IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, DURBAN
HIGH COURT CASE NO. DR72/2025
REVIEW NO: 2/2024
MAGISTRATES’ COURT CASE NO: B 207/2023
In the matter between:
CELIMPILO DLOMO ACCUSED
and
THE STATE
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ORDER
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In the premises the following order is made:
1. The order of the court a quo on conviction is confirmed.
2. The sentence imposed by the court a quo on 21 February 2024 is set aside
and replaced with the following sentence:
2.1 The accused is sentenced to three years’ imprisonment on count 1,
half of which is suspended for a period of five years on condition that
the accused is not convicted of unlawful possession of a firearm or
ammunition during the period of suspension.
2.2 The accused is sentenced to one year imprisonment on count 2.
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2.3 The sentence in c ount 1 is to run concurrently with the sentence in
count 2.
2.4 The sentences are antedated to 21 February 2024.
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SPECIAL REVIEW JUDGMENT
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Mathenjwa J (Sibiya AJ concurring)
[1] The matter initially came before Tucker AJ who raised several queries to
which the learned magistrate has responded. The matter now comes before me on
special review under s 304(4) of the Criminal Procedure Act 51 of 1977 (‘the CPA’).
[2] The accused was charged with two counts at Nongoma Magistrate Court ;
count 1 is a contravention of s 3 of the Firearms Control Act 60 of 2000 (‘the FCA’)
read with s 51(2) of the Criminal Law Amendment Act 105 of 1977 (‘the Act’) in that
the accused was found in possession of a 303 hunting rifle without a licence, permit
or authorisation; count 2 is a contravention of s 90 of the FCA in that the accused
was found in possession of 21 live rounds of ammunition without being a holder of a
licence in respect of a firearm capable of discharging that ammunition nor a permit to
possess the ammunition.
[3] The accused was represented by a legal a practitioner appointed by legal aid.
When the prosecutor put the charges to the accused at the commencement of the
proceedings, the learned magistrate informed the prosecutor that she had to read
the provisions of s 51(2) of the Act, since the Act was applicable to the charge
relating to the possession of a firearm . Subsequently, the prosecutor read into the
record that if the accused was convicted of the offence of possession of a firearm his
sentence may attract the minimum penalty provisions contained in s 51(2)(a) of the
Act. Subsequently, the magistrate asked the accused whether he understood the
charges levelled against him, to which the accused answered in the affirmative.
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[4] The magistrate then warned the accused in terms of s 1(1) of the Criminal
Law Amendment Act 1 of 1988, which states that:
‘Any person who consumes or uses any substance which impairs his or her faculties to
appreciate the wrongfulness of his or her acts or to act in accordance with that appreciation,
while knowing that such substance has that effect, and who while such faculties are thus
impaired commits any act prohibited by law under any penalty, but is not criminally liable
because his or her faculties were impaired as aforesaid, shall be guilty of an offence and
shall be liable on conviction to the penalty which may be imposed in respect of the
commission of that act.’
[5] The accused pleaded guilty to both counts. In his plea explanation in terms of
s 112(2) of the CPA the accused admitted that he was found in possession of a 303
rifle and 21 live round s of ammunition without holding a licence to possess the
firearm and ammunition. He confirmed that he knew it was unlawful to keep the
firearm without a licence. The firearm was left behind by his father wh en he passed
away on 22 January 2017 . His late father had a licence to possess that firearm. The
accused was aware that he should have handed in the firearm to the police after the
death of his father which he had failed to do.
[6] The magistrate found the accused guilty of both counts and thereafter asked
the accused’s legal representative whether she understood the implications of s 51
of the Act and whether in light of the prescribed minimum sentence the submission
that the accused should be considered for non-custodial sentence was relevant. The
magistrate then asked the legal representative to address her specifically on s 51 of
the Act. The magistrate then adjourned the matter and directed the accused's legal
representative to read the judgments of S v Malgas1 and S v Matyityi2 and to address
the court accordingly when it resumed.
the court accordingly when it resumed.
[7] Subsequently when the court resumed the accused ’s representative
addressed the court on the issue of substantial and compelling circumstances . She
referred to S v Malgas as authority for the principle that ordinarily the prescribed
minimum sentence should be imposed unless the sentence would be unjust or
1 S v Malgas 2001 (1) SACR 469 (SCA).
2 S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA).
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disproportionate to the offence. Ultimately the legal representative submitted that the
circumstances of the offence constituted compelling and substantial circumstances
that warranted deviation from the prescribed minimum sentence . After hearing both
the prosecutor and the accused’s representative on sentence , the court further
adjourned the matter for sentencing. When the court resumed for sentencing the
magistrate alluded to the fact that the court gave the legal representative s a chance
to address the court on substantial and compelling circumstances because the State
in its indictment had invoked s 51 of the Act, however the magistrate observed from
the ballistic report handed in by the State that the minimum sentence provisions
were not applicable to possession of a 303 firearm. The court subsequently
sentenced the accused to seven years’ imprisonment fo r count 1; unlawful
possession of a firearm and seven years’ imprisonment for count 2; unlawful
possession of ammunition, which sentences were ordered to run concurrently.
[8] The issues for determination in this case are whether there were any
irregularities in the proceedings in the magistrates’ court and if so whether the
irregularities were material and therefore led to a failure of justice.
[9] The function of an appeal court when considering fairness in a criminal appeal
was spelt out in S v Rudman and Another; S v Mthwana3 where it was stated that the
function of a criminal appeal court was to enquire:
‘Whether there has been an irregularity or illegality, that is a departure from the formalities,
rules and principles of procedure according to which our law requires a criminal trial to be
initiated or conducted’.
Thus, the starting point is to determine whether there were any irregularities in the
proceedings. The record shows that the accused was charged with unlawful
possession of a 303-firearm rifle read with the provisions of s 51(2) of the Act which
possession of a 303-firearm rifle read with the provisions of s 51(2) of the Act which
makes provision for mandatory minimum sentences . The prescribed minimum
sentence in respect of unlawful possession of a firearm is regulated by s 51(2) read
with Part II of the Act which provides that:
‘(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or
a High Court shall sentence a person who has been convicted of an offence referred to in-
(a) Part II of Schedule 2, in the case of-
3 S v Rudman and Another; S v Mthwana 1992 (1) SACR 70 (A) at 100F-G.
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(i) a first offender, to imprisonment for a period not less than 15 years.
(ii) a second offender of any such offence, to imprisonment for a period
not less than 20 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years.
[10] It is instructive that the 303 rifle is neither an automatic rifle nor a semi -
automatic rifle. Therefore, unlawful possession of a 303 rifle does not fall under the
list of offences in Part II of Schedule 2 of the Act . Consequently, the minimum
sentence prescribed by s 51(2) is not applicable to a conviction for possession of a
303 rifle. For that reason, it was irregular to add the provisions of prescribed
minimum sentence to the charges faced by the accused in the court a quo. Even if
the provisions of s 51(2) were applicable , which was not , the district magistrates’
court would not have had the jurisdiction to he ar the matter. Section 51(2) of the Act
authorises the regional court and high court, to the exclusion of the District Court, to
impose a sentence on a charge read with s 51(2). For that reason, it was irregular for
the magistrate to preside over a matter in respect of which the accused was facing a
charge which attracted a minimum sentence.
[11] This matter is distinguishable from matters in which the magistrate would
have discovered after conviction that th e offence merited punishment in excess of
the jurisdiction of the magistrate’s court. 4 In the later instance the court w ould
commence the proceedings on the basis that it has jurisdiction. It would be only after
a conviction following on a plea of guilty that the magistrate will form the opinion that
the conviction would merit punishment in excess of its jurisdiction. If a magistrate
commences with the proceedings involving a charge read with the provisions of the
prescribed minimum sentence, he/she would be committing an irregularity and
prescribed minimum sentence, he/she would be committing an irregularity and
contravene the principle of the rule of law which requires that a power may be
exercised only if the person exercising such power has the authority to do so. For
4 Section 114(1) of the CPA provides that:
‘If a magistrate's court, after conviction following on a plea of guilty but before sentence, is of the
opinion-
(a) that the offence in respect of which the accused has been convicted is of such a nature or
magnitude that it merits punishment in excess of the jurisdiction of a magistrate's court.
…
the court shall stop the proceedings and commit the accused for sentence by a regional court having
jurisdiction.’
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that reason, the magistrate erred in presiding over a matter in respect of which the
accused was facing a charge read with s 51(2) of the Act.
[12] It should be pointed out that the mandatory minimum sentence provisions are
distinguishable from the provisions that provides for a maximum sentence. In the
latter category the district court has jurisdiction to hear a matter and impose a
sentence above its three years jurisdictional limit. In the present matter, the accused
was charged with contravening s 3 of the FCA which makes it an offence for any
person to possess a firearm without a licence, permit or authorisation granted in
terms of the Act. Schedule 4 of the FCA prescribes that a maximum sentence of 15
years’ imprisonment may be imposed on any person found guilty of contravening the
provisions of s 3. Section 151 provides that ‘Despite any law to the contrary , any
magistrate’s court has jurisdiction to impose any penalty provided for in terms of the
Act’. In Tau v S 5 Loubser AJ confirmed an eight-year sentence imposed by a
magistrate’s court for contravention of s 3 of the FCA on the basis that the Act vests
the court with the jurisdiction to impose a sentence that exceeds its normal
jurisdictional limit.
[13] Regarding the sentence , it is instructive that before the magistrate imposed
the sentence, she alluded to the fact that the charges against the accused did not fall
under s 51(2) of the Act , without further elaboration . The record reflects that when
the accused ’s legal representative submitted to the court that it should consider a
non-custodial sentence, the magistrate opined that a non-custodial sentence might
not be relevant in the light of the prescribed minimum sentence. It remains uncertain
if the magistrate had recogni sed the relevance of the non -custodial sentence at the
time she imposed the sentence on the accused.
[14] It is appropriate to distinguish the circumstances of this case from most cases
[14] It is appropriate to distinguish the circumstances of this case from most cases
involving unlawful possession of firearms, in that the accused’s late father was the
licenced owner of the firearm; the firearm was found in the accused’s house in the
homestead where it was left by his father. The firearm was not stolen or acquired
5 Tau v S [2017] ZAFSHC 42 para 12.
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illegally; it was legally acquired by the accused ’s late father; it was not used for the
commission of any offence; the accused was a first offender; at the time of his arrest
he was employed at Okhukho mine earning a salary of R6 000 per month; and he
had two children whom he was supporting.
[15] The magistrate failed to pay proper attention to the personal circumstances of
the accused, the unique circumstances of the case and to consider the
proportionality of the sentence to the offence when imposing the sentence . It is no
doubt that given the proliferation of unlawful possession of firearm s and the
prevalence of violent crimes involving the use of firearms, courts are required to
impose appropriate sentences that would have the effect of preventing further
proliferation of unlawful firearms. However, the magistrate misdirected herself in
failing to consider the peculiar circumstances of this case . E ach case should be
treated on its own merits. In the present case , the magistrate failed to consider
mitigating factors when imposing a seven-year sentence in respect of possession of
a firearm and ammunition, respectively.
[16] It is trite that not all irregularities contravene the right to a fair trial, however an
irregularity which leads to a failure of justice would contravene the right to a fair trial
which is central to any civilised criminal justice system. 6 ‘In principle, the system
aims to punish only those persons whose guilt has been established in a fair trial. ’7
Our courts have recognised t he principle that justice must not only be done but also
be seen to be done as at the heart of a fair criminal trial. 8 For these reasons a
presiding officer is required to conduct a trial in accordance with general open -
ended notions of justice and fairness and ensure that the right to a fair trial is
adhered to.9
[17] In relation to the conviction, it is important to note that the interpretation of
[17] In relation to the conviction, it is important to note that the interpretation of
section 51(2) of the Act concerning the charge is relevant solely to sentencing and
does not affect the fundamental nature of the accused's conviction.
6 S v Jaipal 2005 (1) SACR 215 (CC) para 26.
7 Sanderson v Attorney-General Eastern Cape 1998 (2) SA 38 (CC) para 23.
8 S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC) para 11.
9 Sanderson para 22.
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It is clear from the record that all the elements of the offence were present, and the
accused was correctly found guilty . For that reason, I have no reason to interfere
with the conviction since the irregularities w ere not material to the conviction.
However, the misdirection by the magistrate on sentence requires intervention by
this court. Considering the circumstances of this case as alluded to above a lesser
sentence would be proportionate to the nature of the offence and the circumstances
of the accused.
Order
[18] In the premises the following order is made:
1. The order of the court a quo on conviction is confirmed.
2. The sentence imposed by the court a quo on 21 February 2024 is set aside
and replaced with the following sentence:
2.1 The accused is sentenced to three years’ imprisonment on count 1,
half of which is suspended for a period of five years on condition that
the accused is not convicted of unlawful possession of a firearm or
ammunition during the period of suspension.
2.2 The accused is sentenced to one year imprisonment on count 2.
2.3 The sentence in c ount 1 is to run concurrently with the sentence in
count 2.
2.4 The sentences are antedated to 21 February 2024.
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Mathenjwa J
I agree.
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Sibiya AJ
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