About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2008
>>
[2008] ZASCA 9
|
|
S v Thembalethu (343/07) [2008] ZASCA 9; [2008] 3 All SA 417 (SCA) (20 March 2008)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
R
EPORTABLE
C
ASE
NO:
343/07
In
the matter between:
THEMBALETHU
SAM
...
APPELLANT
and
THE
STATE
...
RESPONDENT
______________________________________________
CORAM
: MTHIYANE
JA, MALAN AJA and KGOMO AJA
Date of hearing: 01
NOVEMBER 2007
Date
of delivery: 20 MARCH 2008
Summary:
Accused
charged with unlawful possession of a firearm in contravention of s 2
of Act 75 of 1969 -
Section 51(2)
of the
Criminal Law Amendment Act
105 of 1997
read with
Part II
of Schedule 2 is applicable to the
unlawful possession of a semi-automatic pistol – The Act does
not create new offences
but defines a form of specified offences to
which enhanced penalty jurisdiction applies.
Neutral
citation: Thembalethu Sam v The State (343/2007)
[2008] ZASCA
9
(20 March 2008)
______________________________________________
JUDGMENT
KGOMO AJA
[1] The appellant
was convicted in the regional court sitting in Adelaide, Eastern
Cape, on four counts.
On
count 1, robbery with aggravating circumstances, he was sentenced to
15 years’ imprisonment; on count 2, the unlawful possession
of
an unlicensed semi-automatic firearm, he was sentenced to 15 years’
imprisonment; on count 3, the unlawful possession
of ammunition, he
was sentenced to nine months’, and, on count 4, attempted
murder, to six years’ imprisonment. Whilst
the total sentence
imposed was 36 years and nine months the court ordered that some of
the sentences run concurrently, with the
result that the effective
sentence that appellant stood to serve was 25 years’
imprisonment. In particular, it was ordered
that the sentence on
count 3 and 11 years of the sentence on count 2 run concurrently with
the sentence on count 1 so that some
four years’ imprisonment
will effectively be served on count 2.
[2] The appellant
appealed to the Eastern Cape High Court against the sentence of 15
years’ imprisonment imposed for the unlawful
possession of the
firearm. On 27 March 2001 the Eastern Cape High Court (Leach J, with
Horn AJ concurring) dismissed the appellant’s
appeal. He now
appeals to this court with the leave of the court below.
[3] It was common
cause that the appellant was in possession of a semi-automatic pistol
when he and others robbed the Adelaide branch
of Standard Bank of R64
700. The appellant made a formal admission in the regional court
that the firearm was indeed a semi-automatic
weapon. I may add that
this firearm was also used by him when he shot at the complainant
referred to in the attempted murder count,
as the latter tried to
apprehend him when he fled the scene of the robbery. To this can be
added the fact that in his evidence
he testified that it was
demonstrated to him how to handle this particular firearm. In those
circumstances there can be no question
but that the appellant was
aware that he was in possession of a semi-automatic firearm.
[4] The appellant
challenges the sentence of 15 years’ imprisonment in respect of
the possession of the unlicensed semi-automatic
firearm on the basis
that the provisions of s 51(2)(a) read with Part II of Schedule 2 of
the
Criminal Law Amendment Act, 105 of 1997
are inapplicable. For
this argument counsel for the appellant relied on
S
v Sukwazi
2002
(1) SACR 619
(N) and a long line of similar decisions of the high
courts (
S
v Khonye
2002 (2) SACR 621
(T);
S
v Mooleele
2003 (2) SACR 255
(T);
S
v Radebe
2006 (2) SACR 604
(O)).
[5]
Section 51(2)
of the
Criminal Law
Amendment Act provides
:
‘
Notwithstanding
any other law but subject to subsections (3) and (6) a regional court
or a High Court, including a High Court to
which a matter has been
referred under
section 52
(1) for sentence, shall in respect of a
person who has been convicted of an offence referred to in
(a)
Part II
of Schedule 2
sentence the person, in the case of –
(i) a first offender, to
imprisonment for a period not less than 15 years.’
Part II
of Schedule 2 in turn
provides:
‘
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 armaments.’
[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 of 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.
The charge sheet in the present case makes no reference
to the
provisions of the
Criminal Law Amendment Act but
it is clear from the
record that the appellant’s legal representative was aware of
its provisions (see
S
v Legoa
2003
(1) SACR 13
(SCA) paras 20-21 and
S v Petersen
2006 (1) SACR (C) 28b-e)
.
I
disagree, with respect, with the interpretation of the provisions of
the
Criminal Law Amendment Act 105 of 1997
by PC Combrinck J in
Sukwazi
.
In that case the learned Judge referred to previous decisions of the
same court and concluded by stating (at 623f – 624d):
‘
In
a Full Bench decision (unreported) in
Bivela
v The State
(Case No AR297/010 Niles-Dunér J (concurred in by Levinsohn J)
also concluded that it could not have been the intention
of the
Legislature that possession of a pistol, solely because it had a
semi-automatic firing mechanism, should attract a minimum
sentence of
15 years whilst possession of any other hand gun such as a .38
special would not fall within the ambit of the section.
I am
in agreement with the views expressed . . . . Indeed the evidence in
the present case demonstrates the absurdity of imposing
a sentence of
15 years’ imprisonment for possession of a .22 pistol whereas a
person in possession of [a .357] Magnum revolver
or a pump-action
shotgun will receive a maximum of three years.
The
piece of legislation is ill-conceived and badly drafted. It refers
to automatic and semi-automatic firearms when there is no
definition
and no reference in the Arms and Ammunition Act to such weapons. The
Act refers to machine guns and machine rifles,
which after the
decision of
S
v Makunga and Others
1977 (1) SA 685
(A), caused the Legislature to insert the definition
of such weapons as including any firearm capable of delivering a
continuous
fire for so long as pressure is applied to the trigger
(introduced by s 1 of Act 16 of 1978). There is no reference
anywhere in
the aforesaid Act to a semi-automatic firearm. Similarly
in ss (a) of Part II of [Schedule] 2, the Legislature speaks of any
offence
relating to…”the dealing in or smuggling of
ammunition, firearms, explosives or armaments”. Nowhere in the
Arms and Ammunition Act is there a reference to smuggling of these
items. The import, export and dealing in ammunition, firearms,
etc
are prohibited. One can only conclude that the drafters had no
regard to the provisions of the Arms and Ammunition Act when
drafting
this legislation.
I am of the view that the
reference in the
Criminal Law Amendment Act to
a non-existent offence
of possession of a semi-automatic firearm amounts to an absurdity and
the provisions of the Act should not
have been applied by the
magistrate in the present case. Alternatively, to give the words
their ordinary grammatical meaning,
would lead to the absurd result
that, as described above, unlawful possession of powerful weapons
such as high calibre revolvers
and shotguns would attract a far
lesser sentence than small calibre semi-automatic pistols. When such
an absurdity results, the
Court is obliged to seek the true intention
of the legislature and give effect to such intention. In my view,
particularly having
regard to the grouping of the arms and explosives
in which semi-automatic firearms was included, the intention was to
include a
“… similar armament” to a machine gun or
machine rifle (as referred to in s 32 of the Arms and Ammunition Act)
which excludes a pistol. It follows that I consider that it is not
competent for courts to apply the provisions of the
Criminal Law
Amendment Act where
an accused has been convicted of the unlawful
possession of a semi-automatic pistol’.
[8] The star
ting
point in the interpretation of a statutory provision remains an
endeavour to ascertain the intention of the Legislature from
the
words used in the enactment. Those words must be accorded their
ordinary, literal, grammatical meaning and a court may depart
from
that meaning only where to do so ‘would lead to an absurdity so
glaring that it could never have been contemplated by
the
legislature, or where it would lead to a result contrary to the
intention of the legislature, as shown by the context or by
such
other considerations as the Court is justified in taking into account
…’ (V
enter
v Rex
1907 TS 910
915 and see
Randburg
Town Council v Kerksay Investments (Pty) Ltd
1998 (1) SA 98
(SCA) at 107B-G).
[9] The ratio in
Sukwazi
is in conflict with the subsequent decision of this court in
S
v Legoa
where it was pointed out that the Act does not create new offences
but refers to specific forms of existing offences for which
harsh
punishment is decreed. (See also
S
v Nziyane
2000
(1) SACR 605
(T) 609e)). What is important is the manner or form in
which those specified offences are committed which would bring them
within
the ambit of the Act’s enhanced penalty jurisdiction.
Cameron JA stated in para 18:
‘
It
is correct that, in specifying an enhanced penal jurisdiction for
particular forms of an existing offence, the Legislature does
not
create a new type of offence. Thus, ‘robbery with aggravating
circumstances’ is not a new offence. The offences
scheduled in
the minimum sentencing legislation are likewise not new offences.
They are but specific forms of existing offences,
and when their
commission is proved in the form specified in the Schedule, the
sentencing court acquires an enhanced penalty jurisdiction.
It
acquires that jurisdiction, however, only if the evidence regarding
all the elements of the form of the scheduled offence is
led before
verdict on guilt or innocence, and the trial court finds that all
the
elements specified in the Schedule are present.’
[10] In
S
v Dodo
2001 SACR 594
(CC) the Constitutional Court in para 22 reiterated
that no judicial punishment can take place unless the person to be
punished
has been convicted of an offence which either under common
law or statute carries with it a punishment and that it is
pre-eminently
the function of the Legislature to determine what
conduct should be criminalised and punished. In
Dodo
para 26 the court went on to say:
‘
[26]
The legislature's powers are decidedly not unlimited. Legislation is
by its nature general. It cannot provide for each individually
determined case. Accordingly such power ought not, on general
constitutional principles, wholly to exclude the important function
and power of a court to apply and adapt a general principle to the
individual case. This power must be appropriately balanced with
that
of the judiciary. What an appropriate balance ought to be is
incapable of comprehensive abstract formulation, but must be
decided
as specific challenges arise. In the field of sentencing, however,
it can be stated as a matter of principle, that the
legislature ought
not to oblige the judiciary to impose a punishment which is wholly
lacking in proportionality to the crime. This
would be inimical to
the rule of law and the constitutional state. It would
a
fortiori
be so if the legislature obliged the judiciary to pass a sentence
which was inconsistent with the Constitution and in particular
with
the Bill of Rights.’
[1
1] In
Sukwazi
the learned judge described the Act as ill-conceived and opined that
the facts of that case revealed that the imposition of the
mandatory
sentence was absurd. The draftsmanship may not be a specimen of
clarity but there is no warrant for rendering the provisions
in issue
nugatory. It may well be so that one of the consequences of the
Criminal Law Amendment Act is
that the unlawful possession of, for
example, a pump-action shotgun may entail a more lenient sentence
than the unlawful possession
of a semi-automatic firearm this does
not result in an absurdity. The singling out of semi-automatic
firearms may well have been
the result of the frequency with which
these firearms have been used in violent crimes. Moreover, the fact
that there was no offence
under the Arms and Ammunition Act such as
the ‘unlawful possession of a semi-automatic firearm
’
does not compel one to conclude that the words of the
Criminal Law
Amendment Act cannot
be properly construed.
As
was pointed out, the appellant was charged with a contravention of
s
2
read with ss 1, 39 and 40 of the Arms and Ammunition Act. This Act
did not refer to a ‘semi-automatic firearm’ but used
the
term ‘arm’ which is then comprehensively defined but
without any reference to a ‘semi-automatic’ arm
or
firearm. Part II of Schedule 2 of the
Criminal Law Amendment Act on
the other hand refers to ‘[a]ny offence relating to - …
(b) the possession of an automatic or semi-automatic firearm,
explosives or armaments’.
Part II
of Schedule 2 lists a number
of offences and also indicates the circumstances under which the
minimum sentence would be applicable.
Reference is made to murder,
robbery, offences under the
Drugs and Drug Trafficking Act 140 of
1992
, any offence relating to exchange control, extortion, fraud,
forgery, uttering, theft and certain other offences. In addition,
Part II
of Schedule 2 indicates the circumstances under which the
enhanced penalty jurisdiction may be exercised. ‘Robbery’,
for example, is qualified by the words ‘(a) when there are
aggravating circumstances’ or ‘(b) involving the taking
of a motor vehicle’. The offences under the
Drugs and Drug
Trafficking Act are
qualified with a reference to, for example, the
value of the drugs. As far as firearms, however, are concerned the
reference is
to ‘any offence relating to – … (b)
the possession of an automatic or semi-automatic firearm … ‘.
Properly construed these words concern existing offences relating to
the possession of ‘arms’. The enhanced penalty
jurisdiction is acquired where it is shown that the particular ’arm’
is a firearm that is automatic or semi-automatic
or that it functions
in that manner. In other words, the offences of possession referred
to concern then-existing offences of which
a contravention of s 2 of
the Arms and Ammunition Act was one. Where it is proved that the
‘arm’ is a ‘firearm’
which is automatic or
semi-automatic, the court acquires the enhanced penalty or sentencing
jurisdiction. It was not disputed that
a ‘firearm’ is an
‘arm’ as defined in the Arms and Ammunition Act. The
minimum sentencing legislation applies
as s 51(2) provides
‘[n]otwithstanding any other law’.
[1
2] In
S
v Petersen
the full court (Davis J, with Cleaver J and Van der Westhuizen AJ
concurring) found that the failure by the State to draw the attention
of the accused before conviction to the fact that being convicted of
an offence relating to the possession of a ‘semi-automatic’
firearm might attract the prescribed minimum sentence of 15 years’
imprisonment was highly prejudicial to him. The court
set aside the
conviction and remitted the case to the trial magistrate for a
reconsideration of sentence. There was no reference
in the
charge-sheet to a semi-automatic firearm or to the provisions of the
Criminal Law Amendment Act. However
, before the State closed its case
the accused’s legal representative informed the court that the
defence conceded that a
firearm was found in the accused’s
possession and that it was indeed ‘die vuurwapen soos aangekla,
‘n kort kaliber
Bersin Model 83 semi-automatiese pistool.’
At 27c-g the court said:
‘
[O]ther
than an inference to be drawn from an admission that the Bersin Model
83 pistol was a semi-automatic pistol, no evidence
was tendered which
proved that the accused was aware that he was in possession of a
semi-automatic weapon. The importance of the
State having to prove
that the intention of the accused was not merely to possess a firearm
but a semi-automatic one is illustrated
in
S
v Adams
1986 (4) SA 882
(A) where the accused was charged in terms of s 2(1)
of the Dangerous Weapons Act 71 of 1968 as being in possession of
‘any
dangerous weapon’. In dealing with the concept of
possession in this case, Corbett JA (as he then was) said:
‘
(U)nder
s 2(1) the
onus
is clearly on the State to prove that the accused person was in
possession of a dangerous weapon, and this
onus
would include the burden of establishing beyond a reasonable doubt
the existence at the relevant time of this mental element.’
(At
891H.) See also Nicholas AJA
at
897B-D.
In my view, this approach
is of equal application to the present case. Given the consequences
which follow from a conviction of
an offence relating to possession
of a semi-automatic firearm, the State is obliged to prove the
existence of the necessary mental
element of the crime of such
possession.’
[
13] It
is not necessary in this case to decide whether an accused should
have had knowledge of the ‘semi-automatic’
nature of the
firearm, the possession of which forms the basis of the charge
against him, before the enhanced sentencing jurisdiction
can apply.
As I have already indicated, on the facts of the case, it is clear
that the appellant was well aware of the mechanism
and functioning of
the firearm he was in possession of.
[1
4] In
the case at hand the prosecutor was in the process of presenting
evidence to prove that the weapon in question was a semi-automatic
firearm when the defence made the following formal admission:
‘
Mr
Gobe
:
Yes, as the court pleases, Your Worship, we are prepared to admit
that the firearm is a semi-automatic arm.
Court
:
That is now the arm found by sgt Van Heerden, is that right?
Mr
Gobe
:
Yes. Wherever he found it.
Hof
:
Mnr die Aanklaer, in daardie geval is dit dan nodig vir u 212
verklarings of nie?
Aanklaer
:
Dis nie rêrig nodig nie Edelagbare.’
[15] Leach J, in
the court a quo, dealing with this aspect during the appeal,
observed:
‘
The
offences of which [the appellant] made himself guilty were extremely
serious. Indeed, in terms of the provisions of
section 51
of the
Criminal Law Amendment Act, No. 105 of 1997
, the legislature has
prescribed a minimum sentence of 15 years imprisonment for both the
robbery with aggravating circumstances
count as well as the count of
unlawful possession of a firearm (it having been common cause in
respect of the latter offence that
the weapon used by the appellant
in carrying out the robbery was a “semi-automatic firearm”).
Accordingly, unless there
were substantial and compelling
circumstances justifying the imposition of a lesser sentence it was
therefore mandatory to impose
those minimum sentences on the
appellant. The magistrate ruled that there were no such circumstances
and it was not suggested on
appeal that he had erred in any way in
this regard. Indeed, Mr
Butler,
who appeared on behalf of the appellant, conceded that the sentences
which had been imposed in respect of the individual
counts could not
be attacked. It was his submission, however, that the cumulative
effect of the individual sentences, albeit directed
to run in such a
way that an effective 25 years imprisonment has to be served, is
disturbingly inappropriate.’
Leach J concluded:
‘
Bearing all
material considerations in mind, an effective sentence of 25 years
imprisonment does not engender in me any sense of
shock. The
magistrate gave careful and detailed consideration to all the various
material factors relevant to the assessment of
sentence and does not
appear to have misdirected himself in any way. I certainly have not
been persuaded that the sentence which
he imposed is not an
appropriate one. In my view there is no merit in the appeal.’
I agree with the
above comments and conclusion.
[
16] For
these reasons the views expressed in
Sukwazi
pertaining to the interpretation of
s 51
(2) were inapposite. It
follows that the decisions and cases with similar dicta must be
regarded as having been wrongly decided.
[1
7]
It
must be emphasised that the
Criminal Law Amendment Act prescribes
minimum sentences from which a court may depart where ‘substantial
and compelling circumstances’ are present (
S
v Malgas
2001
(1) SACR 469
(SCA)).
The
learned magistrate found no such circumstances but ordered that 11
years of the 15 year sentence imposed in respect of count
2 should
run concurrently with the sentence on the count of robbery thereby
tempering that which would otherwise have been a very
harsh sentence.
This is a sound approach. It also avoids the disproportion referred
to in
Sukwazi
that would otherwise occur in relation to different calibre weapons,
some equipped with semi-automatic or automatic mechanisms
and others
not.
[
18]. In
the result the following order is made:
The appeal is dismissed.
________________________
F
D KGOMO
ACTING JUDGE OF APPEAL
CONCUR: ) MTHIYANE JA
) MALAN AJA