Moshidi Danny Leshilo v The State

The appellant and a co-accused broke into the home of the complainant, who operated a spaza shop, during the early hours of the morning. The co-accused entered first and was armed with a firearm, which he pointed at the complainant. A struggle ensued and the firearm was dropped. The appellant entered thereafter, was unarmed, and became involved in a scuffle over the firearm but never physically possessed it. The co-accused fled. The appellant was apprehended by a neighbour and later handed to the police. The appellant was convicted in the regional court of housebreaking with intent to commit an unknown offence, unlawful possession of a firearm, and unlawful possession of ammunition, and sentenced to a globular sentence of 15 years’ imprisonment.

The appeal was upheld in respect of the convictions for unlawful possession of a firearm and ammunition, which were set aside. The globular sentence of 15 years’ imprisonment was set aside and replaced with a sentence of 5 years’ imprisonment on the housebreaking conviction, antedated to 11 June 2014.

The case reaffirms and clarifies the distinction in South African criminal law between common purpose and joint possession in relation to firearm offences. It underscores that participation in a crime where a firearm is used does not, without more, justify a conviction for unlawful possession. The judgment also cautions against the use of globular sentences.