IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

High Court Review Number: 383/24
Magistrate’s Court Serial Number: 02/2024
Case Number: 501/2023

In the matter between:

THE STATE

And

JACQUES NUWEGELD ACCUSED

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REVIEW JUDGMENT IN TERMS OF S 304(4) OF ACT 51 OF 1977
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LEKHULENI J et NZIWENI J

[1] This matter came before us in chambers as a special review in terms of s
304(4) of the Criminal Procedure Act No 51 of 1977 ('the CPA') . The accused, who
appeared in person, was charged in the Beaufort West magistrate's court on four
counts of housebreaking with intent to steal and theft. The accused pleaded not
guilty to the charges, and after evidence was led, the accused was subsequently
convicted on three counts. The court found the accused not guilty on count four as

there was no evidence led against him on this count. After considering the
submissions in mitigation and aggravation of sentence, the trial court sentenced the
accused to three (3) years impr isonment in respect of each count. The accused was
cumulatively sentenced to nine years imprisonment in respect of the three counts.

[2] On perusing the record, we were satisfied that the conviction of the accused
on the three counts was underpinned by s ound reasoning and that the conviction on
these counts was in accordance with justice. However, we were startled by the
sentence of nine years direct imprisonment that the trial court imposed on the
accused. We also noted from the record that the trial cou rt did not consider the
provisions of section 103 of the Firearms Control Act 60 of 2000 (‘Firearms Control
Act’). Subsequent thereto, we queried the severity of the sentence and requested the
trial magistrate to give reasons for the sentence imposed and why section 103 of the
Firearms Control Act was not considered when the sentence was imposed.

[3] In response, the magistrate indicated that after considering all relevant
factors, specifically the relevant previous convictions and the sentences which were
handed down for those matters, and the clear indication that it did not have the
desired effect of deterrence, he was of the opinion that the sentence he imposed
was appropriate under the circumstances. According to the magistrate, not even the
suspended sentence, which was still in place, had any effect of deterring the
accused from committing further crimes. The magistrate stated that the accused
showed no remorse at any stage for his actions. The magistrate also acknowledged
that he indeed neglected to consider the provisions of section 103 of the Firearms
Control Act during the sentencing proceedings.

[4] From the outset, it must be stressed that the sentence imposed by the
magistrate raises questions relating to its appropriateness. We note from the
magistrate’s response to our query, that the accused’s the previous convictions had
a substantial effect on the severity of the sentence . In addition, the sentence
imposed by the magistrate easily lends itself to the conclusion that the accused was
sentenced for his present crime and more for his previous convictions. This
statement holds true not only due to the ma gistrate's response to our query , which
readily supports this interpretation, but also because of the significant severity of the
sentence in question.

[5] An accused person’s previous convictions are relevant in determining his
character and whether there is a need for deterrence to protect society. In pursuit of
this goal, section 271(4) of the CPA stipulates that ‘if the accused admits such
previous convic tion or such previous conviction is proved against the accused, the
court shall take such conviction into account when imposing any sentence in respect
of the offence of which the accused has been convicted’. Consequently, previous
convictions are relevant in the context of sentencing, as they illustrate a discernible
pattern of behaviour .

[6] However, it is significant to note that the sentencing court, when sentencing,
should consider the present offence/s, not the previous convictions. The accused’s
previous convictions should not heavily influence the sentence. Accordingly, an
accused person should not be penalised for his past sins or wrongdoings. The
sentence must be proportionate to both the offence/s and the offender.

[7] In the present case , it is strikingly evident that the sentence imposed by the
magistrate is manifestly excessive and evokes a sense of shock. This
disproportionate punishment starkly contradicts the nature of the offence committed,
leaving no doubt that a grave injustice has occurred. Indeed, the accused has rather
an unenvious list of previous convictions . The accused has about six relevant
previous convictions of housebreaking with the intent to steal and theft . As
foreshadowed above, t he accused should be sentenced for the offence charged and
not for his previous convictions. (See S v Baartman 1997 (1) SACR 304 (E) at
305D ).

[8] It is, however, incontestable that a significant term of direct imprisonment was
warranted in this matter. However, we are of the firm view that the magistrate
misdirected himself in that he overemphasised the impact of the list of previous
convictions of the accused at the expense of the other factors. The previous
convictions did not warrant the magistrate to increase the sentence beyond what
would otherwise be a fitting sentence. As we have previously observed , it is wrong to
punish a person again for hi s past crimes. An accused person should not get
subjected to a particular sentence because of his record unless the sentence is
imposed in terms of the provisions of the Criminal Law Amendment Act 105 of 1997,
or any other statutory provisions. Ordinarily, an accused person should not be
punished more than the crime deserves.

[9] In the present matter, the sentence was i ncreased beyond what is
proportionate to the gravity of the crime s committed. Ostensibly, t he cumulative
effect of the sentence imposed b y the magistrate does not relate to the gravity of the
crimes but to the accused’s previous convictions . In the circumstances, there are
several reasons why the sentence imposed by the magistrate is untenable. In the
first place, as we have observed previo usly, a person should not be subjected to
double punishment. In S v Beja 2003 (1) SACR 168 (SE) at 170d, the court dealt as
follows with facts comparable to the present, particularly on previous convictions:

‘It is trite law that the sentence must always fit the crime and the fact that the
person to be punished has a long list of previous convictions of a similar
nature, while it may be an important factor, could never serve to extend the
period of sentence so that it is disproportionate to the seri ousness of the
crime for which such a person must be punished. A period of imprisonment
must always be reasonable in relation to the seriousness of the offence. ’

[10] In S v Dodo 2001 (3) SA 382 (CC) paras 37 to 38 , Ackermann J , stated as
follows in respe ct of proportionality :

‘The concept of proportionality goes to the heart of the inquiry as to whether
punishment is cruel, inhuman or degrading, particularly where, as here, it is
almost exclusively the length of time for which an offender is sentenced th at is
in issue.... Section 12(1)(a) [of the Constitution of the Republic of South
Africa] guarantees, amongst others, the right “not to be deprived of freedom...
without just cause”. The “cause” justifying penal incarceration and thus the
deprivation of th e offender’s freedom is the offence committed. “Offence”, as
used throughout in the present context, consists of all factors relevant to the
nature and seriousness of the criminal act itself, as well as all relevant
personal and other circumstances relatin g to the offender which could have a
bearing on the seriousness of the offence and the culpability of the offender.
In order to justify the deprivation of an offender’s freedom it must be shown
that it is reasonably necessary to curb the offence and punish the offender.
Thus, the length of punishment must be proportionate to the offence. To
attempt to justify any period of penal incarceration… without inquiring into the
proportionality between the offence and the period of imprisonment, is to
ignore, if not to deny, that which lies at the very heart of human dignity ...
Where the length of a sentence, which has been imposed because of its
general deterrent effect on others, bears no relation to the gravity of the
offence ..., the offender is being used essen tially as a means to another end
and the offender’s dignity assailed. So too where the reformative effect of the
punishment is predominant and the offender sentenced to lengthy
imprisonment, principally because he cannot be reformed in a shorter period,
but the length of imprisonment bears no relationship to what the committed
offence merits. Even in the absence of such features, mere disproportionality
between the offence and the period of imprisonment would also tend to treat
the offender as a means to an end, thereby denying the offender’s humanity.’

[11] Indeed, it is in this vein that we stress again that t he gravity or otherwise of
the offence is always a material consideration in the imposition of a sentence.
Certainly, previous convictions are relevant to sentence, but only in so far as they
reflect upon the accused's character. (See State v Smith [2000] JOL 7026 (E)). A
sentence must always fit the crime and the fact that the person to be punished has a
long list of previous convictions of a similar nature, while it may be an important
factor, could never serve to extend the period of sentence so that it is
disproportionate to the seriousness of the crime for which such a person must be
punished. S v Salman [2008] JOL 21701 (E). We acknowledge that a person with a
record such as that of the accused is obviously less deserving of mercy than is a first
offen der. However, the punishment must be within the confines and bounds of the
offence committed.

[12] Consequently, in so far as the proceedings on the merits are concerned, we
are satisfied that the accused was properly convicted. The sentence of nine year s
direct imprisonment imposed by the trial court is not a just sentence and must be set
aside.

[13] As mentioned earlier , the trial court did not conduct an inquiry in terms of
section 103 of the Firearms Control Act. The accused was convicted of
housebr eaking with intent to steal and theft and was sentenced to direct
imprisonment without the option of a fine. Housebreaking with intent to steal and
theft involves an element of dishonesty. A conviction on housebreaking with intent to
steal and theft brings the matter within the ambit of s 103(1)(g) of the Firearm's
Control Act.

[14] Section 103(1)(g) of the Firearms Control Act provides that 'unless the court
determines otherwise, a person becomes unfit to possess a firearm if convicted of
any offence inv olving violence, sexual abuse or dishonesty, for which the accused is
sentenced to a period of imprisonment without the option of a fine.' Where a matter is
governed by section 103(1) of the Firearms Control Act, the accused is automatically
deemed to be u nfit to possess a firearm unless the court determines otherwise. (See
S v Lukwe 2005 (2) SACR 578 (WLD) at 580f). The court may determine that the
statutory unfitness to possess a firearm, in terms of section 103(1), shall not take
effect or shall not appl y.

[15] We share the views expressed in State v Mkhonza 2010 (1) SACR 602 (KZP)
para 22, where the court stated that when the legislature vested in the courts of this
country the jurisdiction to determine that the statutory unfitness to possess a firearm
imposed under s103 (1) of the Act should not apply, it did not intend the courts to
adopt a supine approach to the se matters, dependent entirely upon whether the
accused had the knowledge, means and resources to place a proper case before it ,
that the disqualification should not apply to them, and in all other cases for the
disqualification to apply as a matter of rot e. At the very least , it was the intention of
the legislature that the court should have regard to all relevant factors concerning the
offence, how ever feeble and limited the case advanced by the accused , and to
consider the issue of whether it should dete rmine otherwise in the light of all the
facts.

[16] There is an obligation on the trial court to consider correctly all the relevant
factors, whether the case is one where the statutory disqualification from possessing
a firearm should remain in place or whether it should be determined otherwise. In
approaching that task, the court should have regard to any factor that bears on the
issue and, if there is reason to believe that all material facts bearing on that decision
are not before it, to cause those f acts to be discovered and placed before it.

[17] In summary, when the matter falls within the ambit of section 103(1), and the
accused person is unrepresented, the court should draw the accused's attention to
the provisions of section 103(1) and invite him or her to place facts before the court
to enable it to determine that he or she is indeed fit to possess a firearm. The court
must adopt an active role to ensure that all the relevant facts are placed before it to
make a proper determination. The automatic deprivation of the right to possess a
firearm m ay have serious consequences for an accused if the provisions of section
103(1) are simply ignored and not brought to his or her attention. S v Maake 2007 (1)
SACR 403 (T) at para 19.

[18] Some of the important factors that should be considered in terms of section
103(1) of the Firearms Control Act were underscored by the full court in S v Phuroe
en Agt Ander Soortgelyke Sake 1991 (2) SACR 384 (NC) under the s 12(1)(a) of the
now repealed Ar ms and Ammunition Act 75 of 1969 which section was in substance
similar to section 103(1) of the Firearms Control Act. The court highlighted such
factors as –

(a) The accused's age and personal circumstances ;
(b) the nature of any previous convictions or the absen ce thereof ;
(c) the nature and seriousness of the crime of which he has been found guilty
and the connection that the crime has with the use of a firearm ;
(d) whether there is any background which suggests that the accused may make
use of his or her licensed firea rm for the purpose of committing offences , and
(e) whether it is in the interest of the community that the accused be declared
unfit to possess a firearm because of the fact that he or she poses a potential
danger to the community .’

[19] Evidently, the trial court adopted a supine approach in dealing with this
matter. The accused was automatically deemed unfit to possess a firearm upon
conviction on housebreaking with intent to steal and theft and sentenced to direct
imprisonment without a fine. The trial cour t did not allow him to place facts to enable
it to determine whether the statutory unfitness to possess a firearm in terms of
section 103(1) should take effect or not. The court below misdirected itself in this
regard. Accordingly, the matter should be ref erred to the magistrate to properly
consider the necessary facts to enable him to determine whether the statutory
unfitness to possess a firearm should take effect.

[20] In the result, the conviction in respect of the three counts is confirmed, but the
sentence is set aside and replaced with a sentence of 1 year and six months
imprisonment in respect of each count, which is antedated to the date upon which
the presiding magistrate imposed the sentence. The effective term of imprisonment
is thus 4 years an d 6 months.

[21] The determination in terms of section 103(1) of the Firearms Control Act is
referred to the magistrate for consideration in light of the guidance set out in
paragraphs 1 3 to 18 of this judgment.


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LEKHULENI JD
JUDGE OF THE HIGH COURT

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NZIWENI CN
JUDGE OF THE HIGH COURT