S v Sukwazi

• Jurisdiction: South Africa
• Court: Natal Provincial Division
• Judge: P C Combrinck J and Mahomed AJ
• Judgment Date: 01 November 2001
• Citation: 2002 (1) SACR 619 (N)
• Hearing Date: 01 November 2001
• Counsel: Ms Z Anastasiou for the appellant. Ms R Blumrick for the State.

P C Combrinck J:

The appellant in this matter was convicted in the regional court, Vryheid, of being in unlawful possession of a 9 mm Bryco pistol and sentenced to 15 years' imprisonment, in accordance with the provisions of s 51 of the Criminal Law Amendment Act 105 of 1997. At the conclusion of the F hearing of the appeal we ordered that the sentence be reduced to one of two years' imprisonment and indicated that reasons would be handed down later. These are the reasons.

The charge which the appellant faced was formulated in the charge sheet as follows:

'That the accused is guilty of a contravention of s 2 read with G ss 1, 8, 12, 27, 39(1)(h), 39(2), 39(3), 40 and 45 of the Arms and Ammunition Act, Act 75 of 1969.

In that upon or about the 5 day of December 1998 and at or near Nooitgedacht Farm, Magudu in the district of Ngotshe Regional Division KwaZulu Natal, the said accused did wrongfully and unlawfully have an arm, to wit 1 x 9 mm Bryco pistol 1035019 in his possession without H holding a licence to possess such arm.'

He was also charged with two other offences but these were withdrawn by the State when the matter came to trial. The appellant, who was represented by an attorney, pleaded guilty to the charge and tendered a written statement in terms of s 112(2) of the Criminal Procedure Act I 51 of 1977. The magistrate was satisfied that the appellant admitted all the elements of the offence and on the strength of the statement submitted, found the appellant guilty.

During the defence attorney's address on sentence, the magistrate raised the question of whether the firearm was a semi-automatic one or J

P C Combrinck J

not. The magistrate also raised the issue with the State and the A following exchange took place:

'Court: Miss Prosecutor, this exhibit B does not actually tell us if the firearm is a semi-automatic. I do not know if the police have not yet been told about the minimum sentences, but I see in most of the statements that get handed up all they say is that it is a firearm for the purposes of the Act, which is in any event not in dispute. B

Prosecutor: Yes, your Worship. Your Worship, that is not a problem, seeing that it is now teatime I can just find out exactly from Captain Venter what the position regarding this aspect is, your Worship.

Court: You see all it says is the firearm is a C firearm for the purposes of the Act and that it was in good working order. And the Court really has to know whether it is semi-automatic, although Mr Abdullah seem to be conceding that it is a semi-automatic in his address. Right, you can find that out for us in the teabreak, but in any way continue with the rest of your address on sentence so long.'

The State then called Captain Venter. The witness, after qualifying D himself as an expert, gave evidence that the pistol was a semi-automatic. His reasons for this conclusion were the following:

'Ek het ook dan verder uitgevind dat die wapen 'n semi-outomatiese pistool is, Edelagbare. As ek net vir die Hof kan verduidelik 'n semi-outomatiese wapen, Edelagbare, is 'n vuurwapen wat nadat dit die eerste keer gespan is en die eerste skoot afgevuur E word, die wapen homself daarna weer die leë doppie uit die kamer uit trek en dan die volgende ronde in die kamer in plaas Edelagbare. Daarna elke keer wanneer die sneller getrek word, Edelagbare, sal die wapen vuur en aanhou vuur, elke keer dat die sneller getrek word totdat die rondes in die magasyn klaar is, Edelagbare.'

In cross-examination he explained why a revolver was not regarded as F semi-automatic:

'Can you explain to the Court how a revolver works then? - Wel 'n rewolwer het 'n kamer wat ook rondes vat. Wanneer 'n ronde afgevuur word bly die hamer in die voorste posisie op die leë doppie wat afgevuur is. En dan om die rewolwer weer gereed te maak om te vuur - om te kan vuur, sal die hamer teruggetrek moet word. Sodra die hamer G teruggetrek word, word die silinder waarin die rondes is, gewentel om 'n volgende ronde in posisie plaas om te vuur.'

The somewhat subtle difference between a pistol being semi-automatic and a revolver not is illustrated in the following passage:

'So what you are saying, sir, it is similar to a semi-automatic in the following sense that a semi-automatic if I pull the trigger and H fire, it puts the next one in the chamber and if I shoot a revolver, if I fire it turns itself to the next one to shoot. Is that not so? - Nee, Edelagbare, 'n pistool - 'n semi-outomatiese vuurwapen die oomblik wanneer hy afgevuur is en die volgende ronde word in die kamer geplaas, is die wapen klaar gereed om 'n volgende ronde af te vuur deurdat die hamer oorgehaal is alreeds om 'n ronde af te vuur.

And a revolver once it has hit the first bullet it stays at the empty I chamber. If you pull the trigger again it goes to the - it pulls the next bullet and shoot at that chamber, is that not so? - Dit is reg.

The only difference is that the revolver changes...