Ndou v S (247/18) [2019] ZASCA 85; 2019 (2) SACR 243 (SCA) (31 May 2019)

Ndou v S (247/18) [2019] ZASCA 85; 2019 (2) SACR 243 (SCA) (31 May 2019)

The Supreme Court of Appeal held that the Full Court lacked jurisdiction to overturn the acquittal on count 3 in the absence of a cross-appeal by the State, as the law does not permit the State to appeal an acquittal based solely on factual findings. The evidence did not establish joint possession of the firearm under the common purpose doctrine, and thus the conviction on count 3 could not stand. Regarding sentence, the Court found that the trial court erred in imposing a 10-year sentence for assault with intent to do grievous bodily harm, as the prescribed minimum sentence was 5 years. The offences were related in time and place, warranting an order that three years of the five-year...

Citation
[2019] ZASCA 85
Parties
Appellant: Pontso Dennis Ndou; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 May 2019
Case Number
247/18
Procedural Posture
Criminal Appeal / Appeal From the Gauteng Division of the High Court, Johannesburg
Outcome
Appeal upheld in respect of count 3 and sentence on count 2; conviction and sentence on count 3 set aside; sentence on count 2 reduced and ordered to run partly concurrently with count 1.
Judges
Leach, Saldulker, Zondi, Mocumie, Eksteen
Legal Topics
Firearms Control Act, Common Purpose Liability, Sentencing Concurrency, Minimum Sentences, Appeal Jurisdiction
Criminal Law Firearms Control Act Common Purpose Liability Sentencing Concurrency Minimum Sentences Appeal Jurisdiction

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 8 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Pontso Dennis Ndou

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From the Gauteng Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the Full Court had jurisdiction to reverse the acquittal on count 3 in the absence of a cross-appeal by the State.
  2. 2 Whether the evidence was sufficient to sustain a conviction for unlawful possession of a firearm under the Firearms Control Act.
  3. 3 Whether the sentence imposed for assault with intent to do grievous bodily harm was appropriate and whether sentences should run concurrently.

Ratio Decidendi

The Supreme Court of Appeal held that the Full Court lacked jurisdiction to overturn the acquittal on count 3 in the absence of a cross-appeal by the State, as the law does not permit the State to appeal an acquittal based solely on factual findings. The evidence did not establish joint possession of the firearm under the common purpose doctrine, and thus the conviction on count 3 could not stand. Regarding sentence, the Court found that the trial court erred in imposing a 10-year sentence for assault with intent to do grievous bodily harm, as the prescribed minimum sentence was 5 years. The offences were related in time and place, warranting an order that three years of the five-year...

Court Disposition

Appeal upheld in respect of count 3 and sentence on count 2; conviction and sentence on count 3 set aside; sentence on count 2 reduced and ordered to run partly concurrently with count 1.

Orders

  • The appeal against the appellant’s conviction and sentence on count 3 is upheld and the conviction and sentence imposed pursuant thereto is set aside.
  • The order of the Full Court is set aside and replaced with the following: