Lunga and Others v S

On 11 May 2018, two men robbed Pniel Mini Market in the Western Cape. One wore a yellow jacket and carried a firearm; the other wore dark clothing and carried a school bag. They stole cash, cigarettes, cell phones and other items, then fled in a white Quantum taxi with a South African flag sticker. Police intercepted the taxi on the R44 near Stellenbosch after receiving information about the vehicle's registration. The four appellants were found inside. Stolen goods were in the taxi. A toy gun was found inside and two real firearms (with serial numbers removed and ammunition) were found about 100 metres away. The store owner could not identify faces but identified his stolen property. The fourth appellant wore a yellow jacket matching one robber. The first appellant was the driver. The second, third and fourth appellants claimed to be passengers who boarded at different times and denied knowing each other or involvement in the robbery. The trial court rejected their versions.

• Whether the first to third appellants were correctly convicted of unlawful possession of firearms and ammunition (counts 4 and 5) based on the doctrine of joint possession.
• Whether the sentences imposed on the second to fourth appellants on count 2 (armed robbery) were appropriate given the trial court's finding of substantial and compelling circumstances.
• Whether the High Court could consider and alter the first appellant's sentence on count 2 despite his appeal not formally encompassing that count.

1. Convictions and sentences on counts 4 and 5 for the first to third appellants are set aside; they are found not guilty. 2. Sentences on counts 2 and 3 for all four appellants are set aside. 3. Replaced with: each accused sentenced to 10 years' imprisonment, 2 years suspended on condition they are not convicted of an offence involving violence within 5 years, antedated to 13 December 2021. 4. Balance of the appeals dismissed.

1. For joint possession of a firearm, the State must prove beyond reasonable doubt that the group had the intention (animus) to exercise possession through the actual detentor, and the actual detentor intended to hold the firearms on behalf of the group. Mere knowledge or acquiescence is insufficient. 2. Once a sentencing court finds substantial and compelling circumstances exist under section 51(3)(a) of the Criminal Law Amendment Act, it is obliged ('must') to impose a lesser sentence than the prescribed minimum; imposing the minimum sentence in such circumstances is a material misdirection. 3. Section 304(4) of the Criminal Procedure Act confers jurisdiction on the High Court to correct a sentence where proceedings were not in accordance with justice, even if that sentence was not formally the subject of appeal.

The Court expressed doubt that section 173 of the Constitution could be used to expand the court's jurisdiction to interfere with a sentence not subject to appeal, preferring the statutory route under section 304(4) of the Criminal Procedure Act. The Court also remarked that even before the 2007 amendment replacing 'may' with 'must' in section 51(3)(a) of the CLAA, a sentencing court that found substantial and compelling circumstances had an obligation to impose a lesser sentence, reading 'may' as conferring a power coupled with a duty.

The case reaffirms and applies the Constitutional Court's strict test for joint possession of firearms from Makhubela v S, emphasising that common purpose is insufficient and that both animus on the part of the group and intention by the actual detentor to hold on behalf of the group must be proven. It also clarifies that once substantial and compelling circumstances are found, a sentencing court is obliged to deviate from the prescribed minimum sentence. Additionally, it illustrates the operation of section 304(4) of the Criminal Procedure Act as a mechanism to correct unjust sentences even where appeal leave was not granted on those counts.