S v APPLETON 1982 (2) ZLR 110 (S)

Flynote

Criminal law - Firearms Act [Chapter 308] - section 5 (1) - possession of firearms without holding firearms certificate - mens rea - bona fide belief that action not unlawful - whether such belief reasonable - when ignorance of the law can excuse.

Headnote

The appellant was convicted of contravening section 5 (1) of the Firearms Act [Chapter 308]. He was the owner of a firearm for which he held a valid certificate and which he kept in a secure place. A good friend of his died and the friend's widow brought her late husband's shotgun to the appellant for safe-keeping. The appellant kept the shotgun in the secure place where he kept his own firearm. The shotgun was discovered during a search by the police and the appellant was charged with having it in his possession without the necessary firearms certificate. He had made no enquiries of any official as to whether his possession was lawful; he believed that the law did not penalise what he did.

It was argued that the offence was one of those in which the accused could escape liability by showing that he did not have the mental element requisite for the offence; that the appellant could escape liability by showing that he believed that what he did was not an offence; and that it was not necessary for him to establish that his mistake of law was reasonable, as long as he showed it was bona fide, but that in any event he had shown that his mistake was reasonable.

Held, per FIELDSEND, CJ, that assuming that it was a defence for the appellant to show that he was ignorant of the fact that what he did was an offence, it was still necessary for him to show that his ignorance was reasonable;

Held, further, that on the facts it was not reasonable to have taken another's firearm into his possession merely in the belief that to do so was not contrary to the law, without making any enquiry.

Quaere, whether S v de Blom, 1977 (3) SA 513 (AD) represents the law in Zimbabwe.

Held, per BARON, JA, that ignorance of the law in circumstances such as the present is not a defence in Zimbabwe as the law now stands, and the question of the reasonableness of the appellant's belief that what he did was lawful did not arise. Ignorance of the law was held to be a defence In me very special circumstance of S v Zemura, 1973 (2) RLR 357; 1974 (1) SA 584 (RAD); but that case should be seen as an exception to the general rule.

Held, further, that, if a mistake of law is available as a defence, there is no basis as the law now stands for qualifying the defence by a requirement of reasonableness. Furthermore, such a test would be very difficult to apply and to limit and would be likely to give rise to far more problems than it would solve.

Held, per BECK, JA, that while the statutory prohibition in question is of a kind that requires mens rea and is not one of strict liability, there is no authority in Zimbabwe for the proposition that one who, being under no misapprehension as to any material fact, proceeds to do what such a statute criminally prohibits can escape liability simply because he was unaware of the prohibition.