IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

REPORTABLE

CASE NO:  360/2002

In the matter between:

DAVID NKETUMANE MAFIRI

APPELLANT

and

THE STATE

RESPONDENT

CORAM:
OLIVIER, MTHIYANE and CONRADIE JJA

HEARD:

17 MARCH 2003
DELIVERED:
31 MARCH 2003

Summary: Unlawful possession of a firearm and ammunition in
contravention of ss 2 and 36 of Act 75 of 1969 – firearm and
ammunition found under a pillow on a bed in a bedroom at the
appellant’s house – whether his explanation was reasonably possibly
true.

JUDGMENT

MTHIYANE JA:

MTHIYANE JA:
[1] The appellant was arraigned in the Transvaal Provincial Division (before
Motata J) on 24 charges involving murder, possession of a firearm and
ammunition in contravention of ss 2 and 36 of Act 75 of 1969 (‘the Act’),
unlawful possession of an AK 47 rifle and a contravention of s 36 of Act 62
of 1955. At the commencement of the trial some of the charges were
withdrawn, and on some of the others he was acquitted. The appellant was
convicted on only five charges, namely attempted murder, a contravention of
s 36 of Act 62 of 1955, unlawful possession of an AK 47 rifle and unlawful
possession of a pistol and ammunition and he was sentenced to a total of 10
years’ imprisonment.  The trial judge refused leave to appeal but this Court
granted the appellant leave to appeal to the Full Court, both against his
convictions and sentences.
[2] The appeal succeeded on three of the charges (a contravention of s 36 of
Act 62 of 1955, attempted murder and unlawful possession of an AK 47
rifle) but failed in respect of the remaining two charges (unlawful possession
of a pistol and ammunition). This appeal is against the decision of the Full
Court (Botha, Webster and Basson JJ) dismissing the appeal on the above
two charges, and it comes before us with special leave granted by this Court.

[3] It is not in dispute that the pistol and ammunition were found in the
appellant’s house at Jane Furse, in what was then known as Northern
Province. The events leading up to the finding of these items and the
appellant’s subsequent arrest were the following. At approximately 2 pm on
28 December 1994 the appellant was confronted by two policemen,
Inspector Golach and Sergeant Burger, both members of the Firearms Unit
attached to the South African Police Services. The appellant was at the time
driving in his Opel vehicle approaching the intersection of Jane Furse and
Pietersburg roads. The police asked if they could search his vehicle, and he
agreed. The vehicle was searched and nothing was found. The appellant was
then taken to his house. Again he indicated that he had no objection to his
house being searched. In a bedroom under the pillow on a bed Burger found
a 9mm pistol and 26 rounds of ammunition. The appellant gave an
explanation.
[4] There is a dispute as to how entry into the bedroom was gained. The
police said that the room was unlocked with a key which was produced by
the appellant.  This was denied by the appellant, who said that the bedroom
was not locked at the time.  He further pointed out that there would have
been no reason for the bedroom to be locked because his wife and children
were at the house. Indeed, the police did not dispute that the children were
present at the time. As to the door through which access was gained, Golach

and Burger gave conflicting versions. Golach said that they entered the
bedroom through an inside door leading to the lounge. Not so according to
Burger, who said that entry was gained through a door that led to the outside
of the house.
[5] The appellant’s version was that the bedroom in which the pistol and
ammunition were found was at the time used and occupied by a friend of his,
one Elias Makakula, and that he had no knowledge of the pistol and
ammunition.  When he tried to explain this to the police he was dismissively
told: ‘jy gaan voor praat’. The appellant was arrested and taken to
Burgersfort police station, but when he gave an explanation he was this time
told: ‘al daardie sal jy vir die hof sê.’
[6] Both Golach and Burger said that the appellant did give an explanation.
However in their statements dated almost two years after the incident they
allege that the appellant said that he had bought the pistol in order to defend
himself. This was however not mentioned by either of them in Court, nor
was the appellant cross-examined on this allegation.
[7] Against this background, it seems to me that the principal question for
decision in this appeal is whether the explanation given by the appellant was
reasonably possibly true. His explanation was rejected by the trial court
without reasons, save for the assertion by the trial judge that he believed

Golach and Burger. The probabilities do not appear to have been considered
by the trial judge.
[8] The Court a quo advanced four grounds for its rejection of the
appellant’s explanation. It said that ‘the appellant’s evidence that the firearm
was found in a room occupied by  Makakula [was] “unconvincing”’. It gave
the following reasons:
(a) It [the appellant’s explanation] was not supported even by members of his (the
appellant’s) family;
(b) it was improbable that if it (the room) was occupied by someone else it would have
been left unlocked if there was a firearm under a pillow on a bed;
(c) the version that Makakula was the occupier of the room and that he could be found at
the taxi rank at Burgersfort was never put to Golach and Burger;
(d) It is highly improbable that the police would not have taken note of the explanation
and followed it up.
[9] Before dealing with the above grounds it is necessary to re-iterate the test
to be applied when assessing the explanation given by an accused in a case
such as this. The following has been said in this Court that:
‘there is no obligation upon an accused person, where the State bears the onus, “to
convince the court”. If his version is reasonably possibly true he is entitled to his acquittal
even though his explanation is improbable. A court is not entitled to convict unless it is
satisfied not only that the explanation is improbable but that beyond any reasonable doubt
it is false. It is permissible to look at the probabilities of the case to determine whether the
accused’s version is reasonably possibly true but whether one subjectively believes him is

not the test. As pointed out in many judgements of this Court and other courts the test is
whether there is a reasonable possibility that the accused’s evidence my be true.’1
[10] I proceed to consider the grounds relied on by the court a quo in the
light of the above test. I am not persuaded that any one of the above grounds
advanced for the rejection of the appellant’s explanation is valid. As to (a),
the appellant was under no obligation to call members of his household to
testify. This looks suspiciously like putting the onus on the appellant. The
onus was on the State to prove his guilt beyond reasonable doubt.
[11] As to the second point (b), to the effect that it was improbable that
Makakula would  have left the room unlocked when there was a pistol and
ammunition under a pillow on a bed, it must be remembered that the version
of the police was contradictory as to the door through which entry was
gained.  If the door through which they entered led into the lounge, so that
entry had first to be gained through the main door before entering the
bedroom, then there was nothing improbable about the appellant’s version.
If there were people at the appellant’s house and the main door was
lockable, then, in my view, there would have been nothing improbable about
Makakula leaving the bedroom door unlocked. If on the other hand the door
through which entry was gained led to the outside, the court a quo would
have been justified in its reasoning that it was improbable that Makakula

1 S v V 2000 (1) SACR 453 (SCA) at 455 b-c
S v Shackell 2001 (2) SACR 185 (SCA) at para 30

would have left the door unlocked. But, the difficulty is that there are two
conflicting versions on the point. The improbability referred to by the Court
a quo as a basis for its rejection of the appellant’s version is only capable of
acceptance if one selects only one of the versions of the two policemen. The
onus was on the State to present such evidence as to satisfy the court that the
appellant was beyond reasonable doubt in possession of the pistol and the
ammunition found in the bedroom.  In any event even if the appellant’s
version was improbable that was not the end of the matter. His version could
only be rejected if it was so ‘improbable that it cannot reasonably possibly
be true’.2
[12] As to (c) I do not agree that the appellant’s version was not put to the
witnesses. From the record it appears that the gist of the appellant’s version
was put to both Golach and Burger in cross-examination. Curiously none of
the two witnesses responded or even remotely suggested that the appellant
had told them that he had bought the pistol for the purpose of defending
himself. All they did was to deny that the bedroom was occupied by
Makakula.
[13] As to (d) the Court a quo reasoned that had the appellant’s explanation
been given to Golach and Burger they would have followed it up.  I do not
agree. It must be remembered in respect of the charge of unlawful

2 S v Shackell supra at para 30

possession of an AK 47 rifle of which the appellant was acquitted, the
appellant told Golach and Burger that it belonged to George but they did not
follow that up. In those circumstances I do not think that it can be assumed
that they would have acted differently when it came to an explanation
relating to Makakula and his occupation of the bedroom in question.
[14] The State bore the onus to show that the appellant knew that there was a
pistol and ammunition under the pillow on a bed in the bedroom and
exercised control over it. Mens rea is required for a contravention of s 2 of
the Act.3 For such proof the State relied on the evidence of Golach and
Burger. The Court a quo was dismissive of the defence’s criticism of their
evidence on the basis of the similarity of their statements, as being not well
founded. With respect there is something to be said for this criticism. The
statements in question were identical virtually in all respects, word for word,
line by line, paragraph by paragraph with only minor differences in respect
of their names and personal particulars.  When Golach and Burger were
asked to explain the similarity, both of them said that at the time they wrote
out their statements independently while sitting in separate offices and
thereafter had them typed and signed. Each statement runs into three typed
pages and both Golach and Burger attributed the similarities to pure co-
incidence. Clearly, they were not telling the truth. The Court a quo also

3 S v Potwane 1983 (1) SA 868 (A)

postulated that the statements may have been taken by another officer who
impressed his own verbiage on the documents. With respect this is indulging
in speculation.  Neither Golach nor Burger suggested this as likely to have
occurred. Both of them attributed the identical nature of their statements to a
coincidence. When they were asked to sign a year and some nine months
later, their evidence was that the statements were retrieved from a computer.
It is significant, that nowhere does the trial Court say that Golach and Burger
were found to be reliable and honest witnesses. All that the trial judge said
was that he believed them in respect of the main bedroom, which in itself
does not take the matter any further because it was common cause that the
pistol and the ammunition were found in a bedroom. Furthermore, the trial
Court misdirected itself on this aspect because there was no evidence that
the pistol and ammunition were found in the main bedroom. The evidence
was that these items were found in a bedroom.
[15] Against this background and in the overall evaluation of the
probabilities, it seems to me that there are three key points to consider in the
determination of this matter.  First, it is unlikely that the appellant would
have taken the police to the bedroom if he knew there was a pistol and
ammunition under a pillow. Secondly, it is unlikely that he would have taken
the police to the bedroom and freely produced the key to it. It is most likely
that he would have tried to dispose of the key, or pretend that he did not

have the key to the room or that it was with his wife or embark on some or
other delaying tactic. Between the place where he was stopped on the road
and arrested and his house, there was sufficient time and opportunity for the
appellant to dispose of the key, if he had one. In my view the appellant’s
behaviour was not consistent with that of someone who knew that there was
a pistol and ammunition in the bedroom. Thirdly, the appellant’s defence
was that he gave an explanation to the police and was told that he would
have to tell his story in court. I do not think that there is anything improbable
about that version, as I have also indicated earlier in the judgment.
[16] In my view, once the appellant had mentioned Makakula as being the
person who occupied the bedroom in which the pistol was found, it was
incumbent on the State to pursue it, given the onus that rests on it to
establish the guilt of the accused beyond reasonable doubt. Even though that
took place some 6 years after the appellant’s arrest, a delay for which the
appellant was not to blame, the fact of Makakula having resided at the
appellant’s house is not something that could on the facts of this case not
have been established even at that stage. The appellant was not pressed in
cross-examination on whether Makakula existed at all nor did the
prosecution enquire as to whether he could still be found. The appellant did
testify that Makakula could be found at the taxi rank. It seems to me that
even at that stage the matter could have been stood down to establish

whether Makakula did use and occupy the bedroom where the pistol and the
ammunition were found. It was still open to the State to apply to reopen its
case for this purpose.
[17] In cases dealing with unlicensed possession of firearms and ammunition
it should be borne in mind that on the law as it stands at present, the State is
no longer assisted by the presumption of possession whereby an onus was
cast on an accused under the then s 40 (1) of the Act.4 The presumption of
possession was declared unconstitutional in S v Mbatha; S v Prinsloo.5 It
therefore follows that the State will in those cases have to deal with the
matter in the usual manner either by direct evidence or by placing before the
court facts from which an inference could be drawn that an accused person
was in possession of the pistol in question. I do not think that failure on the
part of the appellant to call members of the household as witnesses provides
a basis from which an inference of guilt could be drawn.
[18] For the above reasons I am not persuaded that the State succeeded in
discharging the onus of establishing the possession on the appellant’s part,
and therefore his guilt beyond reasonable doubt.

4 That section provided as follows:
Whenever in any prosecution for being in possession of any article contrary to the provisions of this Act, it
is proved that such article has at any time been on or in any premises, including any building, dwelling, flat,
room, office, shop, structure, vessel, aircraft or vehicle or any part thereof, any person who at that time was
on or in or in charge of or present at or occupying such premises, shall be presumed to have been in
possession of that article at that time, until the contrary is proved.
5 1996 (2) SA 464 (CC) at 479 G

[19] The appeal is accordingly allowed and appellant’s conviction and
sentence on the two remaining charges are set aside.

__________________

KK MTHIYANE

JUDGE OF APPEAL

CONCUR:

OLIVIER JA
CONRADIE JA