About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2016
>>
[2016] ZAWCHC 26
|
|
Delport v S (A580/15) [2016] ZAWCHC 26; [2016] 2 All SA 504 (WCC); 2016 (2) SACR 281 (WCC) (15 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case no.A
580/15
In the
matter between:
WARREN
DELPORT
Appellant
and
THE
STATE
Respondent
JUDGMENT
DATED 15 MARCH 2016
BINNS-WARD J (KLOPPER AJ concurring):
[1]
The appellant has come on appeal against
the sentences imposed on him in respect of his conviction in the
regional magistrates’
court at Parow on two counts of
contravening the
Firearms Control Act 60 of 2000
. He was found
guilty of (i) having been in possession of a ‘prohibited
firearm’ (i.e. a fully automatic
firearm) in contravention of
s 4(1)(a)
of the Act and (ii) being in possession of 34
rounds of ammunition without a licence or authority, as required in
terms of
s 90
of the Act. He had pleaded not guilty to
both charges. A sentence of 15 years’ imprisonment was
imposed in respect
of the count involving possession of the
prohibited firearm, and three years’ imprisonment for that
involving the possession
of the ammunition. The terms of
imprisonment were ordered to run concurrently. Leave to appeal
was granted on petition
by the appellant to the High Court.
[2]
The sentencing regime for firearms-related
offences has been the subject of no little controversy and discordant
judicial interpretation
by the courts during the last decade or so.
The minimum sentence regime created in terms of the
Criminal Law
Amendment Act 105 of 1997
prescribes a minimum sentence of 15 years’
imprisonment upon a first conviction for any offence relating to the
possession
of an automatic or semi-automatic firearm, explosives or
armament. A sentencing court is obliged to comply with the
prescribed
minimum sentence regime unless it is satisfied that
substantial and compelling circumstances exist which justify the
imposition
of a lesser sentence than the sentence prescribed in
subsections 51(1) and (2) of the Act; see
s 51(3).
[3]
The now repealed Arms and Ammunition Act 75
of 1969, which was in force when the
Criminal Law Amendment Act was
enacted, made no distinction in respect of the type of arm concerned
when it penalised possession of an arm or ammunition without
a
licence. The position is different in terms of the
Firearms
Control Act, which
replaced Act 75 of 1969. The possession of a
firearm, including a semi-automatic firearm, without a licence is a
contravention
of s 3 of the Act, and that of a ‘fully
automatic firearm’ a contravention of s 4(1)(a). The
Firearms Control Act also
contains definitions for the terms
‘semi-automatic’ and ‘fully automatic’.
[1]
‘[S]
emi-automatic
’
is defined to mean ‘self-loading but not capable of discharging
more than one shot with a single depression of the
trigger’ and
the definition of ‘
fully
automatic
’ is ‘capable of
discharging more than one shot with a single depression of the
trigger’.
[4]
The
Criminal Law Amendment Act on
the other hand draws no distinction
between the unlawful possession of an automatic and a semi-automatic
firearm, or indeed between
a semi-automatic firearm and certain other
types of firearm such as a heavy calibre revolver or pump action
shotgun that - although
they do not qualify as ‘semi-automatic’
- can be fired repeatedly without having to be reloaded and are more
powerful
weapons than small calibre semi-automatic pistols.
That was considered to give rise potentially to unwholesome and
arbitrary
consequences and inspired the trenchant criticism of the
haphazard effect of the prescribed sentencing regime for this
category
of offence expressed in
S v
Sukwazi
2002 (1) SACR 619
(N). In
Sukwazi
,
the State’s contention that the minimum sentencing provisions
applied in respect of firearms offences in terms of the Arms
and
Ammunition Act was rejected on the grounds that it would result in
absurdity.
[2]
[5]
The conclusion in
Sukwazi
that the offence of unlawfully possessing a semi-automatic firearm
was not subject to the minimum sentence legislation was subsequently
endorsed in a number of other High Court judgments; see e.g.
S
v Mooleele
2003 (2) SACR 255
(T),
S
v Radebe
2006 (2) SACR 604
(O) and
S
v Manana
2007 (1) SACR 62
(T). It
was, however, disapproved in the appeal court’s judgment in
S
v Thembalethu
[2008] ZASCA 9
,
2009 (1)
SACR 50
(SCA),
[2008] 3 All SA 417.
Notwithstanding that
disapproval,
Sukwazi
was nevertheless very recently cited with apparent approbation by the
appeal court in
Asmal v S
[2015]
ZASCA 122
(17 September 2015), at para 6, despite the court’s
acceptance in the latter case that the unlawful possession of an
automatic
firearm was subject to the minimum sentence regime.
[6]
In
Thembalethu,
a sentence of 15 years’
imprisonment imposed for the possession of a semi-automatic firearm
in contravention of the Arms and
Ammunition Act was confirmed,
although 11 years of the sentence was directed to be served
concurrently with the sentences imposed
in respect of the other
offences of which the appellant in that case had been convicted.
[7]
In
Asmal
,
the Supreme Court of Appeal had granted the appellant, who had been
convicted of culpable homicide, kidnapping and the unlawful
possession of a fully automatic firearm
[3]
,
special leave to appeal only against the sentence of 15 years’
imprisonment imposed on the firearms offence.
Leave was granted
on strictly limited grounds; viz. ‘(i) Whether the
sentence imposed for conviction of the firearm
charge [15 years’
imprisonment] is shockingly harsh; (ii) Whether the court ought
to have considered ordering the sentence
on the firearm conviction to
run concurrently with the sentences on the two other counts.’
The appeal court set aside
the prescribed minimum sentence that had
been confirmed by a full court of the KwaZulu-Natal Division and
replaced it with a sentence
of eight years’ imprisonment, which
was directed to run concurrently with the equivalent sentence that
had been imposed in
respect of the culpable homicide conviction.
The appeal court had regard to the following features of the case in
deciding
that there were substantial and compelling circumstances
that justified a departure from the prescribed minimum sentence: that
the weapon had not been shown to have been used in the commission of
any other offences, that it was unloaded when it was found
and there
had been no ammunition for it found in the appellant’s house,
and that for relevant purposes the appellant had
been a first
offender.
[8]
The judgment in
Asmal
did not contain any reference to the court’s earlier judgment
in
Thembalethu
.
There was also no reference in
Asmal
to the High Court judgments given subsequent to that in
Thembalethu
,
to which reference will be made presently, in which it had been held
- distinguishing
Thembalethu
,
which it will be recalled concerned sentencing in respect of
convictions under the Arms and Ammunition Act - that the minimum
sentence regime in terms of the
Criminal Law Amendment Act did
not
apply in respect of convictions in respect of the possession of
semi-automatic and fully automatic firearms under the
Firearms
Control Act. It
seems unlikely therefore that those judgments
were referred to in argument in
Asmal
.
The reasoning in
Thembalethu
had been that the
Criminal Law Amendment Act did
not create new
categories of offence; it merely afforded a system of enhanced
penalties for ‘specific forms of existing offences’.
[4]
[9]
The maximum penalty prescribed for the
offence of unlawful possession of a firearm in terms of the Arms and
Ammunition Act was three
years’ imprisonment for a first
offender and five years’ imprisonment for repeat offenders.
That was overridden
by the provision in s 51(2) of the 1997
Criminal Law Amendment Act that
the minimum sentence regime
prescribed therein was to apply ‘
notwithstanding
any other law
’.
[10]
The
Firearms Control Act came
into operation on 1 July 2004.
Section 2
thereof records the purpose of the Act as being to:
(a)
enhance the constitutional
rights to life and bodily integrity;
(b)
prevent the proliferation of illegally possessed firearms and, by
providing for the removal of those firearms from society and by
improving control over legally possessed firearms, to prevent crime
involving the use of firearms;
(c)
enable the State to remove illegally possessed firearms from society,
to control the supply, possession, safe storage, transfer and use of
firearms and to detect and punish the negligent or criminal
use of
firearms;
(d)
establish a comprehensive and effective system of firearm control
and
management; and
(e)
ensure the efficient monitoring and enforcement of legislation
pertaining
to the control of firearms
[11]
Section 4 of the Act provides, subject to a
number of stipulated exceptions, for an absolute prohibition on the
possession and licensing
of fully automatic firearms. The
exceptions are licensed possession in a private collection of any
firearm approved for collection
by an accredited collector's
association,[
[5]
]
based upon such historical, technological, scientific, educational,
cultural, commemorative, investment, rarity, thematic or artistic
value determined by the association (s 17); or in a public
collection (s 19);
[6]
and possession by a person who is accredited to provide firearms for
use in theatrical, film or television productions, and then
only with
the written permission of the Registrar of Firearms on such
conditions as he might impose (s 20). Even in
the
exceptional cases in which the possession of prohibited firearms may
be authorised in terms of the Act, ammunition for the
weapons may be
possessed only if the propellant, high explosive and primer of the
projectiles, or cartridges have been removed
or deactivated (s 18(5)
and s 19(2)(b)). Prohibited firearms lawfully held in a private
collection have to be modified
in order to ensure that no cartridge
can be loaded into or discharged from them (s 17(3A)).
[12]
The licensed possession of semi-automatic
firearms is also restricted to the purposes specially stipulated in
chapter 6 of the Act,
and on the conditions set out in the pertinent
licensing provisions.
[7]
An applicant for a licence to possess a semi-automatic firearm for
self-defence purposes, for example, is required to
show that a
firearm that is not semi-automatic will not provide sufficient
protection, and to submit reasonable information to motivate
the need
to possess what in that context is called a ‘restricted
firearm’.
[8]
[13]
It may be inferred from the provisions of
s 4(3)(a)
of the
Firearms Control Act,
[9
]
which permits the Minister to declare firearms other than those
specified in subsection (1) also to be ‘prohibited firearms’
that the considerations that informed the legislature’s
categorisation of certain firearms as ‘prohibited firearms’
were the interests of public safety and the maintenance of law and
order. It is plain that the legislature regards the unlicensed
possession of ‘prohibited firearms’ as a significantly
more serious evil than that of the unlicensed possession of
semi-automatic firearms, notwithstanding that no distinction is made
between the categories in the 1997
Criminal Law Amendment Act.
That
much is confirmed by the penalty provisions in the
Firearms
Control Act. Unlawful
possession of a firearm (including a
semi-automatic firearm) attracts a prison sentence of up to 15 years’
imprisonment,
whilst the penalty for unlawful possession of a
‘prohibited firearm’ is imprisonment for up to 25 years.
[14]
The introduction, with effect from 2004, of
a scheme that provided for a
maximum
sentence of 15 years’ imprisonment for the unlawful possession
of a semi-automatic firearm as distinct from the prescribed
minimum
of 15 years in terms of the 1997
Criminal Law Amendment Act, with
prescribed minimum sentences of 20 years and 25 years, respectively,
for second and third-time offenders, gave rise to an argument
that
the minimum sentence provisions in respect of the offences had been
impliedly repealed. A two-judge bench of this Division
(Donen
AJ, Davis J concurring) upheld that argument in
S
v Baartman
2011 (2) SACR 79
(WCC). The
judgment in
Baartman
was, however, not uniformly followed in this Division.
[10]
Thus, in
S v Rossouw
2014 (1) SACR 390
(WCC), to which we referred by the appellant’s
counsel, Schippers J (Davis J concurring) sharply criticised the
prosecution
for not having incorporated reference to the minimum
sentence legislation in the charge sheet. The import of the
judgment
in
Rossouw
was in direct contradiction of that in
Baartman
.
The contradiction appears to have been unwitting, for it happened
without any reference to the latter judgment which, of
course, would
have been binding on the court unless it felt able to hold that
Baartman
was clearly wrong. The South Gauteng Division (per Spilg J)
followed
Baartman
in
S v Motloung
2015 (1) SACR 310 (GJ).
[11]
[15]
In
S v
Madikane
2011 (2) SACR 11
(ECG), the
Eastern Cape High Court also had difficulty in reconciling the penal
provisions in the
Firearms Control Act with
the sentences prescribed
in terms of the
Criminal Law Amendment Act. Plasket
J
(Pickering J concurring) considered that the incongruity between the
penalty provisions in the
Firearms Control Act and
the prescribed
minimum sentence regime under the
Criminal Law Amendment Act had
created ‘a bifurcated sentencing regime’ and remarked
that ‘[t]he arbitrariness of this arrangement is clear’.
[12]
Obviously influenced by the effect of the appeal court’s
judgment in
Thembalethu
,
the court stopped short of following
Sukwazi
despite its evident rapport with the reasoning in the latter
judgment.
[16]
A full court of this Division (Rogers J,
Desai and Baartman JJ concurring) subsequently disapproved the
judgment in
Baartman
;
see
Swartz
v S
[2014]
ZAWCHC 113
(4 August 2014). The judgment in
Swartz
,
somewhat surprisingly, has not yet been reported in the law reports.
It escaped notice by counsel on both sides in the current
matter, and
came to my attention only because my colleague Klopper AJ happened to
be aware of it.
[17]
In
Swartz
,
Rogers J reconciled the conflict between the
maximum
sentence of 15 years for unlawful possession of firearms, including
semi-automatic firearms in the Firearms Control Act with the
prescribed
minimum
sentences of 20 and 25 years, respectively, for persons with one, or
two or more, previous convictions for possession of semi-automatic
firearms in terms of the
Criminal Law Amendment Act. He
did so
primarily on the basis that when
s 51
of Act 105 of 1997 was
substituted, in terms of the
s 1
of the
Criminal Law
(Sentencing) Amendment Act 38 of 2007
, the legislature’s fresh
employment in the substituted provision of the phrase
‘
notwithstanding any other law
’
served as clear confirmation that the special minimum sentence
provisions were intended to trump the general penalty provisions
in
the
Firearms Control Act. I
am in respectful agreement with the
conclusion reached in that respect by the full court in
Swartz
.
The judgment is in any event binding on this two-judge bench.
[18]
It might be useful to add to the reasoning
in
Swartz
by observing that when the
Firearms Control Act was
enacted,
[13]
the prescribed minimum sentence regime in terms of the
Criminal Law
Amendment Act was
treated by the legislation as a temporary measure
that was subject to periodic renewal. That might explain the
inconsonance
between the penalty provisions in the respective
statutes when the
Firearms Control Act was
adopted, because the
legislature at that time presumably would have expected the penalty
provisions of that Act eventually to stand
alone when the ‘enhancing’
effect of the minimum sentencing regime in terms of the
Criminal Law
Amendment Act fell
away. The position was subsequently altered
when the minimum sentences were placed permanently on the statute
book.
That happened when
s 53
of the
Criminal Law
Amendment Act was
deleted, also in terms of the
Criminal Law
(Sentencing) Amendment Act 38 of 2007
.
[14]
Whatever the legislature’s actual intention (for one cannot
avoid suspecting that there was actually a lack of astuteness
to the
potential for conflict between the two pieces of legislation), there
can be no doubting, as may be deduced from the jurisprudential
history just related, that it should perhaps have made the position
clearer. Indeed, it might still usefully revisit the
legislation to that end in the context of the currently discordant
state of the jurisprudence on the issue by virtue of the
countervailing
judgment in
Motlaung
supra.
[19]
Having arrived at the point where it is
clear that the minimum sentence legislation does apply, I shall
proceed presently with a
more detailed consideration of the relevant
jurisprudence in respect of its application in possession of firearms
cases. It
is convenient first to summarise the particular facts
upon which the appellant’s convictions were founded and his
personal
circumstances.
[20]
He was found in possession of the weapon
when the car in which he was travelling as a passenger was stopped by
the police.
The police officers concerned had been on patrol on
the night in question looking out for a stolen vehicle when they
noticed the
car in which the appellant was being conveyed. It
attracted their attention because it was of the same make and
appearance
as the car they were looking for. A check on the
vehicle’s number plate indicated that the registration number
pertained
to a vehicle of a different make. The police
therefore pulled the vehicle over. There were two occupants;
the driver,
and the appellant who was on the rear seat. When
the policeman opened the back door of the vehicle he noticed the
appellant
move something from his lap as he stepped out of car.
It was discovered that the object that the appellant had moved was an
R4 fully automatic rifle, which was fitted with a magazine containing
34 rounds of live ammunition. A red bag, apparently
used to
carry the weapon, was also found. The rifle’s serial
number had been erased.
[21]
It was ascertained that the vehicle in
which the appellant was being conveyed had been stolen a few days
earlier from a parking
bay in the town centre of Bellville. The
number plates had obviously been changed. The vehicle was
intercepted in Elsies
River, which any judicial officer in the Cape
Peninsula is entitled to take notice is an area plagued by
gangsterism and violent
crime.
[22]
The appellant’s explanation that the
car had been sent by a friend to give him a lift home and that he had
chanced on the
firearm when he felt something under his feet when he
climbed into the vehicle and checked to see what it was was
rejected.
The appellant and the driver of the vehicle (who were
co-accused at the trial) were notably coy in their evidence about
giving
any particulars that might have assisted in identifying the
whereabouts of the person who had allegedly provided the car.
[23]
The appellant had two recent previous
convictions for possession of drugs in respect of which small fines
had been imposed.
Otherwise he had a clean record. He was
thirty years old at the time of his conviction and had been held in
custody for more
than nine months when his sentences were imposed.
He is not married and does not have any dependents. He was
unemployed,
and it would appear that he had only ever worked by doing
odd jobs from time to time.
[24]
The trial court found that there were no
substantial and compelling circumstances to justify a departure from
the prescribed minimum
sentence.
[25]
As mentioned, in
Asmal
,
the appeal court found that the appellant’s personal
circumstances, the fact that the fully automatic weapon had not been
used in the commission of any offence and that it had been discovered
in the appellant’s possession quite fortuitously when
his house
was searched after he had been arrested on other charges constituted
substantial and compelling circumstances to depart
from the
prescribed minimum sentence. The only bases for materially
distinguishing the circumstances in
Asmal
from the current matter are that the
weapon was found in the appellant’s direct possession in the
peculiar factual context
described earlier and that it was heavily
loaded. As the court in
Asmal
stated that it had found ‘fortification’ for its
conclusion that there was adequate reason to depart from the
prescribed
minimum sentence in the approaches adopted in the
judgments in
Sukwazi
supra,
Manana
supra,
Madikane
supra, and
S v Dube
2012 (2) SACR 579
(ECG) a consideration of those cases is indicated.
[26]
As already described, the court in
Sukwazi
held that the unlawful possession of a
semi-automatic firearm was not subject to the prescribed minimum
sentence regime. It
seems to me that the relevance of the
judgment in
Sukwazi
is
that the reasoning highlights the scope for a gradation of gravity in
the commission of the offence. That is of particular
significance when considering the principle of proportionality in the
context of prescribed minimum sentences.
[15]
[27]
The firearm in
Madikane
was a 9mm semi-automatic Norinco pistol. The facts disclosed in
the appellant’s plea explanation when he pleaded guilty
were
sparse: He ‘admitted obtaining the firearm “from other
boys in the area” and stated that he was “keeping
it”.
He had gone to certain premises … not described in any way,
and for a purpose not mentioned by him, when the
police arrived to
search the premises. He was also searched and the firearm was found
in his possession’.
[16]
The court was not persuaded that the personal circumstances of the
appellant in that matter constituted substantial and compelling
reasons to depart from the prescribed minimum sentence. He was
32 years of age, not permanently employed but worked occasionally as
a casual worker, lived with his aunt and depended on her for
financial support, and had three previous convictions for
housebreaking with intent to steal and theft as well as two other
previous
convictions considered to have no relevance. The court
was nevertheless mindful that the minimum sentence regime did not
override the requirement that sentences must be proportionate in the
circumstances. With reference to
S v Malgas
2001 (1)
SACR 469
(SCA)
(2001 (2) SA 1222
;
[2001] 3 All SA 220
, at para 21-22,
various passages in
S v Dodo
2001 SACR 594
(CC), and the
statement by Nugent JA in
S v Vilakazi
,
[17]
at para 18, that –
It is plain from the determinative test laid down by
Malgas
, consistent with what was said throughout the judgment,
and consistent with what was said by the Constitutional Court in
Dodo
, that a prescribed sentence cannot be assumed a priori to
be proportionate in a particular case. It cannot even be assumed a
priori
that the sentence is constitutionally permitted. Whether the
prescribed sentence is indeed proportionate, and thus capable of
being
imposed, is a matter to be determined upon a consideration of
the circumstances of the particular case. It ought to be apparent
that when the matter is approached in that way it might turn out that
the prescribed sentence is seldom imposed in cases that fall
within
the specified category. If that occurs it will be because the
prescribed sentence is seldom proportionate to the offence.
For the
essence of
Malgas
and of
Dodo
is that disproportionate
sentences are not to be imposed and that courts are not vehicles for
injustice.,
the
court held that quite apart from the accused’s personal
circumstances, sentencing in a prescribed minimum sentence context
enjoined a second consideration, namely whether the minimum sentence
was ‘proportionate to the offence when all relevant
factors are
taken into account’.
[18]
In its assessment of what might be proportionate the court had regard
to a number of reported judgments in cases in which
the possession of
semi-automatic firearms had been involved, and having noted that in
most of them the sentences imposed
‘tended to be in the
region of two years’ concluded that ‘[e]ven if allowance
is made for the imposition of more
severe sentences for the offence
of unlawful possession of a firearm that is automatic or
semi-automatic, as a result of the application
of the
Criminal Law
Amendment Act, it
seems … that a sentence of 15 years’
imprisonment is unlikely to be proportional to the crime, the
criminal and the
legitimate needs of society, in all but the most
serious of cases’. It bears noting that all but one of
the reported
judgments to which regard was had in
Madikane
concerned convictions under the Arms and Ammunitions Act, in which,
as mentioned, the prescribed maximum penalties were much lower
than
those introduced in the replacement legislation. Moreover, many
of them were from a time in our history when the extent
of criminal
activity involving the use of unlawfully possessed firearms was not
as pronounced as it has become in more recent years.
[28]
In
S v Dube
,
the court distinguished the circumstances of the case in
Madikane
and dismissed an appeal against the imposition of the minimum
sentence of 15 years’ imprisonment for possession of a
semi-automatic
firearm and six live rounds of 9mm ammunition.
An effective 23-year sentence imposed by the trial court was reduced
to 20
years by altering the concurrence of the sentences imposed on
the appellant for robbery and discharging the firearm (the appellant
had fired shots into the roof of a walk-in safe after he had found
himself locked in it during the course of the commission of
an armed
robbery).
[29]
The appeal court’s reliance in
Asmal
on the judgment in
Manana
is, with respect, impossible to reconcile with that court’s
judgment in
Thembalethu
.
In
Manana
,
which concerned a conviction for unlawful possession of a firearm in
terms of the Arms and Ammunition Act, Els J (Makhafola AJ
concurring)
followed the interpretation of the legislation expounded in
Sukwazi
and reconsidered the sentence imposed
by the trial court on the basis (i) that the minimum sentence
legislation was not applicable,
and (ii) that the maximum
permissible sentence was one of three years’ imprisonment.
It was in that context that
the court in
Manana
substituted the prescribed minimum
sentence of 15 years’ imprisonment imposed in terms of the
Criminal Law Amendment Act with
the maximum sentence of three years’
imprisonment permitted in terms of the Arms and Ammunitions Act.
The approach
adopted in
Manana
was disapproved in
Thembalethu
.
[30]
In the circumstances I have been unable to
find much by way of meaningful guidance in the earlier jurisprudence
cited in
Asmal
.
The authorities referred to concerned two cases that were factually
quite distinguishable and two others that had been overridden
by
extant appeal court authority not mentioned in
Asmal
.
A comparison of the facts and sentences in
Swartz
is more on point in my view.
[31]
The appellant in
Swartz
had been convicted on two counts of the unlawful possession of a
semi-automatic firearm and two counts of the unlawful possession
of
ammunition.
[19]
The offences were committed in 2009 and 2012, respectively. In
respect of the first incident the accepted evidence
was that the
appellant had been pushing a trolley of garbage to a rubbish heap.
Two young men ran past him. One of
them threw something
onto the rubbish heap. The appellant saw that it was a
semi-automatic firearm. He wrapped it up
and placed it in his
trolley. On his way home he was stopped by the police, who
found the firearm and six live cartridges.
In the 2012
offences, some patrolling policemen had intercepted the appellant
after noticing him throw something over a wall in
suspicious
circumstances. They found that it was a cocked semi-automatic
pistol with eight rounds of ammunition. (The
appellant’s
version, which the trial court had rejected, was that he had been in
the company of four other people, that he
had not been in possession
of a firearm or thrown anything over the fence, and that he had not
seen anyone else do so.) The
appeal was against sentence only.
He had been sentenced to 15 years’ imprisonment on each of the
counts of possession
of a firearm and to three years’
imprisonment on each of the counts of possession of ammunition.
[20]
The magistrate had ordered that 10 years of the sentence
imposed on one of the counts of possession of a firearm and two
years
of the sentence imposed in respect of one of the counts of possession
of ammunition should run concurrently with the sentence
imposed in
respect of the other count of possession of a firearm. The
result had been an effective sentence of 24 years’
imprisonment.
[32]
The appellant in
Swartz
had three previous convictions (1989, 1991 and 1992) for possession
of a dangerous weapon in contravention of s 2(a) of the Possession
of
Dangerous Weapons Act 71 of 1968.
[21]
On the third occasion (1992), the appellant had been sentenced to six
months’ imprisonment. He had convicted
of possession of
an unlicensed firearm in violation of s 2 of the Arms and Ammunition
Act in 2001 and sentenced to two years’
imprisonment. During
1995 he had been convicted on two counts of theft and one count of
assault. In 2007 he was again
convicted of theft, for which he
received a suspended sentence of R900 or 90 days’ imprisonment.
Later in 2007 he acknowledged
guilt on a charge of assault and
paid a fine of R150. He had been treated by the trial court for
the purposes of sentencing
as a first offender for the purposes of
the minimum sentencing regime. Nothing about his personal
circumstances justified
a deviation from the prescribed minimum
sentence.
[33]
In considering the sentences imposed by the
trial court, Rogers J referred to the judgment in
Madikane
supra, and noted, against what had been said there, the confirmation
of 15-year minimum sentences in
Thembalethu
and
S v
Khoza
and
Others
2010 (2) SACR 207
(SCA) (see
also
S v Maseola
2010 (2) SACR 311
(SCA)). The judge proceeded in paras. 39 and
41-42, to give a reasoned summary of the currently pertinent general
considerations
in respect of sentencing in these cases:
[39] ….Even for a first
offender, s 51(2)(a) requires a sentence of 15 years’
imprisonment for unlawful possession
of a semi-automatic firearm. The
inclusion of this offence in Part II of Schedule 2 reflects the
lawmaker’s determination
to tackle, by way of severe sentences,
a particular scourge in our society (gun crime). The magistrate
treated the appellant as
a first offender for purposes of s 51(2)(a),
presumably in the absence of any evidence that his 2001 conviction
involved possession
of a semi-automatic weapon. Nevertheless, the
appellant was not, when it came to the assessment of substantial and
compelling circumstances,
entitled to be treated as a man without
relevant prior convictions.
[41] Unlicensed possession of
semi-automatic firearms is a very serious matter. Violent crime
involving the use of such weapons
has not diminished since
Thembalethu
was decided. I have no doubt that the lawmaker, in
requiring a minimum sentence of 15 years’ imprisonment to be
imposed in
the absence of substantial and compelling circumstances,
had in mind that generally an unlicensed weapon of that kind is
possessed
for use (whether by the possessor himself or by one to whom
he passes the weapon) in other serious crimes such as murder, robbery
with aggravating circumstances, hijacking and the like. Very often
the perpetrators of violent crime are not apprehended.
[42] Crimes such as rape and
robbery with aggravating circumstances cover a wide range of criminal
conduct. In such cases, the criminal
conduct itself (i.e. quite apart
from the personal circumstances of the accused) can be regarded as
lying on a continuum from the
less serious to the truly heinous. It
is more difficult to view unlawful possession of an automatic or
semi-automatic firearm in
this way. The lawmaker has said that, in
the absence of substantial and compelling circumstances, a first
offender should be sentenced
to 15 years’ imprisonment for
unlawfully possessing a semi-automatic firearm. If the accused person
is also convicted of
a crime relating to the use of the firearm (eg
murder), he would be separately sentenced for that crime. In the
absence of special
circumstances explaining how the unlawful
possession came about or in the absence of compelling personal
circumstances relating
to the accused, how can the unlawful
possession of a semi-automatic firearm
per se
be regarded as
not justifying the prescribed 15-year sentence except on the premise
that the lawmaker was wrong to lay down 15
years as the minimum
sentence? That is not a premise on which a court is entitled to act.
I
should mention that it is clear from the learned judge’s
remarks elsewhere in the judgment
[22]
that the statement in the passages I have quoted was made mindful of
the requirement of proportionality.
[34]
In
Swartz
it was held that the circumstances of the rubbish dump-related
incident impelled the imposition of a lesser sentence than the
prescribed minimum and a sentence of seven years’ imprisonment
was substituted. The related sentence for possession
of the
ammunition was reduced from three years to one year. The
15-year sentence that had been imposed in respect of the
other count
of possession of a semi-automatic firearm was confirmed and that for
the related possession of ammunition was reduced
to two years’
imprisonment. The court also considered that the cumulative
effect of the sentences imposed by the magistrate
was excessive and
reduced the effective sentence to one of 18 years’ imprisonment
by way of directing parts of the sentences
to be served concurrently.
[35]
The appellant’s previous convictions
in the
Swartz
matter
distinguished that matter from the current one, as the appellant in
that case was more deserving on that account of a severe
punishment.
Counting against the appellant in the current matter, however, are
the character of the firearm and ammunition
involved and the
circumstances in which he was found in possession of them.
Those are features of this case, which merit
its characterisation as
more serious that of
Swartz
.
The fact that the weapon was heavily loaded and found in the
appellant’s possession in distinctly suspect circumstances
also
makes the current matter a more serious instance of the offence than
that in
Asmal
.
[36]
In my view it is unhelpful to compare
sentences imposed under a preceding statutory regime when considering
an appropriate sentence
under the substituted regime if proper regard
is not had to the context and effect of the changes introduced by the
new legislation.
The Arms and Ammunition Act was of 1969
vintage. Any person with experience of life in this country
from 1970 to the present
will be acutely aware that the incidence of
the possession of stolen and unlicensed firearms and their use in the
commission of
violent crime has increased enormously during that
period; hence the reference in
s 2
of the
Firearms Control Act
to
‘
the proliferation of illegally
possessed firearms
’. It is
notorious that fully automatic weapons have been used regularly in
some of the most serious and violent manifestations
of crime, such as
in in-transit cash heists. It is in evident response to the
altered environment that the legislature has
introduced more severe
sanctions. The almost absolute prohibition on the possession of
fully automatic firearms and the stringent
conditions attached in the
very limited circumstances in which such firearms may be possessed
reflects the danger that their unauthorised
possession is considered
to pose to society. The perceived dangers are identified in the
purposes of the Act stated in s 2,
quoted above.
[23]
Determining the proportionality of a sentence with undue reliance on
sentences imposed in times when the unauthorised possession
of
firearms posed a lesser threat than it does today and the offence was
regarded less seriously is inappropriate. It fails
to give due
weight in the currently prevailing context to the nature of the
offence and interests of society aspects of the
Zinn
triad.
[24]
[37]
I also have difficulty with the suggestion
in some judgments that the possession of an unlicensed firearm, and
especially a prohibited
firearm, should be treated as serious only if
the weapon has been used for the commission of a serious crime.
Offenders who
use the weapons to commit other serious crimes fall to
be punished separately for those crimes. In such matters it is
the
cumulative effect of the sentences imposed, rather than whether a
heavier sentence should be imposed for the unlawful possession
of the
firearm, that should be the more relevant consideration.
[38]
Heavy penalties have been provided for the
unlawful possession of firearms because of the propensity of
criminals to use such weapons
in the perpetration of violent crime.
In assessing the gravity to be attached to the offence of unlawful
possession of firearms,
due regard must be had to the objects
inherent in the creation of the statutory offences and the attendant
sanctions, namely the
prevention of crime and the disincentivising of
the unlawful possession of firearms in a country in which the
proliferation of
the possession of illegally possessed firearms has
become, and continues to be, a very menacing evil. Sentencing
courts are
under an obligation to recognise and accept that the
altered statutory context signalled that it is no longer business as
before.
The currently applicable legislation enjoins an
increased standard of severity, to which the courts are bound to give
effect; cf.
S v Matyityi
2011
(1) SACR 40
(SCA). It is within the altered statutory context
that the principle of proportionality must be applied integrally as
part
of the more severe penal framework; not in disregard of it.
[39]
There will undoubtedly still be a gradation
of seriousness attached to the unlawful possession of firearms.
In this respect
much will turn on the circumstances in which the
unlawful possession occurred. There will be cases in which it
will be evident
that the possession, although unlawful, was
relatively innocuous and that the weapon was unlikely to have been
kept or used for
any nefarious purpose. A sentence of 15 years’
imprisonment in such cases would clearly be disproportionate, and
irreconcilable
with a constitutionally compatible implementation of
the prescribed minimum sentence regime. There will often be an
evidential
burden on an accused person to give an explanation showing
that his possession of the unlicensed firearm was relatively benign.
That will be all the more so when the weapon concerned is a
prohibited weapon.
[40]
There were several features in the current
case that pointed to the seriousness of the offence. The weapon
was a prohibited
weapon. It was heavily loaded with live
ammunition. The erasure of its serial number suggests that it
had probably
been stolen. The fact that it was discovered in a
stolen motor vehicle fitted with false number plates is indicative
that
it was probably possessed for criminal purposes. It is
difficult to conceive of any criminal activity, other than illicit
trading, in which a fully automatic firearm would serve any purpose
other than one involving violence or the threat of it.
The
appellant did not give an acceptable explanation for his possession
of the firearm and ammunition that might have mitigated
the
seriousness of the offence.
[41]
In all these circumstances I am not
persuaded that the sentences imposed were in any way inappropriate.
The appeal is therefore
dismissed.
A.G.
BINNS-WARD
Judge
of the High Court
K.J. KLOPPER
Acting Judge
of the High Court
[1]
In s 1 of the Act.
[2]
Various aspects of the prescribed
minimum sentence legislation that conduce to potentially arbitrary
results have been noted in
other judgments; see especially
S
v Vilakazi
[2008]
ZASCA 87
,
2009 (1) SACR 552
(SCA);
2012 (6) SA 353
;
[2008] 4 All SA
396
, at paras. 11-13.
[3]
The judgment makes no reference to
the statute in terms of which the firearm related offence was
committed, but having regard
to the date upon which the weapon was
found at the appellant’s house (30 August 2006), it may be
assumed that the conviction
was in respect of a contravention of
s 4(1)(a)
of the
Firearms Control Act.
>
[4]
See also
S
v Legoa
2003 (1)
SACR 13
(SCA),
[2002] 4 All SA 373
, at para 18.
[5]
Accreditation is done by the
Registrar of Firearms appointed in terms of s 123 of the Act.
See the definition of ‘
accredit
’
in s 1 and the provisions of s 8 of the Act.
[6]
It is evident from the definition in
s 1 of ‘
public
collector
’
that a ‘public collection’ would be one in which the
firearms would be possessed for public display, such
as in a museum.
[7]
See ss 13-16A of the Act.
[8]
See s 14 of the Act.
[9]
Section 4(3)(a)
of the
Firearms
Control Act provides
: ‘
The
Minister may, by notice in the Gazette, declare any other firearm of
a specified type to be a prohibited firearm if it is-
(i) in
the interest of public safety; or (ii) desirable for the
maintenance of law and order
’.
[10]
Baartman
was
reportedly followed in
S
v Mentoor
case
A395/2013 (unreported, per Nyman AJ, Ndita J concurring).
It was also followed in an
ex
tempore
judgment
given by me (Cloete AJ concurring) in
S
v Khanye
case no.
A 477/2012 (26 October 2012), also unreported. My notes made
for the purposes of the latter judgment suggest that
I held that we
could not find that the judgment in
Baartman
was ‘clearly wrong’, and were thus bound to follow it.
They also suggest I did observe, however, that its effect
was
inconsistent with the approach adopted in a number of other reported
judgments in other Divisions, including
S v
Mukwevho
2010 (1)
SACR 349
(GSJ),
S v
Bhadu
2011 (1) SA
487
(ECG) and
S v Madikane
2011 (2) SA 11 (ECG).
[11]
The judgment in
Motloung
,
which was delivered on 13 June 2014, was given without reference to
the unreported judgment in
Sehlabelo v
S
[2013] ZAGPPHC 107 (18 April 2013)
,
in which a two-judge of the North Gauteng Division (Ratshibvumo AJ,
Pathudi J concurring) declined to follow the judgment in
Baartman
.
[12]
At paras 20-21.
[13]
On 4 April 2001.
[14]
Section 3.
[15]
Cf.
S v
Vilakazi
supra,
and
S v Fortune
2014 (2) SACR 178 (WCC).
[16]
Para 11 of the judgment.
[17]
Note 2, above.
[18]
At para 17.
[19]
Identified in the judgment as a
semi-automatic pistol with eight rounds of ammunition and a
semi-automatic firearm with six rounds
of ammunition.
[20]
At para 1 of the judgment the
sentences on each of the ammunition charges are given as having been
three years’ imprisonment,
but at para 46, the sentence on one
of those counts is referred to as having been five years’
imprisonment. The contextual
indications support the
correctness of the description given in para 1. Nothing turns
on the discrepancy for my purposes.
[21]
A ‘
dangerous
weapon
’ was
defined in that Act as meaning any object other than a firearm which
is likely to cause serious bodily injury if it
were used to commit
an assault. The maximum sentence was two years’ imprisonment.
[22]
See para 35 of the judgment.
[23]
At para [10].
[24]
See
S
v Zinn
1969 (2) SA
537
(A), at 540G-H.