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[2013] ZAGPPHC 107
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Sehlabelo v S (A111/12) [2013] ZAGPPHC 107 (18 April 2013)
REPORTABLE
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER:
A111/12
DATE:18/04/2013
In the matter between:
XOLANI COLLIN
SEHLABELO
.....................................
APPELLANT
V
THE
STATE
.......................................................................
RESPONDENT
JUDGMENT
RATSHIBVUMO (AJ):
[1] Mr. Sehlabelo, hereinafter
referred to as the appellant, was convicted of unlawful possession of
a firearm in contravention
of
section 3
of the
Firearms Control Act
60 of 2000
and unlawful possession of ammunition in contravention of
section 90
of the same Act, following a guilty plea at Benoni
Regional Court. He was sentenced to 15 years imprisonment on the
first count
and 5 years imprisonment on the second count. The
sentence on the second count was ordered to run concurrently with
that on count
1. The effective sentence was as such 15 years
imprisonment. He appeals against the said sentence.
[2] Court of appeal would be
disinclined to interfere with the sentence because sentencing falls
within the exclusive discretion
of the trial court. It is only when
there is a serious misdirection on the part of the trial court,
failure to exercise the discretion
properly or when the sentence
imposed is startlingly inappropriate that a court of appeal would
interfere.
1
We are called upon to determine if that discretion was properly
exercised.
[3] The appellant was legally
represented during trial. A statement was handed in by his attorney
in terms of
section 112
(2) of Criminal Procedure Act, Act 51 of 1977
(CPA). Among the issues admitted in that statement was a fact that
the firearm in
question was a semi-automatic.
2
That meant the minimum sentence of 15 years as prescribed by Criminal
Law Amendment Act, Act 105 of 1997 would be applicable.
[4] The trial court remarked that “the
court has got to abide by what the legislature says and it must be
only under stringent
circumstances where the court has to deviate
from the prescribed sentences.” It may be inferred that that by
stringent circumstances
he meant “substantial and compelling
circumstances” as worded in section
51 (3) Act 105
of 1997. The
court found no such circumstances and as a result, the appellant was
sentenced to 15 years imprisonment.
[5] It is trite that sentencing falls
within the exclusive discretion of the trial court. Act 105 of 1997
obligates a 15 years minimum
sentence for the offence of unlawful
possession of a semi-automatic firearm on the one hand and Act 60 of
2000 a 15 years maximum
sentence on the other.
3
[6] Questions have been raised as to
whether the Legislature could have intended to keep the approaches
envisaged by the two legislations
(Act 105 of 1997 and Act 60 of
2000) as they are.
4
The reason for the conflict is that the 1997 Act provides for the
uniform sentence in respect of both the unlawful possession of
an
automatic firearm and also the unlawful possession of a
semi-automatic firearm whereas in a later Act (of 2000), the
Legislature
enacted uneven sentences for these offences. The maximum
penalty in respect of semi-automatic is 15 years imprisonment whereas
25 years imprisonment is the maximum for the automatic.
[7] Act 105 of 1997 has been
criticized as being poorly drafted and absurd for various reasons.
5
In S v Baartman,
6
the court went as far as to suggest that it could not have been the
intention of the Legislature to retain the uniform penalty
regime
employed by the State under Act 105 of 1997. The judge reached these
conclusions considering that while the mandatory penalties
imposed
for unlawful possession of fully automatic weapon may be accommodated
within the sanctioning regime under Act 60 of 2000,
the penalty
relating to semi-automatic weapons cannot since the maximum penalty
turns out to be the minimum too.
[8] It is beyond question that the
Legislature in enacting Act 60 of 2000 opted not to repeal Act 105 of
1997 or portions thereof.
If it so intended, it could have done so.
Refusing to follow Act 105 of 1997 because it is irreconcilable with
Act 60 of 2000,
and for the reason that the Legislature could not
have intended to keep the two different sentencing regimes boarders
along the
lines of being too prescriptive to the Legislature in my
respectful view, something the courts are reluctant to do, in respect
of the separation of powers.
7
[9] The Supreme Court of Appeal dealt
with the two legislations in S v Thembalethu.
8
After making a thorough comparison between the two legislations and a
number of decided cases, the Supreme Court of Appeal concluded
that
earlier decisions to the effect that the minimum sentences were not
applicable to unlawful possession of semi-automatic pistols
were
wrongly decided. It is my respectful view that unless there are new
development in terms of the legislation, that position
is still
binding until it is revisited in accordance with judicial precedent.
[10] On perusal of the charge sheet
and the record, I noted that the appellant was charged with unlawful
possession of a firearm
“read with the provisions of section
51
Act 105
of 1997.” This particular section makes provision on
various mandatory minimum sentences to be imposed in cases of
conviction
depending on the subsection the State chooses. It could be
life imprisonment if accused is charged under section 51 (1) or less
if he is charged under section 51 (2). The underlying principle
enshrined in S v Makatu
9
is to the effect that the section under which the accused is charged
should be clear in the charge sheet. Failure to make a clear
reference to the relevant provisions of Act 105 of 1997 makes it
inapplicable. That would leave the court with no option but to
sentence the accused in accordance with the provisions of Act 60 of
2000 where 15 years imprisonment is the maximum as opposed
to the
minimum – see S v Nkosi.
10
[11] I am however satisfied that in
the current case, the provisions of section
51 (2) Act 105
of 1997
remain applicable since no other provision under section 51 deals
with the semi-automatic firearm except 51 (2). Further
thereto, I
noted on record when the charge was put to the appellant that the
State apprised the appellant of the applicability
of section 51(2) of
Act 105 of 1997
11
.
There cannot as such be any confusion as to which provision is
relevant for which the appellant was charged with.
[12] Section 51 (3) (a) of
Criminal
Law Amendment Act 105 of 1997
provides that ‘[i]f any court
referred to in subsection (1) or (2) is satisfied that substantial
and compelling circumstances
exist which justify the imposition of a
lesser sentence than the sentence prescribed in those subsections, it
shall enter those
circumstances on the record of the proceedings and
must thereupon impose such lesser sentence…”
[13]
Section 51
(3) empowers this
court to exercise its own discretion to determine if there exist any
substantial and compelling circumstances,
that may justify the
imposition of a lesser sentence than the sentence prescribed in terms
of subsection (2)
[14] The appellant in the current case
is 24 years old first offender who in the words of the trial court,
demonstrated remorse.
The trial court however could not find that
demonstration on its own sufficient to deviate from the prescribed
sentence. In S v
Malgas,
12
the Supreme Court of Appeal held that all factors traditionally taken
into account in sentencing (whether or not they diminish
moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing process. It held
further that if the
sentencing court on consideration of the circumstances of the
particular case is satisfied that they render
the prescribed sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that
an injustice would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.
[15] Reported cases reflecting the
pattern of sentences imposed by the courts have been analysed on
numerous occasions. In S v Madikane,
13
Plasket J went on record to say he has not found a reported case
where an accused was sentenced to more than 3 years imprisonment
for
unlawful possession of a semi-automatic firearm, except S v
Thembalethu.
14
He proceeded to set aside the sentence of 15 years imprisonment
replacing it with 7 years’ imprisonment for the unlawful
possession of a semi-automatic weapon and for unlawful possession of
ammunition. The appellant in the matter was aged 32, had three
previous convictions and did not demonstrate any remorse. Other cases
considered in sentence for similar offences would be S v
Mathebula
15
,
S v Sukwazi,
16
S v Nkosi
17
and S v Kololo
18
where sentences imposed ranged between 2 and 3 years imprisonment.
[16] Looking at the
personal circumstances of the appellant in this case, that he was
aged 24, a first offender who demostrated
remorse by pleading guilty
and has spent seven(7) months
19
in prison awaiting trial. It is, in my view, a misdirection for the
court not to consider these traditional mitigating factors
as
substantial and compelling, warranting deviation from the prescribed
minimum sentence. I am thus of the view that the court
a quo ought to
have recorded these circumstances, as I hereby do, as substancial
compelling deviation. It is for this reason that
I find justification
of interfering with the sentence of the court a quo.
[17] I would thus, make the following
order:
Conviction is confirmed.
Appeal against sentence succeeds
The sentence imposed by the court a
quo is set aside and replaced with the following:
‘Count 1: The accused is
sentenced to 5 years imprisonment.
Count 2: The accused is sentenced to
3 years imprisonment.
It is ordered that the sentence in
count 2 runs concurrently
with the sentence on count 1’.
The sentence is antedated to 29
September 2011.
_____________________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered.
_______________________
A.M.L PHATUDI
JUDGE OF THE HIGH COURT
DATE HEARD: 15 APRIL 2013
JUDGMENT DELIVERED: 17 APRIL 2013
FOR THE APPELLANT: PRETORIA JUSTICE
CENTRE
2ND FLOOR, FNB BUILDING
206 CHURCH SQUARE
PRETORIA
MR. R.S MATLAPENG
FOR THE RESPONDENT: DIRECTOR OF
PUBLIC PROSECUTIONS PRETORIA
ADV S.R. SIBARA
1
S v Michele and Another
2010 (1) SACR 131
(SCA) at 135a-b
2
S v Mukwevho
2010 (1) SACR 349 (GSJ)
3
See
section 51
(2) of Act 105 of 1997 and section
Schedule 4 of Act 60 of 2000.
4
S v Baartman
2011 (2) SACR 79
(WCC).
5
See
S v Sukwazi
2002 (1) SACR 619
(N) where it was criticized for providing for penalties for
“semi-automatic” and “automatic” firearms
whereas such firearms where not defined in the Arms and Ammunition
Act 75 of 1969.
6
Supra
.
7
See
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
2012 (6) SA 223
(CC).
8
2009 (1) SACR 50
(SCA).
9
2006 (2) SACR 582
(SCA) where the accused was charged under section
51 (2) but was sentenced in accordance with section 51 (1) which
provides for
life imprisonment. This was found to be misdirection on
the part of the trial court. See also
S v Legoa
2003 (1) 13
(SCA).
10
[2006] JOL 1799
(W).
11
Record of proceedings, page 1 at line 20-25
12
2001 (1) SACR 469
(SCA).
13
2011(2) SACR 11 (ECG)
14
Supra
.
15
2012 (1) SACR 374
(SCA).
16
[2002] JOL 10180
(N).
17
Supra
18
[2005] JOL 13992
(E).
19
Appellant has since his arrest on the 28
th
February 2011 been in custody.