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IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the appeal of:-
ADAM ADAMS appellant
versus
THE STATE respondent
Coram: CORBETT, VILJOEN, BOTHA, JJA, GALGUT et NICHOLAS, AJJA.
Date of hearing: 13 May 1986
Date of judgment: 26 Aug.1986
J U D G M E N T
CORBETT J A :
The appellant, a 32-year-old teacher from Riebeeck
West, was convicted in the Wellington Magistrate's Court
of being in possession of certain dangerous weapons. to
wit a pair of scissors, a wheel spanner and a broken cake
knife, in contravention of sec. 2(1) of the Dangerous
Weapons Act 71 of 1968 ("the Act"). He was sentenced
/ to
2
to a fine of R120 or 60 days imprisonment. He appealed
against the conviction to the Cape Provincial Division,
but his appeal was dismissed and that Court refused leave
to appeal. Such leave was, however, granted on appel¬
lant 's petition to the Chief Justice.
At appellant's trial before the Magistrate
the only persons to give evidence were Const. W M van Zyl
of the South African Police, who was called by the State,
and the appellant himself, who testified in his own defence,
Const. Van Zyl's evidence was shortly to the
following effect. On a Sunday evening in November 1983
and while he was on duty he received a complaint of a dis¬
turbance in Flamingo Street in Wellington. He went there
and on arrival found the appellant in the street. It
appeared to Van Zyl that appellant had been involved in a
fight. His shirt was torn. In his right hand he held a wheel spanner, a pair of scissors and the handle and blade / of
3
of a broken cake knife. Appellant was under the influence
of liquor and very boisterous ("baie oproerig") and began
shouting at persons in the house nearby, evidently upbraid¬
ing them for calling the police for "sulke nonsens" . Van
Zyl took possession of the articles held in appellant's
right hand and arrested him. The appellant was also
found to have certain pills in his possession.
As to appellant's condition on the evening in
question, Van Zyl conceded that he was very drunk and at
one stage leant against a fence. He could nevertheless
walk; and did walk when Van Zyl took him to the police van.
Appellant spent the night in the police cells and Van Zyl
saw him again the following morning, by which time he had sobered up. Appellant then asked Van Zyl why he was in gaol (He did not appear to know or remember why he had been ar¬ rested.) Van Zyl told him that he had been arrested for being in possession of dangerous weapons. Appellant did / not
4
not know what weapons he had had in his possession and asked
to see them. Van Zyl gained the impression that appellant's
ignorance was genuine and he showed appellant the alleged
weapons. Appellant further told Van Zyl that he could
recall drinking the previous evening with friends who lived
in Flamingo Street, but could recall nothing thereafter.
In regard to possession of the alleged weapons,
Van Zyl testified that when he walked up to the appellant
the latter was holding all three articles in his one hand.
He made no attempt to hide them; and did not resist or
attempt to retain the articles when Van Zyl took them from
him. The following passage in Van Zyl's evidence under
cross-examination is of considerable importance:
"V. Sou u se besk. het geweet dat hy die wapens kan gebruik, bewustelik geweet het? A. Hy het goed in sy hand gehad, maar niemand gedreig daarmee nie, maar kon dit in hand gehou het en nie be-wus daarvan gewees het nie." / Prior
5 Prior to that, in evidence- in- chief, Van Zyl had said:
"Besk. was onder invloed van drank op
daar die stadium. Hy kon die volgende
dag niks onthou van wat hy gehad het by
horn nie. Besk. was bewus van wat hy
gedoen het, maar volgende dag kon hy
niks onthou nie."
And in reply to questions by the Magistrate Van Zyl opined
that on the evening in question appellant had understood
what he, Van Zyl, had said to him.
In his evidence appellant described visiting friends
in Flamingo Street on the day in question and drinking a large
amount of intoxicating liquor. He also took certain pills,
medication for bronchial asthma, from which he is a sufferer.
At a certain stage his host produced a bottle of K.W.V.
brandy and poured him a drink. From there on he could
not remember what happened or how many tots of brandy he
consumed. He vaguely remembered seeing Const. Van Zyl
and being taken away by him; but he could not remember what
he and the policeman said to one another, nor that he had
/ shouted
6
shouted to the people in the house. He slowly came to in
the police cells, but could not understand why he was there
or why his shirt was torn. The following morning he asked
the police why he had been arrested and was told that he
was being charged with the possession of dangerous weapons.
He asked what the weapons were and was shown them. He
stated in this regard:
" Ek onthou nie dat ek in besit was van
wapens voor hof nie - ek was nie bewus van
wat ek by my gehad het nie, kon enige iets
wees, moes polisieman glo.
Ek weet self nie wat ek met die wapens
wou maak nie. Ek weet nie of ek die wapens
in my hand gehad het nie."
As to his state of intoxication he testified that he had
never before drunk so much on one occasion. The pills
which he took made him drowsy, but he was unable to say whether they aggravated his state of intoxication. Under cross-examination he admitted that the wheel spanner belonged to him and was normally kept in the / boot
7
boot of his motor-car, which had been parked in front of
his friend's house; but he was unable to explain from
where the pair of scissors and the broken cake knife had
come. He was unable to say how any of these articles had
come into his possession. He normally kept the keys of
his motor-car on his person.
In his reasons for judgment the Magistrate said
that Const. Van Zyl made a good impression on the Court and
found him to be a credible witness. The appellant, on the
other hand, was found to be an unimpressive witness, who,
although intelligent, attempted to evade questions and, in
the Court's judgment, did not tell the whole truth. In
advancing reasons for this latter conclusion the Magistrate
stated, firstly, that he could not accept that if the appel¬ lant was as drunk as he alleged and could not remember any¬ thing the next day, he would have been able to unlock the boot of his motor-car and take out the wheel spanner. / There
8
There is, of course, no evidence that on this particular
occasion the wheel spanner was in the boot of appellant's
motor-car; nor was there any evidence to show that,
if it was, appellant took it out; or that, if he did take
it out, at what stage of the day in question and in what
state of insobriety he did so.
Secondly, the Magistrate found it very strange
under the circumstances that the appellant could vaguely
remember Const. Van Zyl being there, but could not remem¬
ber anything further. Without proper expert evidence I
do not think that evidence of a vague partial recollection,
or conversely a patchy amnesia, induced by alcohol can be
summarily rejected.
Thirdly, the Magistrate said:
"Besk. het dreigend teenoor die ander mense daar opgetree volgens die Konstabel, maar nie teenoor hom (die Konst.) nie." / In
9
In this regard the Magistrate misdirected himself. What
Van Zyl actually said, as appears from one of the above-
quoted passages from the record, was that the appellant had
the articles in his hand, but threatened no-one with them.
A similar misdirection appears later in the Magistrate's
reasons, when he said:
"Sy optrede daar dui duidelik op 'n man wat
moeilikheid gehad het met mense daar vir
wie hy kwaad was en sou aanrand volgens
Konstabel". (My italics.) Const. Van Zyl is recorded as having merely said —
"As ek hom daar gelos het, kon hy
iemand seergemaak het". (My italics.)
The same misdirection is to be found in the Magistrate' s
summing up of Van Zyl's evidence.
The Court further made the points:
(a) that had the appellant not known what was happen¬
ing he would have behaved differently to the
constable and would not have co-operated with him; and (b) that it could be accepted that the appellant / did
10
did not drink as much as he alleged in
evidence.
The Magistrate accordingly concluded:
"Die hof is oortuig dat die besk. wel onder
die invloed van drank was, maar ook bo redelike
twyfel oortuig dat besk. baie goed geweet het
wat hy doen."
The relevant portion of sec. 2(1) of the Act
provides:
"Any person who is in possession of any dange¬
rous weapon shall be guilty of an offence,
unless he is able to prove that he at no time
had any intention of using such weapon.... for
any unlawful purpose "
And sec. 1 defines a "dangerous weapon" as meaning:
" any object, other than a firearm,
which is likely to cause serious bodily in¬
jury if it were used to commit an assault."
The width of this definition has from the beginning caused
much difficulty in the interpretation and practical
application of the Act (see eg. the discussion in
/ S v Matseare
11
S v Matseare and Others 1978 (2) SA 931 (T), at pp 934-8)
and it is surprising that in the 18 years since its en¬
actment no endeavour has been made by the Legislature to
amend the Act in such a way as to meet these difficulties.
Taken literally, the definition results in virtually every¬
one in South Africa being in possession of a dangerous
weapon and being guilty of a contravention of sec. 2(1) of
the Act, unless he is able to prove (in a court of law)
that he at no time had any intention of using such wea¬
pon for an unlawful purpose. It is difficult to believe
that the Legislature intended so drastic a result.
Be that as it may, sec. 2(1) clearly postulates
that for the offence to be committed the person concerned
must be in possession of a dangerous weapon. In S v Nabo
1968 (4) SA 699 (E) KOTZE J (as he then was), EKSTEEN J
concurring, held, with reference to sec. 2(1) of the Act,
as follows (at p 700 F):
/ "In
12
" In die afwesigheid van 'n uitdruklike aan-
duiding dat blote fisiese bewaring belet
word, is ek van mening dat die uitdrukking
'besit' in sub-art. (1) van art. 2 van die
Wet in sy gewone sin van fisiese bewaring
sowel as die bedoeling om te besit (animus
possidendi) uitgele behoort te word.
(R. v Amies, 1930 T.P.D. 151; R v Koza,
1933 T.P.D. 203; R.v.Seboko and Another
1936 A.D. 173; R. v. Kasamula, supra
op bl. 257.)"
This decision was approved by the Full Bench of the
Eastern Cape Division (MUNNIK, CLOETE and KOTZE JJ)
in the case of S v Mbulawa 1969 (1) SA 532 (E), at p
535 D. (See also S v R 1971 (3) SA 798 (T), at p
(at p 700 H) 803.) In Nabo's case/ the Court evidently interpreted
animus possidendi, in relation to a weapon, as meaning —
" die bedoeling om dit te besit
in die sin dat hy dit wou behou "
In general the concept of "possession" ("besit"),
when found in a penal statute, comprises two elements, a
physical element (corpus) and a mental element (animus).
/ Corpus
13
Corpus consists either in direct physical control over
the article in question or mediate control through another.
The element of animus may be broadly described as the intention to have corpus, ie to control, but the intrinsic quality of such animus may vary, depending upon the type of possession intended by the statute. At common law a distinction is drawn between civil possession (possessio civilis) and natural possessxon (possessio naturalis) . Under the former the animus possidendi consists of the intention on the part of the possessor of keeping the arti¬ cle for himself as if he were the owner. Under the latter the animus need merely consist of the intention of the pos¬ sessor to control the article for his own purpose or benefit, and not as owner. In penal statutes, however, the term "possession" would seldom, if ever, be construed as posses¬ sio civilis and this may, therefore, be left out of account. In the case of certain such statutes it has been held that / "possession"
14
"possession" connotes corpus and an animus akin to that
required for possessio naturalis. In others the courts
have interpreted "possession" to comprehend corpus
plus the animus to control, either for the possessor's
own purpose or benefit, or on behalf of another (this
latter alternative being equivalent to what is often
termed "custody" or detentio) or as meaning "witting phy¬
sical detention, custody or control" (see S v Brick 1973
(2) SA 571 (A), at p 580 C). In Brick's case, which
concerned the possession of indecent or obscene photographic
matter in contravention of sec. 2(1) of Act 37 of 1967?
OGILVIE THOMPSON CJ (delivering the majority judgment of
this Court) stated (at p 580 C-D):
"Once it is shown that the holder
was aware of the existence of such
photographic matter in his detention
custody or control, it is not, in my
view, essential for a conviction under
sec. 2(1) of the Act that the State
should - as was held in S. v. R. -
affirmatively prove that the holder
intended to exercise control over the
photographic matter in question for his
own purpose or benefit."
/ (Generally
15
(Generally as to the above see also R v Binns and Another
1961 (2) SA 104 (T); S v R 1971 (3) SA 798 (T); and
the dissenting judgment of JANSEN JA in S v Brick, supra,
at pp 581-3.)
In S v Brick OGILVIE THOMPSON CJ further pointed
out that (at p 579 H) —
"The precise meaning to be assigned to
the word 'possession' occurring in a penal
statute is often a matter of considerable
difficulty. The difficulty may sometimes
be lessened if the word is used in associa¬
tion with 'custody'. In the ultimate ana¬
lysis, however, the decision vitally de¬
pends upon the intention of the Legislature
as reflected in the context of the parti¬
cular statutory enactment concerned. "
As I read the decision in Nabo's case, supra,
the Court there held that "possession" ("besit") in sec.
2(1) of the Act meant possessio in the narrow sense,
akin to natural possession, and not in the wider sense,
which would include mere physical detentio or custody,
even though witting. Having regard to the provisions
/ of
16
of the Act - and in particular the drastic nature of sec.
2(1), read with the definition of "dangerous weapon" -
there is much to be said for this interpretation. On
the facts of the present case, however, it is not neces¬
sary to decide this issue. Whether "possession" in sec.
2(1) be construed as corpus together with animus possi-
dendi, in the sense of an intention to exercise control
for the possessor's own purpose or benefit, or as
the witting custody described in S v Brick, the alleged
possessor must at least be aware that he has the weapon
concerned in his physical control. As a basic minimum
there must be this mental element. Moreover, under sec. 2(1)
the onus is clearly on the State to prove that the accused
person was in possession of a dangerous weapon, and this
onus would include the burden of establishing beyond a
reasonable doubt the existence at the relevant time of this
mental element. And I would add that this mental element
is something different from that required in order to con-
/ stitute
17
stitute mens rea (see S v Smith 1965 (4) SA 166 (C), at
pp 169H - 172E; S v Job 1976 (1) SA 207 (NC), at p 208
C-G; S v Hanekom 1979 (2) SA 1130 (C), at pp 1135 C - 1136
A; S v Gentle 1983 (3) SA 45 (N) at p 46 H; S v Young
1983 (4) SA 120 (ZSC), at pp 122 H - 124 A; S v Qunta
1984 (3) SA 334 (C), at pp 337 H - 338 D).
I return now to the facts of the present appeal.
The Magistrate found that on the evening in question the
appellant was in possession of the three alleged dange¬
rous weapons. There is no question that the appellant
had physical detentio of the wheel spanner, the pair of
scissors and the broken cake knife when Const. Van Zyl
found him standing in Flamingo Street; and for the
purposes of my judgment I shall assume in favour of the
State that these articles constituted dangerous weapons in
terms of sec. 2(1) of the Act. (And for convenience I
shall hereafter refer to them as "the weapons".) But
did the State establish beyond a reasonable doubt that
/ at
18 at the time appellant had the required animus?
Were it so that the evidence established that
at the time the appellant was sober, the inference that
he had the required animus would be inescapable. But
the evidence shows, that he was not sober. The Magis¬
trate found that the appellant was "onder die invloed van
drank". Const. Van Zyl, who actually observed the
appellant at the time, agreed in his evidence that appel¬
lant "was baie dronk". The Magistrate did not address
himself specifically to the question as to whether, in his
inebriated state, the appellant had the necessary animus
to found possession. He contented himself with a general
finding that appellant "baie goed geweet het wat hy doen",
which I suppose, by implication, would include a finding
that appellant was aware of the fact that he had the
weapons in his custody. But the Magistrate's finding
that the appellant knew what he was doing, and his apparent
/ rejection
19
rejection of appellant's evidence in regard to his am¬
nesia, was to a substantial extent founded upon certain
subsidiary findings, which, as I have already indicated,
amounted to misdirections. As to the other points men¬
tioned in the Magistrate's reasons for judgment, which
I have listed (a) and (b) above, while it may well be
that the appellant exaggerated somewhat in describing the
amount of liquor consumed by him, I do not find point (a)
particularly cogent or of much assistance in determining
the essential issue, viz. whether appellant had the neces¬
sary animus in regard to the weapons- Finally, the Magis¬
trate did not, in his reasons, deal with certain significant
evidence given by Const. Van Zyl in this regard. I have
already quoted this evidence and I shall shortly discuss
it in more detail. Accordingly, in my view, the reasons
given by the Magistrate for finding that the appellant
possessed the weapons do not convince. The evidence must,
therefore, be reviewed to see whether his conclusion was
/ well
20
well founded, bearing in mind that the onus was on the
State to prove such possession.
In my opinion, the evidence reveals a number
of factors, which cast doubt on whether at the relevant
time the appellant was aware of his detentio of the weapons,
These are:
(1) At the relevant time the appellant was very
drunk. This, as I have indicated, was the
evidence of Const. Van Zyl. And the appellant
himself testified that he had never before drunk
so much on one occasion.
(2) On the following morning the appellant could
not remember much after having been served
with KWV brandy; and had no recollection of
the reasons for his arrest or of having been in
possession of the weapons. This was appel¬
lant's evidence; and substantiation is to
/ be
21
be found in the fact that this is what he
told Const. Van Zyl on the "morning after"
and that Const. Van Zyl was of the impression
that the claimed amnesia was genuine. And, in
my view, the fact that appellant could vaguely
remember seeing Van Zyl and being taken away by
him does not necessarily detract from the trust¬
worthiness of appellant's evidence as to amnesia.
It was not shown by the State that an amnesia in¬
duced by excessive consumption of alcohol could not
be patchy in this way. Naturally an amnesia of
this nature does not necessarily show that in his
state of drunkenness the appellant did not know
what he was doing (cf. S v Van Zyl 1964 (2)
SA 113 (A), at pp 120 H - 121 A; S v Chretien
1981 (1) SA 1097 (A), at pp 1104 H - 1105 A,
1108 C); but it does suggest this as a possibi¬
lity.
/ (3) This
22
(3) The issue is not whether in general appellant
was behaving involuntarily and in a state
of automatism, but in particular whether he
was so aware of his detentio of the weapons
as to have the necessary animus.
(4) In answer to a question put in cross-examination,
Van Zyl stated (I have already quoted this evi¬
dence, which was not referred to by the Magis¬
trate) that it was possible that appellant was
holding the weapons in his hand without being
aware of the fact. It is true that this is
an inference drawn by Van Zyl, but he after
all was there, saw the appellant and was in
the best position to draw conclusions from
the appellant's conduct.
(5) There is something very strange in the
fact that appellant was found holding this
/ odd
23
odd assortment of weapons in one hand. This
rather bizarre behaviour affords some support
for the inference that appellant's mind was not
directed to the holding and control of these
weapons.
In all the circumstances I am not convinced that
the State discharged the onus of establishing the necessary
animus on appellant's part so that his physical detentio
of the weapons constituted possession thereof. Appellant
ought consequently to have been acquitted by the Magistrate.
Since writing the above I have had the opportunity
to read the judgment prepared in this matter by my Brother
Nicholas. In my judgment I have assumed in favour of the
State that the objects alleged to have been possessed by the
appellant on the night in question were dangerous weapons.
Having read my Brother's judgment, I am persuaded. for the
reasons stated by him, that the State failed to show that
/ these
24
these objects did constitute dangerous weapons. Consequently
on this ground too the appellant was entitled to his ac¬
quittal -
The appeal is accordingly allowed and appellant's
conviction and sentence are set aside.
M M Corbett
BOTHA JA) CONCUR GALGUT AJA) C O N C U R . GALGUT AJA)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
ADAM ADAMS APPELLANT
and
THE STATE RESPONDENT
CORAM: CORBETT, VILJOEN, BOTHA, JJA, GALGUT et NICHOLAS, AJJA
HEARD: 13 MAY 1986
DELIVERED: 26 AUGUST 1986
J U D G M E N T
VILJOEN, JA
I have had the benefit of reading the
judgments of my colleagues Corbett JA and Nicholas
AJA/.....
2. AJA. While I agree that the appeal should succeed,
I have arrived at this conclusion for reasons which
differ from theirs.
This appeal raises once more the question
of the accountability at law of a person who commits
a proscribed act under the influence of liquor. In
my view the problem in the present case is not
whether the appellant had the required animus
possidendi or whether the objects in question were
dangerous weapons. It is whether the appellant was
criminally responsible.
No psychiatric evidence was adduced in the
present case but there are a sufficient number of
decisions in this and other Courts which deal with
the effect of intoxication in relation to the
commission of offences from which principles of
law/
3.
law may be extracted for application to the facts
of this case. A fairly recent case which I regard
as a leading decision is that of S v Chretien 1981(1)
SA 1097(A). At 1104 Rumpff CJ comments upon a
passage in the judgment of Vessels J in R v Bourke
1916 TPD 303 at 305. Dealing with the range of
possibilities between the ebriosus (the "smoordronk"
person) and the person who is only slightly under
the influence of liquor the learned Chief Justice
remarks that the term "smoordronk" can itself have
various gradations. If a person is injured by
a muscular movement of a dead drunk ("papdronk")
person which is by reason of the latter's state of
intoxication merely an involuntary and not a con¬
scious/
4 scious movement, the intoxicated person cannot be
said to have committed any act at all; in criminal
law an act ("handeling") can only be an act if it
is mentally controlled. The involuntary muscular
movement of a dead drunk ("papdronk") person is not
so controlled and it is pointless in such a case to
philosophise about guilt. Nor does the question
of criminal responsibility ("toerekeningsvatbaarheid")
arise for consideration. The other extreme is the
case of a person who has imbibed so little liquor
that it cannot be said to have had any significant
effect on his mental faculties. In between
these two extremes, says the learned Chief Justice,
there is a great variety of instances of acts
committed under the influence of liquor - acts
which/.....
5 which prima facie are indicative of an intention-
to attain a certain goal or effect a certain re¬
sult. These instances give rise to the question to
what extent the intoxicated person appreciated the serious¬
ness of his act or his inhibitions have disintegra¬
ted ( 1104 E - H). The view of the learned Chief
Justice is,therefore, that, unless the person
concerned is dead drunk ("papdronk"), he retains
the capacity to control his mental faculties in
the sense of being able to form an intention. The
only inquiry then is whether he is criminally re¬
sponsible or not. At 1106 the learned Chief Justice
cites a passage from Hall General Principles of
Criminal Law (2nd ed Indianapolis 1960) 553
which/
6
which was referred to in the third edition of
De Wet & Swanepoel Strafreg at 119. The same
passage, together with another passage at 537
from the same work, appears in footnote 122 of
the fourth edition of the work of De Wet & Swa¬
nepoel at 125. The textual comment to which the
footnote relates is that it is not realised, at
least not in English practice, that in the case
of intoxication the question to be considered is
not one of intent but one of criminal responsibi¬
lity. The entire footnote reads as follows:
"122 Sien ook Hall op cit bl 537 waar hy
verklaar: ' the above judicial view
does not take account of the fact that the
grossly intoxicated harm-doer behaved without
normal understanding or control of his conduct.
Rather obviously, harms committed by such
persons/
7.
persons do not reveal wild aimless movement,
but conduct adapted to attain specific goals.
But this is far from signifying that the
defendant actually had the required mens rea,
e g the behaviour of a psychotic homicide
is also end-directed. The fact that the state
of mind and lack of inhibition of a grossly
intoxicated person closely approximate that
of a psychotic person should be the paramount
datum in the determination of the relevant
penal liability.' Sien ook op cit bl 553-4
waar Hall onderskei tussen die papdronke
(wat nie kan handel nie) die ligdronke en
die sterkbesopene, en wel soos volg: 'We
must, for the present purpose, eliminate the
two extremes, i e slight intoxication ....
and intoxication so gross as to induce complete
loss of control or even stupor, in which
condition motor activity of any kind is
simply impossible. In the cases relevant
to the present problem the defendant is in a
state of intoxication between these extremes.
What we have to deal with is not incapacity
to perform simple acts or such an oblitera¬
tion of cognitive functions as to exclude
any degree of purposive conduct, but instead
a severe blunting of the capacity to under¬
stand the moral quality of the act in issue,
combined/. . .
8.
combined with a drastic lapse of inhibition.
As has been suggested, this closely resembles,
if it is not identical with, insanity.' Ook
Gordon op cit bl 400 skyn te besef dat mens
by dronkenskap met 'n toerekeningsvatbaarheids-
probleem te doen net."
I appreciate that the view held by De Wet
& Swanepoel and by this Court in Chretien's case
can hardly be reconciled with other expressions of
opinion in judgments of this Court. In R v Pethla
1956(4) SA 605, for instance, Hoexter JA, after
having referred to Roman Dutch authorities and in
particular to Van der Linden Handboek 2 1 5 said
at 608 F:
"Our modern law takes a different view of
the effect of drunkenness in certain cases;
it recognises that the mind of an accused
may be so obscured or affected by the
consumption/......
9.
consumption of alcohol that he is incapable
of forming the intention to kill which
must be proved in a charge of murder."
The learned Judge of Appeal made this
remark in the context of dealing with the onus.
He expressed the opinion that it would be dange¬
rous to attach much weight to the views of the
Roman Dutch authorities to the effect that the
onus was on the accused because they regarded
intoxication merely as a factor to be taken into
consideration for the purposes of mitigation of
sentence. I shall deal in more detail with this
and other cases when considering below the question
of the onus.
In my view the concept of criminal
responsibility/.....
10.
responsibility should clearly be distinguished from
the intent which the State has to prove in trials
relating to offences in which intention is a re¬
quisite. Criminal responsibility is a prerequisite
for criminal liability. See Strauss 1974
T H R H R 234 and S v Lesch 1983(1) SA 814(0)
823(A - E).
I do not suggest that (except for purposes
of referring the accused to an institution for ob¬
servation) a separate enquiry should be embarked
upon to determine the issue of criminal responsibi¬
lity, but when it is raised as a defence, this issue
should be considered first. Intent encompasses the
element of mens rea ("wederregtelikheidsbewussyn")
See De Wet en Swanepoel op cit 152-4 , Snyman
Strafreg/......
11.
Strafreg 184. Unless the wording of the statute
creating the offence is such as to cast the onus
on the accused of proving, on a balance of probabi¬
lities, the absence of this elementum essentiale,
the "guilty intention" (which is the phrase used in
R v Ndhlovu 1945 AD 369 at 385), the onus of proving
it would be on the State. But in my view the
mens rea which has to be so proved must be mens
sana. Demetrio Tsafendas clearly had the
intention to stab Dr Verwoerd to death but he was
not of sane mind. He was, therefore, not criminally
responsible and could not be held criminally liable
Cf the words of Hall quoted above " the be¬
haviour of a psychotic homicide is also end-
directed ." In/.....
12
In deciding the issue of criminal re¬
sponsibility the criteria contained in s 78(1)
of Act 51 of 1977 have to be applied. The develop¬
ment of the concept of criminal responsibility
has a long history in our law. That history is
set out in the report of the Rumpff Commission
(RP 69/1967) 3 1-25. See also Viljoen Tydskrif
vir Regswetenskap (Jaargang 8 Nommer 2 November
1983) 123 in fine - 128. At first the only
criterion was the so-called right and wrong test
In due course the second criterion,the so-called
irresistible impulse" test,was recognised and
added. The history culminated in the enactment
of s 78(1) of Act 51 of 1977 ("the Act") as a
result/......
13.
result of the recommendations by the Rumpff
Commission. Both tests have undergone some
refinement and extension. Before the enactment
the tests were applied in this Court in S v Van Zyl
1964(2) SA 113(A) but had the judgment been given
after the enactment, it would probably have been
different in respect of the second test (see
121 G - H) because the Rumpff Commission pointed
out that the term "irresistible impulse", in
signifying a sudden flare-up of emotion, was too
narrow. As a result s 78(l)(b) of the Act was
couched in wider language. See S v Kavin 1978(2)
SA 73KW) at 737 A - B.
I referred above to the remarks of
Hoexter JA in Pethla's case in the context
of/.....
14
of the onus of proof. With great respect, if one
approached the problem from the angle of criminal
responsibility, I have grave doubts whether the
decision in that case was correct. As De Wet & Swanepoel op cit point out at 110 our law has not progressed to the stage of answering in a satis¬ factory manner the question as to what mental fa¬ culties a person must possess to be criminally responsible. The matter is approached from a negative point of view of deciding what persons must be regarded as not being criminally respon¬ sible. They point out that very little assistance is to be derived from the old authorities. Only recently the question of what mental faculties must/
15.
must be absent before a person can be said not to
be criminally responsible has been answered in
clearer language in certain other systems. In
this regard, they say, the absence of such quali¬
ties are still linked to one or other condition
("gesteldheid") of the person concerned. They
proceed to deal with youthfulness, insanity,
drunkenness and factors causing strong emotional uphea-
vals such as, for example, anger and provocation.
The authors referred to are, in my view, quite
right. We refer to "defences" such as "insanity"
and "intoxication" and fail to deal with them under
the general heading of criminal responsibility.
At present our law, at least in so far as judicial
pronouncements/ . . ..
16
pronouncements go, is that save in the case of
insanity, which is an exception to the general
rule, the onus is on the State to prove the re¬
quisite intention. See R v Ndhlovu 1945 AD 369
In R v Kaukakani 1947 (2) SA 807(A) Davis AJA who
prepared the judgment of the court in Ndhlovu's
case decided that when drunkenness is raised as
a defence the onus is on the accused to prove it
by a preponderance of probabilities. In this
latter case, as appears from the last paragraph
of the judgment of Davis AJA, the Chief Justice
(Watermeyer CJ) and Greenberg JA who also sat in
Ndhlovu's case, although they did not sit in
Kaukakani's case, authorised Davis AJA to say that
they concurred in the result. The decision
in/.....
17.
in Kaukakani's case was, however, criticised sub¬
sequently in R v Innes Grant 1949(1) SA 753(A) in
which case both Watermeyer CJ and Greenberg JA sat.
In the Innes Grant case Centlivres JA suggested
that in so far as what was said by Davis AJA in
Kaukakani's case may be construed as indicating
that when an accused alleges that, owing to
drunkenness, he did not have that specific intent,
the onus is on him to negative that intent, might
require revision in view of the well-recognised
rule that the onus lies throughout on the State
to prove all the allegations in the charge which
are necessary to constitute the crime alleged.
To the same effect was R v Taylor 1949(4) SA 702(A)
at 712 in fine - 713. See also R v Huebsch
1953(2) SA 561(A) 565 in fine - 566. Thereafter
followed Pethla's case to which I have referred above
and which appears to have settled the law on the
question/....
18
question of onus.
If I am right in the view that in a case
where intention is an element of the offence the
mens rea which the State has to prove is the mens
rea ("wederregtelikheidsbewussyn") of a sane mind,
there can logically be no reason why a distinction
should be drawn between the lack of criminal
capacity because of insanity or such lack due to
any other cause.
Section 78(1) of the Act provides only
for mental illness or mental defect,- which implies
conditions of some permanence or duration. That
was how the Rumpff Commission interpreted its terms
of reference. In spite of these narrow terms of
reference/.......
19.
reference the Rumpff Commission did, nevertheless, apply
its mind to the onus in respect of drunkenness.
The following paragraph (10.53) appears in the
Rumpff Commission's report:
"Die Appèlhof het in R v Ndhlovu, 1945
AD 369 die stelling herbevestig wat
deur die House of Lords gemaak is in die
saak Woolmington v The Director of
Public Prosecutions, 1935 AC 462 dat
die las om al die elemente van die
misdaad te bewys, op die vervolger rus.
Die vereiste gesindheid van die dader -
wat aanleiding gee tot sy toerekenings-
vatbaarheid - is 'n element van die misdaad.
In die Woolmingtonsaak, en in ons reg,
word op die algemene stelling 'n uitson-
dering gemaak ten opsigte van kranksinnig¬
heid en indien 'n beskuldigde kranksinnigheid
beweer, rus die las op die beskuldigde om
dit te bewys met 'n oorwig van waarskyn-
likhede. Daar word o a van die standpunt
uitgegaan dat daar 'n vermoede is dat die
mens normaal is en dat op 'n beskuldigde
dus/....
20
dus die las rus om die vermoede te weerlê."
The word "gesindheid" which is trans¬
lated as "intention" in the English text of the
report cannot give rise to ("aanleiding gee tot")
a person's criminal responsibility. It gives
rise to his guilt. With respect, in my view it
appears as if the Commission fell into the
trap against which De Wet & Swanepoel op cit
110 warn: "Die vraag of die persoon toerekenings¬
vatbaar was en die vraag of hy met 'n bepaalde
gesindheid gehandel het, word nog nie duidelik van
mekaar onderskei nie. Die toerekeningsvatbaar-
heidsvraag het te doen met die persoon se geestes-
vermoens, en is 'n selfstandige vraag naas die
vraag/......
21.
vraag of die persoon met die een of ander gesind-
heid gehandel net." See also J C de Wet in 1957
T H R H R 90 - 93. If in the case of "in¬
sanity" the law proceeds from the premise that
a person is a normal person, in other words that
his mental faculties function normally, there is
no reason why the same principle should not apply
in the case of the intoxicated person. In
Chretien's case supra Rumpff CJ said that the
evidence of lack of criminal capacity must be clear
and suggested at 1106 C a possible review of the
decisions dealing with the onus. Had the Rumpff
Commission been consistent it would, I suggest with ,
respect, have come to the conclusion that in all cases
in which a defence of lack of criminal capacity is
raised/
22
raised the onus is on the accused. De Wet &
Swanepoel op cit 130 express the view, correctly
in ray opinion, that in all cases in which
criminal responsibility, whether it be by reason
of insanity or any other cause such as intoxi¬
cation, of an accused is an issue the onus ought to
be the same. They argue, however, that in spite
of the presumption that every person is in his
sound mind until the contrary be proved, criminal
responsibility is an indispensable prerequisite
for criminal liability which should be proved by
the State (see 119 fn 93). On the other hand,
however, there is the risk that if people who
commit offences under the influence of liquor
were/......
23 were too readily acquitted for failure by the
State to prove the criminal responsibility of an
accused beyond a reasonable doubt (for that is
the burden which rests on the State) the law might
be brought into disrepute. See Chretien supra 1103
E - F and 1105 in fine. To say that in these
popular defence cases,under which the lack of
criminal capacity as a result of intoxication
would fall, the evidence should be scrutinised
carefully means very little, in my view. I
suggest that if our Courts had not in the past
approached the matter from the point of view of
whether the accused could "form the intention",
all cases dealing with the onus on the issue of
criminal/.....
24 criminal responsibility would have been harmonious
and "insanity" would not have acquired the status
of an "exception." However, at the moment I am
a voice crying in the wilderness and until such
time as this Court may review the law I have
to accept that the onus to prove criminal respon¬
sibility is on the State.
I turn now to the facts of the present
case. Subject to considerations of criminal re¬
sponsibility any court of law would, in my view,
have been justified in coming to the conclusion
that the element of mens rea had been proved by
the State. In the context of s 2(1) of Act 71 of
1968/......
25.
1968 the mens rea which is an element of the
offence consists (a) in the knowledge (actual
or constructive) by an accused person that (b)
he possesses a dangerous weapon. (J R L Milton
South African Criminal Law and Procedure 3 184
As to (a), the circumstances under
which the appellant was found by constable van
Zyl to have been in possession of the objects
which are detailed in the judgment of Corbett JA
justify the inference that he was at the time
involved in some sort of confrontation with his
hosts or other guests at the home to which he
had been invited and that he had equipped himself
with these objects with the intention, should
occasion/.....
26
occasion demand it, of using them against the
people or some of them there present.
In regard to (b), it is true that the
objects which the appellant had in his hand were
an "odd assortment" of objects or a "motley
trio of objects" as Corbett JA and Nicholas AJA
respectively described them, but, regard being
had to the circumstances prevailing, it cannot
be seriously doubted that they were "dangerous
weapons" as envisaged by the Dangerous Weapons
Act No 71 of 1968. See S v Matseare and Others
1978(2) SA 931(T) 936 B - D. The appellant did
not attempt to prove that he at no time had any in¬
tention of using these weapons or objects for any
unlawful/...
27.
unlawful purpose. His defence was that he was
affected by liquor he had consumed and tablets
which he had taken for asthma to such an extent
that he had no recollection of the events in which
he was involved. He accepted what constable van
Zyl told him. The magistrate held:
"Sy optrede daar dui duidelik op 'n man
wat moeilikheid gehad net met mense daar
vir wie hy kwaad was en sou aanrand vol-
gens Konstabel. Hy het presies geweet
met wie hy moeilikheid het, teenoor die
konstabel was sy optrede heeltemal anders.
Hy het geluister na wat vir hom gesê is
deur konstabel, dit verstaan en kon daar-
oor besluit en het ook ingesien dat dit
die beste sal wees om in vangwa te klim,
iets wat die hof nie sou verwag van 'n
man wat so dronk was dat hy nie geweet
het wat hy doen nie."
Subject to the misdirection in this
passage/...
28.
passage which Corbett JA points out, namely,
that "sou aanrand" should read "kon aanrand,"
the finding cannot, in my view, be faulted.
Even though the appellant could not
on the next morning remember much of what had
happened the previous day the facts show, be¬
fuddled though his mind might have been,
purposive conduct on his part.
On my view of the facts the following
remark made by Rumpff C J in Chretien's case 1104 H
applies peculiarly to the appellant:
"Iemand kan as 'erg besope' beskryf word
maar tog so optree dat hy skynbaar rasio-
neel optree. Hy mag selfsvergeet net wat
hy gedoen net maar sy gees net wel sy
handeling beheer, al is dit dan dat sy
inhibisies erg deur drank verminder is."
See also/..
29 See also R v Innes Grant 1949(1) SA 753(A) 767
and S v Van Zyl 1964(2) SA 113(A) 118 A - B.
There was no evidence of the circumstan¬
ces prevailing and the cause of the trouble
between him and the other people present at the
home of his hosts and had the onus been on him
to prove on a balance of probabilities that he
was not criminally responsible, I might have
concluded that on neither criterion had the
onus been discharged. On the first crite¬
rion there is sufficient evidence, in my view,
from which an inference may be drawn that he
appreciated what he was doing even though he
regarded the whole matter as trivial, as is to be
deduced from the following evidence of constable van Zyl
"V Wat/
30
"V Wat se hy aan ander persone?
A Hy sê julle bel die polisie vir sulke nonsens."
Applying the second criterion and accep¬
ting that the onus is on the State, it has not been
proved, in my view, that he was criminally respon¬
sible. He was very drunk. His aggressive and
objectionable behaviour was completely out of
keeping with that of a guest at the home of his
hosts and one inference which may legitimately and
reasonably be drawn is that he behaved in the manner
in which he did because he was incapable of acting in
accordance with an appreciation of the wrongfulness
of his acts. His inhibitions were completely
disintegrated. The appellant must, therefore,
be/...
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
ADAM ADAMS Appellant
AND
THE STATE Respondent
CORAM: CORBETT, VILJOEN, BOTHA, JJA, GALGUT et NICHOLAS, AJJA
HEARD: 13 May 1986
DELIVERED: 26 August 1986
J U D G M E N T
NICHOLAS, AJA
I concur in the judgment of CORBETT JA. For my
part, however, I would not have assumed that the wheel span¬
ner......
2
ner, the pair of scissors and the broken cake knife con¬
stituted dangerous weapons in terms of ss. (1) of s. 2.
of the Dangerous Weapon Act, No 71 of 1968.
The sub-section reads:
"2.(1) Any person who is in possession of
any dangerous weapon ... shall be guilty
of an offence, unless he is able to prove
that he at no time had any intention of
using such weapon ... for any unlawful
purpose, and shall on conviction be
liable to a fine not exceeding two hun¬
dred rand or to imprisonment for a period
not exceeding twelve months or to both
such fine and such imprisonment." In terms of s. 1 -
"1. In this Act, unless the context other¬
wise indicates - 'dangerous weapon' means
any object, other than a firearm, which
is likely to causer serious bodily in¬
jury if it were used to commit an as¬
sault;
Reference.....
3 Reference will also be made to s. 4(1) which provides:
"4.(1) Whenever any person above the
age of eighteen years is convicted
of an offence involving violence to
any other person and it has been proved
that he killed or injured such other
person by using a dangerous weapon or
a firearm, he shall, ... notwithstan¬
ding anything to the contrary in any
law contained, be sentenced to imprison¬
ment for a period of not less than two
years and, if he is so convicted by a
magistrate's court, not exceeding eight
years, and may in addition to any such
punishment, be sentenced to a whipping
not exceeding ten strokes.
Provided "
The courts have experienced problems in the con¬
struction and application of these provisions. A major
difficulty has arisen from the fact that the definition of.
"dangerous weapon" covers many objects which are not normally
used
4
used as weapons and would not be referred to as dangerous
weapons in ordinary speech. Thus, DIDCOTT J said in S v
Mnguni 1977(3) SA 63 (N) at p. 66 D-E:
"... as was observed in S v Nabo,
1968(4) SA 699(E) at p. 701 D-E, the
definition literally covers a somewhat
heavy walking-stick, the lock and chain
of a schoolboy's bicycle, a housewife's
broom and a bricklayer's trowel. Each
is an 'object' which, if it happened to
be used to commit an assault, would be
likely to cause serious bodily injury.
The same no doubt goes for vol. 1 of
Butterworths'Statutes. 'Amicus Curiae'
suggested as much in a forceful cri¬
ticism of the legislation entitled
'The Big Stick', which appeared in (1969)
86 SA Law Journal, at p. 486. One may
add to the list one's table, one's chair,
one's typewriter and, subject only to
the range of one's imagination, all sorts
of other things in daily and generally peaceful use." See ....
5
See also S v Xaba 1976(1) SA 42 (N) at p. 43 C-D.
Interpretation clauses of a similar kind have
been the subject of judicial criticism in England.' See
Craies on Statute Law, 7th ed., pp 313-314:
"Interpretation clauses frequently fall
under severe judicial criticism from
failure to observe the valuable rule
never to enact under the guise of de¬
finition. In R v Commissioners under the
Boilers Explosion Act 1882, the question
arose whether a steam pipe conducting
steam to a pumping engine in a mine
from a boiler on the surface was a
boiler within the meaning of the 1882
Act, i.e. 'a closed vessel for generat¬
ing steam, etc.' The court went some¬
what far in deciding that it was, and
Lord Esher M.R. said:'The draftsman has
gone upon what, in my mind, is a dan¬
gerous method of drawing Acts of Par¬
liament. He has put in a section which
says.....
6
says that a boiler shall mean something
which is in reality not a boiler. This
third section of the Act is a peculiarly
bad specimen of the method of drafting
which enacts that a word shall mean some¬
thing which in fact it does not mean.1
And the same judge said in Bradley v
Baylis, with reference to the Municipal
Registration Act 1878 and the Represen¬
tation of the People Act 1867: 'It
seems to me that nothing could be more
difficult, nothing more involved, than
these statutes, and that that difficulty arises from the fact of Parliament in¬ sisting upon saying that things are what they are not' by saying that 'a dwelling-house' shall mean 'a part of a dwelling-house '...." One way of applying the definition of "dangerous weapon" is to make a bodily substitution of the de¬ finition for the words "dangerous weapon" in s. 2(1), which would then read:
"Any......
7
"Any person who is in possession of
any object, other than a fire arm,
which is likely to cause serious
bodily injury if it were used to
commit an assault ... shall be guilty
of an offence."
Although it is not stated in so many words, that seems to
have been the approach in cases reported hitherto. See,
for example, S v Seleke en Andere 1976(1) SA 675(T) at p.
685, where it was held that in order to determine whether
an object was a dangerous weapon for the purpose of s.2(l),
the question which the Court has to answer is this: Is
the object without regard being had to what was caused by
it, an object which is likely, when used, to cause serious
bodily harm if it were used to commit an assault? Cf.
S v Matseare & Others 1978(2) SA 931 (T) at pp. 934 to 936. To
7 A
To apply the definition in that way would have the result
that virtually every person in the Republic would prima
facie be guilty of a contravention of s. 2(1), and so be
liable to prosecution, with the ignominy and inconvenience
which that would entail. That is a result which the legis¬
lature could not have contemplated. Parliament was con¬
cerned in this section to strike at the source of the un¬
lawful use of weapons which was endemic in some parts of
the country, especially in the Western Cape, by extending
the definition of a dangerous weapon, and introducing higher
penalties......
8
penalties for the unlawful possession thereof. Cf.
S v Diedericks en Andere 1969(3) SA 270 (K) at 273 A-B;
S v Mtengile 1972(3) SA 796 (C) at 797 G. It was not
concerned to cast the net so wide as to catch the just
along with the unjust, and involve innocent persons in the
toils of the criminal law by making it prima facie an of¬ fence to be in possession of any object whatsoever which was likely to cause serious bodily injury if it were used to commit an assault. It was suggested in S v Xaba (supra) at p. 46: "I am inclined to think that the dif¬ ficulties in applying the definition of a dangerous weapon to sec. 2(1) are more apparent than real. If a working man is going about his ordinary affairs and carrying his tools to work
or....
9
or if a cricketer is carrying his bat
to the cricket ground it seems to me
inconceivable that any peace officer
would arrest him for being in breach
of sec. 2(1) and if he were in fact
prosecuted it is obvious that he would
have very little difficulty in dis¬
charging the onus placed upon him by
the section. If, on the other hand,
he was carrying a cane knife during a
public disturbance or was carrying a sharp chisel concealed in his pocket at a shebeen he might with good cause be charged and he might have some dif¬ ficulty in discharging the onus re¬ quiring him to establish that he had no intention of using the object for an unlawful purpose. Every case must inevitably depend on its own circum¬ stances . " I do not think that it is relevant to the construction of s. 2(1) that arrest in cases of innocent possession would be unlikely or that a pro¬ secution would fail. In S v Brick 1973(2) SA 571(A) JANSEN JA said at p. 582 D: . _ "In
10
"In regard to administrative restraint
or nominal sentences tempering the wind,
I can do no better than adopt the words
of Lord REID (Warner v Metropolitan Police
Commissioner (1968) All E.R. 356
(H.L.) at p. 366 B):
'I dissent emphatically from the view
that Parliament can be supposed to have
been of the opinion that it could be
left to the discretion of the police not
to prosecute, or that if there was a
prosecution justice would be served by
only a nominal penalty being imposed.'"
I do not think, therefore,that bodily substitution is the
proper way of applying the definition. In Town Council
of Springs v Moosa & Another 1929 AD 401 DE VILLIERS ACJ
said at p. 417:
"... An interpretation clause has its
uses, but it also has its dangers, as
it is obvious from the present case.
To adhere to the definition regardless
of.....
11
of subject-matter and context might
work the gravest injustice by including
cases which were not intended to be in¬
cluded. "
At p. 416 reference was made to the observation of LORD
DENMAN C J in The Queen v The Justices of Gloucestershire
112 E.R. at p. 554:
"But we apprehend that an interpreta¬
tion clause is not to receive so rigid
a construction; that it is not to be
taken as substituting one set of words
for another, nor as strictly defining
what the meaning of a word must be un¬
der all circumstances ..."
In my view the construction of s. 2(1) is to
be approached from the starting point of the in¬
gredients of the offence which it created. They are
(a) possession of a (b) weapon which is (c) dangerous.
Although
12
Although the Act defines the composite expression
"dangerous weapon", there is no definition of "weapon"
simpliciter. The meaning of the word and of the cor¬
responding Afrikaans word "wapen" was discussed in S v
Mtengile (supra) , where VAN ZIJL J said at p. 797 C-H:
"In art. 1 van die Wet word die uit-
drukking 'gevaarlike wapen -dangerous
weapon' omskryf. Die Afrikaans lees:
'gevaarlike wapen ... enige voorwerp,
behalwe 'n vuurwapen, wat waarskynlik
ernstige liggaamlike letsel sal ver-
oorsaak indien dit gebruik sou word om
'n aanranding te pleeg'.
Die Engels lees:
'Dangerous weapon ... means any object,
other than a firearm, which is likely
to cause serious bodily injury if it
were used to commit an assault.1
Hierdie omskrywing bepaal nie wat 'n wa¬
pen is nie. Dit bepaal alleen die aard
van 'n 'gevaarlike - dangerous' wapen.
Dit
13
Dit gee nie voor om die betekenis van
die woord 'wapen - weapon' te definieer
nie. Om uit te vind wat die betekenis
van hierdie woord is, moet ons die ge-
bruikte prosedure volg en die woord in
erkende woordeboeke naslaan. Die Afri-
kaanse Woordeboek het nog nie by die
letter 'W' uitgekom nie, maar die Kern-
woordeboek van Afrikaans deur de Villiers,
Smuts en Eksteen gee die volgende om-
skrywing van 'wapen': 'strydmiddel'.
Die Woordenboek der Nederlandse Taal
het ook nog nie by 'W' uitgekom nie.
Van Dale, Groot Woordeboek der Neder¬
landse Taal, gee die volgende omskry-
wing van 'wapen':
'Strydwerktuig, voorwerp bestemd om iemand
letsel toe te brengen of wel om zich er-
mee te verdedigen.'
The Oxford English Dictionary gee die
volgende omskrywing:
'weapon' - An instrument of any kind
used in warfare or in combat to attack
and overcome an enemy'..
en Webster, Third New International Dic¬
tionary gee die volgende:
'weapon'
14
'weapon'- An instrument of offensive or
defensive combat: something to fight
with; something (as a club, sword, gun
or grenade) used in destroying, de¬
feating, or physically injuring an
enemy'.
Dit is die doel waarmee 'n ding gebruik
word wat dit 'n wapen maak. Vuur, water,
geluide, elektriese strome en ander be-
stralinge kan wapens genoem word as
hulle gebruik word om mee aan te val of
te verdedig, d.w.s. as hulle as 'n stryd-
middel gebruik word 'or used as an instru¬
ment of combat in offence in attack or
defence1. Die Wet was bedoel om die
bereidheid van die kleurlinge om mekaar
met gevaarlike wapens aan te val, met
swaar strawwe op te dreig."
See also S v Nduneni 1972(3) SA 799 (C) at p. 802.
In its ordinary meaning "weapon" covers any object
which is designed for use as a weapon (e.g. swords, spears,
daggers, bayonets, battle axes), and also any object which,
although
15
although not designed for use as a weapon, is used or in¬
tended to be used as a weapon. For a grouping of weapons
in categories, see S v Matseane (supra) at p. 936 E-H.
Where under s. 4(1) the question arises whether
the accused has used a weapon which was dangerous, regard
is had to the actual use of the object concerned. (With
the exception of S v Magwaza & Others 1976(4) SA 281 (N),
all of the cases referred to by counsel in this appeal were
cases in which the State contended that s. 4(1) was applic¬
able. )
In a case under s. 2(1) (which penalises mere
possession) that test is not available where any use of the
object is prospective only. In such a case what must be
considered.....
16
considered is whether; the object is possessed qua weapon,
or for some other reason. That is something that is
normally to be inferred from the nature of the object and
the circumstances in which it is possessed. Cf. S v
Matseare (supra) at p. 936 D to 937 H.
So in the illustration given in the passage
from Xaba quoted above, the inference could not be drawn
that either a man going about his ordinary affairs and carry¬
ing his tools to work, or a cricketer carrying his bat to
the cricket ground, was in possession of a weapon; whereas
that inference would readily be drawn in the case of a man
carrying a cane knife during a public disturbance, or a man
carrying a sharp chisel concealed in his pocket in a shebeen,
In......
17
In a prosecution under s. 2(1), it is for the State
to prove that the person charged was in possession of a
weapon. That having been proved, recourse is then had to
the definition in order to determine whether it was a "dan¬
gerous weapon". By this approach, a sensible meaning is
given to s. 2(1), which is consonant with the object of the
provision, does not result in any absurdity, and does not
ignore the definition.
In the present case, the State proved only that
the accused, who was in a highly intoxicated and noisy con¬
dition, was openly holding in one hand a wheel spanner, a
pair of scissors, and what appears to have been a broken cake
knife. There was nothing to indicate, what (if anything) the accused
had