A man who pointed “a gun” at a woman is starting 2025 on a clean slate after the Pietermaritzburg High Court overturned his six-month suspended jail sentence as the “black gun” he had in his hands was, in fact, a toy gun.
Gaba Octavia Jojo last year stood trial in the Kokstad magistrate’s court after he was charged with contravening the Firearms Control Act. It was alleged that he had unlawfully and intentionally pointed a firearm, an antique firearm, or an air gun, and, more specifically, a “black gun,” at a woman.
He pleaded guilty when the charge was put to him, but after questioning by the magistrate before whom he appeared, the plea was changed to not guilty. This was as he stated that he possessed a toy firearm.
The State only called one witness - the alleged victim - Bulelwa Mazomba. She testified that Jojo had pointed a firearm at her. She was questioned by Jojo, who conducted his own defence, and who put it to her that he only possessed a toy firearm.
While she did not dispute that it could have been a toy, Mazomba said he never told her so when he pointed the “black firearm” at her, and she believed that it was real.
Jojo maintained throughout his trial that it was a toy, and he said when he was arrested, the police looked inside his backpack, where they found the toy, but they assumed that it was a real firearm.
The lower court subsequently convicted him and sentenced him to six months' imprisonment, which was wholly suspended for three years on certain conditions.
The sentence imposed upon Jojo rendered the matter subject to automatic review before the high court.
Judge Mossop noted that Jojo was charged with contravening certain sections of the Firearms Act, which among others, states that it is an offence to cause bodily injury to any person or cause damage to property of any person by negligently using a firearm, an antique firearm or an airgun.
The judge said a firearm is very specifically defined by the Act to mean a device manufactured or designed to propel a bullet or projectile through a barrel and which can cause harm.
Mazomba made no mention in her evidence of sustaining any bodily injury or of any damage to property being occasioned by Jojo. But perhaps more importantly, the State did not provide evidence to establish that Jojo possessed a firearm as defined in the Act. A toy firearm does not fall within the definition of “firearm” mentioned in the Act.
Judge Mossop added that by rights, Jojo should not have been put to his defence and should have been discharged at the end of the State case. This is because the State did not establish that he possessed a firearm.
“Significantly, he was not charged with unlawfully possessing a firearm. He maintained throughout the trial that it was a toy firearm,” the judge said.
He pointed out that the State bears the onus of proving the guilt of the accused beyond reasonable doubt. “It was obvious from the outset that Mr Jojo’s version was that he possessed a toy gun. No attempt was made to prove that it was, to the contrary, a firearm as contemplated by the Act.”
Judge Mossop concluded that in his view, the guilt of Jojo was not established, and he ought to have been acquitted at the closure of the State’s case.
Pretoria News