S v Malandule and Others (A143/09) [2009] ZAGPPHC 69 (2 March 2009)

S v Malandule and Others (A143/09) [2009] ZAGPPHC 69 (2 March 2009)

The court found that the statutory presumption in section 117(2) of Act 60 of 2000 does not automatically justify the conviction of all persons present in a vehicle where a firearm is found. The evidence, including the location of the firearm on the driver's seat, false explanations given to police and the court, and the absence of evidence under oath, justified the inference that accused one, as the driver, was in possession of the firearm. There was insufficient evidence to infer with certainty that accused two, three, or four were in possession, either individually or jointly. Accordingly, only the conviction and sentence of accused one were confirmed, and those of the other accused...

Citation
[2009] ZAGPPHC 69
Parties
Applicant: The State; Respondent: Thembinkosi Vincent Malandule; Respondent: Accused Two; Respondent: Accused Three; Respondent: Accused Four
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 March 2009
Case Number
A143/09
Procedural Posture
Review Application / Review of Convictions and Sentences Following Trial in Magistrate's Court
Outcome
Conviction and sentence of accused one confirmed; convictions and sentences of accused two, three and four set aside.
Judges
Botha, B.R Du Plessis
Legal Topics
Unlawful Possession of Firearm, Statutory Presumption, Joint Possession, Constitutional Validity of Presumption
Criminal Law Unlawful Possession of Firearm Statutory Presumption Joint Possession Constitutional Validity of Presumption

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Thembinkosi Vincent Malandule

Respondent

Accused Two

Respondent

Accused Three

Respondent

Accused Four

Respondent

Procedural Posture

Review Application / Review of Convictions and Sentences Following Trial in Magistrate's Court

Legal Issues

  1. 1 Whether the statutory presumption in section 117(2) of Act 60 of 2000 justifies the conviction of all accused for possession of a firearm.
  2. 2 Whether the evidence supports joint possession or individual possession of the firearm.
  3. 3 Whether the convictions of accused two, three and four should be upheld.

Ratio Decidendi

The court found that the statutory presumption in section 117(2) of Act 60 of 2000 does not automatically justify the conviction of all persons present in a vehicle where a firearm is found. The evidence, including the location of the firearm on the driver's seat, false explanations given to police and the court, and the absence of evidence under oath, justified the inference that accused one, as the driver, was in possession of the firearm. There was insufficient evidence to infer with certainty that accused two, three, or four were in possession, either individually or jointly. Accordingly, only the conviction and sentence of accused one were confirmed, and those of the other accused...

Court Disposition

Conviction and sentence of accused one confirmed; convictions and sentences of accused two, three and four set aside.

Orders

  • The conviction and sentence of accused one are confirmed.
  • The convictions and sentences of accused two, three and four are set aside.