Nomtoto v S (CA&R04/2017) [2017] ZAECGHC 97 (1 September 2017)

Nomtoto v S (CA&R04/2017) [2017] ZAECGHC 97 (1 September 2017)

The court found that none of the witnesses identified the appellant as having had a firearm in his physical possession. While it was probable that the appellant was aware his accomplices possessed firearms and that they would be used in the robbery, there was no evidence that he intended to exercise possession of the firearms through his accomplices, nor that the actual holders intended to possess the firearms on behalf of the group. On the authority of S v Mbuli, S v Nkosi, and S v Kwanda, the requirements for joint possession were not met. The doctrine of common purpose does not extend to possessory offences without evidence of joint possession. Accordingly, the convictions for unlawful...

Citation
[2017] ZAECGHC 97
Parties
Appellant: Luyanda Nomtoto; Respondent: The State
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
1 September 2017
Case Number
CA&R04/2017
Procedural Posture
Criminal Appeal / Appeal Against Conviction
Outcome
Appeal upheld. Convictions for unlawful possession of a firearm and ammunition set aside.
Judges
Beshe, Conjwa
Legal Topics
Joint Possession, Unlawful Possession of Firearm, Unlawful Possession of Ammunition, Common Purpose, Robbery With Aggravating Circumstances
Criminal Law Joint Possession Unlawful Possession of Firearm Unlawful Possession of Ammunition Common Purpose Robbery With Aggravating Circumstances

Case Brief

Summary, issues, holding and outcome

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Parties

Luyanda Nomtoto

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction

Legal Issues

  1. 1 Whether the appellant was in unlawful possession of a firearm and ammunition during the commission of the robbery.
  2. 2 Whether the doctrine of common purpose extends to possessory offences such as unlawful possession of a firearm and ammunition.
  3. 3 Whether joint possession of firearms by the appellant and his accomplices was established on the evidence.

Ratio Decidendi

The court found that none of the witnesses identified the appellant as having had a firearm in his physical possession. While it was probable that the appellant was aware his accomplices possessed firearms and that they would be used in the robbery, there was no evidence that he intended to exercise possession of the firearms through his accomplices, nor that the actual holders intended to possess the firearms on behalf of the group. On the authority of S v Mbuli, S v Nkosi, and S v Kwanda, the requirements for joint possession were not met. The doctrine of common purpose does not extend to possessory offences without evidence of joint possession. Accordingly, the convictions for unlawful...

Court Disposition

Appeal upheld. Convictions for unlawful possession of a firearm and ammunition set aside.

Orders

  • The convictions in respect of counts four and five, being unlawful possession of a firearm and ammunition respectively, are set aside.