S v Ndlovu (75/2002) [2002] ZASCA 144; [2003] 1 All SA 66 (SCA) (27 November 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2002
>>
[2002] ZASCA 144
|

|

S v Ndlovu (75/2002) [2002] ZASCA 144; [2003] 1 All SA 66 (SCA); 2003 (1) SACR 331 (SCA) (27 November 2002)

REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number: 75/2002
In
the matter between:
SAM
NDLOVU
Appellant
and
THE
STATE
Respondent
CORAM
:
SCHUTZ,
MPATI and NUGENT JJA
HEARD
:
5
NOVEMBER 2002
REASONS
HANDED IN ON
:
27 NOVEMBER 2002
Criminal
Law – unlawful possession of firearm – imposition of sentence –
effect of failure of prosecution to ask for minimum
sentence –
effect of failure by presiding officer to inform accused of possible
application of minimum sentencing provisions of
Act 105 of 1997 –
need for State to prove firearm automatic or semi-automatic.
___________________________________________________________________
REASONS
__________________________________________________________________
MPATI
JA:
[1] Three important issues arise in
this case. The first is whether it is incumbent upon the State to
allege in the charge sheet,
or otherwise pertinently bring it to the
attention of the accused, that it is relying on the firearm with
whose possession he is
charged being an automatic or semi-automatic
one, and is consequently seeking the imposition of the minimum
sentence of 15 years.
The second is the extent of the obligation
resting on the presiding judicial officer to satisfy himself that the
accused fully understands
that he/she stands to be sentenced to the
minimum period of imprisonment, unless substantial and compelling
circumstances are found
to exist, such as justify the imposition of a
lesser sentence. The third is the extent of the onus resting on the
State to prove
that the firearm in question is automatic or
semi-automatic.
[2] The appellant stood trial in the
regional court, Germiston, on two charges, viz unlawful possession of
a firearm in contravention
of s 2 of Act 75 of 1969 (count 1) and
unlawful possession of eight rounds of ammunition in contravention of
s 36 of the same Act
(count 2). He was convicted on both charges.
In the course of his judgment the magistrate made a finding that the
weapon, a 9 mm
Star pistol, was a semi-automatic firearm. This
finding brought the appellant within the ambit of the minimum
sentencing provisions
of the Criminal Law Amendment Act 105 of 1997
(the Act), the offences having been committed on 28 November 1998.
The minimum sentencing
provisions came into force on 1 May 1998.
[3] In terms of s 51(2)(a)(i) of the Act the minimum
sentence to be imposed on a first offender following a conviction of
unlawful
possession of an automatic or semi-automatic firearm is 15
years’ imprisonment unless substantial and compelling circumstances
exist, which justify the imposition of a lesser sentence (s
51(3)(a)). Having found that no substantial and compelling
circumstances
were present the magistrate thereupon sentenced the
appellant to 15 years’ imprisonment on the first charge and on the
second to
imprisonment for one year, the two sentences to run
concurrently.
[4] The appellant’s appeal to the Witwatersrand Local
Division against his convictions and sentences failed, but that Court
granted
him leave to appeal to this Court.
[5] After it had heard argument this Court issued the
following order (on 5 November 2002):
‘1. The
appeal against conviction is dismissed.
2. The appeal against sentence is upheld. The
sentences of 15 years and one year are set aside and are replaced
with a sentence
of three years on charge one and one year on charge
two, such sentences to run concurrently.
3. The appellant is ordered to be released forthwith,
the sentence above already having been served.’
The reasons for this order were to
be given later. They now follow.
[6] The appellant pleaded
not guilty to both charges before the magistrate and denied that he
was found in possession of the firearm
loaded with eight cartridges.
In this Court, however, his counsel conceded that the appellant’s
denial was correctly rejected
by the magistrate as not being
reasonably possibly true. But he persisted with the argument that
the magistrate’s finding that
the firearm was a semi-automatic
weapon was erroneous. The facts are these. Three members of the
South African Police Service,
Sergeants Phineas Maja and Makoba and
Constable Sepo Lawrence Motsamai, were patrolling in a street in
Katlehong, Germiston, in a
police vehicle. Sergeant Makoba was the
driver. Constable Motsamai, on seeing the appellant who was walking
along the street with
his shirt hanging over his trousers on one
side, suspected that the appellant was carrying a firearm. He asked
Sergeant Makoba to
stop the vehicle and he and sergeant Maja
approached the appellant. He searched the appellant and found the 9
mm Star pistol tucked
in the appellant’s trousers. On examining
the firearm, he and Maja found 8 rounds of ammunition in the
magazine. The appellant
could not produce a licence entitling him to
possess the firearm.
[7] The prosecutor did not
lead any evidence on the issue of whether the firearm was
semi-automatic. It was only during the following
exchange between
the magistrate and the appellant at the end of the
examination-in-chief of Motsomai that mention was made of it:
‘Meneer,
watse tipe wapen is die 9 mm pistool? --- Dit is `n pistool,
handwapen, Edelagbare.
Meneer,
is dit outomaties of semi-outomaties of nie een van die twee nie? ---
Dit is `n semi-outomatiese pistool.’
Apart from Motsamai’s
other testimony that he tested the firearm to ascertain that it was
in working condition, there was no evidence
on which to base his
conclusion that the firearm was semi-automatic. It is on this
evidence that counsel for the appellant argued
that it had not been
proved that what was found in the appellant’s possession was a
semi-automatic firearm and that therefore the
sentence imposed in
respect of the first charge was not competent.
[8] An allied submission
made by counsel was that at no stage was the appellant pertinently
alerted to the fact that he stood in peril
of the sentencing regime
of the Act being applied if he was convicted. In response to this
latter submission counsel for the State
contended that apart from the
fact that reference was made in the charge sheet to s 50 of the Act
the appellant was legally represented
and that ‘everyone knew what
it was all about’.
[9] The difficulty with
this argument of course is that there is no indication whatsoever in
the record that the appellant or his
legal representative had the
slightest idea, prior to sentence, that the appellant was facing the
prospects of imprisonment of 15
years in terms of the minimum
sentencing provisions of the Act. Apart from mentioning, in the
course of his judgment and while summarising
the facts, that ‘[d]ie
wapen is `n semi-outomatiese vuurwapen’, the magistrate does not
appear to have advised the appellant
at any stage of the consequences
of this finding, if made. At the end of his judgment he convicted
the appellant ‘op BEIDE DIE
AANKLAGTE … SOOS AANGEKLA’.
[10] The first charge
(which is really the one in issue in this appeal) reads:
‘That
the accused is guilty of the offence of contravening Section 2 read
with Sections 1, 39(1)(h), 39(2) of Act 75 of 1969 as
amended. Read
with Section
50 Act 105/97.
In that upon or about the 28 day NOVEMBER 1998 and at or
near KATLEHONG in the Regional Division of Southern Transvaal the
accused
did unlawfully have an arm/arms to wit 9 mm PISTOL in his
possession without being the holder of a licence issued in terms of
Act
74 of 1969 to possess the said arm/arms.’
Section 39(2) of the Arms and
Ammunition Act 75 of 1969, to which the accused was directed in the
charge sheet, stipulates the penalties
for contravening that Act (the
penalty for contravening s 2 is a fine of R12 000 or imprisonment of
3 years or both). The very reference
to that section was calculated
to convey the impression that the State would seek the penalty
provided for in that Act. It was pointed
out on behalf of the State
that the charge sheet also referred the appellant to the Act. The
section of that Act to which the appellant
was referred (s 50) does
not relate to the sentencing regime but instead reads as follows:
‘The laws mentioned in the second column of Schedule 1 are hereby
amended to the extent set out in the third column of that Schedule.’
It was submitted on behalf of the State that the
reference to s 50 was clearly an error and that the charge sheet must
have been intended
to refer rather to s 51. If that is so the charge
sheet was at the very least ambiguous as to whether the State would
seek the sentence
provided for in the Arms and Ammunition Act or
whether it would seek the sentence provided for in the Act. Nothing
in the remainder
of the charge provided any further enlightenment.
Indeed, it seems that the State had no intention of seeking the
sentence provided
for in the Act because it led no evidence at all to
bring the matter within its terms. It was only after the State had
completed
leading the evidence of the witness concerned that the
magistrate’s questions elicited the relevant facts.
[11] Whilst
it is desirable that the charge sheet should set out the facts the
State intends to prove in order to bring an accused
within an
enhanced sentencing jurisdiction, to do so is not essential.
R v
Zonele and Others
1959 (3) SA 319
(A) at 323 A-H;
S v Moloi
1969 (4) SA 421
(A) at 424 A-C. But in a recent judgment of this
Court Cameron JA reminds us that an accused person has a
constitutionally guaranteed
right to a fair trial that embraces a
concept of substantive fairness. He said the following:
‘
The Constitutional
Court has emphasised that under the new constitutional dispensation,
the criterion for a just criminal trial is
“a concept of
substantive fairness which is not to be equated with what might have
passed muster in our criminal courts before
the Constitution came
into force”. (
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para
16, drawing a contrast with
S v Rudman and Another, S v Mthwana
1992 (1) SA 343
(A) 377; and see
Sanderson v Attorney-General,
Eastern Cape
1998 (2) SA 38
(CC) para 22, per Kriegler J.) The
Bill of Rights specifies that every accused has a right to a fair
trial. This right, the Constitutional
Court has said (in
S v
Zuma
,
supra
, para 16), is broader than the specific rights
set out in the subsections of the Bill of Rights’ criminal trial
provision (s 35(3)(a)-(o)
of the Constitution). One of those
specific rights is “to be informed of the charge with sufficient
detail to answer it” (s
35(3)(a)). What the ability to “answer”
a charge encompasses this case does not require us to determine. But
under the constitutional
dispensation it can certainly be no less
desirable than under the common law that the facts the State intends
to prove to increase
sentencing jurisdiction under [the Act] should
be clearly set out in the charge sheet.’
(
Michael
Legoa v The State
, case no 33/2002, judgement delivered on 26
September 2002, para 20.) Cameron JA declined, however, to lay down
a general rule that
the charge sheet must in every case recite either
the specific form of the scheduled offence (in that case dealing in
dagga with
a value of more than R50 000) with which an accused is
charged, or the facts the State intends to prove to establish it. He
held,
in the end, that ‘Whether the accused’s substantive fair
trial right, including his ability to answer the charge, has been
impaired,
will … depend on a vigilant examination of the relevant
circumstances’ (para 21).
[12] The
following extract from the judgment of the Full Court in
S v
Seleke en Andere
1976 (1) SA 675
(T) at 682H was quoted with
approval by Cameron JA (his translation from Afrikaans):
‘To
ensure a fair trial it is advisable and desirable, highly desirable
in the case of an undefended accused, that the charge sheet
should
refer to the penalty provision. In this way it is ensured that the
accused is informed at the outset of the trial, not only
of the
charge against him, but also of the State’s intention at conviction
and after compliance with specified requirements to
ask that the
minimum sentence in question at least be imposed.’
The enquiry, therefore, is whether,
on a vigilant examination of the relevant circumstances, it can be
said that an accused had had
a fair trial. And I think it is
implicit in these observations that where the State intends to rely
upon the sentencing regime created
by the Act a fair trial will
generally demand that its intention be pertinently brought to the
attention of the accused at the outset
of the trial, if not in the
charge sheet then in some other form, so that the accused is placed
in a position to properly appreciate
in good time the charge that he
faces as well as its possible consequences. Whether, or in what
circumstances, it might suffice
if it is brought to the attention of
the accused only during the course of the trial is not necessary to
decide in the present case.
It is sufficient to say that what will
at least be required is that the accused be given sufficient notice
of the State’s intention
to enable him to properly conduct his
defence.
[13] Upon
conviction in the present matter the appellant became liable to a
minimum sentence of 15 years’ imprisonment in view of
the
magistrate’s finding that he had been found in possession of a
semi-automatic firearm, unless substantial and compelling
circumstances
were present justifying a departure from the prescribed
sentence. Were it not for the magistrate’s finding the sentence
which
would have been imposed would not have exceeded R12 000 or 3
years’ imprisonment or both (s 39(2)(b)(i) of Act 75 of 1969). The
difference is huge and, in my view, where the minimum sentencing
provisions apply an accused must not be subjected to the risk of
being visited with them without having been made fully aware that
such will be the case unless substantial and compelling circumstances
are present which would justify a lesser sentence. And in this
regard the presiding officer bears the responsibility of satisfying
himself and should not simply conclude, without more, as appears to
have been the position in the present matter, that no substantial
and
compelling circumstances exist. Cf
S v Dlamini
2000 (2) SACR
266
(T) at 268 d-g;
Rammoko v Director of Public Prosecutions
(case no 85/2001, unreported judgment of this Court, delivered 15
November 2002, paras 13 and 14).
[14] In the circumstances of this case it cannot be said
that the appellant suffered no prejudice from the magistrate’s
failure
to warn him of the consequences of his finding, should he
make such a finding, that the weapon found on him was a
semi-automatic
farearm. In invoking the provisions of the Act
without it having been pertinently brought to the appellant’s
attention that this
would be done rendered the trial in that respect
substantially unfair. That, in my view, constituted a substantial
and compelling
reason why the prescribed sentence ought not to have
been imposed. Hence the order that we have already made.
[15] In
view of this conclusion it is unnecessary to consider the question
whether the State proved that the firearm concerned was
a
semi-automatic weapon. It is, however, well to repeat the
caveat
in
S v Metu
1995 (2) SACR 681
(A), a case in which this Court
took judicial cognisance that an AK47 can be operated as a machine
gun, that this does not mean that
‘the State may with impunity be
careless about proving the qualities of possibly less well-known
weapons’ (at 684 e-f).
…………………………………
L MPATI
JUDGE OF APPEAL
CONCUR:
…………………………
..
SCHUTZ JA
……………
..……………
NUGENT JA