S v Mukwevho

• Jurisdiction: South Africa
• Citation: 2010 (1) SACR 349 (GSJ)

S v Mukwevho
2010 (1) SACR 349 (GSJ)

2010 (1) SACR p349

Citation	2010 (1) SACR 349 (GSJ)
Case No	A452/2009
Court	South Gauteng High Court, Johannesburg
Judge	Willis J and Farber AJ
Heard	December 7, 2009
Judgment	December 7, 2009
Counsel	MB Mulaudzi for the appellant.; R Molokoane for the State.

Flynote : Sleutelwoorde

Arms and ammunition — Unlawful possession of firearm and ammunition in B contravention of ss 3 and 90 of Firearms Control Act 60 of 2000 — Possession of 'semi-automatic' firearm as defined in s 1 — Sentence — Prescribed minimum sentence of 15 years' imprisonment in terms of s 51(2) (a)(i) of Criminal Law Amendment Act 105 of 1997 — Necessary that all elements of offence, including fact that firearm semi-automatic, to be C proved at stage of conviction — State bound by charge, and any variance between what was alleged and what was proved could result in conviction being set aside — Critical test one of prejudice — Fact that firearm semi-automatic not merely part of narrative or description of facts in charge, but constituting essential element of charge, as it brought severe minimum sentence into operation — To be proved that accused must have known D (dolus) or ought to have known (culpa) of relevant facts giving rise to prescribed minimum sentence.

Verdict — Competent verdicts — Charge of unlawful possession of semi-automatic firearm and ammunition in contravention of ss 3 and 90 of Firearms Control Act 60 of 2000 — Prosecutor, defence counsel and court all E understanding that case 'all-or-nothing' one — Possible that accused would have conducted defence differently and not have relied on right to remain silent if made aware of precise nature of alternative verdict which State might seek — Court on appeal finding alternative verdict not competent — Criminal Procedure Act 51 of 1977, s 270 — Semble: Desirable, where State seeks conviction on charge of possession of particular type or genus F of firearm as 'stand-alone' count, to set out in charge-sheet such alternative and competent verdicts which it might seek.

Headnote : Kopnota

The appellant had been convicted in a regional magistrates' court of the unlawful possession of a firearm in contravention of s 3 read with various provisions of the Firearms Control Act 60 of 2000, and further read with s 250 of the G Criminal Procedure Act 51 of 1977, read with s 51 of the Criminal Law Amendment Act 105 of 1997. He was also convicted of the unlawful possession of ammunition for such firearm in contravention of s 90 of Act 60 of 2000. No alternative charges had been laid. It was alleged that the firearm in question was a '9 mm Parabellum Calibre Norinco Model 201 C Semi-automatic', the possession of a semi-automatic firearm rendering the H appellant liable to be sentenced to a minimum sentence of 15 years' imprisonment in terms of s 51(2) (a)(i) of the Criminal Law Amendment Act 105 of 1997, read with Part II of Schedule 2 thereof. The appellant was indeed sentenced to the prescribed sentence of 15 years' imprisonment. In pleading not guilty to the charges the appellant elected to exercise his constitutional right to remain silent and furthermore gave no evidence I whatsoever in respect of either conviction or sentence. In evidence at the trial the police witnesses had stated that the firearm which had been found in the appellant's possession was a 'Lorinco 201 C' semi-automatic pistol whereas the charge-sheet referred to a Norinco semi-automatic. In an appeal to a High Court against the conviction only,

Held, that, in order to attract the prescribed minimum sentence, all the necessary elements had to be proven at the stage of conviction, including the fact that J

2010 (1) SACR p350

A the weapon in question was a semi-automatic one. In this case, questions arose not only whether the appellant had been in unlicensed possession of a firearm and ammunition, but also whether the firearm was the one described in the charge and whether it was a semi-automatic one. (Paragraph [5] at 355 f–h.)

Held, further, that the documents in which the police had recorded the details of B the firearm found in the possession of the appellant had not been produced in evidence, and no explanation for their absence had been given: in the absence of a suitable explanation these documents should have been produced in order for the defence to cross-examine, to test the veracity and accuracy of the information allegedly recorded therein, more especially as there were differences between the evidence by two policemen of what was recorded in those documents. (Paragraph [6] at 355 h - i and 355 a–b.)

C Held, further, as to whether the firearm was a Norinco or a Lorinco semi-automatic, that the State was bound by the charge, and any variance between what was alleged and what was proven could result in the setting aside of the conviction. The critical test was one of prejudice. (Paragraph [8] at 355 d–e.)

D Held, further, that there had to be sufficient quantum of proof before it could be found that an accused person had committed the crime in question - proof beyond reasonable doubt; and the court's sense of unease was acute when there was the prospect of lengthy periods of imprisonment, such as 15 years in the present case. In view of the fact that counsel for the defence, from the E earliest opportunity, had made it clear that the chain of evidence was being contested, the conviction, in all the circumstances, could not stand. It was not in accordance with justice. (Paragraph [9] at 356 e–g.)

Held, further, that the fact that the firearm in question was a 'semi-automatic' one (and, by definition in s 1, 'self-loading but not capable of discharging more than one shot with a single depression of the trigger') was not merely F part of the narrative or description of facts in the charge-sheet: it constituted an essential element of the alleged offence. The semi-automatic feature of the firearm was an essential element of the alleged offence precisely by reason of the fact that it was the possession of this very type of firearm that brought a severe minimum sentence into operation. Moreover, it was not good enough to prove that an accused person possessed a firearm which so G happened to be a semi-automatic one: it had to be proven, at least by necessary inference, that the accused person must have known (dolus) or ought to have been aware of the relevant facts (culpa) which give rise to that prescribed minimum sentence for such possession - and assumed the risks that attached thereto. (Paragraph [11] at 357 e–h.)

Held, further, that, even if it was accepted that it had been proved that he was in H possession of a firearm, there was nothing to justify the necessary inference that the appellant must have been aware or ought to have been aware of the fact that it was a semi-automatic. (Paragraph [11] at 358 c–d.)

Held, further, as to the question whether the appellant could be convicted of a competent alternative verdict in terms of s 270 of Act 51 of 1977, that, as the prosecutor, the appellant's counsel and the court a quo all seemed to I have understood that the case was an 'all-or-nothing' one, it was not difficult to imagine that, notwithstanding the fact that the appellant had enjoyed the benefit of legal representation, he might have conducted his defence differently and indeed might not have relied upon his constitutional right to remain silent (s 35(3) (h) of the Constitution, 1996) if he had been made aware of the precise nature of any alternative verdict which the State J might have sought, and that, by conducting a different line of defence, he

2010 (1) SACR p351

might have avoided a compulsory minimum sentence of 15 years' imprisonment. A (Paragraph [12] at 359 h–360 a and 360 b–d.)

Semble: It will be desirable, especially where the State seeks a conviction on a charge of possession of a particular type or genus of firearm as a 'stand-alone' count (ie not with other more serious counts such as murder, rape or robbery where such a firearm is used as an instrument of such offence), to set out in the charge-sheet itself such alternative and competent verdicts B which it might seek. (Paragraph [12] at 360 d–e.) Appeal upheld and conviction set aside.

Annotations:

Cases cited

Reported cases

Barclays Western Bank Ltd v Creser 1982 (2) SA 104 (T): applied C

Ex parte Roche et Uxor 1947 (3) SA 678 (D): applied

Gemeenskapsontwikkelingsraad v Williams and Others (1) 1977 (2) SA 692 (W): dictum at 698A applied

Mabena v Brakpan Municipality 1956 (1) SA 179 (T): applied

R v Bruins 1944 AD 131: dictum at 135 applied D

R v Dayi and Others 1961 (3) SA 8 (N): dictum at 9E - G applied

R v Halem and Another 1949 (3) SA 274 (T): applied

R v Hodge and Another 1949 (2) SA 323 (E): applied

R v Nhlanhla 1960 (3) SA 568 (T): applied

R v Pelunsky 1914 AD 360: applied

R v Pierce 1956 (1) SA 183 (T): applied E

R v Van der Merwe 1952 (1) SA 143 (SWA): applied

R v Zungu 1953 (4) SA 660 (N): dictum at 661 - 662 applied

S v Arendse en 'n Ander 1980 (1) SA 610 (C): dictum at 613A - B applied

S v De Blom 1977 (3) SA 513 (A): dictum at 529A applied

S v Human 1990 (1) SACR 334 (C): dictum at 336 - 338 applied

S v Jasat 1997 (1) SACR 489 (SCA) ([1997] 2 All SA 63): dictum F at 493 h - 495 a applied

S v Mandela and Another 1974 (4) SA 878 (A): dictum at 882E applied

S v Miles 1978 (3) SA 407 (N): applied

S v Mogandi 1961 (4) SA 112 (T): dictum at 114A applied

S v Mwali 1992 (2) SACR 281 (A): dictum at 283 j - 285 d applied

S v Ngesi 1986 (2) SA 244 (E): dictum at 246D - E applied G

S v Nziyane 2000 (1) SACR 605 (T) ([2000] 2 All SA 391): applied

S v Oberholzer 1971 (4) SA 602 (A): applied

S v Omega Bearing Works (Edms) Bpk en Andere 1977 (3) SA 978 (O): applied

S v Qumbella 1966 (4) SA 356 (A)...