S v Jansen

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: Van Zyl DJP and Eksteen J
• Judgment Date: 29 October 2019
• Citation: 2020 (1) SACR 413 (ECG)
• Hearing Date: 07 August 2019
• Docket Number: CA&R 220/18
• Counsel: MT Solani for the appellant, instructed by Grahamstown Justice Centre. LW Sinclair for the state.

Van Zyl DJP (Eksteen J concurring):

[1] The appellant was convicted in the Port Elizabeth Regional Court of having been in unlawful possession of an unlicensed 9 millimetre pistol and seven rounds of ammunition, in contravention of the provisions of the Firearms Control Act 60 of 2000. He was sentenced to 15 years' imprisonment in respect of the firearm, and 18 months' imprisonment for the possession of the ammunition. The terms of imprisonment were ordered to run concurrently. The appellant was granted leave to appeal on petition against both the convictions and the sentences imposed by the trial court.

[2] Dealing first with the appeal against the two convictions, the state's evidence was that, on a day in February 2016, the appellant was seen at a taxi rank near a shopping centre in Korsten in Port Elizabeth.

Van Zyl DJP (Eksteen J concurring)

The witness in question, one Mr Raubenheimer, testified that he saw the shape of what he thought was a firearm concealed under the shirt of the appellant. The witness then telephoned a certain Mr Gouws. He informed Gouws that the appellant was at the taxi rank, and that Gouws must contact the police. Raubenheimer remained in the area and he shortly thereafter saw the police arriving, who stopped a taxi that the appellant had boarded. The appellant was taken from the taxi and searched, whereafter the police left with the appellant. Raubenheimer's interest in the appellant arose from an incident that occurred a month earlier in January when, according to Raubenheimer, he was in the same area when the appellant and his friends approached him. The appellant produced a firearm. Raubenheimer ran away and he heard the sound of gunshots. The appellant was known to him as being a member of a gang called the Fat Cats.

[3] The evidence of the two police officers who arrested the appellant was that, in reaction to information they received from an informer that the appellant was seen with a firearm, they proceeded to the taxi rank. On their arrival they saw the appellant in the company of another male person boarding a taxi. They stopped their police vehicle in front of the taxi and approached the taxi. The appellant was seated in the taxi near the side door. They saw the appellant throwing a firearm down onto the floor of the taxi. They then took the appellant from the taxi. He was searched and arrested on a charge of unlawful possession of a firearm. The appellant was taken to the police station where the firearm and its ammunition were entered into the relevant register. The firearm was loaded with seven rounds of ammunition. Ballistics evidence, which was undisputed, was that the firearm was a semiautomatic pistol, and that cartridge cases and a bullet jacket recovered from the scene of the shooting incident in January 2016, as testified to by Raubenheimer, were fired in or from that firearm.

[4] The appellant's evidence was essentially that he was being falsely implicated and that the version of the two police officers was a concocted one. He denied having been found in possession of any firearm, or that he had any knowledge of a firearm that was found by the police. According to him, he was told that he was sought on a charge of attempted murder. However, after he was taken from the taxi he was asked whether he had any knowledge of a firearm that was found in the taxi. He was taken to the charge-office where he was charged with the possession of a firearm that was never shown to him. It was only later that he was also charged with attempted murder.

[5] The trial court considered the criticism raised in respect of the evidence of the two police officers. It found that what was labelled as contradictions in their evidence was not material and that it was satisfied that the officers were credible witnesses whose evidence was reliable and could be accepted. The version of the appellant, on the other hand, was found by the trial court not to be reasonably possibly true, and that it must be rejected as being false.

Van Zyl DJP (Eksteen J concurring)

[6] Factual findings of a trial court can only be interfered with on appeal if they were vitiated by material misdirections or shown on the record to be wrong. [1] This approach applies equally to credibility findings. [2] It has not been demonstrated that the magistrate's conclusion was vitiated by a material misdirection or that on the record it was wrong. The evidence of the two police officers, coupled with the evidence of Raubenheimer, established that the appellant was found in possession of a firearm and that he was immediately charged with its possession. The magistrate was justifiably not impressed with the appellant's version. It is far-fetched and inconsistent with the suggestion that he was informed that he was being sought on a charge of attempted murder, but thereafter instead charged with the unlawful possession of a firearm. I am satisfied that the magistrate, on the evidence placed before him, reached the correct conclusion, and that there is no reason to interfere with any of his findings.

[7] With regard to the appeal against the sentences imposed by the trial court, it was not in dispute that the firearm was a semiautomatic firearm as defined in the Firearms Control Act. In the charge-sheet, the state gave notice of its intention to rely on the provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997 (as amended) (the Act). This subsection, read with part III of sch 2, obliges a court to impose a sentence of 15 years' imprisonment in the case of a first conviction for 'any offence relating to . . . (b) the possession of an automatic or semi-automatic firearm, explosives or armament', unless substantial and compelling circumstances as contemplated by s 51(3) of the Act are present and justify a less severe sentence.

[8] The Act introduced a discretionary minimum-sentencing regime. Its purpose is the imposition of deterrent and retributive punishment and the achievement of consistency in sentencing in respect of a number of offences the legislature considered serious and prevalent. While the Act does not expunge the discretion entrusted to a sentencing court, it has substantially constrained it: [3]

'Dodo thus upheld the constitutional validity of a minimum sentencing regime requiring consistently heavier sentences for adults, so long as it retained a residual discretionary overlay. Legislative power to constrain the courts' sentencing discretion derived, Dodo said, from the fact that (b)oth the Legislature and Executive share an interest in the punishment to be imposed by courts, both in regard to its nature and its

Van Zyl DJP (Eksteen J concurring)

severity. The courts thus do not enjoy sole authority in determining sentence:

. . . .' [4]

The Act leaves the imposition of discretionary sentences to the court, if it is of the view that there are particular circumstances present that would make it unjust to impose the mandatory sentences. The discretion is, however circumscribed by the standard, or the bench mark as it has also been referred to, created by the sentences the Act prescribes. This aspect is more fully dealt with in [25] – [26] of this judgment.

[9] The introduction of minimum sentences by the Act has not been without controversy and has been much criticised. It is undeniably so, that the sentiment was that the enactment of prescribed sentences in principle unduly interfered with the discretionary powers of the court to impose what it considers to be an appropriate sentence in the circumstances of any particular case. But the criticism went further than that. The structure of the Act and the prescribed sentences have been described as incongruous and disproportionate. This criticism is primarily based on what is said to be the failure of the Act to differentiate between the various offences, and to give recognition to what the court in S v Vilakazi [5] referred to as the numerous combinations of variables that accompany the commission of a crime. Simply put, the Act fails to acknowledge that some offences are either more serious or less serious than others, and that the circumstances in which offences are committed may differ from case to case.

[10] The obligation to impose a minimum sentence of 15 years' imprisonment for the unlawful possession of a semiautomatic firearm has especially been the subject-matter of much criticism. When the prescribed minimum sentence is compared to the penal provisions in the Firearms Control Act, it is said to create a 'bifurcated' sentencing regime for this category of offence that has the potential to produce arbitrary consequences. [6] This is said to arise from the fact that —

'a prescribed sentence of 15 years' imprisonment applied, in terms of the Criminal Law Amendment Act, to the unlawful possession of automatic or semi-automatic firearms, whatever their nature; while a maximum sentence of 15 years' imprisonment applied, in terms of the Firearms Control Act, to the unlawful possession of any other firearm, whatever its nature'. [7]

[11] Examples of the arbitrary consequences alluded to are the fact that the minimum sentence would find equal application in both the unlawful possession of a small-calibre semiautomatic pistol, and the possession of an automatic firearm, such as an assault rifle. Further, in respect of the unlawful possession of firearms that may be of a heavier calibre than a

Van Zyl DJP (Eksteen J concurring)

semiautomatic pistol, such as a shotgun and a revolver, the minimum prescribed sentence would not apply. [8]

[12] The application of the provisions of the Act, where an accused has been convicted of the unlawful possession of a semiautomatic pistol, consequently became the subject-matter of several decisions of the courts. It culminated in the decision in S v Sukwazi [9] where it was found that it was not competent for the courts to apply...