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[2013] ZAGPJHC 41
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Sehoole v S (A350) [2013] ZAGPJHC 41 (28 February 2013)
IN SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO
: A350
DATE
:
28/02/2013
In
the matter of the appeal of:
BONGANI
SEHOOLE
Appellant
and
THE
STATE
J U D G M E N T
WILLIS J
:
[1] The appellant appeals
against conviction and sentence with the leave of the court
a quo
.
The appellant was arraigned in the Regional Court Kempton Park on one
count of contravening
Section 3
of the
Firearms Control Act, No. 60
of 2000
, that is unlawful possession of a firearm and one count of
contravening
section 90
of the same Act, unlawful possession of
ammunition. The appellant was convicted and sentenced to 10 years
imprisonment on the first
count and 5 years imprisonment on the
second count. It was ordered that the sentences run
concurrently.
[2] By reason of the
ultimate conclusion that the court will reach it is unnecessary to
analyse the evidence in any great detail,
save to indicate that the
appellant was apprehended by the police in what would may be
described as a “roadblock”.
There were other
persons in the vehicle. The vehicle was searched. The evidence
of a single policeman is that the appellant
had the firearm in his
possession, behind his back. The appellant’s version is
that the firearm was in the vehicle
and that he was in the vehicle
with other persons, some of whom ran away. That is common
cause.
[3] A policeman did
testify that he had searched the vehicle and had not found the
firearm in the vehicle. Counsel for the
State has submitted
that this is some corroboration but the fact of the matter is that
there is a single witness relating to the
possession of the firearm.
[4] Insofar as the
possession of ammunition is concerned the classic “regspunt”
has been taken,
viz
. how do we know that it is ammunition?
There is not a chain linking the finding of the ammunition with a
ballistic report
to confirm that it was in fact ammunition.
[5] Mr
Meiring
,
who appears for the appellant has, however, raised an ingenious
point: the firearm in question had the serial number filed
off
it buut the appellant was charged in terms of
Section 3
of the
Firearms Control Act which
provides as follows:-
“
General
prohibitions in respect of firearms and muzzle loading firearms
-
1. No person may
poses a firearm unless he or she holds for that firearm -
(a) a licence
permit or authorisation issued in term of this Act; or
(b) a licence, permit
authorisation or registration certificate contemplated in item 1,2,
3, 4, 4A or 5 of Schedule 1.”
Mr
Meiring
has
submitted that the appellant was incorrectly charged and that he
should have been charged in terms of
Section 4(1)(f)(iv)
which reads
as follows:
“
The following
firearms and devices are prohibited firearms and may no be possessed
or licenced in terms of this Act, except as provided
for in
section
17
,
18
(5),
19
and
20
(1)(b):
…
(f) any firearm -
...(iv) the serial number
or any other identifying mark of which has been changed or removed
without the permission of the Registrar.”
[6]
Clearly possession of a firearm, the serial number of which has been
filed off, is a different offence from possession of a
firearm in
respect of which one does not have a licence. Ms
Coetzee
,
counsel for the State, valiantly submitted that the purpose of
Section 4(1)(f)(iv)
is to prevent the holder of a licenced firearm
from filing off the serial number for use for some other purposes.
I certainly
agree that this must be one of the evils that this
section has designed to prevent, but it cannot alter the fact that a
different
offence exists with regard to possession of a firearm with
the serial number filed off from possession of a firearm which is
unlicensed.
[7] The elements of the
offence in terms of
Section 4(1)(f)(iv)
are not subsumed under the
elements of
Section 3
(1) and therefore one does not deal with the
situation where the elements of the one offence constitute a crime in
terms of the
other. and that therefore a competent verdict is
possible in terms of
section 270
of the
Criminal Procedure Act, No.
51 of 1977
, as amended.
[8] What should have
happened is that the appellant should have been charged in the
alternative with possession of a firearm without
a serial number.
This may seem a somewhat “
regs-tegniese
punt”, but the fact of the matter is that we, in South Africa,
have a duty to maintain proper correct standards with regard
to
prosecution. If we allow this kind of sloppiness to creep in
who knows where it might end, especially where one is dealing
with
fairly technical statutory contravention.
[9] Be that as it may, I
do not think that there will be any serious miscarriage of justice.
The facts alone leave one with
a certain degree of discomfort about
the accuracy or the correctness of their confliction. It is
unnecessary to express a
final view on that. It seems to me
that the appellant must succeed in any event as a question of law.
[10] Accordingly, I
propose the following be the order of the court:
(i) The appeal
against conviction and sentence is upheld;
(ii) The following
substituted for the order of the court
a quo
:
“
The accused is
acquitted.”
(iii) The appellant is to
be released from custody immediately.
MPHAHLELE AJ
:
I agree.
WILLIS J
: It is so
ordered.