S v Shikwambane and Another (190/2003) [2003] ZASCA 120 (21 November 2003)

S v Shikwambane and Another (190/2003) [2003] ZASCA 120 (21 November 2003)

The Supreme Court of Appeal held that the evidence did not establish joint possession of the hand grenade by the appellants. The reasoning in S v Mbuli was adopted, confirming that mere knowledge or acquiescence in the use of the hand grenade for a common purpose does not suffice to prove possession under section 32(1)(c) of the Arms and Ammunition Act. Since it was not established which accused was in possession of the hand grenade, the convictions and sentences of the appellants on this charge could not stand and were set aside.

Citation
[2003] ZASCA 120
Parties
Appellant: Happy Shikwambane; Appellant: Ben Masiso; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 November 2003
Case Number
190/2003
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal allowed; convictions and sentences set aside.
Judges
Mthiyane, Nugent, Conradie
Legal Topics
Possession of Prohibited Weapon, Arms and Ammunition Act, Joint Possession, Acquittal on Appeal
Criminal Law Possession of Prohibited Weapon Arms and Ammunition Act Joint Possession Acquittal on Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Happy Shikwambane

Appellant

Ben Masiso

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellants jointly possessed the hand grenade as contemplated by section 32(1)(c) of the Arms and Ammunition Act 75 of 1969.
  2. 2 Whether the evidence established which accused was in possession of the hand grenade.
  3. 3 Whether the convictions and sentences for contravention of section 32(1)(c) should be set aside.

Ratio Decidendi

The Supreme Court of Appeal held that the evidence did not establish joint possession of the hand grenade by the appellants. The reasoning in S v Mbuli was adopted, confirming that mere knowledge or acquiescence in the use of the hand grenade for a common purpose does not suffice to prove possession under section 32(1)(c) of the Arms and Ammunition Act. Since it was not established which accused was in possession of the hand grenade, the convictions and sentences of the appellants on this charge could not stand and were set aside.

Court Disposition

Appeal allowed; convictions and sentences set aside.

Orders

  • The appeal is allowed.
  • The convictions and sentences of the first and second appellants on the charge of contravening section 32(1)(c) of the Arms and Ammunition Act 75 of 1969 are set aside.