THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   592/10

In the matter between:

JOHANNES KWANDA                                                                 Appellant

and

THE STATE                                                                                Respondent

Neutral citation: Kwanda v State (592/10) [2011] ZASCA 50 (30 March
2011)

Coram:
STREICHER, BOSIELO and THERON JJA

Heard:
15 March 2011
Delivered:
30 March 2011

Summary: Arms and ammunition ─ Unlawful possession of firearms and
ammunition in contravention of s 32 of Arms and Ammunition Act 75 of 1969 ─
Joint possession ─ The state must establish facts from which it can be inferred that the
group had intention (animus) to exercise possession of firearms through actual
detentor and actual detentor had the intention to hold on behalf of the group.

___________________________________________________________

ORDER

On appeal from: North Gauteng High Court (Pretoria) (Els and
Mojapelo JJ sitting as court of first instance):

The conviction of the appellant on the charges of contravening ss 32(1)(a)
and 32(1)(e) of the Arms and Ammunition Act 75 of 1969, and the
sentences imposed in respect thereof, are set aside.
___________________________________________________________

JUDGMENT

THERON JA (STREICHER and BOSIELO JJA concurring)

[1] The appellant was one of several accused who stood trial in the
Regional Court, Springs, on various charges related to conspiracy to
commit armed robbery at the Springs branch of ABSA bank (the bank).
The appellant was convicted of conspiracy to commit armed robbery and
various contraventions of the Arms and Ammunition Act 75 of 1969
(unlawful possession of firearms and ammunition) and sentenced to an
effective term of imprisonment of 35 years. On appeal, the High Court
(the then Transvaal Provincial Division) (Els and Mojapelo JJ),
confirmed the convictions in respect of three of the counts: conspiracy
and contravening ss 32(1)(a) and 32(1)(e) of the Act (unlawful possession
of a firearm and ammunition) and set aside the remaining convictions.
The appeal court also reduced the effective term of imprisonment to 25
years. The appellant appeals against his conviction of unlawful
possession of a firearm and ammunition, with the leave of this court.

[2] It is therefore not necessary to deal with the facts relating to the
conviction on the count of conspiracy save in so far as they are relevant to
a determination of this appeal. The evidence showed that members of the
South African Police Service had received information about a planned
robbery at the bank. On 15 April 2000, before the robbery could be
carried out, the appellant and his co-accused were arrested.

[3] Immediately prior to his arrest, the appellant had been the driver of
a white Nissan Maxima vehicle. Two passengers, Isaac Zikalala (accused
10 in the trial court) and Sipho Mahlenche, were with the appellant in the
vehicle. Mahlenche was seated next to the appellant in the front passenger
seat. It was common cause that Mahlenche was in possession of an
AK47, the subject matter of this appeal. There was some dispute as to
whether the appellant was aware of the firearm in Mahlenche’s
possession. Mahlenche absconded during the course of the trial. It was
further common cause that the appellant at no stage had physical
possession of the firearm and its ammunition.

[4] The only question on appeal is whether the state had established
that the appellant possessed the firearm jointly with Mahlenche. In this
regard the state must prove that the appellant had the necessary mental
intention (animus) to possess the firearm. I accept, for the purpose of this
judgment, that the appellant conspired with his co-accused to rob the
bank.

[5] The fact that the appellant conspired with his co-accused to commit
robbery, and even assuming that he was aware that some of his co-
accused possessed firearms for the purpose of committing the robbery,
does not lead to the inference that he possessed such firearms jointly with

his co-accused. In S v Nkosi,1 Marais J said that such an inference is only
justified where ‘the state has established facts from which it can properly
be inferred by a Court that: (a) the group had the intention (animus) to
exercise possession of the guns through the actual detentor and (b) the
actual detentors had the intention to hold the guns on behalf of the
group’.2 Nugent JA, in S v Mbuli,3 referred to the above quoted passage
from Nkosi and commented that Marais J had ‘set out the correct legal
position’.4 In Mbuli, the appellant and his two co-accused were charged
with and convicted of being in possession of a hand grenade that had
been found in their vehicle shortly after they had robbed a bank (this is
the only charge of relevance to this matter). Nugent JA found that the
evidence did not establish that the appellant and his co-accused had
possessed the hand grenade jointly and that it was possible that the hand
grenade had been possessed by only one of them. Nugent JA concluded
with these words:
‘I do not agree that the only reasonable inference from the evidence is that the
accused possessed the hand grenade jointly. It is equally possible that, like the pistols,
the hand grenade was possessed by only one of the accused. Mere knowledge by the
others that he was in possession of a hand grenade, and even acquiescence by them in
its use for fulfilling their common purpose to commit robbery, is not sufficient to
make them joint possessors for purposes of the Act. The evidence does not establish
which of the accused was in possession of the hand grenade and on that charge, in my
view, they were entitled to be acquitted.’5

[6] Adopting the reasoning in Nkosi and Mbuli, and even if the
appellant was aware that Mahlenche was in possession of the firearm,
such knowledge is not sufficient to establish that he had the intention to

1 1998 (1) SACR 284 (W).
2 At 286g-i.
3 2003 (1) SACR 97 (SCA).
4 Para 71.
5 Para 72.

jointly possess the firearm with Mahlenche. In this matter there are no
facts from which it can be inferred that the appellant had the necessary
intention to exercise possession of the firearm through Mahlenche or that
the latter had the intention to hold the firearm on behalf of the appellant.

[7] The conviction of the appellant on the charges of contravening ss
32(1)(a) and 32(1)(e) of the Act and the sentences imposed in respect
thereof, are set aside.

___________________

L Theron

Judge of Appeal

APPEARANCES

APPELLANT:
F van As
Instructed by Pretoria Justice Centre, Pretoria;
Bloemfontein Justice Centre, Bloemfontein.

RESPONDENT: (Ms) P Vorster
Instructed by the Director of Public Prosecutions,
Pretoria;
The Director of Public Prosecutions, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
30 March 2011

STATUS
Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Kwanda v State
(592/2010) [2011] ZASCA 50(30 March 2011)

The Supreme Court of Appeal (SCA) upheld an appeal against an order of the
North Gauteng High Court, Pretoria. The appellant, Johannes Kwanda, was
convicted of conspiracy to commit armed robbery and contravening ss
32(1)(a) and 32(1)(e) of the Arms and Ammunition Act 75 of 1969 (the Act)
and was sentenced to 25 years imprisonment. The appellant appealed
against his conviction of unlawful possession of a firearm and ammunition.

The appellant and his co-accused were arrested after the South African Police
Service received information about a planned robbery. At the time of the
arrest one of the appellant’s co-accused, Sipho Mahlenche, was in
possession of an AK 47. The question on appeal was whether the state had
established that the appellant possessed the firearm jointly with the co-
accused. In this regard the state had to prove that the appellant had the
necessary mental intention to possess the firearm.

The court held that even if the appellant was aware that Mahlenche was in
possession of the fire arm, such knowledge is not sufficient to establish that
he had the intention to jointly possess the firearm with Mahlenche, neither can
this inference be drawn from the fact that the appellant conspired with his co-
accused to commit the robbery.

Accordingly, the conviction of the appellant on the charges of contravening ss
32(1)(a) and 32(1)(e) of the Act and the sentences imposed in respect
thereof, were set aside.