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. On 15 April 2000, before the robbery could be carried out, the appellant and his co-accused were arrested. Immediately prior to his arrest, the appellant had been the driver of a white Nissan Maxima vehicle with two passengers: Isaac Zikalala (accused 10) and Sipho Mahlenche. Mahlenche was seated in the front passenger seat next to the appellant. It was common cause that Mahlenche was in possession of an AK47 firearm, the subject matter of this appeal. There was dispute as to whether the appellant was aware of the firearm in Mahlenche's possession. Mahlenche absconded during the trial. The appellant at no stage had physical possession of the firearm and its ammunition. 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 35 years imprisonment. On appeal to the High Court, the convictions in respect of three counts were confirmed (conspiracy and contravening ss 32(1)(a) and 32(1)(e) of the Act) and the remaining convictions were set aside. The effective term of imprisonment was reduced to 25 years.
The conviction of the appellant on the charges of contravening sections 32(1)(a) and 32(1)(e) of the Arms and Ammunition Act 75 of 1969, and the sentences imposed in respect thereof, were set aside.
For a conviction of joint possession of firearms and ammunition under the Arms and Ammunition Act 75 of 1969, the state must establish facts from which it can properly be inferred that: (a) the group had the intention (animus) to exercise possession of the firearms through the actual detentor and (b) the actual detentors had the intention to hold the firearms on behalf of the group. Mere knowledge by an accused that a co-accused is in possession of a firearm, and even acquiescence in its use for fulfilling a common criminal purpose, is not sufficient to establish joint possession for purposes of the Act. The accused must have the specific mental intention to jointly possess the firearm, which cannot be inferred solely from participation in a conspiracy or common purpose involving the use of firearms.
The court accepted, for the purpose of the judgment, that the appellant conspired with his co-accused to rob the bank. The court did not need to deal extensively with the facts relating to the conviction on the count of conspiracy save in so far as they were relevant to a determination of the appeal regarding possession of the firearm. The court noted that there was some dispute as to whether the appellant was aware of the firearm in Mahlenche's possession, but ultimately found that even assuming such awareness, it would not be sufficient to establish joint possession.
This case is significant in South African criminal law for clarifying the requirements for establishing joint possession of firearms and ammunition. It reaffirms the principle established in S v Nkosi and endorsed in S v Mbuli that mere knowledge that a co-accused possesses a firearm, and even acquiescence in its use for fulfilling a common criminal purpose, is not sufficient to establish joint possession for purposes of the Arms and Ammunition Act. The case emphasizes that the state must prove a specific mental element (animus) demonstrating that: (1) the group intended to exercise possession through the actual detentor, and (2) the actual detentor intended to hold the firearm on behalf of the group. This case provides important guidance on the distinction between participation in a conspiracy or common purpose and the separate offense of unlawful possession of firearms, ensuring that individuals are not convicted of possession offenses merely by association with those who actually possess firearms.
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