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[2014] ZASCA 155
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S v Sehoole (730/13) [2014] ZASCA 155; 2015 (2) SACR 196 (SCA) (29 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 730/13
Reportable
In
the matter between:
THE
STATE
..............................................................................................................................
Appellant
and
BONGANI
SEHOOLE
..........................................................................................................
Respondent
Neutral
citation:
The State v Sehoole
(730/13)
[2014] ZASCA 155
(29 September 2014)
Coram:
NAVSA ADP, PILLAY and MBHA JJA and SCHOEMAN and
DAMBUZA AJJA
Heard:
8 September 2014
Delivered:
29 September 2014
Summary:
Interpretation and application of
ss 3
and
4
of the
Firearms Control Act 60 of 2000
– accused charged
with unlawful possession of a firearm in terms of
s 3
of
Firearms Control Act 60 of 2000
in circumstances where the serial
number thereof had been filed off – the decision of the high
court that he should have
been charged under
s 4
instead of
s 3
and therefore entitled to be acquitted, set aside – the State
as dominus litis elected charges to be preferred against the
accused.
ORDER
On
appeal from the South Gauteng High Court, Johannesburg (Willis J et
Mphahlele AJ) sitting as court of first instance):
1 The appeal is
upheld in respect of both points of law.
2 The order of the
high court is set aside in its entirety. The effect is that the
convictions and related sentences by the regional
court are
reinstated.
3
The matter is remitted to the South Gauteng High Court for a de novo
hearing on the respondent's appeal.
JUDGMENT
MBHA
JA
(NAVSA ADP, PILLAYJA, SCHOEMAN AND
DAMBUZA AJJA CONCURRING)
[1]
On 14 November 2011, the respondent was convicted in the Kempton Park
Regional Court (the regional court) of contraventions
of ss 3
and 90 of the Firearms Control Act 60 of 2000 (the Act), in that he
was in unlawful possession of a firearm and ammunition.
He was
sentenced to 10 years' and 5 years' imprisonment for unlawful
possession of a firearm and ammunition, respectively. The
sentences
were ordered to run concurrently. The matter came on appeal before
the South Gauteng High Court, (Willis J et Mphahlele
AJ) which set
aside the convictions and related sentences. The State (the
appellant) is appealing against the judgment of the court
below on a
question of law in terms of s 311(1) of the Criminal Procedure
Act 51 of 1977 (the CPA). The appeal is with leave
of the court
below.
[2]
The principal issue for determination in this appeal is whether the
high court was correct in finding that a person found in
unlawful
possession of a firearm the serial number of which has been filed
off, can only be charged with contravening s 4(1)(
f
)(iv)
of the Firearms Control Act 60 of 2000 (the Act), or whether the
State has the discretion to charge such a person with contravening
s 3 of the Act which, if one has regard to the penal provisions
in relation thereto, is the lesser offence. This appeal also
raises
the question of the discretionary power, which the State has as
dominus litis regarding the preference of charges that may
be brought
against an accused person.
[3]
The background which can be gleaned from the evidence led before the
regional court is briefly as follows. On 25 January 2011
the
respondent, Mr Bongani Sehoole, was driving a Colt bakkie with three
passengers. He was stopped by two police officers
of the South
African Police Service (SAPS), Sergeant Kladie (Kladie) and Constable
Filtane (Filtane). Upon questioning the respondent,
the police
officers became suspicious. They then decided to search the vehicle
and its occupants.
[4]
Kladie proceeded to search the occupants on the driver's side whilst
Filtane proceeded to search those on the passenger side
of the
bakkie. When Kladie asked the respondent to alight so he could search
him, he noticed that the respondent was attempting
to hide his hands
in a suspicious manner. When questioned about this, the respondent
replied that he could not walk properly as
he had been involved in an
accident. As the respondent was alighting Kladie noticed his right
hand going towards his back. Kladie
grabbed the respondent and on
searching him, found a 9mm Beretta pistol tucked inside the back of
his trousers. The firearm had
a magazine containing fifteen rounds of
ammunition. The serial number of the firearm had been filed off. On
discovering the concealed
firearm, Kladie screamed 'firearm firearm',
whereupon one of the vehicle's occupants who was on the passenger
side, immediately
fled the scene. The respondent was then arrested.
[5]
As alluded to earlier, the respondent's appeal to the high court
against both conviction and sentence was successful. Regarding
the
unlawful possession of the firearm, the high court reasoned that
since the serial number had been filed off, a conviction in
relation
to s 3 of the Act was incompetent. Essentially the high court
found that the respondent should have been charged
under s 4
instead of s 3 of the Act. The high court took the view that the
respondent had been charged under the wrong
section of the Act, and
was therefore entitled to an acquittal. The primary question in this
appeal is whether that finding was
correct.
[6]
Regarding the unlawful possession of ammunition, the high court found
that there had been no '. . . chain linking the finding
of the
ammunition with a ballistic report to confirm that it was in fact
ammunition . . .'. The high court then held that there
was no
evidence that the ammunition found in the possession of the
respondent, was in fact ammunition and acquitted him on this
charge.
The second question in this appeal is whether that conclusion was
correct. It is necessary to record that because of the
view the high
court took on these two issues, it did not proceed to decide the
disputes of facts and whether the State had otherwise
proved its case
beyond a reasonable doubt.
[7]
I now turn to consider the relevant provisions of the Act. Section 3
provides:
'(1) No person may
possess a firearm unless he or she holds for that firearm –
(
a
) a
licence, permit or authorisation issued in terms of the Act;
(
b
) . . . .'
Section 4, in turn,
provides:
'(1) The following
firearms . . . are prohibited firearms and may not be possessed or
licensed in terms of this Act, except as provided
for in sections 17,
18(5), 19 and 20(1)(
b
);
(
a
) Any fully
automatic firearm;
. . .
(
f
) any
firearm –
(iv)
the serial number or any other identifying mark of which has been
changed or removed without the written permission of the
Registrar.'
[8]
These two sections share one essential feature, and it is that both
prohibit the possession of unlicensed firearms. However,
the
following are the essential differences between the two sections.
Section 3 contains a general prohibition against the possession
a
firearm without a licence. Section 4 deals with prohibitions in
instances where firearms may not be possessed at all except under
exceptional circumstances, which relate to the licensing of such
firearms to private and public collectors, and for business purposes,
and a firearm where the serial number has been changed or removed
without the written permission of the registrar. There is also
a
difference in the maximum penalty which may be imposed for offences
committed in breach of either section. Schedule 4 of the
Act
prescribes a maximum penalty of 15 years' imprisonment for a breach
under s 3, and a maximum penalty of 25 years in respect
of s 4.
[9]
The two sections each prohibit possession of firearms in
circumstances referred to above. However, for a successful
prosecution
in terms of s 4(1)(
f
)(iv),
the State must also prove that the firearm's serial number or
identifying mark has been removed or altered without the written
permission of the Registrar.
[10]
The State as dominus litis has a discretion regarding prosecution and
pre-trial procedures. For instance the State may decide,
inter alia,
whether or not to institute a prosecution; on what charges to
prosecute; in which court or forum to prosecute, when
to withdraw
charges and so forth. The State can elect to charge a person with a
less serious offence. This position was aptly summed
up by Waglay J
in
S
v Khalema
and
Five Similar Cases
,
[1]
where
the court was called upon to review the practice of magistrates in
the districts courts whereby they
mero
motu
transferred cases from their roll to the regional court, when he said
that:
'[21] It is also
self-evident from the reading of the various subsections of s 75
that it is the prosecutor who is dominus
litis and because she is in
control of the police docket, she is in the best position to make an
informed decision regarding the
court of first instance, the forum
for the trial and the timing of the transfer of a case, if necessary.
[22] The common
denominator through all the subsections of s 75 is that
the
prosecuto
r . . . is the party who dictates the route a case will
take towards being finalised. It is the prosecutor who makes the
decision.
Absent this decision by the prosecutor the magistrate in
the district court cannot transfer a matter out of her court to a
higher
court . . .
[23]
Section 75 is clear: it provides that a case cannot be transferred to
the regional court or high court unless the prosecutor
so requests .
. . .'
[11]
In this case the State elected to charge the accused with the less
serious offence under the general prohibition of possession
of a
firearm without a licence in terms of s 3, rather than under s 4
of the Act. There is no statutory provision which
compels the State
to charge a person with the more serious offence.
[12]
Ordinarily, courts are not at liberty to interfere with the
prosecutor's discretion unless there are truly exceptional
circumstances
for doing so. For example this might happen where a
prosecutor has not exercised his or her discretion properly. However
when preferring
a particular charge against an accused, courts are
not at liberty to interfere with the discretion exercised by the
prosecution
during a trial. In the matter of
Minister
of Police & another v Du Plessis
,
[2]
this
court stated as follows:
'Courts
are not overly eager to limit or interfere with the legitimate
exercise of prosecutorial authority. However, a prosecuting
authority's discretion to prosecute is not immune from the scrutiny
of a court which can intervene where such a discretion is improperly
exercised ... Indeed a court should be obliged to and therefore ought
to intervene if there is no reasonable and probable cause
to believe
that the accused is guilty of an offence before a prosecution is
initiated.'
[13]
In my view, the State's decision to prosecute the respondent under
s 3 of the Act did not fall into the abovementioned
categories
warranting the court to interfere and be prescriptive regarding the
charge that was preferred in a case where a firearm
was unlawfully
possessed, notwithstanding the fact that the serial numbers of that
firearm may have been filed off. Clearly, if
courts were to decide
what charges an accused should face and dictate to the State when and
how an accused should be charged, this
would undermine the
independence of the prosecution as provided for in s 179 of the
Constitution. There might in an appropriate
case be room for a court
to comment on choices made by the prosecution. This is not such a
case.
[14]
In the light of what I have stated above, it follows that the high
court erred in holding that the State should have charged
the accused
under s 4 and not s 3 of the Act, and that consequently he
was entitled to an acquittal. As stated earlier,
having reached that
conclusion, the high court did not find it necessary to deal with the
conflict between the evidence of Kladie
and the respondent concerning
the possession of the firearm.
[15]
I now turn to consider the count of unlawful possession of ammunition
and the high court's reasoning on this aspect. The State
has appealed
on a point of law on this issue as well.
[16]
In respect of the conviction in relation to unlawful possession of
ammunition, the high court said the following:
'[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.'
Thus the high court
made the following order:
'(i) The appeal
against conviction and sentence is upheld;
(ii) The following
is substituted for the order of the court a quo:
"The
accused is acquitted."
(iii)
The appellant is to be released from custody immediately.'
[17]
I have already dealt with the high court's reasoning in relation to
the acquittal on the count of unlawful possession of a
firearm.
[18]
Section 90 of the Act prohibits any person from possessing ammunition
unless he or she holds a licence in respect of a firearm
which is
capable of firing that ammunition, or holds a permit to possess that
ammunition.
[19]
The State adduced ballistics evidence in the form of an affidavit in
terms of section 212 of the CPA concerning the firearm
in question.
It will be recalled that Kladie had testified about the ammunition he
had found in the firearm. Whilst it is undoubtedly
so that a
ballistic report would provide proof that a specific object is indeed
ammunition, there is no authority compelling the
State to produce
such evidence in every case. Where there is acceptable evidence
disclosing that ammunition was found inside a
properly working
firearm, it can, in the absence of any countervailing evidence be
deduced to be ammunition related to the firearm.
Needless to say,
each case must be judged on its own particular facts and
circumstances.
[20]
In the light of what I have stated above, it follows that the high
court erred in finding that a ballistic report was the only
manner of
proving that the offence was committed.
[21]
Initially, counsel for the respondent urged this court to consider
sentencing the accused afresh in the event the appeal by
the State on
the question of law is upheld. Later it was conceded that in the
event the appeal was upheld on the law points, it
would have the
effect that the regional court's order would be reinstated and that
the matter would have to be remitted to the
high court for a de novo
hearing on the respondent's appeal.
[22]
In the result the following order is made:
1 The appeal is
upheld in respect of both points of law.
2 The order of the
high court is set aside in its entirety. The effect is that the
convictions and related sentences by the regional
court are
reinstated.
3
The matter is remitted to the South Gauteng High Court for a de novo
hearing on the respondent's appeal.
_____________________
B
H MBHA
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: G L Roberts SC
R
Bester
Instructed
by:
Director
of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
For
Respondent: M F Miller
Instructed
by:
Legal
Aid Attorney, Johanneburg
Legal
Aid, Bloemfontein
[1]
S
v Khalema
and
Five Similar Cases
2008
(1) SACR 165
(C). See also
S
v Zuma
2006 (2) SACR 257
(W) at 265a-b.
[2]
Minister
of Police & another v Du Plessis
2014 (1) SACR 217
(SCA)
.