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/...

31

be given the benefit of the doubt.

For these reasons I would uphold

the appeal.

JUDGE OF APPEAL

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

18

had in mind to do with this motley trio of objects. Con¬

sequently the State failed to prove an ingredient of the

offence charged, and the accused should have been acquitted

on this ground.

H C NICHOLAS, AJA