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- S v Leshilo (345/2019) [2020] ZASCA 98 (8 September 2020) (SCA)

Mr Moshidi Danny Leshilo (hereinafter referred to as “the accused”), was accused 1 before the regional court, Pretoria (“the trial court”) where he was convicted on 11 June 2014 of housebreaking with the intent to commit an unknown offence in terms of section 262 of the Criminal Procedure Act 51 of 1977 (count 1); the unlawful possession of a firearm (count 2); and the unlawful possession of ammunition (count 3).

For purposes of sentencing, the three counts supra were taken together whereupon a globular sentence of 15 years’ incarceration was imposed. The accused’s co-accused, who was accused 2 before the trial court, was acquitted on all counts on the basis that the State/prosecution had not proven his identity as one of the perpetrators beyond reasonable doubt.

Not satisfied with this outcome, the accused appealed to the High Court in Pretoria (“the court of appeal”) against both his convictions and sentence, which appeal was, however, dismissed in its entirety.

Accordingly, the accused, likewise not happy with this outcome, approached a full bench of five judges of the Supreme Court of Appeal in Bloemfontein (“the SCA”), where he appealed against his conviction only regarding counts 2 and 3 supra, and the globular sentence of 15 years’ incarceration.

Here, in the SCA, the primary issue was whether the accused was in joint possession of a firearm and/or ammunition.

According to the SCA, there has been some confusion regarding the application of the principles of common purpose and joint possession (Afrikaans: “gemeenskaplike oogmerk en medebesit/gesamentlike besit”) where firearms are utilised in the course of a robbery or a housebreaking. Accused persons are frequently convicted of robbery with aggravating circumstances on the basis of common purpose, even if their role is relatively minor. In the absence of proof of a prior agreement, what has to be shown is, according to the SCA, that the accused was present together with other persons at the scene of the crime; aware that a crime would take place; and intended to make common purpose with those committing the crime as evidenced by some act of association with the conduct of the others. However, the principles of common purpose do not find application when convicting an accused for the unlawful possession of the firearm used in the same robbery. Instead, it is the principles of joint possession that apply.

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[This is only an extract of a legal discussion published in Pollex in Servamus: January 2021. If you are interested in reading the completed discussion, contact Servamus’s offices. Tel: (012) 345 4660 or send an e-mail to: This email address is being protected from spambots. You need JavaScript enabled to view it.. Ed.]

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