Nontshinga and Others v S (23/2011) [2016] ZAECGHC 88 (15 September 2016)

Nontshinga and Others v S (23/2011) [2016] ZAECGHC 88 (15 September 2016)

The court found that the accused were not proved to be in joint possession of the firearm and ammunition found in the vehicle, as required by law and established in S v Mbuli. The magistrate misdirected himself in convicting the accused on counts 8 and 9. Given that the outcome was a foregone conclusion and that the interests of justice demanded a prompt resolution, the court set aside the convictions and sentences for unlawful possession of a firearm and ammunition by way of review.

Citation
[2016] ZAECGHC 88
Parties
Applicant: Mfundo Nontshinga; Applicant: Mzwekhaya Zagana; Applicant: Mandla Mazwi; Applicant: Dumisani Sikakana; Respondent: The State
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
15 September 2016
Case Number
CA&R 23/2011
Procedural Posture
Review Application / Special Review
Outcome
Convictions and sentences on counts 8 and 9 for unlawful possession of a firearm and ammunition are set aside.
Judges
C. Plasket, J.D. Pickering
Legal Topics
Joint Possession, Unlawful Possession of Firearm, Unlawful Possession of Ammunition, Review Proceedings, Misdirection by Magistrate
Criminal Law Joint Possession Unlawful Possession of Firearm Unlawful Possession of Ammunition Review Proceedings Misdirection by Magistrate

Case Brief

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Parties

Mfundo Nontshinga

Applicant

Mzwekhaya Zagana

Applicant

Mandla Mazwi

Applicant

Dumisani Sikakana

Applicant

The State

Respondent

Procedural Posture

Review Application / Special Review

Legal Issues

  1. 1 Whether the accused were in joint possession of the firearm and ammunition found in the vehicle.
  2. 2 Whether the convictions and sentences for unlawful possession of a firearm and ammunition should be set aside due to misdirection by the magistrate.
  3. 3 Whether the interests of justice require the convictions to be set aside by way of review rather than appeal.

Ratio Decidendi

The court found that the accused were not proved to be in joint possession of the firearm and ammunition found in the vehicle, as required by law and established in S v Mbuli. The magistrate misdirected himself in convicting the accused on counts 8 and 9. Given that the outcome was a foregone conclusion and that the interests of justice demanded a prompt resolution, the court set aside the convictions and sentences for unlawful possession of a firearm and ammunition by way of review.

Court Disposition

Convictions and sentences on counts 8 and 9 for unlawful possession of a firearm and ammunition are set aside.

Orders

  • The convictions and sentences imposed on the accused in respect of counts 8 and 9 are set aside.