Zulu v S (AR44/18) [2021] ZAKZPHC 9 (3 February 2021)

Zulu v S (AR44/18) [2021] ZAKZPHC 9 (3 February 2021)

The court found that the trial court erred in convicting the appellant of possession of unlicensed firearms and ammunition based solely on his presence in the vehicle and participation in the robberies. There was no evidence that the appellant physically possessed any of the firearms or that he had the requisite intention for joint possession as required by law. The test for joint possession, as established in S v Nkosi and endorsed by subsequent cases, was not satisfied. The trial court incorrectly relied on the doctrine of joint possession without establishing the necessary factual and mental elements. The convictions and sentences on counts 4, 5, 6, and 7 were therefore set aside.

Citation
[2021] ZAKZPHC 9
Parties
Appellant: Kumbulani Eric Zulu; Respondent: The State
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
3 February 2021
Case Number
AR44/18
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence on Counts 4, 5, 6 and 7
Outcome
Appeal upheld on counts 4, 5, 6 and 7; convictions and sentences set aside.
Judges
Chetty, Chilli
Legal Topics
Joint Possession, Unlawful Possession of Firearms, Unlawful Possession of Ammunition, Doctrine of Common Purpose, Firearms Control Act
Criminal Law Joint Possession Unlawful Possession of Firearms Unlawful Possession of Ammunition Doctrine of Common Purpose Firearms Control Act

Case Brief

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Parties

Kumbulani Eric Zulu

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence on Counts 4, 5, 6 and 7

Legal Issues

  1. 1 Whether the appellant was lawfully convicted of possession of unlicensed firearms and ammunition under the doctrine of joint possession.
  2. 2 Whether mere presence in a vehicle containing firearms is sufficient to establish joint possession for purposes of conviction.
  3. 3 Whether the requirements for joint possession as set out in S v Nkosi and subsequent cases were met.

Ratio Decidendi

The court found that the trial court erred in convicting the appellant of possession of unlicensed firearms and ammunition based solely on his presence in the vehicle and participation in the robberies. There was no evidence that the appellant physically possessed any of the firearms or that he had the requisite intention for joint possession as required by law. The test for joint possession, as established in S v Nkosi and endorsed by subsequent cases, was not satisfied. The trial court incorrectly relied on the doctrine of joint possession without establishing the necessary factual and mental elements. The convictions and sentences on counts 4, 5, 6, and 7 were therefore set aside.

Court Disposition

Appeal upheld on counts 4, 5, 6 and 7; convictions and sentences set aside.

Orders

  • The appeal against the conviction in respect of counts 4, 5, 6 (possession of unlicensed firearms) and 7 (possession of ammunition) is upheld.
  • The conviction and sentences imposed on 11 April 2016 in respect of counts 4, 5, 6 and 7 are set aside.