IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) CASE NO : 0113/13 In the matter between: THE DIRECTOR OF PUBLIC PROSECUTIONS, Applicant NORTH GAUTENG and OSCAR LEONARD CARL PISTORIUS Respondent RESPONDENT'S OPPOSITION TO THE STATE’S APPLICATION FOR THE RESERVATION OF QUESTIONS OF LAW IN TERMS OF SECTION 319 OF THE CRIMINAL PROCEDURE ACT, ACT 51 OF 1977 1. Section 319 does not permit the reservation of a question of law, which in reality is a question of fact.’ 2. “The only way in which the State can appeal in terms of the Criminal Procedure Act 61 of 1977 against a decision of a trial Court is by way of a reservation of a question of law in terms of s. 319. The State has no right of appeal in terms of the Act against incorrect factual findings by a trial court. The State can appeal only if the trial Court gave a wrong decision due to a mistake of law.’? 1S v Khoza en Andere 1991 (1) SA 793 (A) at 797 B; Attorney-General Transvaal v Kader 1981 (4) SAN727 (A) at 739 D to 740 J. ? $v Basson 2004 (1) SA 246 (SCA)Page 2 3. Du Toit et al, Commentary on the Criminal Procedure Act at page 31-38 States as follows in relation to Section 319: ‘It is not permissible for a trial judge to reserve, at the request of the State, questions which are essentially questions of fact. This restriction will not be relaxed by the fact that the trial judge considered the facts incorrectly, Furthermore, if the alleged question of law is nothing more than the question whether the Judge had correctly considered the facts, this remains a question of fact which may not be reserved at the request of the State (S v Coetzee 1977 (4) SA 539 (A) 544 H - 545 A).” 4. Even if the question to be reserved were to be a question of law, the Court should only exercise its discretion to reserve the question of law if there is a reasonable possibility it would affect the result of the case. 5. in Magmoed v Janse van Rensburg and Others* the following was inter alia stated in the headnote: “Held, further, that, even if the Court were wrong in this approach, the diseretion in terms of s 319 should not be exercised in favour of granting the application because the possibility of the evidence that would then be admitted altering the factual findings of the Court was so remote that it would be an unreasonable exercise of the discretion to allow the 3 1990 (2) SAGR 476 (C)Page 3 question to be reserved. And further: The point sought to be framed as a point of law was in essence a point of fact and the application for the reservation of that point fell to be refused. Held, further, that were the Court incorrect in this approach, the discretion under s 319 should not be exercised in favour of the applicants because there was no reasonable possibility either of the point succeeding or having any practical effect on the conviction. Held, with regard to the question as to whether, on the basis of the facts found by the Court, no reasonable person could have come to any conclusion other than that the accused were guilty of murder or culpable homicide, the question, although cast in the form of a proposition of law, in fact, related to a value judgment on the facts, and as such could not be reserved as a question of law. Hold, further, that, even if the question were to be answered in favour of the applicant, it would not affect the result of the case and so the Cour liscretion should accordingly be exercised against the applicant.” (Emphasis supplied) 6. It will be demonstrated hereunder that the purported questions of law raised by the State, are questions of fact. The State endeavours toPage 4 reserve questions of law, as the State is not satisfied with the trial Court's factual findings in relation to the Accused not foreseeing and reconciling himself with the death of the Deceased. This will be demonstrated below. ‘The questions the State seeks to reserve would, in any event, not affect the conviction, in view of the factual findings by the trial Court. Moreover, there was never a dispute as to what the law was pertaining to dolus eventualis, and it is not contended by the State that there was any ‘such dispute. The State's reference to error in objecto/persona in Paragraphs 26-28 of its application, does not change or impact the factual findings of the Honourable trial Court. The factual finding by the Honourable trial Court, referred to below, for instance, that the Accused did not shoot with the intention to kill anyone, let alone the Deceased, negates the applicability of error in objecto/persona. Questions of law may not be reserved if they are unrelated to factual findings, as they would only sek to task the Supreme Court of Appeal with academic debate. In $ v Basson (supra) the Court of Appeal held that even where it was a question of law, it would not exercise its discretion in favour of the State if it is merely of academic interest. The State contends, in paragraph 36 of its application, that there are special circumstances for the Court to grant leave to appeal, namely “thePage 5 huge public interest” as well as the “far reaching precedent it will set in our legal system.” 11. The reservation of a question of law is not an appeal, but a statutory provision making provision for the reservation of a question of law in specific circumstances, unrelated to the “huge public interest’. 12, Furthermore, the judgment did not introduce a ‘far reaching precedent” relevant to existing legal principles. The Honourable trial Court applied the law, and did not introduce any legal principles deviating from the relevant existing legal principles. The factual findings by the Honourable trial Court has no relevance to a ‘far reaching precedent.” Count 1 13. The Honourable Court made factual findings relevant to the purported questions of law, sought to be reserved by the State. 14, When the State addressed the Court for purposes of sentence, the State conceded that the Accused’s conduct ‘bordered” on dolus eventualis {and not that it constituted dolus eventualis). The State also relies on this approach in seeking leave to appeal against the sentence imposed on Count 1. 18. It is significant that the State, in referring to the factual findings in paragraph 5 of the State’s application to reserve “questions of law’, ignores and leaves out the most relevant factual findings by thePage6 Honourable Court, relevant to dolus eventualis. 16. We deal hereunder with those factual findings ignored by the State, which factual findings conclusively show that the Honourable trial Court correctly applied the law to the facts found by the Honourable trial Court. FACTUAL FINDINGS 17. The trial Court found “(The accused clearly wanted to use the firearm and the only way he could have used it was fo shoot at the perceived danger. The intention to shoot does not necessarily include the intention to kill." And further: “The starting point however, once more is whether the accused had the intention to kill the person behind the toilet door whom he mistook for an intruder. The accused had intention to shoot at the person in the toilet but states that he never intended to kill that person.”® And further: “the accused has not admitted that he had the intention to shoot and kill the deceased or any other person for that matter. On the 4 Record, page 3317, lines 17-20. 5 Record, page 3326, lines 8-12.Page 7 contrary, he stated that he had no intention to shoot and kill the deceased. The court is however entitled to look at the evidence as a whole and the circumstances of the case fo determine the presence or absence of intention at the time of the incident. In the present case, on his own version the accused suspected that an intruder had entered his house through the bathroom window. His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger. There is nothing in the evidence to suggest that this belief was not honestly entertained.” And further: “The question is: did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.’” (Emphasis supplied) 18. The “circumstances of this case’ is a reference to factual evidence found by the trial Court and not questions of law. It brings an end to the State’s application. Insofar as it may be necessary, reference is made to further insurmountable difficulties for the State in seeking to reserve questions © Record 3326 lines 17-25 and 3327 lines 1-3 7 Record, page 3326, lines 13-16.Page 8 of “law”. 19. The Honourable trial Court found: “How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time. To find otherwise would be tantamount to saying that the accused's reaction after he realised that he had shot the deceased was faked; that he was play acting merely to delude the onlookers at the time. Dr Stipp, an independent witness who was at the accused’s house minutes after the incident had occurred, stated that the accused looked genuinely distraught, as he prayed to God and as he pleaded with Him to help save the deceased. There was nothing to gainsay that observation and this court has not been given any reason to reject it and we accept it as true and reliable. It follows that the accused's erroneous belief that his life was in danger excludes dolus. The accused therefore cannot be found guilty of murder dolus eventualis. That, however, is not the end of the matter as culpable homicide is a competent verdict."® ® Record 3328, line 17 to Record 3329, line 9Page 9 (emphasis supplied) And further: ‘From the above it cannot be said that the accused did not entertain a genuine belief that there was an intruder in the toilet, who posed a threat to him. Therefore he could not be found guilty of murder dolus directus. The Court has already found that the accused cannot be guilty of murder dolus eventualis either, on the basis that from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else, for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted that possibility into the bargain.”® (emphasis supplied) 20. What is clear from the above factual findings, is that the Honourable trial Court found on the facts that the Accused: 20.1 20.2 20.3 did not fire the shots with the intention to kill the person behind the door, let alone the Deceased; did not foresee that either the Deceased or anyone else might be killed; did not accept “that possibility into the bargain’, i.e. the Accused ® Record 3347, line 22 to Record 3348, line 5=, Page 10 did not reconcile himself that the Deceased or anyone else could be killed. 21. The trial Court correctly applied the legal principles relevant to dolus eventualis, to and on the basis of the above factual findings, namely that in order to convict an accused of murder on account of dolus eventualis, the State must prove that the Accused: 21.1 subjectively foresaw the possibility of the death ensuing from his conduct; and 21.2 _ reconciled himself with that possibility. 22. The Honourable trial Court correctly applied the law to the facts, and found that the State did not prove an intention to kill and did not prove dolus eventualis beyond a reasonable doubt. 23. The factual finding by the Honourable trial Court that the Accused did not fire the shots with the intention to kill, in any event, with respect negates any possibility of a conviction on the basis of dolus eventualis. 24. It is respectfully submitted that the principles enunciated in our case law with regard to dolus eventualis are clear. The trial Court's exposition of the legal principles relevant to dolus eventualis in relation to the facts found by the trial Court, is in accordance with the case law. See in thisPage 11 regard S v Humphries;"° S v Tonkin;‘! S v Ngema’ and the matter between Katlego M Maarohanye and Themba Tshabalala and the State."? 25. What the State in reality does in the present application, is to attack the Honourable Court's factual findings. It is not within the purview of Section 319 to attack the Honourable trial Court’s factual findings. 26. In Magmoed v Janse van Rensburg and Others," the Court of Appeal in particular dealt with two questions to determine whether they were questions of “law’. The Court of Appeal found that both questions (questions 4 and 6) were questions of fact, against which there was no appeal. 27. Question 4 was considered by the Court of Appeal to determine if it was a question of law and found it to be a question of fact. Question 4 was as follows at 802 E-G: “Whether as a matter of law the trial Court was correct in concluding on the basis of its factual findings and the uncontroverted evidence summarised in annexure "C" hereto that no unlawful common purpose 19.2013 (2) SACR 1 (SCA) at para 12, 13, 15, 16 and 17 * 2014 (1) SACR 583 (SCA) at para 11 ‘%8 41992 (2) SACR 651 (N) at 655 D 8a Full Court decision of the Gauteng Local Division, Johannesburg, under case number ‘4378/2013 delivered on 8 October 2014 and in particular paras 11 to 18 14 1993 (1) SA 777 (AD)Page 12 on the part of any of the accused was established beyond reasonable doubt either (2) _ in the sense of an agreement prior to the vehicle leaving the Joint operational centre to carry out @ punitive and illegal expedition entailing acts of assault, culpable homicide or murder; or in the absence of any prior agreement (b) _ in the sense of acts of association by the accused present on the truck with the conduct of each other in perpetrating acts of assault, culpable homicide or murder.” 28. In regard to the above question, that is question 4, the Court of Appeal found at 808 A-B : 28.1 “But, in my opinion, a question of law is not raised by asking whether the evidence establishes one or more of the factual ingredients of a particular crime, where there is no doubt or dispute as to what those “ingredients” are.” (Emphasis supplied) Similarly, in this matter there was no dispute or doubt as to what the “ingredients” of dolus eventualis were in the contect of the factual findings by the Honourable trial Court.Page 13, And further at 809 F-G; ‘1 do not regard these cases as in any way detracting from what | have stated above in regard to the Judelman dictum. They are all clearly cases where the facts raise questions of law as to the validity and/or ambit of a particular defence to a criminal charge. hat, on the other hand, the establishment of a defence such as self-defence may raise a purely factual question and not a legal one is illustrated by the case of S v Coetzee G 1977 (4) SA 539 (A).” (Emphasis supplied) And further at 811 A-D in relation to common purpose: “Ihave no doubt that an inference drawn from proven facts that the accused had by agreement formed a common purpose Which embraced, say, the possibility of an unlawful killing is an inference of fact, and not one of law. It is a secondary fact. It is seldom in a case of murder that there is direct evidence of the perpetrator's actual state of mind. Consequently, whether the unlawful killing was accompanied by dolus in one of its forms on his part is normally a matter of inference from the primary facts. Clearly this_is an inference of fact and any question as to whether the trial Court correctly decided this issue is a question of fact. | can see no difference between this and the issue, also fo be determined by inference, as to whether a number ofPage 14 accused formed a common purpose which embraced both an unlawful killing and dolus in one of its forms, It is true that the legal consequences of a common purpose may be said to fall within the sphere of a rule of law, but in a case such as this the tule itself and its scope are not in issue. What is in issue is the factual_foundation for the application of the rule. That is a question _of fact. And, | might add, it was so regarded in Safatsa's case supra at 901D.” (Emphasis supplied) 29. Question 6 considered in Magmoed at 811 H was the following: “Whether any reasonable court could have found on the basis of the factual findings summarised in annexure "C" hereto and the uncontroverted evidence that none of the accused was guilty of the offence of culpable homicide or murder.” 30. The Court of Appeal refers with approval to R v Slabbert and Prinsloo 1945 (AD) 137 at 144 et seq, in which the following was said at 813 C: ‘A question as to whether a particular conclusion of fact can properly be drawn from a proved set of circumstances is one in the answering of which an utter ignorance of law is no disqualification. The question whether the proved facts justify the inference that the accused killed the deceased can be answered by a person who has reasoning powers but has never seen the inside of a law book. It is a question of logic and not of law.”Page 15 31. The Court of Appeal, in relation to question 6, found as follows at 818 G - i “I accordingly conclude that question 6 could not competently be raised by the appellant under s 319 of the Act and that the application for its reservation must be dismissed. And another Court seized of the case on the merits may well have concluded that these strong indications, taken in conjunction with the failure by the accused to enter the witness box, were cogent enough to secure the conviction of the respondents, or some of them. These considerations must not, however, be allowed to obscure one's perception of the legal and policy issues involved in permitting s 319 to be utilised in the manner the prosecution in this case wishes to use it; or to weaken one's resolve to maintain what appears to be sound legal practice.” (Emphasis supplied) 32. In S v Nzimande 2010 (2) SACR 517 (SCA), the following is stated in the headnote: “Held, that the question for decision had been whether, on the Proven facts, the State had established that the appellant had made the misrepresentations with the necessary intention. This required an inference to be drawn from the primary facts already found. Any inference so drawn was a secondary fact, not_a question of law. Thus, the State's complaint was not that the trialPage 16 court had committed an error of law, but that it had drawn an incorrect inference from the facts. Such an error - if indeed it was one - was one of fact, not of law, and as such did not confer upon the State a right to appeal against the acquittal of the appellant. Accordingly, the High Court had not had jurisdiction to entertain the appeal, which ought to have been struck from the rol” (Emphasis supplied) In the Nzimande case, the Supreme Court of Appeal found as follows in paragraphs 10-13: “On appeal to this court, counsel for the appellant assailed the reasoning of the High Court, submitting that the appeal, being an appeal on a question of fact, should not have been entertained by it. For the reasons that follow, | agree with that submission. In S v Petro Louise Enterprises (Pty) Lid and Others (a case referred to in the judgment of the High Court, but in a different context) it was argued by counsel for the State that the question, whether a given inference was the only reasonable inference to be drawn from certain facts, was a question of law - essentially the same argument that was addressed to the High Court in this instance. The State's argument was rejected by the court (per Botha J, Van Dyk AJ concurring) in the following passage: ‘am unable to accept counsel's widely-based and generalisedPage 17 proposition that in_all_cases the question whether a particular inference is the only reasonable possible inference to be drawn from a given set of facts is a question of law. To accede fo the proposition in such general terms would, | consider, open the door to the possibility of large numbers of appeals being brought under sec. 104 of istrates' Courts} Act 32 of 1944, contrary to the limited scope of that section which | conceive the Legislature contemplated. One example of those possibilities that were canvassed during the argument will suffice. Suppose that an accused is charged with an offence of which a specific intent is an element, @.g., assault with the intent to do grievous bodily harm. ‘On the evidence, the magistrate finds that such intent is not the only reasonable inference to be drawn from the facts, and consequently he convicts the accused of common assault. | cannot for one moment imagine that the Attorney-General will have a right of appeal upon the footing that an intent to do grievous bodily harm was the only reasonable inference to be drawn from the facts.’ In paragraph 12 the Court referred with approval to Magmoed v Janse van Rensburg. In paragraph 13 the Court found: “The principles so lucidly articulated in Petro Louise Enterprises and in Magmoed have subsequently received the express imprimatur of the Constitutional Court in S v Basson, and are- Page 18 dispositive of the present appeal. The question for decision in the present case was whether, on the facts found proven, the State had established that the appellant had made the misrepresentations with the necessary intention (dolus); in other words, to use the terminology of Corbett CJ. in Magmoed, the question was whether the evidence established one of the ‘ingredients’ of fraud where there was no dispute as to what those ingredients were. This required an inference to be drawn from the primary facts already found. Based on the passages quoted above, it is clear that the inference so drawn is a secondary fact; itis not a question of law. Thus, the true complaint of the State was not that the magistrate had committed any error of law, but that he had drawn_an incorrect inference from the facts. Judging from the evidence, as well as the judament of the High Court, this complaint may well be valid - an issue on which we do not have to make a finding. Suffice it to say that such error (if it was one) was one of fact, which did not confer upon the State the right to appeal against the acquittal of the appellant, It follows that the High Court had no jurisdiction to entertain the appeal, which fell to be struck off the roll.” (Emphasis supplied) 34. What is clear from the above is that it is not competent for a trial Court to reserve questions of fact, as if they were questions of law, and that it isPage 19 irrelevant whether or not another Court may disagree with the factual findings made by the trial Court. 35. In the present matter, there is no doubt or dispute as to what the “ingredients” of dolus eventualis are, as demonstrated above. The Honourable trial Court correctly applied the “ingredients” applicable to dolus eventualis to the facts in this case. (See Judgment, 3322, 3323, 3324, 3348 and 3349), 36. It is not contended by the State that the trial Court misunderstood or misconstrued the legal principles relevant to dolus eventualis on the facts found. In particular, the State cannot contend that the trial Court incorrectly applied the principles relevant to dolus eventualis, to the facts found by the trial Court. 37. The only permissible approach is that the State must, first of all, accept the factual findings by the trial Court. Only if the trial Court then incorrectly applied the relevant legal principles to the factual findings, may a reservation of a question of law be considered. 38. However, in this matter the factual findings are that the Accused: 38.1 did not intend to kill anyone, let alone the Deceased, when he fired the shots; 38.2 did not foresee that the shots would kill the Deceased;39. 41. 42. 43. Page 20 38.3 did not reconcile himself that the shots would kill the Deceased. It cannot be in dispute that dous eventualis could not find any application premised on the above factual findings. The State seems to contend that the Honourable trial Court ered in finding that dolus eventualis required foresight of a particular person's death, rather than foresight of and reconciliation with a person's death generally (paragraph 28 of the State’s application). The State is incorrect in its contention as it is not consistent with the trial Court's factual findings. The trial Court's factual finding was that the Accused intended to shoot. However, the trial Court did not find on the facts that the Accused intended to kill anyone, let alone the Deceased. Therefore, even if the State’s contention in regard to foresight of and reconciliation with a person's death generally were to be a legal question, the difficulty remains for the State as: 42.1 _ the contention is not consistent with the factual finding of the trial Court that it was not proved, on the facts, beyond a reasonable doubt that the Accused had an intention to kill and; 42.2 It is trite that to prove a charge of murder, in any of its forms, there must have been an intention to kill. The Honourable trial Court's factual finding that the State did not provePage 21 that the Accused had the intention to kill, does not fall within the purview of Section 319. 43.1 Even if the Honourable trial Court had found that the Accused had the intention to kill, the factual finding that he believed the deceased was in the bedroom, negates any possibility that he subjectively foresaw the death of the deceased. 43.2 Therefore, even if the trial Court had found an intention to kill, a finding of murder would have resulted in transferring his intention (malice) directed at “whoever was behind the door’ to the Deceased, notwithstanding the fact that he believed the Deceased was in the bedroom. The doctrine of transferred malice is not part of our law. 44. Therefore, with respect, the State, in reality, contends that the Honourable trial Court should have found that the Accused had intention to kill and that he had foreseen and reconciled himself with the death. This is an attack on the correctness of the factual findings made by the Honourable trial Court, and not a question of law. 45. The State's reliance on error in persona does not assist the State, as error in persona can only apply if the trial Court had found that the Accused had the intention to kill when he fired the shots. Insofar as it is relevant for present purposes in view of the factual findings, the literature on this topic justifies the deduction that error in persona or error in objecto couldPage 22 only find application in the case of dolus directus and not in the event of dolus eventualis. Error in persona applies only in the instance where the accused directed his intention to a particular identified person, but the accused is mistaken as to the identity of that person that he directed his intention to. The trial Court dismissed any possible dolus directus. 46. The Honourable trial Court, in any event, considered both aspects of mens rea for murder (the presence of a form of intention as well as knowledge of unlawfulness) and found that the State failed on both components. 47. The State is, in any event, wrong in its approach to the putative defence (insofar as this is relevant, in view of the factual findings of the trial Court) as the putative defence can eventuate either in being genuinely mistaken about an attack occurring, or by being genuinely mistaken that the response to the attack was proportional (non-lethal), which can include an intention to shoot, but not to kill. The putative defence would apply irrespective of any finding in respect of error in objecto/persona, since it was found in $ v De Blom'® that knowledge of unlawfulness was a requirement for mens rea. 48, Therefore, even if the questions were questions of law (insofar as the factual findings can be ignored) the outcome of the questions of law would not affect the result of the case. Accordingly, the Court's discretion *8 197 (8) SA 513 (A)49. 51 52. Page 23 should, in any event, be exercised against the State (see Magmoed supra). The State's contention that “the questions should be posed if the court correctly applied the legal principles pertaining to circumstantial evidence” makes no sense in view of the Honourable trial Court's factual findings. It appears that the State’s contention in this regard is that the Honourable trial Court should have found, on the circumstantial evidence, that the Accused was guilty of murder.1” The Honourable trial Court's exposition of the law relevant to circumstantial evidence (Record 3322 lines 3-7), accords with the legal principles and case law relevant thereto (see for instance R v Blom’). The above, again, exposes the application to be an attack on the Honourable trial Court's factual and credibility findings, which has no relevance to questions of law in terms of Section 319. It is respectfully submitted that in the present matter it is not necessary to enter the debate whether the finding in S v Seekoei"® is still valid, in 8 Paragraph 11 of the State's application Paragraph 9 and 10 of the State's application *8 1939 AD 188 *8 4982 (3) SA97 APage 24 view of the judgment in S v Basson”. 53. In Seekoei, the Court held that a point of law could only be reserved in cases where there was a complete acquittal and not in cases where the accused was convicted on a competent verdict. In the present matter, the Accused was convicted on a competent verdict (culpable homicide). 54. In Basson, the question was whether the Stale could reserve a question of law on the basis that the trial Court should not have upheld an objection against the indictment, as the Accused was not acquitted. The Constitutional Court found that the finding of law against the indictment was a point of law, as is envisaged in Section 319. Section 319 was subsequently amended by inserting Section 319(2), to provide that the grounds upon which any objection to an indictment is taken shall, for the purposes of Section 319, be deemed to be questions of law (this was probably as a result of the Constitutional Court's finding in S v Basson). Section 319 was not amended to permit an appeal by the State on a question of law, where the Accused was not acquitted, but convicted on a competent verdict. COUNT 4 55. The State seeks to reserve a question of law on the basis that the Honourable Court “did not address what form of fault” 2 2007 (1) SACR 866 (CC)~ Page 25 (intention/negligence), if any, is required for liability under Section 90 of the Act. 56. The State is incorrect. The interpretation of possession has nothing to do with ‘intention/negligence’. 57. The State elaborates on the above seeking to reserve a question of law as to ‘what form of fault is required for liability under Section 90 of the Act, if any, and if the Court correctly found that possession and/or holding of ammunition for and/or on behalf of someone else or which belongs to someone else, does not contravene Section 90 of the Act’. 58. The State in paragraph 33 rephrased the question it seeks to be reserved, namely “(A) question should be reserved to establish whether the Stato must prove possession of the ammunition for the purpose or just unlawful possession where the accused had no licence, permit or firearm for the ammunition”. 59. It appears, with respect, that the State seeks to reserve a question of law on the basis that the trial Court, in its judgment, failed to address the issue as to what form or fault was required, if any. 60. The contention by the State in the above regard is incorrect. The Honourable trial Court dealt with Count 4 at pages 3344 to 3346 of the judgment and correctly found that “possession means there must be a physical detention and an intention to possess at the same time. In61. 62. 63. 64. Page 26 other words there must be, in addition to detention, animus” (Record 3344, lines 17-19). The Court's finding, as referred to above, is correct and in accordance with the principles dealt with in S v Qwanda 2013 (1) SACR 137 (SCA). The Honourable trial Court referred to the Qwanda decision in its judgment. The Honourable trial Court correctly found that the State must prove ‘that the accused had the necessary mental intention (animus) to possess a firearm, or ammunition before there can be (a) conviction”. (Record 3346, lines 17-19). The Honourable Court also correctly found “(T)he fact that there is no corroboration for the accused’s version, does not assist at all, Accordingly, what the State needed to do, was to introduce evidence to the contrary. It did not do so. The accused's version therefore remains uncontroverted. The State has failed to prove that the accused had the necessary animus to possess the ammunition. He therefore cannot be found guilty on this count.” (Judgment, 3346, lines 7-12) It Is respectfully submitted that the Honourable trial Court made a finding on the facts and correctly applied the law to the facts found. The State does not contend that the Honourable Court's factual finding is wrong.Page 27 66. There is no question of law to be reserved as the Stale purports to do herein, as there could be no dispute that possession (for purposes of Possessing ammunition) consists of the detentio element and the animus element. The law is clear in this regard and the Court's factual finding relevant thereto was correct and is not disputed by the State. 67. The trial Court's finding in law was in accordance with our case law. The State also does not contend that the cases referred to by the trial Court, were wrongly decided. CONCLUSION 68. The correct approach to this matter is to refuse to reserve the purported questions of law and to strike the matter from the roll. 69. The present application is not an appeal and accordingly it is not whether another Court may reasonably come to a different finding, but whether or not the questions are questions of law. Itis either a question of law, or it is not. 70. Therefore, with respect, the Honourable trial Court may not approach the matter on the basis that another Court may reasonably find the questions are questions of law. It is not an appeal but a specific statutory procedure to reserve questions of law, only if they are questions of law. 71. If the trial Court finds that the questions are not questions of law, as isPage 28 envisaged in Section 319, the application must be refused and the matter struck. The State may then make an application/petition to the Supreme Court of Appeal to grant leave to consider whether or not the questions are questions of law, which could be reserved in terms of Section 319. tn such event the Supreme Court of Appeal will only allow the reservation of questions of law, if they are questions of law and only if there is a reasonable prospect that the Accused would have been Convicted, had that mistake of law not been made (S v Basson (supra) at par 10 and 11, as translated in the summary at 378i — 379). B ROUX SC Village Chambers Sandown Village Sandton 12 November 2014 RAMSAY WEBBER INC Attorneys for the Respondent 269 Oxford Road Move Johannesburg