Happy Shikwambane and Ben Masiso v The State

The two appellants, Happy Shikwambane and Ben Masiso, were convicted along with a co-accused, Muziwakhe Mbuli (known as 'The People's Poet'), of possessing a hand grenade in contravention of s32(1)(c) of the Arms and Ammunition Act 75 of 1969. The facts of the case are detailed in the judgment of S v Mbuli 2003 (1) SACR 97 (SCA) delivered on 8 June 2002. The case arose from a robbery involving the accused persons. The appeals of Shikwambane and Masiso had initially lapsed but were later revived following the successful appeal of their co-accused Mbuli on the hand grenade possession charge.

• Whether the appellants were in joint possession of a hand grenade for purposes of s32(1)(c) of the Arms and Ammunition Act 75 of 1969
• Whether mere knowledge and acquiescence that another person possesses a firearm or explosive device, even in furtherance of a common purpose to commit robbery, constitutes joint possession for purposes of the Act
• Whether the evidence established which of the accused was in possession of the hand grenade

The appeal was allowed. The convictions and sentences of the first and second appellants on the charge of contravening s32(1)(c) of the Arms and Ammunition Act 75 of 1969 were set aside.

Mere knowledge by co-accused that another person is in possession of a hand grenade (or other firearm/explosive device), and even acquiescence in its use for fulfilling a common purpose to commit robbery, is not sufficient to constitute joint possession for purposes of s32(1)(c) of the Arms and Ammunition Act 75 of 1969. The prosecution must prove which accused was actually in possession of the prohibited item. Where the evidence does not establish which of multiple accused persons possessed a hand grenade, and it is equally possible that only one possessed it, all accused are entitled to be acquitted on the possession charge.

The judgment does not contain significant obiter dicta, as it is a brief decision that follows the reasoning already established in S v Mbuli. The Court noted the procedural history whereby the Registrar had been directed to refer the matter to the Legal Aid Board to bring the appellants' appeals before the Court, demonstrating the Court's concern for ensuring fairness to all co-accused in similar circumstances. The Court also noted that counsel for the respondent did not support the convictions, indicating the State's acknowledgment of the weakness of the case on this particular charge.

This case is significant in South African criminal law as it clarifies the concept of joint possession of firearms and ammunition under the Arms and Ammunition Act 75 of 1969. It establishes that mere knowledge and acquiescence in another person's possession of an explosive device or firearm, even in furtherance of a common purpose to commit a crime, does not constitute joint possession for purposes of the Act. The case demonstrates the need for the prosecution to prove beyond reasonable doubt which accused person was actually in possession of prohibited items, and that joint possession cannot be inferred merely from participation in a common criminal enterprise. It also illustrates the Court's willingness to take steps to ensure co-accused receive equal treatment in appeals, even where their appeals have lapsed.