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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Magistrates ref. no: 61/495/2000 (BOOYSENS)

High Court Review No:301/2001

Magistrate’s Serial No:63/01

DATE:21/05/2001

THE STATE

versus

CHRISTOPHER NDIMANDE...................................................Accused

REVIEW JUDGMENT

WILLIS J:

This case was originally referred to my brother Makanya J on 30^th August, 2000 for review in terms of Section 302 of the Criminal Procedure Act No. 51 of 1977, as amended. He directed an enquiry to the Director of Public Prosecutions who furnished counsel’s opinion that the magistrate be invited to comment. The magistrate was invited to comment.

The accused had been convicted in the Johannesburg Magistrate's Court of UNLAWFUL POSSESSION OF ARMS in contravention of Section 2 read with Section 1, 39(1)(h) and 39(2) of the Arms and Ammunition Act No. 75 of 1969, as amended. The firearm was a 9mm pistol.

He was also convicted of UNLAWFUL POSSESSION OF AMMUNITION in contravention of Section 36 read with Section 1, 39(1)(h) and 39(2) of the Arms and Ammunition Act . The ammunition was 13 x 9mm rounds.

He was sentenced to three years’ imprisonment separately on each count.

On 28^th November, 2000 Bam and Jordaan AJJ either ordered that the sentences be set aside, or that consideration should be given thereto, and that the matter be referred to the magistrate to do the necessary enquiry before sentences are imposed afresh.

This would not appear to have been done.

The matter was then referred to me for review on 13^th March 2001. I referred the matter back to the magistrate suggesting that the sentences should run concurrently. The magistrate advises that the firearm was used in faction-fighting and that he believes the sentences are appropriate.

I am satisfied that the accused was correctly convicted.

Nevertheless, the aggregate of the sentences imposed is such that there is a ‘ striking’, ‘startling’ or ‘disturbing’ disparity between that which the magistrate imposed and that which I would have imposed ( See, for example, S v Sadler 2000 (1) SACR 331 (SCA) at 334j-335a).

Furthermore, there is such a close linkage between the two crimes that that it is unconscionable that the sentences should run entirely consecutively.

The sentence , taken as a whole, is not in accordance with justice. It is necessary that I interfere with the sentence.

As it is not clear whether the sentences were indeed set aside, I shall, ex abudante cautela, make such an order.

The following order is made:

1. The conviction the Accused on both Count 1 and Count 2 is confirmed.

2. The sentence imposed by the magistrate on Count 1 and Count 2 is set aside.

3. The following is substituted for the magistrate’s sentence:

1. ON COUNT 1: THREE YEARS’ IMPRISONMENT;

2. ON COUNT 2: THREE YEARS’ IMPRISONMENT;

3. THE SENTENCE ON COUNT 1 IS TO RUN CONCURRENTLY WITH THE SENTENCE ON COUNT 2.

DATED AT JOHANNESBURG THIS 21st DAY OF MAY, 2001.

N.P. WILLIS

JUDGE OF THE HIGH COURT

I agree.

A. CACHALIA

JUDGE OF THE HIGH COURT

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