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[2010] ZAWCHC 217
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Baartman v S (A391/2010) [2010] ZAWCHC 217; 2011 (2) SACR 79 (WCC) (5 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT, CAPE TOWN
Reportable
Case
no.: A391/2010
In
the matter between:
Justin
Baartman
…....................................................................................................
Appellant
and
The
State
…..........................................................................................
Respondent
CORAM
…...........................................................................
D
M DAVIS J et M DONEN AJ
JUDGMENT
BY
….............................................................
DONEN
AJ
FOR
THE APPLICANT
…................................................
ADV P
J BURGERS
INSTRUCTED
BY
….........................................................
LEGAL
AID
FOR
THE FIRST RESPONDENT
…...............................
ADV
S M MASHIGO
INSTRUCTED
BY
….........................................................
DPP
DATE
OF HEARINGS
…..................................................
15
OCTOBER 2010
DATE
OF JUDGMENT
….................................................
05
NOVEMBER 2010
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
Reportable
Case
no.: A391/2010
In
the matter between:
JUSTIN
BAARTMAN
…...........................................................................................
Appellant
and
THE
STATE
…........................................................................................................
Respondent
JUDGMENT
DELIVERED ON 5 NOVEMBER 2010
DONEN
AJ
[1]
The appellant was charged in the Regional Court, Atlantis, with a
violation of section 3 of the Firearms Control Act, No.
60 of 2000
("the
Firearms Control Act"
;). It was alleged in the charge
sheet that he unlawfully possessed a firearm without a licence,
namely a 7,65mm Liama Micromax
semi-automatic pistol
("the
pistot')
from
which the serial number had been removed. The charge sheet further
provided that this violation was to be read together with
sections
120(1)
,
121
,
103
and
151
of the said Act, as well'as the provisions
of Part II of Schedule 2 of the Criminal Law Amendment Act, No. 105
of 1997
("the
Amendment Act").
[2]
The appellant was twenty-two years old and a first offender at the
time of commission of the offence. He pleaded guilty. A
written
statement, prepared by his attorney was handed to the Magistrate.
The content was confirmed by the appellant and he was
duly
convicted. He was sentenced to ten years of imprisonment. With the
leave of the Court a
quo
he
now appeals against that sentence.
[3]
Before the appellant pleaded, his legal representative informed the
Court that the provisions of Part II of Schedule 2 had
been
explained to him. The Magistrate enquired from the appellant whether
his attorney had explained to him that mere possession
of a
semi-automatic weapon could result in a sentence of 15 years
imprisonment for a first offender if certain mitigating
circumstances
were not present. The appellant confirmed that he
understood this.
[4]
In his plea explanation the appellant admitted that he had
unlawfully possessed the semi-automatic firearm described in the
charge sheet without a licence, and that the police had found it in
his room. He explained that it belonged to a friend and that
he was
merely keeping it there. He knew that he had no authority, permit or
licence to possess the weapon and that it was a criminal
offence. He
also admitted the correctness of the content of a ballistic
reportedated 14 August 2009. (This report does not appear
to have
been handed in to the Court.)
[5]
There can be no doubt, therefore, that appellant was aware that he
was in possession of a semi-automatic firearm at the time
he
committed the offence.
1
[6] The
principal ground raised on appeal is that the Magistrate misdirected
himself by invoking the mandatory minimum sentence
provisions that
apply to first offenders in terms of section 51(2)(a)(i) of the
Amendment Act; rather than the provisions of
section 121
of the
Firearms Control Act read
with Schedule 4 thereof. This schedule
sets out the maximum period of imprisonment
{"penalties")
for
one hundred and forty three offences created under the Act.
[7]
The relevant part of section 51(2) of the Amendment Act provides as
follows:
"(2) Notwithstanding any other law but subject to ss (3) and
(6), a regional court or a High Court shall sentence a person
who
has been convicted of an offence referred to in -
(a)
Part II of Schedule 2, in the case of-
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii) a second offender of any such offence, to imprisonment for a
period not less than 20 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years;"
[8]
Part II of Schedule 2 refers,
inter
alia,
to:
"Any
offence relating to
(a)
the
dealing in or smuggling of ammunition, firearms, explosives or
armament; or
(b)
the
possession of an automatic or semi-automatic firearm, explosives or
armament."
[9] The
Amendment Act came into force on 13 November 1998. According to its
headnote it was intended,
inter
alia, "to make provision for the setting aside of all sentences
of death"
and
"to
provide for minimum sentences for certain serious offences".
[10] It is apparent that in
passing this legislation, Parliament considered any offence relating
to the possession of an automatic
or semi-automatic . firearm,
explosives or armament as being a serious offence and of equal
gravity
to any other such offence, no matter which of the four devices
mentioned in subsection (b) was possessed.
[11] Arm
was defined in section 1(1)(ii) of the Arms and Ammunition Act as
meaning
"any
firearm other than a cannon, machine-gun or machine-rifle, and
including:
(i)
A
gas rifle or air rifle of .177 of an inch or larger calibre;
(ii)
A
gas pistol or revolver;
(iii)
An air pistol other than a toy pistol;
(iv)
An
alarm pistol or revolver;
(v)
Any
barrel of an arm."
[12] The
unlawful possession of armaments encompassed any cannon, rocket
launcher, machine gun or machine-rifle, grenade or bomb,
among
others
2
without
a permit obtained from the Minister in terms of section 32(2) of the
Arms and Ammunition Act. Possession of explosives
was regulated by
the Explosives Act, 26 of 1956.
[13] When
the minimum sentencing provisions contained in section 51(2)(a) of
the Amendment Act were applied to the unlawful possession
of an
unlicensed semi-automatic firearm in
Sukwazi
(on
a charge brought under section 2 of the Arms and Ammunition Act, 75
of 1969), the Amendment Act was described as
"ill-conceived
and badly drafted'
3
.
It
was pointed out that this Act referred to automatic and
semi-automatic firearms when there was no definition of such weapons
in the Arms and Ammunition Act which had created the offence.
4
This
led Combrink J to conclude that the drafters of the Amendment Act
had no regard to the provisions of the Arms and Ammunition
Act when
they drafted the firstmentioned legislation.
[14] In
Thembalethu
,
5
however,
the Supreme Court of Appeal disapproved of the judgment in
Sukwazi
and
reconciled the two Acts. Kgomo AJA said the following with reference
to section 51(2) of the Amendment Act:
"[6] In my view
properly construed the above provisions mean that a court convicting
an accused person of any offence referred
to therein is obliged to
impose a sentence of 15 years' imprisonment unless such court finds
that substantial and compelling
circumstances justifying the
imposition of a lesser sentence than the prescribed one are present.
The prescribed minimum sentence
of 15 years' imprisonment applies to
first offenders only. The phrase 'Notwithstanding any other law' in
the section (ie s 51(2))
clearly indicates that the provisions
supersede all other laws on sentence and apply to all offences
listed in Part II of Schedule
2. That list includes an offence
referred to as the possession of 'a semi-automatic firearm'. The
section's wording is couched
in unambiguous and peremptory terms
(shall), and the offences to which it applies are stipulated.
[7] In my view once it is proved in a trial that an accused is
guilty of an offence in terms of which he or she unlawfully
possessed
a firearm, in this case in contravention of s 2 read with
ss 1, 39 and 40 of the now repealed Arms and Ammunition Act 75 of
1969,
and it is proved or admitted that the firearm was
'semi-automatic' the application of its provisions relating to
sentencing is
triggered."
[15] The
Court reasoned that though the drafting of the Amendment Act was not
"a
specimen
of clarity",
the
absence of an offence of unlawful possession of a semi-automatic
firearm did not compel one to conclude that
"the
words of the
Criminal Law Amendment Act cannot
be properly
construed
1
'.
The
Court reconciled the two Acts by referring to the judgment of
Cameron JA in
Legoa
6
and
found that the Amendment Act does not create new offences, but
refers to specific forms of existing offence for which harsh
punishment is decreed. When the commission of such offences was
proved in the form specified in the schedule the sentencing Court
acquired an enhanced penalty jurisdiction if the evidence regarding
all the elements of the scheduled offence were led before
the
verdict and the trial Court found that all the elements specified in
the Schedule were present.
[16] In
applying section 2 of the Arms and Ammunition Act, enhanced penalty
jurisdiction was acquired where it was shown that
the particular
"arm"
was
a firearm which was automatic or semi-automatic.
7
In
the present matter, the appellant pleaded guilty to the offence and
admitted that the firearm was semi-automatic. However,
reconciliation between the Act creating his offence and the
Amendment Act cannot rationally be achieved.
[17] The sentencing regime
under which the appellant was charged, namely the
Firearms Control
Act, provides
for a maximum sentence of fifteen years for the
unlawful possession of a semi-automatic firearm and twenty five
years for a fully
automatic firearm. This differentiation, in my
view, suggests that legislature could never have intended to retain
the uniform
penalty regime, employed by the State in section 51(2)
of the Amendment Act, in order to coerce possessors to submit these
firearms
to licensed regulation.
[18]
Furthermore, while the mandatory penalties imposed for unlawful
possession of a fully automatic weapon may be accommodated
within
the sanctioning regime under the
Firearms Control Act, the
penalty
relating to a semi-automatic cannot: not least of all because the
minimum sentence of fifteen years imprisonment under
the Amendment
Act is also the maximum under the
Firearms Control Act.
>
8
[19] The
appellant violated "a
comprehensive
and an effective system of firearms control
established
in terms of the
Firearms Control Act
9
,
which commenced on 1 July 2004. From an overall reading of the Act,
it is apparent that a system of regulation of firearms
was
introduced by means of a comprehensive regime of licensing, permit
and official authority and that every violation created
therein was
attached to a prescribed maximum penalty.
[20] Section 3 thereof
established a general prohibition in respect of firearms by
providing that:
"No person may possess a firearm unless he or she holds a
licence, permit or authorisation issued in terms of this Act for
that firearm."
This general prohibition is arranged in a pattern together with one
hundred and forty-two other prohibitions and directives.
[21] In terms of section 120(1)(a) a person is guilty of an offence
if he or she contravenes or fails to comply with any provision
of
the Act.
[22]
Section 121 thereof, which deals with penalties, provides that:
"Any person convicted of a contravention of or a failure to
comply with any section mentioned in column 1 of Schedule 4, may
be
sentenced to a fine or to imprisonment for a period not exceeding
the period mentioned in column 2 of that Schedule opposite
the
number of that section."
[23] The
word
"may”
was
used in section 121 to introduce and achieve the sentencing regime
contained in Schedule 4 of the Act which had not existed
previously.
10
It
did not vest Courts with a discretion (which they possessed in any
event) that was qualified by a previous general - but overriding
-
statutory prescription to the contrary.
[24] The
Act defined
"firearm"
in
a manner which may include semi-automatic and fully automatic
firearms.
11
[25]
Both categories of firearm are defined.
"Semi-automatic"
means
"selfloading
but
not
capable of discharging more than one shot with a single depression
of the trigger". "Fully automatic"
means
"capable
of discharging more than one shot with a single depression of the
trigger".
One
may infer from these definitions that the former is potentially more
harmful to society than the latter. It therefore requires
stricter
control and should attract harsher punishment. This indeed is the
case.
[26]
Fully automatic firearms are
"prohibited
firearms"
in
terms of section 4.
12
The
maximum period of imprisonment for unlawful possession is
twenty-five years. Semi-automatic handguns
13
such
as the pistol found in appellant's possession are not
"prohibited'.
They
may be lawfully possessed, provided they are licensed in the
circumstances described below. Possession of a semi-automatic
firearm without a licence, in terms of section 3, renders an
offender liable to a maximum period of imprisonment of fifteen years
according to Schedule 4. The legislature therefore differentiates,
according to the danger which each category of firearm poses
to
society in general as well as individual rights to life and the
security of the person.
14
[27] Differential regulation of fully-automatic and semi-automatic
firearms occurs in
sections 13
and
14
of the
Firearms Control Act.
Section
13(1) describes certain firearms in respect of which a
licence may be issued for self-defence, namely:
"any
(a)
shotgun
which is not fully or semi-automatic; or
(b)
a
handgun which is not fully automatic".
[28] In terms of
section 13(2)
the Registrar may issue a licence for a semiautomatic handgun
to any natural person who - (a) needs a firearm for self-defence;
and (b) cannot reasonably satisfy that need by means other than the
possession of the firearm.
[29] However, in terms of
section 13(4)
such a firearm may only be
used where it is safe to do so or for a lawful purpose. Failure to
comply with these requirements
would render the licensee liable to a
maximum period of imprisonment of two years.
[30] Section 14 of the Act deals with a licence to possess a
restricted firearm for self-defence. A restricted firearm for
purposes of the section is any -
"(a)
semi-automatic rifle or shotgun which cannot readily be converted
into a fully automatic firearm; or
(b)
firearm declared by the Minister by notice of the Gazette, to be a
restricted firearm".
(Semi-automatic
pistols are therefore not restricted in terms of this section.)
[31] Section 14(5) prohibits a person from holding more than one
licence issued in terms of this section. Violation renders a
person
liable to a maximum of five years imprisonment.
[32] In summary, while Part II
of Schedule 2 to the Amendment Act imposes the identical minimum
sentence for any offence relating
to the possession of an automatic
or a semi-automatic firearm, their regulation - by licencing and
sentence under the later
Firearms Control Act
- is systematically
differentiated. The mandatory minimum penalty provisions for
semiautomatic firearms in the Amendment
Act are irreconcilable
with the identical sentence of fifteen years that may be imposed as
a maximum in accordance with Schedule
4 of the
Firearms Control Act.
>
[33] In
my view regulation of semi-automatic firearms under the
Firearms
Control Act cannot
be harmonized with the provisions of section 51
(2)(a)(i) of the Amendment Act.
15
[34] The
phrase
"notwithstanding
any other law"
introducing
section 51(2) of the Amendment Act could never have been intended to
override any future law (statute) containing
the regulatory and
sentencing provisions described above.
[35] In
the circumstances, the sentencing provisions applied by the
Magistrate, have been impliedly revoked.
16
[36] Mr
Burgers, on behalf of appellant, has drawn our attention to the
provisions of section 35(3)(n) of the Constitution which
provide
that the right to a fair trial of every accused person includes the
right
"to
the benefit of the less severe of the prescribed punishments if the
prescribed punishment for the offence has changed".
Though
this submission may beg the issue, the Court is nevertheless bound
to promote the spirit of fairness expressed therein
in interpreting
the sentencing regime that pertains to
section 3
of the
Firearms
Control Act.
[37
] The Magistrate therefore misdirected himself by sentencing the
appellant pursuant to the provisions of
section 51(2)(a)(i)
of the
Criminal Law Amendment Act. The
provisions of
sections 120(1)
,
121
and Schedule 4 of the Firearm Controls Act ought to have been
applied. Consequently, this Court is at large to interfere in the
sentence imposed by the Magistrate.
[38]
During his trial the appellant elected not to give evidence in
mitigation. Nor did he call any witnesses in that regard.
The State
and defence agreed that numerous shooting occurrences took place
within the area of jurisdiction of the Regional Court.
Appellant's
attorney informed the Court of the appellant's personal
circumstances. Before he sentenced appellant, the Magistrate
found
that substantial and compelling circumstances were constituted by
the plea of guilty, the absence of previous convictions,
the age of
the accused, the fact that he had two children and the fact that no
further crimes involving use of the pistol had
been identified. In
terms of section 51(3)(a) of the Amendment Act the Court a
quo
was
satisfied that the circumstances above justified a lesser sentence
than the prescribed fifteen years.
17
[39] However, because the Amendment Act could not apply, the trial
Court was in law vested with a discretion to sentence the
appellant
up to a maximum period of fifteen years. In my view that Court
should be given an opportunity to exercise this discretion.
I am
reinforced in this conclusion by the existence of another, possibly
aggravating factor. This involves the appellant's refusal
to take
the Court into his confidence in relation to the true ownership of
the pistol. It would be preferable for this Court
not to express any
view on the weight to be given to this consideration, as well as
certain others referred to by the Magistrate.
[40] In the circumstances, the sentence is set aside and the matter
is referred back to the Regional Court for the imposition
of a
sentence in accordance with the provisions of the
Firearms Control
Act.
DONEN
AJ
I
agree
DAVIS,
J
1
See
S v Mukwevho
2010 (1) SACR 349
(GSJ).
2
See
Milton:
South
African Criminal Law and Procedure
Vol
III Statutory Offences 2
nd
Ed
paras B1-15-6, p 10 (Service No. 4 1993).
3
See
S
v Sukwazi
2002
(1) SACR 619
(N) at 623f-624d.
4
Section
2(1)
thereof (read with
section 39(h)
provided that any person who
has in his possession any arm, unless licensed to possess such arm,
commits an offence.
5
See
S
v Thembalethu
2009
(1) SACR 50
SCA at 53f to 54i/j.
6
S
v Legoa
2003
(1) SACR 13
(SCA) para 18.
7
Thembalethu
's
case
para
[11] at p 56 b to i/j.
8
S
v Manana
2007
(1) SACR 62
(T).
9
See
the headnote to the Act as well as section 2(d) thereof.
10
Compare
BID
Industrial Holdings (Pty) Ltd v Strang
2008
(3) SA 355
SCA para [61] at p 370F/G to I.
11
"firearm"
means
any-
(a)
device
manufactured or designed to propel a bullet or projectile through a
barrel or cylinder by means of burning propellant,
at a muzzle
energy exceeding 8 joules (6 ft-lbs);
(b)
device
manufactured or designed to discharge rim-fire, centre-fire or
pin-fire ammunition;
(c)
device
which is not at the time capable of discharging any bullet or
projectile, but which can be readily altered to be a firearm
within
the meaning of paragraph (a) or (b);
(d)
device
manufactured to discharge a bullet or any other projectile of a
calibre of 5.6 mm (.22 calibre) or higher at a muzzle energy
of more
than 8 joules (6 ft-lbs), by means of compressed gas and not by
means of burning propellant; or
[Para,
(d) substituted by s. 1 (b) of Act No. 43 of 2003.] .
.
(e)
barrel,
frame or receiver of a device referred to in paragraphs (a), (b),
(c) or (d), but does not include any device contemplated
in section
5;".
12
Certain
exceptions are referred to in sections 17 an 18(5) (private
collection), 19 (public collections) and 20(1 )(b) (theatre,
film or
television productions with the prior written approval of the
Registrar).
13
"Handgun"
means
"a
pistol
or revolver which can be held in and discharged with one hand".
14
See
the preamble to the
Firearms Control Act.
>
15
See
generally
New
Modderfontein Gold Mining Co v Transvaal Provincial Administration
1919
AD 367
at 397;
S
v Mseleku
1968
(2) SA 704
(N).
16
In
relation to the maxims
"lex
posterior prior derogaf
and
"generalia
specialibus non deroganf
see
the
Law
of South Africa
First
Reissue 25,
Part 1
, paragraphs 293 at p 263 to 266.
17
Section
51
(3)(a) provides as
follows:
u
(3)(a)
If any Count referred to in 'ss'(i) or (2) is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the sentence prescribed in
those subsections, it shall enter those circumstances on
the record
of the proceedings and may thereupon impose such lesser sentence."