Nare v The State

The appellant was convicted in the Regional Court Gauteng, Pretoria, of attempted robbery with aggravating circumstances (count 1), attempted murder (count 2), unlawful possession of a firearm (count 12) and unlawful possession of ammunition (count 13) and sentenced to various terms of imprisonment. The complainant Rossouw and his family were at his homestead when seven men arrived pretending to want to buy sheep. After an agreement was reached, the men produced firearms and demanded money and 'plasmas'. A scuffle ensued, during which Rossouw was shot in the leg. Rossouw identified the appellant through dock identification as one of the armed men who accompanied him to the kraal and did most of the talking. The appellant's fingerprint was found on the vehicle used by the assailants. The appellant denied participation in the events. The Regional Court refused leave to appeal against convictions. On petition, the Judge President granted leave to appeal against sentences but not convictions. The appellant then sought leave from the High Court to appeal the convictions refusal.

• Whether the High Court correctly refused leave to appeal against convictions on counts 1, 2, 12 and 13
• The proper interpretation of orders granting leave to appeal and the extent of jurisdiction before the Supreme Court of Appeal
• Whether there were reasonable prospects of success on appeal regarding the conviction for attempted murder (count 2)
• Whether the evidence established unlawful possession of a firearm (count 12) and the application of s 250(1) of the Criminal Procedure Act
• Whether the State proved unlawful possession of ammunition (count 13) beyond reasonable doubt

1. The appeal in respect of count 12 is dismissed. 2. The appeal in respect of counts 2 and 13 is upheld. 3. The order of the Gauteng Division of the High Court, Pretoria refusing leave to appeal is set aside and replaced with: 'The appellant is granted leave to appeal to the full bench of the Gauteng Division of the High Court, Pretoria, against his conviction of attempted murder (count 2) and possession of ammunition without holding a licence, permit or authorisation (count 13).'

The binding legal principles established are: (1) Once panel judges of the Supreme Court of Appeal have made a final decision on an application for leave to appeal under s 17(2) of the Superior Courts Act, they are functus officio and cannot amend their order; the only remedy is to apply to the President of the SCA for reconsideration or variation under s 17(2)(f). (2) Where an accused obtains leave to appeal to the SCA against the High Court's refusal of a petition seeking leave to appeal against a Regional Court conviction, the issue before the SCA is whether leave to appeal should have been granted by the High Court, not the merits of the appeal itself, which must be heard by the High Court. (3) Section 250(1) of the CPA creates a presumption that an accused was not the holder of a licence for a firearm; it is incumbent upon the accused to establish that he did have such a licence. (4) The State must prove all elements of an offence beyond reasonable doubt, including that an accused was in possession of ammunition, not merely a firearm.

The court noted that the assailant who shot Rossouw had pointed his firearm at him for some time but then intentionally lowered the firearm before shooting, suggesting this circumstance might support an argument that there was no dolus directus or dolus eventualis to kill. However, the court declined to make a definitive finding on this issue, stating it was a matter for argument before the court of appeal. The court also made observations about the quality of evidence regarding the identification parade record which was mislaid, though this did not affect the outcome given the fingerprint evidence and dock identification.

This case clarifies important principles regarding appellate procedure in South African criminal law, particularly: (1) the finality of panel judges' decisions under s 17(2)(f) of the Superior Courts Act and the functus officio doctrine; (2) the proper route of appeals from magistrates' courts through the High Court to the Supreme Court of Appeal as prescribed in s 309 CPA; (3) the application of the test for granting leave to appeal (reasonable prospects of success); (4) the operation of the reverse onus provision in s 250(1) of the Criminal Procedure Act regarding unlicensed possession of firearms; and (5) the State's burden of proof regarding all elements of offences including possession of ammunition.