`IN THE HIGH C OURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)                          Case No: CA: 322/2011
                                                                                       Date heard: 30 May 2012
                                                                                   Date delivered: 31 May 2012
In the matter between:
MTHUTHUZELI  DINGAAN 
And 
THE STATE 
                             
                                               APPEAL JUDGMENT 
DAMBUZA J,
[1]	The appellant was convicted, as accused No. 2, by the magistrate, Port Elizabeth, on charges of robbery with aggravating circumstances, unlawful possession of a firearm and unlawful possession of ammunition. He was sentenced to 15 years imprisonment for robbery, and to 5 years imprisonment for possession of a firearm and unlawful possession of ammunition. The sentences were ordered to run concurrently. He now appeals, leave having been granted on petition to Judge President of this Division, against the conviction of unlawful possession a firearm and unlawful possession of ammunition.
[2]	The incident to which the conviction relates happened in New Brighton, Port Elizabeth. The appellant together with his co-accused (accused No.1 in the court a quo) had robbed the complainant of her hand bag in which there was an amount of R36 542,00.  They were arrested shortly after the robbery whilst still in possession of the handbag. During the robbery the complainant was shot on the foot (on the big toe) with a firearm. The magistrate found that the firearm had, throughout the incident, been in the possession of accused 1. The appellant’s conviction of for unlawful possession of the firearm and unlawful possession of ammunition was founded on his association with his co-accused during and after the incident. In his judgment the magistrate states that:
“When the police came across the two accused No1. had the firearm in his  possession. The only inference I can draw is that accused No1 possessed the firearm jointly with accused No 2 and that he had the invention to process it as such and had the intention to exercise possession of the firearm through accused No.1  who was the actual detentor. It is clear that although accused No.2 was not in actual possession of the firearm that he had the intention to posses it and both of them are   convicted on charges 3 and 4”
[3]	The appellant contends that the trial court erred in convicting the appellant of unlawful possession of a firearm and ammunition as he did. Ms Hendricks who      appeared on behalf of the state, agreed, correctly in my view.
[4]	The offence of unlawful possession of a firearm is defined in Section 2 of the firearm Control Act 60 of 2000 (the Act). This section provides that no person may possess firearm unless he/she holds a licence, permit or authorization issued in terms of the Act for that firearm. In considering the question of joint possess in of a   firearm by more than one accused the court in S v Mbuli held that: 
“What is prohibited by both those sections is the existence of a state of affairs (i.e having possession of an armament, or a firearm, as the case may be) and a conviction will be competent only if that state of affairs is shown to exist. The state of affairs will exist simultaneously in respect of more than one person if they have common (or joint) possession of the offending article. Their contravention of the relevant section in these circumstances does not arise from an application of the principles applicable to common purpose (which is concerned with liability for joint activity) but rather from an application of ordinary principles relating to joint possession. Common purpose, and joint possession, both require  that  the parties  concerned  share a common  state of  mind but the nature  of that  state  of mind  will differ  in each case.” 
[5]	In this case, the evidence on which the magistrate convicted the appellant was that the appellant and his co- accused had grabbed the complainant’s bag. When she resisted a short was fired. She then let go of the handbag and ran away. The complainant was unable to tell who had possession of the firearm. But the evidence of warrant officer Kruger, who was involved in chasing the appellant and   his co-accused, was that accused No. 1 had the firearm  in his hand whilst  the  (appellant and co-accused)  were running away. I do not agree that on the evidence on record   the only reasonable influence to be drawn, on the evidence or in the circumstances, is that the appellant and his co-accused   possessed the firearm (and ammunition) jointly. As Ms Hendricks correctly conceded, it is equally probable that accused No.1 had agreed with the appellant that he would use the firearm (and ammunition) during the robbery, but it would remain his own.  I also agree that, as submitted by Mr Geldenhys who appeared on behalf of the appellant, mere knowledge, by the appellant, that his co-accused was in possession of a firearm, and even his acquiescence in its use for fulfilling the common purpose of robbery is not sufficient to establish liability as a joint possessor. Consequently the magistrate erred in convicting the appellant of the offences of unlawful possession of firearm and unlawful possession of ammunition. 
[6]	The appeal therefore succeeds and the convictions and the sentence imposed in respect of counts 3 and 4 are set aside and are replaced with the following order :-
“In respect of counts 3 and 4 the accused is found not guilty and is discharged.”

  ______________________
N. DAMBUZA
JUDGE OF THE HIGH COURT

I agree
______________________
B. MAJIKI
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the Appellant: Adv. D. Geldenhys Instructed by High Court Unit Legal Aid, Grahamstown, S.A
For the Respondent: Adv. Hendricks instructed by The State Attorneys, Grhamstown.