Motsoari v S [2005] ZAFSHC 112 (27 October 2005)

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[2005] ZAFSHC 112
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Motsoari v S [2005] ZAFSHC 112 (27 October 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: A40/2004
In
the case between:
ANDRIES MOTLATSI
MOTSOARI
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
EBRAHIM, J
et
MATSEPE, AJ
JUDGMENT:
EBRAHIM, J
_____________________________________________________
HEARD ON:
17 OCTOBER 2005
_____________________________________________________
DELIVERED ON:
27 OCTOBER 2005
_____________________________________________________
[1] The appellant was
charged in the Regional Court sitting at Bloemfontein with 2 counts
of robbery with aggravating circumstances.
He was convicted
accordingly and sentenced on each count to 15 years imprisonment. In
addition he was charged and convicted of
a third offence namely
contravening Section 2 read with Section 39(1)(h) and 39(2)(a) and
39(2)(b) of the Arms and Ammunition Act
75 of 1969 as amended, that
of being in possession of a semi-automatic firearm without having a
valid licence to possess it. On
this count he was also sentenced to
undergo 15 years imprisonment. In terms of the provisions of
Sections 208(2)
of the
Criminal Procedure Act 51 of 1977
the learned
trial magistrate ordered that the sentences on all 3 three counts run
concurrently, with the caveat that the appellant
serve an effective
sentence of 28 years imprisonment.
[2] The appellant
originally noted an appeal against his conviction and sentence on all
three counts. He has however elected to prosecute
the appeal against
the sentence on count 3 only. At the hearing before us, Mr. Reynecke
on the appellant’s behalf abandoned the
appeal on the merits on all
three counts, and the appeal in respect of the sentences imposed on
counts 1 and 2.
[3] I have carefully
analysed the learned magistrate’s judgment on sentence and it is
apparent that careful consideration was given
by him to the case law
defining the purposes of punishment and the guidelines to be followed
in the sentencing process. He has also
quite clearly applied his
mind to the provisions of the minimum sentence legislation (the
Criminal Law Amendment Act, Act 105 of
1997) and his imposition of
the minimum sentence in respect of the 2 counts of robbery with
aggravating circumstances cannot be faulted.
[4] Where however, the
learned magistrate has erred is in imposing a sentence of 15 years
imprisonment in respect of the conviction
for the unlawful possession
of the firearm in accordance with the provisions of
Section 51(2)(a)
of the
Criminal Law Amendment Act, 1997
.
Section 51(2)(a)(i)
reads
as follows:
¡°(2) Notwithstanding any other law but subject to subsections (3)
and (6), a regional court or a High Court, including a High
Court to
which a matter has been referred under
section 52
(1) for sentence,
shall in respect of a person who has been convicted of an offence
referred to in-
(a)
Part II
of Schedule 2, sentence
the person, in the case of-
(i) a first offender, to imprisonment
for a period not less than 15 years;”
The offences referred to
in
part II
, schedule II include robbery with aggravating
circumstances as well as
“any
offence relating to –
the dealing in or smuggling of
ammunition firearms explosives or armament; or
the possession of a automatic or
semi-automatic firearm, explosives of armament.”
[5] In the present case
the appellant was convicted of being in possession of a 9mm pistol (a
semi-automatic firearm) without having
a licence to posses it. He
was sentenced in terms of
Section 51(2)(a)(i)
to the minimum sentence
of 15 years imprisonment, he being a first offender. The magistrate
gave no consideration to whether or
not the sentence of 15 years
imprisonment for such an offence was an appropriate one. His
approach was clearly incorrect for the
following reasons –
The offence created in
part II
of Schedule II of the
Criminal Law Amendment Act of 1997
,
that of possession of a semi-automatic firearm, is a non-existent
offence and is nowhere to be found in the Arms and Ammunition
Act
75 of 1969. Section 32(1) of the Arms and Ammunition Act of 1969
makes it an offence to be in possession of an automatic
firearm,
explosives and an armament without simultaneously being in
possession of a valid licence to possess such an arm.
The legislature could
not have intended that possession of a 9mm pistol without a licence
attract a minimum sentence of 15 years
imprisonment solely because
the firearm happens to be a semi-automatic one whilst possession of
any other handgun for example
a revolver be excluded from the ambit
of Section 51(2)(a)(i).
See
STATE
v SUKWAZI
2002 (1) SACR 619
NPD.
The legislature could not
have intended such disparity when it came to the imposition of
sentence in respect of different types of
hand guns. The sentence
stipulated in Part II of schedule II in relation to the possess of a
semi-automatic firearm therefore cannot
be adhered to as it leads to
absurdity in sentencing.
[6] In my view a sentence
of 2 years imprisonment would have been appropriate for the
conviction of possession of a 9mm pistol without
a licence. In the
result I would uphold the appeal against the sentence on count 3 and
set aside the sentence of 15 years imprisonment.
Accordingly
I make the following order:
1. The convictions in
respect of count 1, 2 and 3 and the sentence of 15 (fifteen) years
imprisonment each in respect of counts 1
and 2 are confirmed.
2. The appeal against the
sentence on count 3 succeeds to the extent that the sentence of 15
(fifteen) years imprisonment is set aside
and substituted with a
sentence of 2 (two) years imprisonment.
I order that the
sentence on count 3 is to run concurrently with the sentence on
counts 1 and 2 so that in effect the appellant serves
a sentence of
28 (twenty eight) years imprisonment.
In view of the fact that
the appellant in the court
a
quo
was
charged and convicted with one other namely Benjamin Salamane, I
direct that a copy of this judgment be made available to the
said
Salamane.
____________
S EBRAHIM, J
I
concur.
_______________
V. MATSEPE, AJ
On
behalf of appellant: Attorney J.D. Reyneke
Instructed by:
Legal Aid Board
BLOEMFONTEIN
On
behalf of respondent: Adv. B.G. Claassens
Instructed by:
Director Public Prosecutions
BLOEMFONTEIN
/em