S v Modimolla

• Jurisdiction: South Africa
• Judge: GC Muller J and EM Makgoba JP
• Judgment Date: 18 February 2022
• Docket Number: A290/2021
• Hearing Date: 18 February 2022
• Court: Limpopo Division, Polokwane
• Citation: 2022 JDR 1166 (LP)

Muller J:

[1]

The accused was charged in the magistrate's court Modimolle for losing his firearm and was sentenced to R6000.00 or 12 months imprisonment half of which is suspended for 3 years on condition that the accused is not convicted of contravening section 120(8)(b) of Act 60 of 2000 committed during the period of suspension.

[2]

The peculiarity of the conviction and the sentence is that the accused pleaded guilty to an offence which was allegedly committed on 2 May 2021 and which is surprisingly described in the preamble of the charge sheet as:

"That the accused is guilty of the crime of contravening the provisions of Section 39(1)(k) of The Arms and Ammunition Act 75 of 1969. [The Arms and Ammunition Act 75 of 1969 was repealed by s 153 of the FirearmsControl Act 60 of 2000. Act 60 of 2000 was assented to on 4 April 2001 and commenced on 1 July 2004, unless otherwise indicated).

[3]

A second charge sheet is included in the record. In terms of that charge sheet the accused is charged with contravening section 120(8)(b) of the Firearms Control Act

2022 JDR 1166 p2

Muller J

60 of 2000.

[4]

When the charge in terms whereof the accused was charged with contravening the Arms and Ammunition Act 75 of 1969 was put to the accused the prosecutor informed the court that the accused is charged with one count of negligent loss of a firearm.

[5]

The accused, who was represented throughout the trial, pleaded guilty. A statement in terms of section section 112(2) of the Criminal Procedure Act 51 of 1977 (the CPA) was read into the record and handed in. The accused, inter alia, admitted in the statement that he contravened the provisions of section 39(1)(k) of Act 75 of 1969.

[6]

The magistrate was not satisfied with the contents of the statement and requested that the particulars of the firearm and the fact that the accused was issued with a license to possess same be included. After the request was complied with, the magistrate convicted the accused and pronounced in his judgment:

"So you are guilty of contravening the provisions of section 39(1)(k) of the Arms and Ammunition Act 75 of 969 as repealed by section 153 of the Firearms Control Act 60 of 2000 which was assented to on 4 April 2001."

[7]

The magistrate realised before sentence was passed that the accused was charged under an Act that has been repealed. With the concurrence of the legal representative of the accused, the charge sheet was amended in terms of section 86 of the CPA, to the extent that the original charge was replaced with a charge that the accused contravened section 120(8)(b) of the Firearms Control Act 60 of 2000. (That accounts for the second charge sheet included in the record)...