Motaung v S [2005] ZAFSHC 130 (18 August 2005)

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[2005] ZAFSHC 130
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Motaung v S [2005] ZAFSHC 130 (18 August 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. A121/04
In
the appeal between:
THULO
ALEX MOTAUNG
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
VAN
COPPENHAGEN J
et
H.M.
MUSI J
et
KRUGER J
_____________________________________________________
HEARD
ON:
8
AUGUST 2005
_____________________________________________________
JUDGMENT
BY:
H.M.
MUSI J
_____________________________________________________
DELIVERED
ON:
18
AUGUST 2005
_____________________________________________________
[1] This
is a full bench appeal against sentence. The appellant appeared
before Rampai J sitting in the circuit court at Harrismith
on two
counts of robbery, one count of murder and two contraventions of the
provisions of the Arms and Ammunition Act 75 of 1969,
to wit,
possession of a firearm and ammunition respectively without lawful
authority. He was acquitted on one robbery charge, but
was convicted
on the murder charge (count one) robbery with aggravating
circumstances (count three) and possession of a firearm and
ammunition (counts four and five respectively). He was sentenced to
32 years imprisonment on count two, 15 years imprisonment on
each of
counts three and four and 3 years imprisonment on count five. He
does not appeal against the sentence of 15 years imposed
in respect
of robbery with aggravating circumstances, count three.
[2] I
shall deal first with the appeal against the sentence imposed in
respect of the murder conviction. The court
a
quo
found that the murder had been premeditated and the provisions of
section 51(1) of the Criminal Law Amendment Act 105 of 1997 (the
Minimum Sentences Act) became applicable in terms of which the
prescribed minimum sentence of life imprisonment had to be imposed
unless it was found that there were substantial and compelling
circumstances justifying the imposition of a lesser sentence. The
court
a
quo
found that such substantial and compelling circumstances did exist in
this case. The court was therefore at liberty to impose an
appropriate sentence.
[3] It
is trite that imposition of sentence is a matter essentially within
the discretion of the sentencing judicial officer and a
Court of
Appeal will only interfere if the sentence was vitiated by
misdirection or irregularity or if it is otherwise shockingly
inappropriate. Mr. Pretorius who argued the appeal on behalf of the
appellant did not suggest that the court
a
quo
committed any irregularity or misdirection in the sentencing in
process. Nor was there any such suggestion in the heads of argument
filed on behalf of the appellant. The only ground upon which it is
submitted that this court should interfere with the sentence,
is that
it is shockingly inappropriate.
[4] In
the heads of argument filed on behalf of the appellant but which were
not drawn by Mr. Pretorius, it was suggested that the
sentence of 32
years imprisonment was as good as life imprisonment and the case of
S
v BULL AND ANOTHER
;
S
v CHAVULLA AND OTHERS
2001 (2) SACR 681
(SCA) was cited and especially the passage at page
694 paragraph 22.
[5] In that case the
Supreme Court of Appeal decried what it perceived to be an attempt to
circumvent the practice or policy of the
Department of Correctional
Services to consider for parole persons sentenced to life
imprisonment after serving 20 years of their
sentences. The court
was there dealing with cases where the accused had been sentenced in
terms of the provisions of sections 286A
and 286B of the Criminal
Procedure Act 51 of 1977 (declaration as a dangerous criminal), where
the periods that the accused had to
serve before being considered for
parole, were fixed at between 30 years to 50 years. The Supreme
Court of Appeal observed that
it was the possibility of being
released on parole that saved life imprisonment from being
stigmatised as cruel, inhuman and degrading
punishment. The Court
specifically discouraged imposition of excessively long prison terms
that would have the same effect as the
sentences there under review.
[6] The
sentence imposed in the instant case for murder can hardly be
compared with the sentences dealt with in
S
v BULL AND OTHERS
.
In
casu
a determinate sentence of 32 years imprisonment was imposed on the
appellant. The possibility of parole remains open to him.
[7] Otherwise
the court
a
quo
fully motivated its decision to impose the sentence it did. Of
particular importance is that the appellant has a history of violent
conduct as shown by his previous convictions. These include robbery
committed during 1998 followed by assault with intent to do
grievous
bodily harm in 2000. Hardly a year had elapsed when the appellant
committed the crimes in the instant case. It is to be
noted also
that at the time of sentencing the appellant was awaiting to be
sentenced by the regional court for a conviction of attempted
murder.
Furthermore the deceased herein was shot and killed in cold blood
for no reason whatsoever as he had not presented any resistance
during the robbery. In a nutshell, there were serious aggravating
circumstances in this case which far outweighed the appellant’s
personal circumstances.
[8] I
agree therefore with Mr. Strauss for the State that, although stiff,
the sentence imposed fits the crime, the criminal and the
interests
of society. Besides, it was stated in
S
v MALGAS
2001 (1) SACR 469
(SCA) that the minimum sentences prescribed by the
legislature are a benchmark and that even if a court is justified in
departing
therefrom, it should nonetheless keep in mind what the
legislature has ordained to be an appropriate sentence.
[9] Regarding
the sentence of 15 years imprisonment imposed for unlawful possession
of a firearm, the point was taken in the heads
of argument filed on
behalf of the appellant that the provisions of section 51(2) of the
Minimum Sentences Act read with Part II
of Schedule 2 thereto do not
apply to a conviction for possession of a pistol even though it is a
semi-automatic firearm. In support
of this submission a number of
cases were cited, including
S
v SUKWAZI
2002 (1) SACR 619
(NPD),
S
v KHONYE
2002 (2) SACR 621
(TPD) and the unreported judgment of Moseneke J (as
he then was) in
S
v MOKOMELA
case no A751/2002 TPD delivered on 17 February 2003. The State
concedes the point and indicated that it could not support the
sentence
imposed.
[10] These
cases all dealt with the interpretation of the following provision of
Part II of Schedule 2 to the Minimum Sentences Act:
“
Any
offence relating to .........
(b)
possession of an automatic or semi-automatic firearm, explosives or
armament.”
In terms of section 51(2)
any offence falling under this provision, is punishable with a
minimum sentence of 15 years imprisonment.
[11] In
all the above mentioned decisions, this provision was interpreted
with reference to the provisions of the Arms and Ammunition
Act 75 of
1969, firstly, because the Minimum Sentences Act itself does not
create any offences. Moseneke J puts the matter as follows
in
S
v MOKOMELA
at paragraph 14:
“
The
Act
does no more than describe circumstances of aggravation which if
present, in relation to a conviction on a specified and existing
offence, a prescribed minimum sentence shall be imposed, save if the
court were to find, after due inquiry, that substantial and
compelling circumstances, which dictate the imposition of a lesser
sentence, exist.”
Secondly
the offences for which punishment is prescribed in this part of Part
II of Schedule 2, are those created by the Arms and
Ammunition Act.
[12] The
decisions in
S
v SUKWAZI
and
S
v MOKOMELA
in particular, point out that there is no such offence as possession
of a semi-automatic firearm in the Arms and Ammunition Act.

Reference to possession of a semi-automatic firearm, being reference
to a non-existent offence, is therefore an absurdity.
[13] Reference is also
made in particular to sections 2 and 32 of the Arms and Ammunition
Act. Now section 32 prohibits possession
of high calibre firearms
like machineguns or machinerifles and similar armament (the AK47’s,
R5 rifles, Uzi submachineguns). In
section 39(2)(aA) heavy penalties
are provided for contravention of section 32. By contrast, section 2
prohibits unlawful possession
of firearms generally and the
corresponding penalties set out in section 39(2)(b) are not as severe
as those attaching to possession
of the class of a firearm specified
in section 32.
[14] It is pointed out
that it would be an absurdity and manifestly unjust if small calibre
firearms like pistols were to be punished
with a minimum sentence of
15 years imprisonment alongside possession of the powerful firearms
alluded to above, when firearms like
revolvers and shotguns, which
are of heavier calibre than pistols, do not even attract the
prescribed minimum sentences. Moreover
it is clear from the
structure of the Arms and Ammunition Act that pistols fall within the
category of firearms the possession of
which is prohibited by section
2. The conclusion is reached therefore that the inclusion of the
word semi-automatic firearm in the
provision under discussion is an
anomaly which the legislature could not have intended.
[15] In
S
v KHONYE
supra
De Villiers J approached the matter from an altogether different
perspective based on the rules of interpretation of statutes
regarding
repeal of an existing statute by a subsequent one. He
concluded as follows at page 625F:
“
Myns
insiens
,
is dit duidelik dat Wet 105 van 1997 nie uitdruklik of by
ontwyfelbare wetsduiding artikel 39(2)(b) van Wet 75 van 1969 herroep
of wysig nie.”
For that reason the
learned Judge was of the view that the penalties provided for by
section 39(2)(b) for unlawful possession of a
pistol, even if it is a
semi-automatic firearm, remain in force and are not affected by the
provisions of the Minimum Sentences Act.
[16] However
the remarks made
obiter
at page 626b of the judgment indicate that De Villiers J would agree
with the line of reasoning followed by Combrinck J in
S
v SUKWAZI
and Moseneke J in
S
v MOKOMELA
.
Indeed the learned Judge seems to confirm this much in
S
v MOLEELE
2003 (2) SACR 255
(TPD).
[17] It should be noted
that the Arms and Ammunition Act has been repealed and replaced by
the
Firearms Control Act 60 of 2000
. To my mind, the provisions of
this new Act do not detract from the interpretation discussed above.
On the contrary, they confirm
the correctness thereof. A
semi-automatic firearm is defined in section 1 as self-loading, but
not capable of discharging more than
one shot with a single
depression of the trigger. This is in contrast to the definition of
a fully automatic firearm. Powerful
weapons like a fully automatic
firearm are singled out for more stringent control in section 4.
They may not even be licensed except
under clearly laid down
conditions. A semi-automatic firearm is not included in that
category. It stands to reason that its possession
falls under the
general prohibition of section 3 which attracts less severe
penalties.
[18] In
the result, I agree with the submission that the court
a
quo
erred in imposing the minimum sentence of 15 years imprisonment in
respect of count four. It stands to reason that the sentence
has to
be set aside. It was agreed at the hearing that a sentence of 3
years imprisonment on this count and 1 year on count five
would be
appropriate.
[19] I
would make the following order:
The
sentences of 32 years imprisonment and 15 years imprisonment
imposed respectively in respect of counts two and three are

confirmed.
The sentences of 15
years imprisonment and 3 years imprisonment imposed on counts four
and five respectively are set aside and
replaced with 3 years and 1
year.
19.3 All
the sentences to run concurrently.
___________
H.M. MUSI, J
I
agree.
_______________________
G. VAN COPPENHAGEN, J
I
agree.
____________
A. KRUGER, J
On
behalf of appellant: Mr. K. Pretorius
Instructed
by:
Legal
Aid Board
BLOEMFONTEIN
On
behalf of respondent: Adv. M. Strauss
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp