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NORTH WEST HIGH COURT, MAFIKENG

CA. 28/08

In the matter between:

THUSE SIKHONA KHUMALO …..........................................................Appellant

and

THE STATE …...................................................................................Respondent

CRIMINAL APPEAL

HENDRICKS J, KGOELE J.

DATE OF HEARING : 25 FEBRUARY 2011

DATE OF JUDGMENT : 20 MAY 2011

COUNSEL FOR APPELLANT : Mr Moremi

COUNSEL FOR RESPONDENT : Adv. Rantsane

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JUDGMENT

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KGOELE J.

A. INTRODUCTION

1. This is an appeal against the conviction only. The appellant was charged and consequently convicted of the offence of unlawful possession of a fire arm in contravention of the Firearms Control Act 60 of 2000 at Madikwe Regional Court. Application for leave to appeal to this court against the said conviction was granted by the court a quo, hence this appeal.

[B] FACTS

2. The state relied on the evidence of two witnesses only. The first witness was constable Nyaka who briefly testified that he was with another constable when he went to the appellant’s parental place after receiving information that he was having a firearm. On arrival the appellant’s parents directed them to a shack where they found appellant sleeping. A search was conducted with the permission of the appellant in the shack and no firearm was found. They then told the appellant that he must disclose where the firearm is, otherwise they will conduct a thorough search and search the whole house.

3. The appellant took them to the back of the house. There were many drums there. The appellant told them that the firearm is in one of the drums. They asked the appellant to take it out, which he did. When asked where he acquired the firearm from, he replied that it belonged to Morris, his elder brother, who is in Johannesburg.

4. The second witness was the investigating officer Inspector Matlola. His evidence was short and only dealt with him receiving the firearm, sending it for forensic tests and the report that was made in respect of it. He was not cross-examined at all. It was only during a series of questions by the court a quo that he revealed that he interviewed the appellant during his course of investigating the matter and the appellant told him after he explained his rights that he possessed the firearm but it did not belong to him.

5. The state closed its case. Application for discharge of the appellant in terms of section 174 of the Criminal Procedure Act 51 of 1977 (CPA) was refused by the court a quo. The appellant also closed his case without testifying.

C. SUBMISSIONS

6. The grounds of appeal by the appellant are twofold, namely:-

• that the court a quo erred in admitting the evidence of the discovery of the firearm as it amounts to unconstitutional obtained evidence which was to be excluded.

• that the court a quo erred in finding that the state proved its case beyond reasonable doubt that the appellant possessed or was in control of the said firearm.

[7] For the reasons that will become clearer later during this judgment, I choose to deal with the second ground first.

[8] Mr Moremi submitted on behalf of the appellant that the explanation given by the appellant is reasonably possibly true for the following reasons:-

- First of all the firearm was not found in his possession;

- Secondly, it is not disputed that the appellant stays with other family members i.e. his brother and parents;

- Thirdly, the firearm was found at the back of the house. It was further submitted that the police searched his room even under the bed and did not find anything. His explanation that he has a brother who was in Johannesburg was corroborated by his siblings. The state did not follow this explanation at all.

[9] According to Mr Moremi, the court a quo erred in finding that, the

appellant concealed the firearm in the drums and/or further that Morris had hidden the firearm to the knowledge of the appellant and therefore left the firearm in his control. He further submitted that there is no evidence on record that supports this finding and no proven facts whatsoever from which such inferences can be drawn by the trial court.

[10] Respondent’s counsel conceded to the fact that from the available

evidence it cannot be said that appellant had physical control over the firearm.

D. ANALYSIS

[11] The appellant did not testify under oath. Unfortunately, this does not

relieve the state of the onus that rest upon it to prove its case beyond reasonable doubt.

[12] In S v Olawale 2010 (1) All SA 451 (SCA) at para 13 it was held:-

“It is a trite principle that in criminal proceedings the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused’s version is true. If the accused’s version is reasonably possibly true in substance, the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused’s version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.”

[13] The court a quo found that the appellant had “physical control over the firearm”because of the following:-

- he admitted to Nyaka that he is the one who placed the firearm in the drum;

- the manner in which the firearm was concealed clearly shows that the appellant has knowledge of it;

- why did the appellant conceal the information about the firearm when they started asking about it?

[14] These findings are in my view not justified. I fully agree with the

submissions by both counsel that a careful analysis of the evidence before the trial court is to the effect that the firearm was not found in the possession of the appellant. It was not even found in his room where he was sleeping. It was found at the back of the house in a drum. There is no evidence before this court that the appellant himself concealed the firearm in the drum. Indeed, there is no direct evidence of possession in this matter, the court a quo was correct in relying on circumstantial evidence to draw inferences. However, circumstantial evidence has to pass a test. It is primarily a conclusion based on inference(s) drawn. The cardinal rules that have to be satisfied when dealing with inferential reasoning have long been established in the well known case of R v Blom 1939 A.D. 188 at 202 – 203 wherein it is stated that:-

“(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct”.

[15] Appellant in casu did give an explanation on the state’s version to the effect that the firearm belonged to his brother Morris. Of critical importance is the fact that the investigating officer did not investigate this allegation at all. There is no evidence as to what made the investigating officer not to follow the allegations when there is no dispute that the appellant had a brother, Morris. The fact remains that there is no proven facts as to how the firearm landed up in the said drum.

[16] There is no duty on the appellant to prove his innocence. The onus is on the state to proof the guilt of an accused person beyond reasonable doubt. Appellant has to convince the court that his defense which will of course come by way of an explanation is reasonably possibly true. The failure by the state to rebut the defense of the appellant has proven to be fatal.

[17] In the absence of the testimony of Morris, the explanation of the

appellant on the state’s version cannot be said to be not reasonably probably true. This is one instance where the well known principle that there is no onus on the state to close all the avenues available to the accused’s defense cannot succeed since this was a crucial part of the defense of the appellant which no other evidence on record could remedy. The defense also militates against the inference that the court a quo sought to have drawn to be the only reasonable inference to be drawn from the circumstances of this matter.

[18] In my view, the state did not succeed in proving the guilt of the

appellant beyond reasonable doubt as far as possession of the firearm is concerned. This conclusion renders it unnecessary to consider the other arguments advanced in respect of the first ground of appeal that deals with the admissibility of the pointing out evidence on the premise that the second ground of appeal that I have considered, summarily disposes this matter.

E. ORDER

[19] Consequently, the following order is made:-

1. The appeal succeeds.

2. The conviction and the resultant sentence of the appellant are set aside.

A.M. KGOELE

JUDGE OF THE HIGH COURT

I agree

R.D. HENDRICKS

JUDGE OF THE HIGH COURT

Attorneys for the appellant : Legal Aid South Africa

3^rd Floor East Gallery

MMABATHO

Attorneys for the respondent : Director of Public Prosecution

Old Standard Bank Building

MAFIKENG

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