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[2010] ZAWCHC 622
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Molefinyana v S (A520/2010) [2010] ZAWCHC 622 (10 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: A520/2010
In
the matter between:
KANTINI
MOLEFINYANA
…...........................................................................
Appellant
Versus
THE
STATE
….............................................................................................
Respondent
JUDGMENT
DELIVERED ON 10 DECEMBER 2010
Allie,
J
[1]
The appellant was charged in the Regional Court held at Vredenburg
with attempted murder, illegal possession of a firearm and
with
illegal possession of ammunition. He pleaded not guilty on all 3
counts. He had legal representation.
[2]
He was acquitted of the attempted murder count but was convicted of
illegal possession of a firearm and of ammunition. Both
counts were
taken together for the purpose of sentence. He was sentenced to 7
years direct imprisonment.
[3]
He now appeals against the sentence imposed on the basis that it is a
shockingly inappropriate sentence. On his behalf it was
submitted
that his personal circumstances and the fact that he was in prison
awaiting trial for almost a year was not taken into
account. On his
behalf it was further submitted that the court
a
quo
over-emphasised
the interests of the community.
[4]
On behalf of the state it was submitted that the Magistrate was
correct in finding that the offences were serious and that illegal
firearms are a scourge which causes damage in society.
[5]
Section 3
of the
Firearms Control Act 60 of 2000
prohibits possession
of a firearm without a licence, permit or authorisation in terms of
the Act.
[6]
Section 90
prohibits possession of ammunition unless the holder has a
licence, permit or authorisation to possess a firearm or ammunition.
[7]
The maximum penalty prescribed by the Act for a contravention of
Section 3
is 15 years imprisonment and for a contravention of
Section
90
it is also 15 years imprisonment.
[8]
The court a
quo
clearly
looked at the previous conviction of assault with intent to inflict
grievous bodily harm of 2003.
[9]
The court a
quo
clearly
did not impose the maximum penalty. The circumstances in which the
appel ant's possession came to light are relevant. He
was found to be
in possession because the witnesses testified that he had the firearm
and discharged live ammunition from it in
a public place and because
he was seen throwing it immediately beneath him on the ground where
the firearm was found by the police.
[10]
The
nature and circumstances of appellant's possession must clearly
be
taken into account. He possessed a dangerous weapon which he
had no
authority to hold. The weapon is known to have lethal
consequences when used.
He used it with little concern for the
consequences on the evening in question.
He cannot however be
punished for the use of the firearm as he was not charged
for
that.
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[11]
The
personal circumstances of the accused should also be considered. He
has only
1
previous
conviction of assault with intent to inflict grievous bodily harm. He
was
28
years
old when he committed the offence. He was gainfully employed.
[12]
The
punishment should fit the offence. In this matter a term of direct
imprisonment is necessary to act as a deterrent. The sentence
generally imposed for these offences range from
3
to
5 years.
[13]
An
appeal court will only interfere with the sentencing discretion of
the trial court if it has misdirected itself in a material
respect,
or if the sentence imposed was shockingly inappropriate or where the
discretion was exercised unreasonably or capriciously
[S
v Rabie 1975 (4) D SA 855 (A) at 857D - E; S v Pieters
1987 (3) SA
717
(A) at 727F - H;
and
S
v Malgas
2001 (1) SACR 469
(SCA)].
It
is clear that the sentence must be tempered with a measure of mercy.
The Magistrate clearly over-emphasised the interests of
the
community. I am of the view that 7 years direct imprisonment is
unduly harsh. I conclude that sentence imposed is shockingly
inappropriate.
[14]
The sentence of 7 years, imprisonment on counts 2 and 3 is set
aside.
The sentence now imposed on counts 2 and 3 taken together
is 4 years direct
imprisonment.
,
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ALLIE, J
I
agree
ENGERS, AJ
And
it is so ordered.
3