David Nketumane Mafiri v The State

On 28 December 1994, the appellant was stopped by two police officers (Inspector Golach and Sergeant Burger) from the Firearms Unit while driving his Opel vehicle near the intersection of Jane Furse and Pietersburg roads. After searching his vehicle and finding nothing, the police accompanied the appellant to his house at Jane Furse. The appellant consented to a search of his house. During the search, Burger found a 9mm pistol and 26 rounds of ammunition under a pillow on a bed in a bedroom. The appellant explained that the bedroom was occupied by his friend, Elias Makakula, and that he had no knowledge of the pistol and ammunition. The appellant was initially tried before Motata J on 24 charges including murder, unlawful possession of firearms and ammunition in contravention of sections 2 and 36 of Act 75 of 1969. He was convicted on five charges and sentenced to 10 years' imprisonment. On appeal to the Full Court, his convictions on three charges were set aside, but the convictions for unlawful possession of a pistol and ammunition were upheld. The matter came before the Supreme Court of Appeal with special leave.

• Whether the appellant's explanation that the firearm and ammunition belonged to Makakula who occupied the bedroom was reasonably possibly true
• Whether the State discharged its onus of proving beyond reasonable doubt that the appellant had possession and knowledge of the firearm and ammunition
• What test should be applied when assessing an explanation given by an accused person
• Whether mens rea was established for the contravention of section 2 of Act 75 of 1969
• The impact of the unconstitutionality of the presumption of possession under section 40(1) of Act 75 of 1969

The appeal was allowed. The appellant's convictions and sentences on the two remaining charges (unlawful possession of a pistol and ammunition) were set aside.

The binding legal principles established are: (1) When assessing an explanation given by an accused, the test is not whether the court subjectively believes the accused, but whether there is a reasonable possibility that the accused's evidence may be true. An accused is entitled to acquittal if his version is reasonably possibly true, even if improbable. (2) A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond reasonable doubt it is false. (3) The State bears the onus of proving guilt beyond reasonable doubt, including proving that the accused had possession (both physical control and knowledge/mens rea) of prohibited items. (4) Following the declaration of unconstitutionality of the presumption of possession under section 40(1) of Act 75 of 1969 in S v Mbatha; S v Prinsloo, the State must prove possession of unlicensed firearms and ammunition through direct evidence or by placing before the court facts from which an inference of possession can properly be drawn. (5) Failure by an accused to call corroborating witnesses does not provide a basis from which an inference of guilt can be drawn, as this would impermissibly shift the onus to the accused. (6) Mens rea is required for a contravention of section 2 of Act 75 of 1969.

The court made several non-binding observations: (1) The court commented critically on the identical nature of the police witnesses' statements, noting they were identical "virtually in all respects, word for word, line by line, paragraph by paragraph" and that the witnesses were "clearly not telling the truth" when they attributed this to coincidence. (2) The court observed that the trial court misdirected itself by referring to the "main bedroom" when there was no evidence the items were found in the main bedroom, only in "a bedroom". (3) The court noted that it would have been open to the State to apply to reopen its case to investigate whether Makakula existed and had occupied the bedroom, even at the late stage of the trial. (4) The court commented on the appellant's behavior, stating it was "not consistent with that of someone who knew that there was a pistol and ammunition in the bedroom" - specifically that he would not have taken police to the bedroom or produced a key if he had knowledge of the contraband. (5) The court observed that there was "sufficient time and opportunity for the appellant to dispose of the key" between his arrest on the road and arrival at his house, if he had wanted to do so.

This case is significant in South African criminal law for several reasons: (1) it clarifies the test for assessing an accused's explanation - that the explanation need only be reasonably possibly true, not convincing or probable; (2) it emphasizes that even an improbable explanation cannot be rejected unless it is so improbable that it cannot reasonably possibly be true; (3) it underscores that the onus remains on the State to prove guilt beyond reasonable doubt and cannot be shifted to the accused; (4) it addresses the practical impact of the declaration of unconstitutionality of the presumption of possession under section 40(1) of Act 75 of 1969, confirming that the State must now prove possession through direct evidence or proper inferences; (5) it demonstrates the importance of credible and reliable police testimony, and the dangers of fabricated or suspiciously similar statements; (6) it illustrates that failure by an accused to call corroborating witnesses does not provide a basis for drawing an inference of guilt. The case reinforces fundamental criminal procedural protections and the high standard required for criminal convictions in South Africa.