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[2016] ZAGPPHC 1203
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Mandlane v S (A745/15) [2016] ZAGPPHC 1203 (15 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A745/15
Date:
15/11/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
GEORGE
MANDLANA APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
MOLEFE
J
[1.]
This is an appeal against sentence of the regional court, Benoni. The
appellant was on 30 August 2013 found guilty of possession
of firearm
without a license in contravention of
section 3
of the
Firearms
Control Act 60 of 2000
. He was sentenced to 15 years' imprisonment.
Leave to appeal was granted by the Court a
quo.
[2.]
The appellant pleaded guilty to the charge and in his statement in
terms of section 112 (2) of the Criminal Procedure Act 51
of 1977, he
admitted all the elements of possession of a firearm without the
necessary license. He admitted that he was in possession
of a firearm
to wit a Berretta pistol when he was arrested on 15 August 2013. A
friend gave him the firearm for safe keeping and
he put it in the
cubbyhole of his vehicle where it was found by the police.
[3.]
Possession of a semi-automatic firearm falls within the purview of
section 51 (2) (a) read with Schedule 2 of the Criminal
Law
Amendment Act 105 of 1997 ("the CLAA") which prescribes the
minimum sentence of 15 years' imprisonment unless there
were
substantial and compelling circumstances to impose a lesser sentence.
[4.]
Although section 51 (2) of the CLAA finds application on a charge of
possession of a semi-automatic firearm, the appellant
in casu
did
not admit that he was in possession of a semi-automatic firearm but
pleaded guilty to possession of a Beretta pistol. The prosecutor
accepted the plea without submitting any evidentiary documents nor
calling any witnesses to verify that the said firearm was indeed
a
semi-automatic one. The State, in my view, failed to prove that the
firearm found in the appellant's possession was a semi-automatic
pistol. Therefore, the statutory jurisdictional requirements for the
application of section 51 (2) of the CLAA were not met and
should not
have been invoked.
[5.]
I have also noted from the record that the appellant was never
informed of the applicability of the CLAA and was not warned
of being
convicted of an offence which might attract the prescribed minimum
sentence during the proceedings. There was also no
reference made in
the charge sheet to a semi-automatic firearm; the only reference was
to the penalty clause of a fine or 15 years
in terms of the
Firearms
Control Act (See
S v Peterson
2006 (1) SACR 23
(C)
).
[6.]
It is well-established that sentencing remains pre-eminently with the
discretion of the sentencing court. This salutary principle
implies
that a court sitting on appeal does not enjoy carte blanche to
interfere with the discretionary function of the lower court
unless
the sentence imposed is unjust or unless there has been a gross
misdirection. Based on the above-mentioned reasons, I find
that the
trial court misdirected itself and that this Court is entitled to
interfere with the sentence imposed by the trial court.
[7.]
The appellant
in casu
did not utilize the firearm in the
commission of any offence other than just to possess it. I have also
taken into account that
the appellant was a first offender when the
offence was committed, he was 25 years old and that he showed remorse
and pleaded guilty.
However, it is trite that in addition to
deterring accused person from committing the same offence in future,
a sentence must also
have the effect of deterring like-minded
persons.
[8.]
In the circumstances, I propose the following order:
1.
The appeal against
sentence is upheld and the sentence imposed by the court
a
quo
is set aside and substituted with the following order: the appellant
is sentenced to three (3) years' imprisonment;
2.
The sentence is
antedated to the date of sentencing, 30 August 2013 in terms of
section 282
of the
Criminal Procedure Act
51
of 1977
;
3.
The appellant is
declared unfit to possess
a
firearm in terms of
section 103
(1) of the
Firearms Control Act 60 of 2000
.
D
S MOLEFE
JUDGE
OF THE HIGH COURT
T
J RAULINGA
JUDGE
OF THE HIGH COURT
I
AGREE. AND IT IS SO ORDERED.
APPEARANCES:
Counsel
on behalf of Appellant Ms.
M Masete
Instructed
by Legal-aid
SA
Counsel
on behalf of Respondent Mr.
J Fourie
Instructed
by State
Attorneys
Date
Heard 07
November 2016
Date
Delivered 15
November 2016