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2017
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[2017] ZAFSHC 42
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Tau v S (A210/16) [2017] ZAFSHC 42 (23 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A210/16
THAPELO
TAU
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J et
LOUBSER, AJ
JUDGMENT
BY:
LOUBSER, AJ
HEARD
ON:
06 MARCH 2017
DELIVERED
ON:
23 MARCH 2017
[1]
The Appellant was convicted and sentenced in the Botshabelo
Magistrate’s Court on a charge of contravening
section 3
of the
Firearms Control Act, 60 of 2000
in that he was found in possession
of a 9mm semi-automatic pistol without a licence, permit or
authorisation therefore, and on
a charge of contravening
section 90
of the same Act in that he was found in the possession of three
rounds of ammunition for the firearm aforesaid. On the charge
relating to the firearm, he was sentenced to 8 years imprisonment,
and on the charge of possession of the ammunition, he was sentenced
to 2 years imprisonment. The two periods of imprisonment were not
ordered to run concurrently.
[2]
The magistrate thereafter dismissed an application by the Appellant
for leave to appeal against both his conviction and sentence,
but
subsequently the Appellant obtained such leave on petition to the
Free State High Court.
[3]
At the commencement of the trial proceedings, the Appellant pleaded
not guilty to the charges in question. In his plea explanation
he
denied that his possession was unlawful, but otherwise he admitted
most of the alleged facts of the matter, namely that he was
found in
possession of the unlicensed firearm and the ammunition in question
on the date and at the place alleged by the
prosecution.
[4]
Further in his plea explanation and in his evidence, the Appellant
amplified his defence of lawfulness as follows:
On
the evening in question, and at about 8pm, he alighted from a taxi on
his way to a certain house to visit his girlfriend and
a male friend
of his. After alighting from the taxi, he picked up a plastic bag on
the ground, which bag contained the firearm
in question. Because of
the time of day, there were no more taxi’s operating to take
him to the police station and he therefore
proceeded to his friend’s
house with the firearm in the bag with the intention to take it to
the police station the following
morning when taxi’s would
again be available. At his friend’s house, he placed the
firearm on a bed without concealing
it. This was where the police
found it later the same evening. He tried to tell the police how he
came in possession thereof, but
they refused to listen and arrested
everyone in the room, including himself.
[5]
Three witnesses were called by the prosecution. Police constables
Leeuw and Phantsi testified that they proceeded to the house
where
the Appellant and his friends were, and that they then discovered the
firearm concealed under a pillow on the bed where the
Appellant was
sitting. There were three rounds of liVe ammunition in the magazine
of the pistol. None of those present gave
any explanation for
the presence of the firearm or its origin. Constable Leeuw testified
that only at the police station, and after
his arrest, did Appellant
tell him that he had purchased the firearm for R200,00 from a Lesotho
citizen. This piece of evidence
was not disputed in cross-examination
by the Appellant’s attorney, although the Appellant denied it
when he later testified.
[6]
Captain Maputle testified that he received training in firearms and
that he had tested the firearm which was found in the Appellant’s
possession. He fired more than one shot with the firearm, and he
found it to be a semi-automatic 9mm firearm in good working
condition.
The firearm was reported stolen at Botshabelo police
station by a private person. When testing the firearm, he made
use of
an empty magazine loaded with ammunition other than the rounds
found in possession of the Appellant.
[7]
In his judgment, the magistrate rejected the version presented by the
Appellant as untrue. In particular, he rejected the Appellant’s
version that the firearm was contained in a plastic bag that he had
picked up.
[8]
On appeal it was contended on behalf of the Appellant that he had not
received a fair trial because the magistrate had erred
by asking
Captain Maputle certain questions relating to the firearm and its
operation. In this respect it was alleged that it was
not proven
beyond a reasonable doubt that the firearm was a semi-automatic
pistol.
[9]
In my view, all the arguments before us concerning the conduct of the
magistrate and the evidence of Captain Maputle when it
comes to the
question whether the “thing” found was in fact a firearm
or a semi-automatic weapon for that matter, become
insignificant by
the mere fact that it was never pleaded or contended on behalf of the
Appellant during the trial proceedings that
it was not a firearm
which the police had found in his possession. Not even in
cross-examination of the State witnesses was it
even once contended
that the “thing” found in the Appellant’s
possession was not a firearm. I am therefore satisfied,
on the basis
of Captain Maputle’s evidence, that it was correctly found by
the magistrate that the Appellant was in possession
of a firearm as
defined by Act 60 of 2000.
[10]
The fact that the firearm was a semi-automatic weapon, as pointed out
by Captain Maputle, was not considered by the magistrate
for purposes
of sentence. In terms of section 51 of the
Criminal Law
Amendment Act, 105 of 1997
, the legislature has prescribed a minimum
sentence of 15 years imprisonment for the unlawful possession of a
firearm which is a
semi-automatic weapon. (See
S
v Thembalethu
2009
(1) SACR 50
(SCA)). The magistrate alluded to this minimum sentence,
but remarked that, had the Appellant been charged in a Regional
Court,
the minimum sentence of 15 years would be applicable. He then
proceeded to sentence the Appellant for possession of the firearm
in
accordance with the provisions of section 121 of the Act, read with
Schedule 4 of the Act, which provides for a maximum period
of 15
years imprisonment for such offence.
[11]
As far as the conviction and sentence on the count of illegal
possession of ammunition is concerned, ammunition is defined
in
section 1 of the Act as “a primer or complete cartridge”.
The record of the proceedings in the Court
a
quo
shows that no
evidence relating to the ammunition in question was presented by the
prosecution at all. The State has therefore
failed to prove that the
Appellant was found in possession of ammunition in contravention of
the provisions of the Act, and therefore
the conviction and sentence
relating to the ammunition cannot stand.
[12]
As mentioned earlier, the magistrate sentenced the Appellant to 8
years imprisonment on the count of the illegal possession
of the
firearm. Section 151 of the Act provides that, despite any law to the
contrary, any Magistrate’s Court has jurisdiction
to impose any
penalty provided for in terms of the Act. The only remaining question
is therefore whether the period of imprisonment
imposed for the
illegal position of the firearm is shockingly inappropriate and
harsh. It is clear from the record that 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 have not been persuaded that the
sentence which he imposed is not an appropriate
one.
ORDER
[13]
The following orders are therefore made:
1.
The appeal succeeds to the extent that the conviction and sentence on
count 2, namely the illegal
possession of ammunition, is set aside.
2.
The appeal against the conviction and sentence on count 1, namely the
illegal possession of a firearm,
is dismissed.
__________________
P.J.
LOUBSER, AJ
I
concur.
_______________
C.
REINDERS, J
On
behalf of the appellant: Adv.
Instructed
by:
BLOEMFONTEIN
On
behalf of the respondent: Adv.
Instructed
by:
BLOEMFONTEIN