Kumbulane Vukani Zulu v The State

The appellant and co-accused appeared before the Verulam Regional Court on three counts of robbery with aggravating circumstances, three counts of possession of an unlicensed firearm, and one count of possession of ammunition. On 11 April 2016, they were all convicted as charged. The appellant was sentenced to an effective 17 years imprisonment. Three firearms were found in a car occupied by the appellant and others. The regional court convicted the appellant on the basis that all occupants jointly possessed the firearms because they were all involved in the robberies, even though the firearms were physically connected to other passengers and not to the appellant (who was not the driver). The appellant applied for leave to appeal to the regional court, which was dismissed. He then petitioned the KwaZulu-Natal High Court under s 309C of the Criminal Procedure Act 51 of 1977. Two judges (Balton and Bezuidenhout JJ) refused leave to appeal on 21 August 2018. The appellant accepted no prospects of success regarding robbery convictions but sought special leave from the Supreme Court of Appeal concerning the firearm and ammunition convictions (counts 4, 5, 6 and 7).

• Whether the Supreme Court of Appeal could decide the merits of an appeal where leave to appeal had been refused by the High Court under s 309C of the Criminal Procedure Act
• Whether the High Court correctly refused leave to appeal against the convictions for unlawful possession of firearms and ammunition
• Whether the trial court correctly applied the doctrine of joint possession of firearms
• Whether mere knowledge and acquiescence in co-accused's possession of firearms is sufficient to establish joint possession

1. The appeal is upheld. 2. The order of the High Court is set aside and replaced with the following: 'The applicant is granted leave to appeal to the KwaZulu-Natal High Court, Pietermaritzburg, against his convictions in respect of counts 4, 5, 6 and 7.'

Where a High Court refuses leave to appeal under s 309C of the Criminal Procedure Act 51 of 1977, and the Supreme Court of Appeal grants special leave to appeal under s 16(1)(b) of the Superior Courts Act 10 of 2013, the only issue before the SCA is whether leave to appeal should have been granted by the High Court. The SCA cannot decide the merits of an appeal that was not considered by the High Court; if the appeal is successful, the matter must be referred back to the High Court to consider the merits. For the doctrine of joint possession of firearms to apply, the State must establish facts from which it can be inferred that: (a) the group had the intention (animus) to exercise possession of the firearms through the actual possessor, and (b) the actual possessor had the intention to hold the firearms on behalf of the group. Mere knowledge by co-accused that another possesses a firearm, and even acquiescence in its use for fulfilling a common criminal purpose, is insufficient to establish joint possession for purposes of firearms legislation.

The Court noted that the regional court's judgment was 'very scanty' and appeared to suggest the trial court may not have been aware of the established jurisprudence on joint possession of firearms. The Court observed that it appeared the trial court may not have properly identified evidence linking the appellant specifically to the firearms found in the vehicle. The judgment implicitly criticizes the superficial reasoning employed by the regional magistrate in applying the joint possession doctrine without proper legal analysis or factual foundation.

This case reinforces important procedural principles regarding the scope of the Supreme Court of Appeal's jurisdiction when granting special leave following a High Court's refusal to grant leave to appeal under s 309C of the Criminal Procedure Act. It confirms that the SCA can only determine whether leave should have been granted, not the merits of the underlying appeal, which must be remitted to the High Court. Substantively, the case reaffirms the strict requirements for establishing joint possession of firearms under the Firearms Control Act, emphasizing that mere participation in a common criminal purpose and knowledge of a co-accused's possession of a firearm is insufficient to prove joint possession. The case serves as a reminder to trial courts to properly apply the established legal principles on joint possession as articulated in S v Kwanda, S v Mbuli and S v Nkosi.