S v Jansen

• Jurisdiction: South Africa
• Judgment Date: 29 October 2019
• Citation: 2020 (1) SACR 413 (ECG)

S v Jansen
2020 (1) SACR 413 (ECG)

2020 (1) SACR p413

Citation	2020 (1) SACR 413 (ECG)
Case No	CA&R 220/18
Court	Eastern Cape Division, Grahamstown
Judge	Van Zyl DJP and Eksteen J
Heard	August 7, 2019
Judgment	October 29, 2019
Counsel	MT Solani for the appellant, instructed by Grahamstown Justice Centre.; LW Sinclair for the state.

Flynote : Sleutelwoorde

Arms and ammunition — Unlawful possession of arms and ammunition in contravention of ss 3 and 4 of Firearms Control Act 60 of 2000 — Sentence — Imposition of minimum sentence of 15 years' imprisonment in terms of s 51(2), read with part III of sch 2 to Criminal Law Amendment Act 101 of 1997 — Not reserved for exceptional circumstances only — Such sentence appropriate where violent crime involving use of firearms prevalent in area.

Headnote : Kopnota

The appellant was convicted in a regional magistrates' court of the 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 in respect of the possession of ammunition, the terms of imprisonment being ordered to run concurrently.

A witness testified that he had seen what he thought was a firearm concealed under the shirt of the appellant at the taxi rank in Port Elizabeth. He called the police because a month earlier he had been in the same area when the appellant and his friends had approached him. On that occasion, the appellant, whom he knew as a member of a gang, had produced a firearm. The witness had ran away and heard shots being fired as he did so. When the police arrived (on the second occasion) they observed the appellant boarding a taxi and throwing a firearm onto the floor of the taxi. A 9 millimetre semiautomatic pistol loaded with the ammunition was subsequently recovered. It was established that cartridge cases and a bullet jacket recovered from the earlier shooting scene had been fired from this firearm.

The appellant appealed against both his convictions and the sentences. On appeal, and after examining the record, the court dismissed the appeal against the convictions. In the charge-sheet, the state had given notice of its intention to rely on the provisions of s 51(2) of the Criminal Law Amendment Act 101 of 1997 (the Act), which, read with part III of sch 2, obliged a court to impose a sentence of 15 years' imprisonment in the case of a first conviction for any offence relating to the possession of an automatic or semiautomatic firearm, unless substantial and compelling circumstances were present. In argument, the appellant submitted that the prescribed sentence of 15 years' imprisonment had to be reserved for exceptional cases.

Held, that the appellant's argument was incorrect and inconsistent with the clear and unambiguous intention of the legislature, that the sentencing court was obliged to comply with the minimum-sentence regime, unless it was satisfied that there were substantial and compelling circumstances that justified the imposition of a lesser sentence. (See [27].)

Held, further, although the appellant had a previous conviction for the unlawful possession of a firearm, in the absence of evidence that the previous conviction involved the possession of a semiautomatic firearm, the trial court had correctly treated the appellant as a first offender for purposes of s 51(2) of the Act. (See [35].)

2020 (1) SACR p414

Held, further, that the circumstances of the offences in the present case pointed to the seriousness thereof, in that there was nothing which indicated that the appellant's possession of the firearm and ammunition was for any purpose other than for a criminal purpose. He had carried the firearm on his person in a concealed manner and had attempted to get rid of it when he realised that he was about to be searched by the police after they had stopped the taxi in which he was a passenger. The firearm was loaded at the time and there was evidence that it had already been used in an unlawful shooting. (See [38].)

Held, further, that the appellant had been in custody for two years before he was sentenced, had justifiably not persuaded the court a quo that this was, by itself, a sufficient reason in the circumstances to depart from the prescribed minimum sentence. (See [39].)

Held, further, that the trial court had correctly taken into account the prevalence of the commission of the offences in question and the use of unlicensed firearms in the commission of violent crime, and, more particularly, in the unlawful activities of gangs in the Port Elizabeth area. The city was plagued by gangsterism and violent crime in certain of its areas and this was a relevant factor that the court a quo was entitled to take cognisance of. In the circumstances of the case it could not be concluded that a sentence of 15 years' imprisonment was disproportionate to the crime, the criminal, and the interests of society, such that would create an injustice. The appeal against sentence was accordingly also dismissed. (See [40] – [42].)

Cases cited

Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (2) SACR 477 (CC) (2009 (6) SA 632; 2009 (11) BCLR 1105; [2009] ZACC 18): referred to

R v Dhlumayo and Another 1948 (2) SA 677 (A): referred to

S v Abrahams 2002 (1) SACR 116 (SCA): applied

S v Baartman 2011 (2) SACR 79 (WCC): not followed

S v Delport 2016 (2) SACR 281 (WCC) ([2016] 2 All SA 504): applied

S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423; [2001] ZACC 16): applied

S v Fortune 2014 (2) SACR 178 (WCC): followed

S v Francis 1991 (1) SACR 198 (A): referred to

S v Gwala 1993 (2) SACR 653 (A): distinguished

S v Hadebe and Others 1997 (2) SACR 641 (SCA): referred to

S v Jimenez 2003 (1) SACR 507 (SCA) ([2003] 1 All SA 535): referred to

S v Khonye 2002 (2) SACR 621 (T): distinguished

S v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; [2002] ZASCA 122): applied

S v Limo 1995 (1) SACR 404 (O): distinguished

S v Madikane 2011 (2) SACR 11 (ECG): not followed

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): applied

S v Manana 2007 (1) SACR 62 (T): referred to

S v Matyityi 2011 (1) SACR 40 (SCA) ([2010] 2 All SA 424; [2010] ZASCA 127): dictum in para [23] applied

S v Metu 1995 (2) SACR 681 (A): distinguished

S v Meyer 1992 (1) SACR 685 (E): distinguished

S v Mooleele 2003 (2) SACR 255 (T): referred to

2020 (1) SACR p415

S v Moleme 1994 (1) SACR 1 (A): distinguished

S v Motloung 2015 (1) SACR 310 (GJ): applied

S v Motloung 2016 (2) SACR 243 (SCA): applied

S v Mukuyu 2017 (2) SACR 27 (GJ): referred to

S v Mvamvu 2005 (1) SACR 54 (SCA) ([2005] 1 All SA 435): referred to

S v Naidoo and Others 2003 (1) SACR 347 (SCA) ([2002] 4 All SA 710): referred to

S v Ndwalane 1995 (2) SACR 697 (A): distinguished

S v Prinsloo and Others 2016 (2) SACR 25 (SCA) ([2015] ZASCA 207): referred to

S v Radebe 2006 (2) SACR 604 (O): referred to

S v Sibisi 1998 (1) SACR 248 (SCA) ([1998] 1 All SA 297): distinguished

S v Sukwazi 2002 (1) SACR 619 (N): not followed

S v Swartz 2016 (2) SACR 268 (WCC): applied

S v Thembalethu 2009 (1) SACR 50 (SCA) ([2008] 3 All SA 417; [2008] ZASCA 9): applied

S v Vermeulen 2004 (2) SACR 174 (SCA): referred to

S v Vilakazi 2009 (1) SACR 552 (SCA) (2012 (6) SA 353; [2008] 4 All SA 396; [2008] ZASCA 87): discussed

S v Zondi 1995 (1) SACR 18 (A): distinguished.

Legislation cited

Statutes

The Criminal Law Amendment Act 105 of 1997, s 51(2), part II of sch 2: see Juta's Statutes of South Africa 2018/19 vol 1 at 2-457 – 2-458 and 2-461 – 2-462

The Firearms Control Act 60 of 2000, ss 3 and 4: see Juta's Statutes of South Africa 2018/19 vol 1 at 3-13 – 3-14.

Case Information

MT Solani for the appellant, instructed by Grahamstown Justice Centre.

LW Sinclair for the state.

An appeal from convictions and sentences imposed in a regional magistrates' court for contraventions of the Firearms Control Act 60 of 2000.

Order

The appeal against the convictions on counts 5 and 6, and the sentences imposed in respect thereof, is dismissed.

Judgment

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.

2020 (1) SACR p416

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...