S v Makgasane and Others [2005] ZAFSHC 138 (27 October 2005)

S v Makgasane and Others [2005] ZAFSHC 138 (27 October 2005)

The evidence established that only the second appellant was in physical possession of the firearm during the robbery. There was insufficient proof beyond reasonable doubt that the first and third appellants intended to possess the firearm jointly with the second appellant, or that the second appellant intended to...

Source-derived case information.

Citation
[2005] ZAFSHC 138
Parties
Appellant: Charles Makgasane; Appellant: Hendrik Diba; Appellant: Reginald Sejanamane; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
27 October 2005
Case Number
A302/2004
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld in respect of counts 3 and 4 for the first and third appellants; sentences and convictions set aside. Sentence for the second appellant on counts 3 and 4 reduced to three years' imprisonment, to run concurrently with the sentence on count 1.
Judges
C.H.G. Van der Merwe, J.P. Malherbe, S.P.B. Hancke
Legal Topics
Joint Possession, Minimum Sentencing, Firearms Control Act, Appeal Procedure
Criminal Law Joint Possession Minimum Sentencing Firearms Control Act Appeal Procedure

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Summary, issues, holding and outcome

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Parties

Charles Makgasane

Appellant

Hendrik Diba

Appellant

Reginald Sejanamane

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the first and third appellants were jointly in possession of the firearm with the second appellant.
  2. 2 Whether the minimum sentence prescribed by section 51(2)(a) of Act 105 of 1997 applies to possession of a semi-automatic pistol without a licence under section 2 of Act 75 of 1969.
  3. 3 Whether the convictions and sentences on counts 3 and 4 should be set aside for the first and third appellants.

Ratio Decidendi

The evidence established that only the second appellant was in physical possession of the firearm during the robbery. There was insufficient proof beyond reasonable doubt that the first and third appellants intended to possess the firearm jointly with the second appellant, or that the second appellant intended to possess it on their behalf. Therefore, the convictions and sentences of the first and third appellants on counts 3 and 4 must be set aside. Regarding the minimum sentence, the court followed established precedent that section 51(2)(a) of Act 105 of 1997 does not apply to possession of a semi-automatic pistol without a licence under section 2 of Act 75 of 1969. The sentence...

Court Disposition

Appeal upheld in respect of counts 3 and 4 for the first and third appellants; sentences and convictions set aside. Sentence for the second appellant on counts 3 and 4 reduced to three years' imprisonment, to run concurrently with the sentence on count 1.

Orders

  • The convictions and sentences of the first and third appellants on counts 3 and 4 are set aside.
  • The sentence imposed on the second appellant for counts 3 and 4 is set aside and replaced with a sentence of three years' imprisonment for counts 3 and 4 taken together for sentencing purposes.