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Zitha v The State (Criminal Appeal No. 5 of 1990) [1990] BWCA 5 (3 July 1990)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 5 of 1990
In the matter between:
JOHANNES MUZI ZITHA
Appellant
and
THE STATE
Respondent
Adv. H. Waner for the Appellant Adv. S. A. Afful for the Respondent
JUDGMENT
Coram: A. N. E. Amissah, JP. T. A. Aguda, J.A. B. A. Doyle, J.A.
AMISSAH, JP.:
The subject-matter of this appeal falls within a narrow ambit. It involves a question of interpretation of the Arms and Ammunition
Act (Cap. 24.01). Simply put, it is whether an arm which the appellant was in possession of when he was arrested in Francistown was an arm of war.
Originally, the appellant had faced ten charges consisting of two counts of forming an intent to prepare or endeavour to give assistance to a person who threatens the security of Botswana contrary to section 37(d) of the Penal Code and section 39(b) of the Penal Code (Amendment) Act, No. 19 of 1986; two counts of unlawful possession
of arms contrary to section 9(1) and (5) of the Arms and Ammunition Act; two counts of unlawful possession of ammunition contrary
to the same provisions; two counts of possessing firearms contrary to section 85(1) of the Penal Code; and two counts of possessing offensive weapons
- nr--jj
2
contrary to the same section of the Penal Code. It is suficient to say that at the end of the case for the prosecution, all the charges
fell away except two on which he was called upon to answer. These two charges involved in one of them the unlawful possession of an
arm of war, and in the other, the unlawful possession of munitions of war, both acts contrary to section 9(1) and (5) of the Arms and Ammunition Act. The alleged arm of war was stated to be a 7.65 mm. "Walther semi-automatic pistol," and the munitions of war, 14 rounds
7.65 mm. calibre munitions for a semi automatic pistol.
There is no doubt that the appellant was in possession of the specific weapon and munitions. Indeed, he does not contest the case
that he was in such possession. What he does contest is the description of the arm and ammunition as an arm and munitions of war.
Of the nine witnesses who gave evidence at the trial, only two are relevant to the point raised in this appeal. They are Lieutenant
Nyekume Chiepe of the Botswana Defence Force, who gave evidence as the prosecutions expert witness on arms and ammunition, and one
David Joseph Klatzow, a forensic consultant from Johannnesburg, who gave evidence as the defence expert witness. About the manufacture and type of the arms and munitions produced, there was no real dispute
between the two witnesses. It was on the uses to which the weapon was put and its resulting characterisation as an arm of war that
their differences arose.
Section 9 (1), (2), (4) and (5) of the Arms and Ammunition Act
under which the charges were laid reads as follows:
"9.(1) Subject to the provisions of this Act, no person shall own, purchase, acquire or have in his possession any arms or ammunition
except under and in accordance with an arms licence issued under this section.
3
(2) The provisions of this section shall not apply to any air gun, air rifle or air pistol not being a type prescribed to be specifically
dangerous.
(4)
Subject to subsection (5), any person who contravenes
any provision of this section shall be guilty of an
offence and on conviction thereof shall be liable to a fine not exceeding P250.
(5)
where the arms or ammunition in relation to
which an offence has been committed are arms or
ammunition of war, the penalty shall be a term of
imprisonment of not less than five years and not
more than 10 years."
Obviously, whether the arm or ammunition of war found in possession
of the appellant fall under subsection (4) or (5) above is a matter
of grave importance, not only to the State but to the appellant as
well. Under the one subsection his liability is to a fine of P250
only. Under the other, his liability is to a minimum of five years
imprisonment. And the substantial difference to this liability is
determined by whether or not the arm or ammunition is an arm or munition
of war as defined by the Act. I first give the definitions of
"ammunition" and "arms" as found in the Act. They are in section 2,
and are as follows:
""Ammunition" means any cartridge or percussion cap designed for use in the discharge of arms and includes gunpowder
and grenades, bombs and other missiles, whether capable of use with those missiles or not, and any munitions containing or designed
or adapted to contain any noxious liquid, gas or other things;"
"arms" means any lethal weapon of any description from which any shot, bullet, or other missile can be discharged or which
can be adapted for the discharge of any shot, bullet or other missile, and any weapon of whatever description designed or adapted
for the discharge of any noxious liquid gas or other things, and includes the barrel, bolt and chamber and any other essential component
part of any such weapon;
The expression "arms of war" is then defined as:
4
"arms of war" means artillery of all kinds, apparatus for the discharge of all kinds of projectiles, explosive or gas-diffusing,
flame-throwing, bombs, grenades, machine-guns and rifled small-bore breach loading weapons, or such arms as may be prescribed, but
does not include sporting rifles, or personal or other weapons or apparatus not intended for warlike purposes;
"Munitions of war" is then defined as:
"Munitions of war" means ammunitions for use with arms of war;
Speaking for the full Court of Appeal in Modiri Tsekane v. The State
Cr. App. No. 12 of 1987, I indicated the approach to the determination
of whether a weapon was or was not an arm of war in the following
manner:
"Whether the appellant was in possession of an arm of war depends in the first place on the definition of arm of war given in
the Act, as the Act defines what is meant by an arm of war. Secondly it depends on whether the evidence before the court regarding
the weapon of which the appellant was in unlawful possession came within that definition."
In this case the defence admits that ordinarily, the weapon comes wihin
the definition of an arm of war in that it was a "rifled small-bore
breach loading weapon." But it contends that the weapon is excluded
by the exception to the definition in that the weapon is a personal
weapon not intended for war.
The argument of the appellant succintly put amounts to this.
The definition of "arms of war" in Section 2 of the Act is ambiguous
in that the arm found with the appellant was a personal weapon which
would be excluded by the definition from being an arm of war if it
was not intended for warlike purposes. However, the definition does
not specify as to who, if anyone, should intend that the weapon be
5
for "warlike purposes" to be caught by the provision. He puts forward three possible approaches for identifying such person.
First there was the subjective approach of the person accused, then an objective approach which looked at the intention of the producer
or manufacturer of the weapon. The third approach which was the one relied upon by the appellant was that the weapon should not be
such that it is primarily applied in warlike circumstances.
Obviously, the matter is not without some difficulty. But I am not prepared to subscribe to the proposition that the Court should
elect, and thereafter be bound in cases of this nature, any one of the suggested approaches to the exclusion of the others. In my
view the meaning of the expression "not intended for warlike purposes" would depend on the circumstances of the particular
case.
Before examining the evidence to appreciate the circumstances of this case, I should indicate that in my view, a personal weapon
is not every weapon which a person claims to be his private property. If it were so, the expression "personal weapons"
would include a bomb, grenade, or machine gun of which a person claims private ownership. But as I see it, this would make nonsense
of the statute. What I think is a personal weapon is one which is small and which the owner might carry on his person for his protection.
Small firearms like a revolver or a pistol could on that basis be a personal weapon but not the AK 47.
Now, from the evidence, the appellant was a stranger to this country. He came from South Africa. He had in his possession a 7.65
mm. Walther semi-automatic pistol loaded with 7 rounds of ammunition. He also had a spare magazine with a further 7 rounds of ammunition
tied to the but of the gun. The appellant had access to an identical
6
weapon. Both of them were seized and put in evidence. Of these guns,
the evidence of the appellant's own expert evidence is that they were
in wide use in the German army and police force usually not as an
official side arm (i.e. one to be carried on the belt) but as a
subsidiary arm; that they were originally designed as police pistols
but were used by the army. The witness added that:
"The exhibits can be used for warlike purposes inasmuch as they are sold to the military; it depends on the mind of the user."
The contention of the appellant was that as these weapons were
obtainable commercially in Europe and South Africa, an objective
assessment based on contemporary usage would exclude them from the
class of arms of war. I am not persuaded by this argument. The fact
that these weapons are easily obtainable in Europe and South Africa
by ordinary members of the public cannot exclude them from a Botswana
statute which describes them as arms of war and forbids their possession
on that account without a licence. I understand that the equivalent
statute on Arms and Ammunition, in South African Act (No. 75 of 1969),
has not got the provision on "arms of war." Clearly, weapons of this
type are not obtainable commercially in Botswana. In those
circumstances, I find it difficult to understand why I should construe
a Botswana statute by reference in conduct to South Africa. To lay
down a rule that the expression intended for warlike purposes" was
to be given an objective construction based on current usage, would
permit large quantities of such weapons to be brought into Botswana
for purposes which the carriers intend to be obviously warlike, but
allow them the defence that the weapons are known not to be for warlike
purposes. This would make mockery of the law.
I do agree that the test to apply to the exclusion part of the
7
definition should not be the itention of the weapon manufacturer. Such an intention would be unsafe to apply. As this evidence in
this very case shows, these weapons were originally manufactured for use by the German police but the military in Germany started
to buy them. They are now bought by ordinary persons. The intention of the makers therefore changes, usually with their business
interest.
But I am unimpressed by the submission that a subjective approach would be subject to rapid changes depending on whether the person
in possession was going to execute an act having warlike purposes or coming away from it. The reason why one keeps a gun does not
change with every walk that he takes with that gun on him. When one considers the circumstances, the intention of the possessor must
be a factor for consideration. Even the defence expert witness made that point in the extract of his evidence quoted.
That being the case, what was the intention of the appellant in this case. As we have seen he is a foreigner visiting Botswana with
a weapon which clearly by definition comes within the primary definition of an arm of war. He has the weapon loaded and a spare magazine
with additional ammunition. He had not only the one weapon but access to another which was identical. Both of these guns have their
serial numbers filed away. Why should a person who needs a gun for self-protection have the serial number filed away? Why should
he have two such weapons? Both weapons were fitted with silencers as big and heavy as the weapons themselves. What were these fitted
silencers for? Each of the weapons as fitted is about two #eet long, and they are clearly not carried on the person for his protection.
The appellant gave no evidence himself in explanation of these damning facts. He calls only an expert witness who says that the weapons
can be used
for warlike purposes.
In the face of these facts I have not the slightest hesitation in saying that the appellant was in possession of an arm and munitions of war.
The appeal must be dismissed.
day of July, 1990.
GIVEN at Lobatse the
3RD
A.N.E. AMISSAH
JUDGE PRESIDENT
T.A. AGUDA JUDGE OF APPEAL
B. A. DOYLE JUDGE OF APPEAL
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