial that took place in a regional court. There the appellant was alleged to have possessed a machine gun and ten rounds of live ammunition which its magazine contained, in the case of each without the F requisite permit, and thus to have contravened ss 32(1)(a) and 32(1)(e) of the Arms and Ammunition Act 75 of 1969, as read with s 39(1)(h). He pleaded not guilty to the charges. In the end, however, he was convicted on both counts and sentenced to a substantial term of imprisonment. Against those verdicts he then appealed to us.

That the appellant had possessed the firearm in question, fully intending G to do so, was admitted by him at the trial. So was his lack of a permit allowing him to possess it. Two factual issues arose, however, which had to be determined. The first was whether, for the purposes of the statute, the firearm ranked as a machine gun. The second was whether, if it did, the appellant had realised that at any time while it happened to be in his H possession.

The firearm was a pistol named a Stetchkin, a Russian one with a calibre of nine millimetres. Some policemen seized it when they raided the appellant's home and found it hidden there. It was examined later by a warrant officer in the police force who knew a lot about guns and had much I experience in handling them. He testified at the trial, producing it as an exhibit, describing its features fully, and explaining in detail how it worked. At our request it was made available to us when the appeal followed so that we in turn might have a good look at it.

The pistol could be fired, according to the evidence of the warrant officer, in two different ways. It was equipped with a switch, one J attached to its outer casing above the trigger which moved by sliding. The

Didcott J

A switch had three positions. In the first, its safe position, it prevented the gun from shooting. The pistol functioned semi-automatically with the switch in its second setting. The trigger had to be pulled separately for each individual shot that was fired. Between one shot and the next the weapon reloaded itself from its magazine. Loading, but not firing, was B therefore automatic. The action of the gun, in other words, was the same as that of your typical automatic pistol, the sort commonly called such which is described more accurately as a semi-automatic pistol and which I shall label as one in order to distinguish it from a fully automatic weapon. Switched to the third position, however, the gun both loaded and C fired automatically. A single pull on the trigger produced the discharge of a continuous stream of bullets, which lasted until the trigger got released or the magazine was empty. So fashioned, the pistol amounted to a machine gun for the purposes of the legislation, as the magistrate found at the trial and the appellant's counsel conceded at the hearing of the D appeal. For s 1(1) of the Act defines a machine gun in terms that encompass 'any firearm capable of delivering a continuous fire for so long as pressure is applied to the trigger thereof'.

What came under attack on appeal was the finding made by the magistrate on the next issue, the finding that the appellant had been aware all along of the properties possessed by the pistol which classified it as a machine E gun. There the magistrate erred, I consider, in his appraisal of the evidence.

The pistol bore a close resemblance to a semi-automatic one of the ordinary kind that had the same calibre. Its size, its weight and its shape were remarkably similar to those of such a firearm. So were the F dimensions, appearance and positioning of its barrel and butt, of its trigger and hammer, of its sights and magazine and, apart from the extra setting that was by no means conspicuous, of its safety catch. In his testimony the warrant officer pointed out those similarities, which were all obvious to us when we subsequently viewed the weapon. Stetchkin G pistols, he told the magistrate, were rare in this country. The appellant's one was only the third that he had ever seen. Nor did he know of any other gun which looked like and functioned as a semi-automatic pistol but could be fired automatically too. The existence of a type so unusual was not likely to have been realised, he added, without the benefit of specialised knowledge or instruction.

H Against that background the evidence which the appellant then gave in his defence had to be evaluated. It went thus. He was a shop steward at the factory where he worked and the local chairman of the trade union to which its workers largely belonged. At the time in question they had been on strike for a couple of months. Acrimony had resulted from the strike, the I protraction of which was opposed by dissenting workers. He and other members of his family had received a number of calls made anonymously by telephone. The callers had threatened to kill him if the strike continued. He had reported the threats to the police, but to no avail. One night some intruders had attempted to gain entry to his home, cutting the fence that surrounded it but fleeing once the alarm was then raised. A supporter had J come to his aid at last by lending the pistol to him

Didcott J

A so that he might defend himself with it. He had taken possession of it only the day before its seizure by the raiding policemen. He had not yet fired it, no occasion for its use having arisen in the meantime. He had never previously handled a firearm and his knowledge of guns was scant. The person from whom he obtained the pistol had shown him how to cock it B and to fire single shots. He thought that he could do only that with it. Of its potential for automatic or sustained fire he had no idea at all. No evidence was led, I had better add, about the position in which the police found its switch, and none in particular that indicated a setting for automatic use.

C The appellant's testimony about his ignorance of the dual function which the pistol had was disbelieved by the magistrate for a reason that I regard as a poor one. Had the appellant been as inexperienced in the use of firearms as he claimed, the magistrate observed, he would surely have taken the trouble to ascertain from the person supplying the weapon how it D worked, fully and exactly. Once he enquired about that, he was unlikely to have been shown merely how to cock it and to fire single shots. Its more lethal features were bound to have been revealed and explained as well. The reasoning was based on a fallacy, which lay in the supposition that the supplier had himself known of those. No such knowledge on his part could confidently, however, be postulated. There was nothing to suggest E that he had received any training in the use of firearms. Nor did it emerge where he had acquired the pistol, from whom he had obtained it, what he had learnt about it then or afterwards or, if he had fired it, how he happened to have done so. He may therefore have been equally in the dark about its automatic operation. The magistrate also criticised the F evidence given by the appellant about his possession of the pistol for only a day before it was found, viewing that as 'too much of a coincidence' to be accepted. But I see no coincidence. In all probability the raid resulted from the receipt by the police of information about its delivery to him. They may have been told of that at once. And a swift reaction would presumably have ensued.

G The testimony presented by the appellant on the point under discussion ought not, in my opinion, to have been rejected. It stood uncontradicted and unrefuted. No damage that mattered was done to it in cross-examination. Nor, in the light of the warrant officer's evidence, did it appear to be at all implausible. That the appellant knew the pistol H to be capable of automatic fire was not, I believe, established. His ignorance...