S v Mthethwa

• Jurisdiction: South Africa
• Judge: Pickering J and Sangoni J
• Judgment Date: 03 December 2003
• Citation: 2004 (1) SACR 449 (E)
• Docket Number: CA&R 46/03
• Hearing Date: 03 December 2003
• Counsel: Adv Brisley for the appellant. Adv Marais (with Adv Mjali) for the State.
• Court: Eastern Cape Division

Pickering J:

The applicant was convicted in the regional court, Humansdorp, of the unlawful possession of a .38 special revolver (count 1) and the unlawful possession of ammunition, namely 35 x .38 bullets and 2 x 9mm bullets (count 2). He was sentenced to undergo 30 months' imprisonment, both counts being taken E as one for purposes of sentence. He appeals now against both his convictions and the sentence.

Two policemen, brothers named Mdidimba, testified on behalf of the State. The first, Superintendent Mdidimba, stated that on 25 October 1998 he and his brother, Inspector Mdidimba, were requested to assist a sergeant Smit and constable January with a search to be F conducted at appellant's home. According to Superintendent Mdidimba, information had been received to the effect that there was an illegal firearm in appellant's residence. On arrival at appellant's home at approximately 16:00 he spoke to appellant and told him that the police had information concerning a firearm at his premises. He requested permission to search the house. Appellant, who appeared to be sober, G readily acceded thereto. The police then entered appellant's house. It is common cause that appellant's house was a shack originally consisting of only one room. The inside of the shack had, however, been divided into two rooms by means of the use of cardboard boxes in order to create a so-called cardboard wall. It would appear, although it is H not entirely clear from the record, that in order to create the wall cardboard boxes were placed in two rows against each other so that the outside of the wall on both sides consisted of the bottoms of the boxes with a hollow space thus being created in between the two rows. The room thus created on the one side of this wall was used as a bedroom I and the room on the other side as a living area. According to Superintendent Mdidimba, the boxes were moved and a search was conducted from the bedroom side in the space between the two rows of cardboard boxes. A brown bag was found there by Inspector Mdidimba. In the bag was the firearm as well as the ammunition in question. J

Pickering J

Superintendent Mdidimba then asked the appellant if he had a licence A for the firearm. Appellant could not produce a licence. Superintendent Mdidimba then asked him where he had obtained possession thereof. Appellant told him that he had picked it up in Boskloof. Superintendent Mdidimba asked appellant to take him to the place where he had picked it up but appellant refused to do so. Inspector Mdidimba then explained appellant's rights and arrested him for the unlawful possession of the B firearm and ammunition. Appellant further told the police that he lived alone in the shack.

Inspector Mdidimba testified that on the arrival of the police at appellant's home there were a number of people in the living area which it appeared was being used as some sort of a shebeen. He confirmed that appellant readily agreed to the search of his premises C and confirmed the finding of the firearm and ammunition in consequence thereof. He stated that the search was conducted from the bedroom side of the wall and that in order to get into the hollow between the boxes where the firearm was found it was necessary first to move the bed. He stated further that when the firearm was found appellant was asked D whether he had a licence therefor. Appellant replied that he did not have a licence. He was asked where he had obtained the firearm and he replied that he had picked it up at Boskloof. Thereafter appellant was arrested.

In his evidence appellant stated that when the police arrived and told him they were looking for Sipho Mthethwa (his own name) he initially denied the knowledge of such a person. He stated that he did E so because he was drunk at the time. Eventually he gave the police permission to enter his house and to conduct a search for a firearm although he told them that he knew nothing thereof. He was not present in the bedroom when the firearm was found. The police merely informed him that they had found a firearm. He stated that the police did ask F him whether he had a licence for the firearm to which he had replied he had no licence because he had no knowledge of any such firearm. He initially denied having told the police that he picked up the firearm at Boskloof but when it was pointed out to him under cross-examination that his attorney had put to the police witnesses that he would testify G to not being able to remember having said such a thing he changed his evidence and stated that he in fact had no memory of this aspect because he was drunk at the time.

In his judgment the regional magistrate found that appellant had indeed informed the police that he had picked up the firearm at H Boskloof. He found, accordingly, that the only reasonable inference to be drawn was that appellant was in possession of the firearm at the time it was found in his house.

Mr Brisley, who appeared for appellant at the hearing of the...