Mbatha v The State

The applicant was convicted in the Regional Magistrate's Court, Lenasia, Gauteng on 30 January 2013 of: count 1 - robbery with aggravating circumstances; count 2 - robbery with aggravating circumstances; count 3 - possession of an unlicensed firearm; and count 5 - attempted murder (acquitted on count 4 - assault with intent to do grievous bodily harm). He was sentenced on 25 February 2013 to an effective sentence of 30 years imprisonment (count 1: 15 years; count 2: 15 years concurrent with count 1; count 3: 15 years with 10 years concurrent with count 1; count 5: 10 years not concurrent). The applicant was part of a group of three attackers who robbed Mrs Regina Siyabela of R14,000 cash at her home/tavern at gunpoint, and also robbed two Makro truck drivers of their wallets and cellular phones. The firearm referred to in count 3 was in the hands of accused 3. The applicant was the driver of the Toyota Tazz vehicle used by the robbers. Police gave chase and a shootout ensued between the robbers and police. Several firearms were used by the robbers in the shootout. The robbers abandoned the vehicle and fled on foot. The applicant was arrested and subsequently identified at an identity parade. No evidence was placed before the trial court that the applicant handled a firearm or had one in his possession. The applicant spent 3 years and 6 months in custody awaiting trial. The applicant applied for leave to appeal against sentence and conviction on count 3, which was refused by the magistrate, the Gauteng High Court (13 March 2014), and two judges of the Supreme Court of Appeal (22 May 2018). The applicant then applied for reconsideration in terms of s 17(2)(f) of the Superior Courts Act.

• Whether the applicant was correctly convicted on count 3 (possession of an unlicensed firearm) on the basis of joint possession when he did not physically possess the firearm
• Whether the trial court failed to take into account the time the applicant spent in custody awaiting trial when imposing sentence
• Whether the sentences should all run concurrently
• Whether exceptional circumstances existed warranting reconsideration of the refusal of leave to appeal under s 17(2)(f) of the Superior Courts Act 10 of 2013
• Whether the test for joint possession of a firearm as established in S v Nkosi was correctly applied

1. Condonation for the late filing of the copies of the original application for leave to appeal and copies of the application in terms s 17(2)(f) of the Superior Courts Act is granted. 2. The application succeeds and the order dismissing the applicant's petition for leave to appeal is varied to read: 'The applicant is granted leave to appeal to the Gauteng Division of the High Court (Johannesburg) against conviction in respect of count 3 and the sentences in respect of counts 1, 2, 4 and 5.'

1. For a conviction of joint possession of a firearm, the State must establish facts from which it can be inferred that: (a) the group had the intention (animus) to exercise possession of the firearm through the actual detentor; and (b) the actual detentor had the intention to hold the firearm on behalf of the group. Both requirements must be fulfilled. 2. Mere knowledge by an accused that a co-accused possessed a firearm, and even acquiescence in its use for fulfilling their common purpose to commit robbery, is not sufficient to make them joint possessors for purposes of the Firearms Control Act. 3. The application of the doctrine of common purpose differs in relation to 'consequence crimes' such as murder and 'circumstance crimes' such as possession. 4. When imposing custodial sentences, courts must take into account the period of imprisonment spent awaiting trial, particularly where there has been significant delay in bringing the accused to trial. 5. Under s 17(2)(f) of the Superior Courts Act, exceptional circumstances justifying reconsideration of a refusal of leave to appeal can exist where the case raises a substantial point of law or demonstrates that a grave injustice might otherwise result.

The Court noted that while driving the Toyota Tazz vehicle and trying to evade the police, it seemed unlikely that the applicant would have been able to use a firearm at the same time. The Court observed that prospects of success on appeal appeared to favour the applicant, both in relation to the conviction on count 3 and the effective sentence handed down. The Court referenced the principle from Avnit v First Rand Bank Ltd that prospects of success alone do not constitute exceptional circumstances, but noted that exceptional circumstances must involve more than satisfying the requirements for special leave to appeal and will be exercised only when the President believes some matter of importance has possibly been overlooked or a grave injustice will otherwise result. The Court noted that cases involving exceptional circumstances under s 17(2)(f) 'will be likely to be few and far between because the judges who deal with the original application will readily identify cases of the ilk.'

This case is significant in South African criminal law for clarifying the test for joint possession of firearms in the context of crimes committed pursuant to common purpose. The case reinforces the principle established in S v Nkosi and confirmed by the Constitutional Court in Makhubela v S that mere knowledge that a co-accused possesses a firearm and acquiescence in its use for a common purpose is insufficient to establish joint possession for purposes of conviction under firearms legislation. Joint possession requires proof that (a) the group had the intention to exercise possession through the actual possessor and (b) the actual possessor intended to hold the firearm on behalf of the group. The case also demonstrates the application of s 17(2)(f) of the Superior Courts Act 10 of 2013, which allows for reconsideration of refusals of leave to appeal in exceptional circumstances. It confirms that exceptional circumstances can exist where a substantial point of law is raised or a grave injustice might result. The judgment also reinforces the principle from S v Vilakazi that courts must take into account time spent in custody awaiting trial when imposing custodial sentences, particularly in cases involving extended pre-trial detention.