S v Maseko

• Jurisdiction: South Africa
• Judge: Wessels JA, Miller JA and Trollip AJA
• Judgment Date: 28 September 1981
• Citation: 1982 (1) SA 99 (A)
• Hearing Date: 14 September 1981
• Court: Appellate Division

Miller JA:

The appellant faced two charges in a regional magistrate's court at Johannesburg: (i) that he contravened s 2 read with ss 39 (2) C and 40 of Act 75 of 1969 in that he possessed a firearm (a.38 Astra revolver) without being licensed to possess it and (ii) that he contravened s 36 read with ss 39 (2) and 40 of the same Act in that he possessed five.38 cartridges without being in lawful possession of a firearm from which they could be discharged. Despite his plea of not D guilty he was convicted on both charges and sentenced in respect of the first charge to 18 months' imprisonment and in respect of the second to six months' imprisonment, the court ordering that the two sentences were to run concurrently. His appeal to the Transvaal Provincial Division against the convictions and sentences having failed, he successfully E applied to the Court a quo for leave to appeal to the Appellate Division against the sentences.

The appellant was the owner of a taxi which he lawfully operated in and about Johannesburg for the purpose of conveying passengers for reward. It was common cause that on the day mentioned in the charges he was found in possession of the firearm, loaded with the five cartridges, and F that he had no licence for such possession. His explanation of how he came to be in possession of the loaded firearm was, very briefly, that he found it in his taxi, under the driver's seat, very shortly before the police apprehended him and that when confronted by the police he was about to walk to a nearby police station to hand in the firearm, which G he would have done had he not been apprehended. The theory advanced by the appellant for the unexpected presence of the firearm in his taxi was that it had probably been 'planted' there by one of his 'enemies', of which he said he had several in the ranks of rival taxi operators. He said that some months previously he had been violently attacked by some of these men and had suffered a fracture of the jaw.

H The magistrate rejected the appellant's explanation of how he came to be in possession of the firearm and by implication also rejected his evidence that he was about to take the firearm to the police station when the police intervened. There is no appeal against the convictions and in any event appellant's counsel conceded that there were no grounds for interference with the magistrate's rejection of the appellant's explanation. But the magistrate did not reject...