Makeleni and Another v S (CA&R 51/18) [2019] ZAECGHC 53 (26 March 2019)

Makeleni and Another v S (CA&R 51/18) [2019] ZAECGHC 53 (26 March 2019)

The court held that there was no evidence, direct or circumstantial, that either appellant had knowledge of or exercised control over the firearm and ammunition found in the vehicle. The doctrine of common purpose, while applicable to consequence crimes such as murder, does not automatically extend to possessory crimes without proof of the requisite animus and control. The State failed to establish that the appellants jointly possessed the firearm and ammunition, as required by the test in S v Nkosi and confirmed in S v Makhubela. Mere presence in the vehicle and participation in other crimes did not suffice to infer joint possession. Accordingly, the convictions and sentences on counts 5...

Citation
[2019] ZAECGHC 53
Parties
Appellant: Andile Makeleni; Appellant: Nkosana Mxube; Respondent: The State
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
26 March 2019
Case Number
CA&R 51/18
Procedural Posture
Criminal Appeal / Full Bench Appeal
Outcome
Appeal upheld; convictions and sentences on counts 5 and 6 set aside.
Judges
D Van Zyl, J M Roberson, F Renqe
Legal Topics
Joint Possession, Firearms Control Act, Common Purpose, Actus Reus, Animus, Circumstantial Evidence
Criminal Law Joint Possession Firearms Control Act Common Purpose Actus Reus Animus Circumstantial Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Andile Makeleni

Appellant

Nkosana Mxube

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Full Bench Appeal

Legal Issues

  1. 1 Whether the appellants jointly possessed the firearm and ammunition found in the vehicle.
  2. 2 Whether the doctrine of common purpose applies to the possession charges under the Firearms Control Act.
  3. 3 Whether there was sufficient evidence of knowledge and control to establish joint possession.

Ratio Decidendi

The court held that there was no evidence, direct or circumstantial, that either appellant had knowledge of or exercised control over the firearm and ammunition found in the vehicle. The doctrine of common purpose, while applicable to consequence crimes such as murder, does not automatically extend to possessory crimes without proof of the requisite animus and control. The State failed to establish that the appellants jointly possessed the firearm and ammunition, as required by the test in S v Nkosi and confirmed in S v Makhubela. Mere presence in the vehicle and participation in other crimes did not suffice to infer joint possession. Accordingly, the convictions and sentences on counts 5...

Court Disposition

Appeal upheld; convictions and sentences on counts 5 and 6 set aside.

Orders

  • The appeal is upheld.
  • The convictions of both appellants on counts 5 and 6 are set aside.