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South Africa: Free State High Court, Bloemfontein
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[2010] ZAFSHC 142
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S v Diketso (399/2010) [2010] ZAFSHC 142 (11 November 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 399/2010
In
the review between:
THE
STATE
versus
NTSANE
PETRUS DIKETSO
_____________________________________________________
CORAM:
HANCKE, J
et
WRIGHT, J
_____________________________________________________
JUDGMENT BY:
HANCKE, J
DELIVERED
ON:
11 NOVEMBER 2010
_____________________________________________________
[1] The accused was
convicted on Count 1 of contravening the provisions of section 3 read
with section 1, 103, 117, 120(1)(a), 121
read with schedule 4 and
section 151
of the
Firearms Control Act, 6 of 2000
, further read with
section 250 of the Criminal Procedure Act, 51 of 1977 (possession of
a firearm); and on Count 2 – contravening
section 90 of the
same Act (possession of ammunition). He was sentenced to ten years
imprisonment, both counts to be taken as one
for the purpose of
sentence.
[2] When the matter came
on review, Moloi J queried the sentence with the following remarks:
“
Is the
sentence of ten (10) years imprisonment not too harsh in the
circumstances of the case?”
[3] In the reply the
magistrate stated that the accused is a Lesotho citizen who entered
the Republic of South Africa from Lesotho
in possession of that
firearm
“meaning that he was exporting it from Lesotho
to South Africa”.
The magistrate also took into
account the type of firearm used, being a .38 special revolver, as
well as the provisions of section
3 of Act 60 of 2000 providing that
the person can be sentenced up to fifteen years imprisonment for
contravening the said Act.
[4] It is an aggravating
factor that the accused, a Lesotho citizen, brought the .38 special
revolver with 14 living rounds ammunition
across the border into
South Africa when he was arrested.
[5] On the other hand, he
is a 28-year old first offender who pleaded guilty and expressed his
remorse for his wrongful conduct.
In his statement in terms of
section 112(2)
of the
Criminal Procedure Act, he
stated that he
“was
using that firearm as protection against thieves as I work as a head
boy”.
[6] Although the accused
was convicted of a serious offence, I am of the view that the
sentence of ten years imprisonment is too
severe in the
circumstances.
[7] The conviction
appears to me to be in accordance with justice.
Accordingly the following
order is made:
The conviction is
confirmed.
The sentence of the
magistrate is set aside and substituted with the following sentence:
Four (4) years
imprisonment antedated to 29 July 2010. The accused is declared unfit
to possess a firearm.
________________
S.P.B. HANCKE, J
I agree.
_____________
G.F. WRIGHT, J
/sp