Robber's sentence reduced after court rules he was not joint possessor of gun

A man convicted of possession of a firearm and ammunition was not the joint possessor of a firearm used in a botched robbery, the Supreme Court of Appeal (SCA) ruled on Tuesday.

The court upheld Moshidi Leshilo's application for leave to appeal against his conviction on the two counts. And then it reduced a 15-year sentence imposed by the Pretoria regional court six years ago on the counts, and sentenced him to a five-year jail term on the remaining count of housebreaking with the intent to commit an unknown offence. 

The new sentence was antedated to June 11 2014. 

Leshilo's co-accused in the regional court was acquitted on all counts on the basis that the state had not proved his identity as one of the perpetrators beyond reasonable doubt.

Although the regional court granted Leshilo leave to appeal against his conviction and sentence, the high court in Pretoria dismissed the appeal in its entirety in 2017.

Special leave was granted by the SCA, where Leshilo only appealed against his conviction on the counts of possession of a firearm and possession of ammunition.

Leshilo and his co-accused allegedly entered a house, operating as a spaza shop, in Mamelodi East, Pretoria, in August 2013.

The homeowner was awoken at 3am and recognised as assailant as a customer who had purchased airtime from his shop. This identification, the trial court held, was insufficient to secure a conviction.

The homeowner jumped out of bed, threw a blanket over the first intruder and wrestled with him to get hold of his firearm. In the ensuing struggle a shot went off, prompting the first assailant to flee.

Leshilo then entered the room and there was a scuffle over the firearm. Leshilo was never in possession of the weapon during the scuffle. When Leshilo tried to run away, he was apprehended by a neighbour.

"The only issue for determination on conviction is whether the appellant should have been found guilty of possession of an unlawful firearm and ammunition. A finding in the appellant’s favour would impact on the combined sentence of 15 years for all three offences," judge Caroline Nicholls said in a judgment passed on Tuesday.

She said the regional court convicted Leshilo on the firearm count on the basis that he must have known the first intruder had possession of a firearm and acted in concert with him.

She said the high court, on appeal, held that the doctrine of common purpose was not applicable but still found Leshilo guilty on the basis of joint possession.

Nicholls said the reasoning of the high court could not be supported.

"Even accepting that [Leshilo] knew that his co-perpetrator possessed the firearm and knew that he would use it in the execution of a common purpose to commit the housebreaking, he cannot be considered a joint possessor," she said.

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