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[2015] ZAGPPHC 320
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S v Dlhamini (A300/15) [2015] ZAGPPHC 320 (12 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
High court Ref.no. :
132/15
Magistrates serial
no. : 1/2015
Case no. :RC5/57/12
Case number: A300/15
Date: 12 May 2015
In the matter
between:
THE STATE
And
KABELO DLHAMINI
REVIEW JUDGMENT
BAOWA J
[1] This matter has
been brought by way of special review in terms of section 304 (4) of
the Criminal Procedure Act 51 of 1997 after
it was discovered that
the accused had been charged and convicted under an obsolete piece of
legislation.
[2] The facts are
briefly summarised as follows:
The accused was
charged with contravention of section 2 read with section 1, 12, 39
(1) (h), 39 (2) of the Arms and Ammunition Act
75 of 1969 which was
repealed by Act 60 of 2000, the Firearms Control Act.
[3] He appeared in
court, pleaded guilty and tendered a statement in terms of section
112 of the Criminal Procedure Act. He was
convicted as charged and it
was then that the magistrate realised that the charge had been
brought under repealed legislation.
[4] The Firearms
control Act of 2000 came into operation on 1 July 2004 and the
definition of a firearm contained in section 1 (xii)
of the Firearms
Control Act includes a number of instruments which are not included
in the repealed Arms and Ammunition Act No
75 of 1969. In terms of
section 1 (xii) of Act 60 of 2000 a firearm means any:
4.1 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 (6ft.-lbs);
4.2 device
manufactured or designed to discharge rim-fire, centre-fire or
pin-fire ammunition.
4.3 device which is
not at the time capable of discharging any bullet or projectile but
which can be ready altered to be a firearm
within the meaning of
paragraph 4.1 or 4.2;
4.4 device
manufactured to discharge a bullet or any other projective 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
4.5 Barrel frame or
receiver of a device referred to in paragraph 4.1, 4.2, 4.3, or 4.4
but does not include any device contemplated
in section 5.
[5]
Section 40(1) of the repealed Arms and Ammunition act 75 of 1969
contained a presumption that could be used by the State to
prove
possession. This presumption was however, declared unconstitutional
in
Mbata; Prinsloo
1996 (1) SACR 371
(CC).
The
unconstitutionality thereof was based on the fact that the section
placed an
onus
on
the accused which forced him to testify to avoid a conviction.
[6]
The
Firearms Control Act 60 of 2000
also contains a number of
presumptions which, if put into operation make it easier for the
State to prove the commission of the
offence. The words
“
in
the absence of evidence to the contrary which raises reasonable
doubt'
in
section 117 of the Act, clearly indicate that a court will have to
draw a conclusion upon proof of the basic facts required by
the
section which conclusion will result in an evidential burden on the
accused to present evidence which raises a reasonable doubt
as to his
guilt. The accused however, cannot be forced to testify nor will he
have to “disprove” the allegation of
the State on a
balance of probabilities. In this sense, it is clear that section 117
of the Act cannot be equated with section
40 of the repealed Arms and
Ammunition Act 75 of 1969 and should therefore be able to withstand a
constitutional challenge.
[7] Considering the
fact that some of the provisions of the repealed Act 75 of 1969 have
been removed by the provisions of the
Firearms Control Act 60 of
2000
, whilst keeping in mind that serious offences are committed
through use of these unlicensed firearms, it would seem appropriate
that the following order be made:
7.1 The conviction
is set aside
7.2
The prosecution is ordered to continue,
de
novo
in
terms of
Sections 313
and
324
of the
Criminal Procedure Act 51 of
1977
.
S.A.M BAQWA
(Judge of the high
court)
J.W.LOUW
(Judge of the high
court)