Makibile and Others v S (A105/12) [2013] ZAFSHC 15 (21 February 2013)

Makibile and Others v S (A105/12) [2013] ZAFSHC 15 (21 February 2013)

The court found that the appellants, though not the actual carriers of the firearms, admitted in their statements to joint possession with their co-accused, as evidenced by the use of possessory pronouns and the context of their admissions. The trial court's finding of substantial and compelling circumstances was rejected, as all factors relied upon were either aggravating or neutral. The prescribed minimum sentence of fifteen years for unlawful possession of a semi-automatic firearm must be imposed, and the sentences for unlawful possession of a revolver must run concurrently with those for the semi-automatic firearm. The cross-appeal for aggravation of sentence succeeded, and the...

Citation
[2013] ZAFSHC 15
Parties
Appellant: Edgar Sipho Makibile; Appellant: Hendrik Mandla Mdluli; Appellant: Frikkie Lerasa Mofokeng; Appellant: Nkathazo Jacob Msimanga; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
21 February 2013
Case Number
A105/12
Procedural Posture
Criminal Appeal / Appeal Against Convictions and Sentences; Cross Appeal for Aggravation of Sentence
Outcome
Appeal dismissed; cross-appeal upheld; sentences for unlawful possession of a semi-automatic firearm increased to prescribed minimum.
Judges
Lekale, Da Rocha-Boltney
Legal Topics
Joint Possession, Minimum Sentencing, Aggravated Robbery, Unlawful Possession of Firearms, Sentencing Principles, Criminal Procedure Act
Criminal Law Joint Possession Minimum Sentencing Aggravated Robbery Unlawful Possession of Firearms Sentencing Principles Criminal Procedure Act

Case Brief

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Parties

Edgar Sipho Makibile

Appellant

Hendrik Mandla Mdluli

Appellant

Frikkie Lerasa Mofokeng

Appellant

Nkathazo Jacob Msimanga

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Convictions and Sentences; Cross Appeal for Aggravation of Sentence

Legal Issues

  1. 1 Whether the appellants were correctly convicted of joint possession of firearms under charges 2 and 3.
  2. 2 Whether the trial court erred in finding substantial and compelling circumstances justifying departure from prescribed minimum sentences.
  3. 3 Whether sentences for unlawful possession of firearms should run concurrently with sentences for aggravated robbery.

Ratio Decidendi

The court found that the appellants, though not the actual carriers of the firearms, admitted in their statements to joint possession with their co-accused, as evidenced by the use of possessory pronouns and the context of their admissions. The trial court's finding of substantial and compelling circumstances was rejected, as all factors relied upon were either aggravating or neutral. The prescribed minimum sentence of fifteen years for unlawful possession of a semi-automatic firearm must be imposed, and the sentences for unlawful possession of a revolver must run concurrently with those for the semi-automatic firearm. The cross-appeal for aggravation of sentence succeeded, and the...

Court Disposition

Appeal dismissed; cross-appeal upheld; sentences for unlawful possession of a semi-automatic firearm increased to prescribed minimum.

Orders

  • The first and fourth appellants' appeals are dismissed.
  • Convictions on all charges and sentences in respect of charges 1 and 3 are confirmed.