About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2010
>>
[2010] ZAFSHC 78
|
|
S v Duku (246/2010) [2010] ZAFSHC 78 (10 June 2010)
IN
THE
HIGH COURT OF SOUTH AFRICA
(ORAN
GE
FREE STATE PROVINCIAL DIVISION)
Review
Number. : 246/2010
In
review
between:-
THE
STATE
and
XOLILE
GIFT DUKU
CORAM
:
MOLOI, J
JUDGMENT
BY
:
MOCUMIE, J et MOLOI, J
_____________________________________________________
____
DELIVERED
ON
:
10
JUNE 2010
JUDGMENT
MOLOI,
J
[1]
This
matter came before me on automatic review from the Magistrate,
Botshabelo.
[2]
The
accused had been convicted of contravening the provisions of section
90 read with sections 1, 103, 117, 120(1)(a) and 121 read
with
Schedule 4 of the Fire Arms Control (“
Act
No. 60 of 2000”)
and together read with section 250 of the Criminal Procedure Act No.
51 of 1977
(“the
CPA”).
It was alleged that on April 2010 and at L Section in the district of
Botshabelo, the accused was unlawfully found in possession
of
ammunition, namely 64 x R4 rounds without being in possession of a
licence of a fire-arm from which such ammunition could be
fired
(Unlawful Possession of Ammunition). He pleaded guilty to the charge
and was sentenced to thirty (30) months imprisonment
in terms of
section 276 (1) (b) of the CPA.
[3] When
questioned in terms of section 112(1) (b) of the CPA it appeared that
the police found the accused at his grandmother’s
house in L
Section Botshabelo. The police searched the place and could not find
anything. He, out of his own accord, took a box
from the top of the
wardrobe and gave it to them. It contained the 64 x R4 rounds. He
told them he took the box from a scrap truck
parked on the church
premises as he feared the rounds could cause harm to the many
children playing in and on that truck. In the
truck there were also
computer parts. He was aware of the call on national television
urging people to hand in the fire-arms and
ammunition to the police.
He did not have time to do so by the time he was arrested.
[4]
The
accused was a 20 year old, unmarried male and a first offender. He
left school in 2008 when he was in grade 11 for financial
reasons. He
had worked as a construction worker and also as a distributor of
advertising material for periods of five and three
months
respectively. Both his parents were still alive and his father was
maintaining him. He was aware that the R4 rounds were
exclusively
used by the police and/or the military. He asked for a fine to be
imposed.
[5]
After
perusal of the record, I sent a query to the magistrate and asked:
“
Is
die vonnis soos opgelẽ nie kras an onvanpas in die
omstandighede van die geval nie.”
The magistrate responded
as follows:
“
Ek
kan die saak nie verder voer as in my ex tempore uitspraak nie. In
ander distrikte is die besit van ammunisie seker nie ‘n
euwel
nie maar in die 18 jaar wat ek aan hierdie hof verbonde is was daar
geweldige toename in die besit van ammunisie en vuurwapens
in hierdie
distrik.
Die
vonnis kom met die eerste oogopslag swaar voor, maar openbaar dit nie
in gevoel van skok nie en is ek steeds van mening dat
dit gepas is,
(my
emphasis).
[6]
In
its
ex
tempore
judgment the trial court referred to the prevalence of the offence in
Botshabelo. It also referred to the seriousness of the offence
and
decided the seriousness of the offence and the interest of the
community should weigh heavier than the personal circumstances
of the
accused. It stated that the accused was not in a position to pay a
fine as he was unemployed and ruled payment of a fine
as inadequate
punishment for the offence. He held the view that a suspended
sentence would equally be inadequate in the light of
the seriousness
of the offence and the interests of the public. The magistrate was of
opinion that 30 months imprisonment was an
appropriate sentence. The
accused was deemed unfit to posses a fire-arm in terms of section
103(1) of Act 60 of 2000.
[7]
From
the reasoning of the magistrate it is clear that he did not balance
the triad of sentencing against each other nor considered
the
objectives of passing sentence as set out in
S
v Khumalo and others,
[1984] ZASCA 30
;
1984
(3) SA 327
(AD) at 330 D-I. The under-tone one gets from his
reasoning is that he had retribution and possibly deterrence in mind
but certainly
not rehabilitation and prevention. If he did, he would
have prioritised rehabilitation and prevention over the other
objectives
since he was dealing with a first offender of only 20
years of age who had the ammunition from 18 or 19 December 2009
without committing
any unlawful act with it. The accused was a youth
open to indiscretion in his conduct. It was also not correct to say
that the
imposition of a suspended sentence would not serve any
purpose as such sentence can serve as a deterrence for the individual
concerned
because the sentence would hang over his head and deter him
from committing such an offence in the future which would result in
fulfilling the prevention and deterrence of the accused.
[8]
It
is trite that the court of appeal can only interfere with the
sentencing discretion of the trial court if such discretion was
exercised improperly or when the sentence is harsh and if the trial
court misdirected itself on a material aspect
S v Jaminez
2003 (1) SACR 507
(SCA) at 517 g-h and
S
v Malgas
,
2001(1) SACR 469 (SCA) at 478 f-g.
[9] In
the result the sentence of 30 months imprisonment imposed by the
magistrate, Botshabelo, on 23
rd
April 2010 is inappropriate in the circumstances of the case and is
set aside. I am of the view that the following sentence is
appropriate in substitution.
Twelve
(12)
months imprisonment of which ten (10) months imprisonment is
suspended for a period of four (4) years on condition that the
accused is not convicted of the offence of contravening
section 90
of the
Fire-Arms Control Act No. 60 of 2000
committed during the
period of suspension.
In
terms of
section 103
(1) of the
Fire-Arms Control Act No. 60 of 2000
the accused is deemed to be unfit to possess a fire-arm.
The
above sentence is
,
in terms of
section 282
of the
Criminal Procedure Act 51 of 1977
,
ante-dated to 23
rd
April 2010.
This
order must be brought to the attention of the accused and be
transmitted to the correctional facility where the accused serves
the sentence forthwith.
____________
MOLOI,
J
I
concur.
______________
MOCUMIE,
J