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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: A76/2020

REPORTABLE : NO

OF INTEREST TO OTHER JUDGES:NO

REVISED

DATE: 18 DECEMBER 2020

In the matter between:

TSHABALALA, CALVIN THEMBA                                                              Appellant

and

THE STATE                                                                                                      Respondent

DATE OF HEARING: This matter was enrolled for hearing on 07 SEPTEMBER 2020, but was dealt with or determined on the basis of the papers or record and written argument filed on behalf of the parties, without appearance and oral argument.

DATE OF JUDGMENT: This judgment was handed down electronically by circulation to the parties’ representatives by email. The date and time of hand-down is deemed to be 10h00 on 18 DECEMBER 2020

JUDGMENT

MANAMELA, AJ (TEFFO, J concurring)

Introduction

[1]        Mr Themba Calvin Tshabalala, the appellant in this appeal against conviction and sentence, was convicted on two counts of possession of unlicensed firearm and ammunition by the Regional Court of Benoni (the Trial Court) on 28 August 2017. On 13 September 2017 he was sentenced to 15 years’ imprisonment on the firearm count and 2 years’ imprisonment on the ammunition count. The Trial Court ordered that the sentence of 2 years’ imprisonment on the ammunition count run concurrently with the sentence of 15 years’ imprisonment on the firearm count. The appellant, therefore, was sentenced to an effective 15 years of imprisonment.

[2]       The appeal is before this Court with leave granted by the Trial Court. The appeal was enrolled for hearing on 07 September 2020, but it is decided on the basis of the papers filed, with no oral argument necessary. This judgment was reserved on the aforementioned date.

[3]       The appellant primarily criticises his conviction by the Trial Court and submits that same constitutes misdirection by the Trial Court. It is submitted in this regard that the Trial Court did not properly evaluate the evidence before it and that it erred in eventually rejecting the appellant’s version (of the events on the day of his arrest) as not being reasonably possibly true.

[4]       Regarding the sentences, the appellant’s criticism of the Trial Court is its finding that there were no substantial and compelling circumstances to deviate from imposing the prescribed minimum sentence of 15 years’ imprisonment on the firearm count. Also, that the sentence is considered disproportionate by the appellant.

Evidence before the Trial Court

General

[5]       The appellant entered a plea of not guilty in respect of both counts. He was legally represented throughout the proceedings before the Trial Court. He made formal admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 with regard to the description of the firearm and ammunition; the place and date where the firearm and ammunition were found, and the chain of evidence from the time the firearm and ammunition were handed or booked in, onwards. However, the appellant denied that the firearm and ammunition were found in his possession. The firearm is described as a 9 mm calibre Norinco model 1213 semi- automatic pistol. The appellant was also found in possession of 3 rounds of live ammunition.

Evidence on behalf of the State

[6]         The state called as a witness Sergeant Azindile Mabuda of the Ekurhuleni branch of the South African Police Service (the SAPS). He had been with the SAPS for 13 years at the time. He testified that on the material date he found the appellant by his house (colloquially referred to as a shack) in Etwatwa in the environs of Ekurhuleni. He was with other two black males. Mabuda said he was accompanied by three colleagues, one of them being Constable Masimola. He could not readily remember the other two members of the SAPS he was with since he did not work regularly with them. He told the Trial Court that the firearm and ammunition were found on the body of the appellant, tucked in the front part of the appellant’s trousers. This was after all three persons found in the shack were searched. The appellant was standing as if he was preparing to cook or prepare a meal at the time whilst the other two persons with him were both seated. Mabuda and his colleagues had acted on information relayed to the SAPS.

[7]       Mabuda also testified that when he enquired from the appellant about the licence for the firearm, the appellant simply kept quiet and did not respond. He was then handcuffed for being in possession of an unlicensed firearm and taken to the Etwatwa police station. The recovered firearm and ammunition were booked and handed over to the relevant functionaries within the SAPS. He also told the Trial Court that the appellant had confirmed that the shack where the unlicensed firearm and ammunition were found by his person was his. The other two persons in the shack were the appellant’s friends, just visiting, Mabuda further testified. Apart from the firearm and ammunition, Mabuda mentioned to the Trial Court that the appellant was found in the possession of a police card or police appointment certificate. But the appellant did not face any charges on the latter aspect, to the extent that it constitutes a criminal offence.

[8]        Under cross-examination Mabuda testified as follows. The members of the SAPS, including himself, entered the appellant’s place at around 18h00. The gate of the yard where the appellant’s shack is located was open. There were no other people in the yard. Actually he did not see anyone as he was concentrating on the appellant’s shack. There are about 3 shacks within the yard. He went to the appellant’s shack because it was open and he could see that there were people inside. From the information relayed to them, the police had a description of the appellant when they went to his place. He had been described as tall and only got one eye, or that his one eye is not the same as the other. And that he is the owner of the house or shack. Mabuda was not in police uniform and was in an unmarked vehicle. It was put to Mabuda by the appellant’s legal representative that the appellant would say that there were more than 7 police officers who came to his place and that after the appellant and the two other persons in the house were searched (whilst lying face-down on the floor or ground) no firearm was found in the possession of all three. In fact, the appellant saw the firearm for the first time at the police station, the contention by the appellant’s legal representative continued. Mabuda denied this and stated that as police officers they don’t have firearms to go around planting them on people so that they could turn around and say that the same people have firearms in their possession.

[9]       The second witness for the State was Constable Mogalane Masimola (probably Masemola), also from Ekhuruleni SAPS. He was attached to the Cluster Service and Tracking Team and has been with the SAPS for 8 years, when he gave his testimony. He is a colleague of Mabuda. The essentials of his testimony were as follows. On 16 March 2017 he was called by Mabuda to go and assist him in Etwatwa, as he had received some information. They met up at Etwatwa police station. Upon arrival at the address Mabuda had, they found a shack whose door was slightly open. They entered and found three male persons. Mabuda told the three persons the reason why the police were there. They agreed to be searched. Mabuda found the firearm from the appellant’s waist in the front. The firearm was thereafter put in a police forensic bag. When asked if he had a licence for the firearm the appellant did not respond. The testimony of Masimola slightly differed with that of Mabuda as he mentioned that there were about 8 police officers and that all 3 persons in the shack were seated when they arrived. As stated above, Mabuda had testified that there were 3 police officers and that only the appellant was on his feet appearing to be about to cook a meal when the police entered his shack. He also mentioned that only him and Mabuda entered the shack whilst the others remained outside. As would appear below, it was argued by the appellant’s legal representative that the different versions constituted material contradictions.

[10]       Masimola further told the Trial Court that he saw Mabuda registering the firearm upon his arrival at the police station and thereafter handing it over to the commander at the charge office. He also confirmed that Mabuda found the firearm, together with a police appointment card, on the body of the appellant. There was also a magazine with three live rounds of ammunition and the appellant could not explain the presence of the SAPS appointment card in his possession, he added. Under cross-examination Masimola was adamant that there were plus minus 8 police officers who attended at the appellant’s place, even when confronted with the version by Mabuda of only 3 police officers. The police arrived at the appellant’s place in 4 vehicles, he added. He disputed the appellant’s version put to him that the SAPS card was only revealed to the appellant after he was already locked up in the holding cells. This concluded the State’s case.

Evidence on behalf of the appellant

[11]        The appellant testified in his defence essentially along the following lines. On 16 March 2017 he was at home preparing to cook and watching the 19h00 news, ostensibly on television. He was with his brother and cousin. The police arrived. The door to his house was open. Due to the open door he first saw the police when they were still parking their vehicles. They left the other vehicles on the other side of the street and only parked one vehicle by the gate, probably of the yard in which his shack is situated. He was uncertain as to how many police officers entered his shack, but he mentioned that there were many. They were not in uniform. They instructed the three of them to come out of the shack as they wanted to search them. They complied and after searching them the police entered his shack. When the police came out of the shack they asked who the owner of the shack was and he told them it was him. The police took him with. They did not say why they were taking him along.

[12]       He denied possessing the firearm. He mentioned that if he had the firearm he had ample time to hide it from the moment he saw the police parking their vehicles. The police actually started by knocking at the doors of the other shacks in the yard before they came to his shack. His shack was last to be approached by the police. When asked by his own legal representative why the police would falsely implicate him, as he does not know them, he simply replied that he had no idea. He only saw the firearm at the police station and, therefore, the police are lying when they say that he was in his possession.

[13]       Under cross-examination the appellant was steadfast that nothing was found on him or the other two people with him in his shack. In fact, the search of his shack turned out nothing, his testimony continued. The police did not tell him why he was being arrested. He conceded that it does not make sense that police officers - unknown to him - would just come to his place, found him in the company of two other persons and only arrested him. The appellant did not call any other witness to testify in his defence.

Judgment of the Trial Court

[14]       The Trial Court in its judgment considered the evidence adduced from both sides during the trial. It found that - whilst the appellant was creating an impression that the firearm was just planted on him, there was no reason whatsoever why the police would select him and plant on him a firearm he knows nothing about. Regarding the so-called contractions between Mabuda’s evidence (that there were only 3 police officers at the scene of the crime(s)) and Masimola’s version (that there were about 8 police officers), the Trial Court found that the contradiction did not have “a certain effect on the truthfulness of the gist in this matter”, particularly on the fact that the appellant was in possession of the firearm. But there were no contradictions on all issues relating to how the firearm was found in possession of the appellant on both counts.

[15]       The State proved previous convictions against the appellant. The previous convictions where in relation to two counts of housebreaking with intent to rob and robbery in 2005 by the Vosloorus Regional Court for which the appellant was effectively sentenced to 6 years’ imprisonment and a conviction in 2016 for contravention of the Drugs and Drug Trafficking Act. He was only cautioned in respect of the latter conviction.

[16]       The following personal circumstances of the appellant were stated for purposes of mitigation of sentence and in order to sway the Trial Court from imposing the minimum sentence prescribed for the offence of unlawful possession of a firearm. The appellant was then 34 years old; unmarried with 7-year-old twin boys, who stayed with their mother, and had gone up to grade 11 at school. He earned about R2000 per week from a car wash business he conducted at the East Rand Mall. He had operated the business for 7 years by the time he was arrested and imprisoned to await his trial. He was arrested on 16 March 2017 and therefore had been in custody for about 6 months by the time of his trial. The appellant further pleaded with the Trial Court to have mercy on him whilst acknowledging that he was not a first offender. He also stressed the fact that the firearm had not been used in the commission of another offence. However, the State argued for imposition of the prescribed minimum sentence and urged the Trial Court, among others, to consider the following in this regard: the serial numbers of the firearm had been obliterated; the appellant’s previous convictions involved an element of violence and there were no substantial and compelling circumstances to deviate from imposition of the minimum sentence of 15 years for the firearm count.

[17]        The Trial Court’s judgment reflects that it considered all submissions mentioned above, including the appellant’s personal circumstances. It remarked that the obliteration of the serial numbers of the firearm suggests that the firearm was to be used illegally or had been obtained illegally. It also remarked that crimes committed using firearms are prevalent. No one is safe including police officers and innocent people. The introduction of the minimum sentence for this crime came after a public outcry that persons were getting away with lenient sentences, the Trial Court remarked. Therefore, there was a need for deterrence. And retribution was also necessary so that people may not easily carry illegally firearms. The Court cannot deviate from imposing the minimum sentence for flimsy reasons, but when substantial and compelling circumstances exist. It held that what the appellant had advanced were only ordinary personal circumstances and did not constitute substantial and compelling circumstances. The Trial Court further expressed its dismay that the State chose to charge the appellant as it did instead of charging him under the provision which carries a minimum sentence of 25 years’ imprisonment because the serial numbers to the firearm were obliterated. It sentenced the appellant to 15 years’ imprisonment for the firearm count and 2 years for the ammunition count. The Trial Court ordered that the latter sentence run concurrently with the former, resulting in an effective sentence of 15 years’ imprisonment. The appellant was also declared unfit to possess a firearm.

Grounds of (and against) appeal and applicable legal principles (a discussion)

Appellant’s conviction

[18]        This appeal concerns both conviction and sentence. Regarding his conviction by the Trial Court the appellant says that the Trial Court did not properly evaluate the evidence before it. In the main, it is disputed that the appellant was found in possession of the firearm when he was arrested. Even if he had a firearm in his possession, the appellant had ample opportunity to hide the firearm, as he saw - through the open door - the police arriving at his place. And that the police did not directly come to his shack but started their search in other shacks in the yard. Also the evidence adduced by Mabuda and Masimola differed with regard to the number of police officers who attended at the appellant’s place. The Trial Court is further criticised for eventually rejecting the appellant’s version as not being reasonably possibly true. On the other hand, it is submitted on behalf of the State that Mabuda and Masimola corroborated each other in material respects and that there is no reason why they would falsely implicate the appellant. I do not think much need be said about the Trial Court’s conviction of the appellant. The Trial Court had overwhelming evidence before it, which was properly evaluated after it had weighed all relevant elements for and against the conviction of the appellant. In my view, the appellant was properly convicted by the Trial Court.

Appellant’s sentencing and the application of the Criminal Law Amendment Act 105 of 1997

[19]       With regard to his sentencing the appellant criticises the Trial Court’s finding that there are no substantial and compelling circumstances to deviate from imposing the prescribed minimum sentence of 15 years’ imprisonment. It is further submitted that the Trial Court speculated that as the serial numbers of the firearm were filed off, the firearm was to be used illegally. Also that the appellant possessed the firearm only with the intention to do something illegal with it, when there were other reasons for the unlawful possession of a firearm. Therefore, this Court - on appeal - ought to interfere and replace the sentence imposed by the Trial Court with a shorter sentence ante-dated in terms of section 282[1] of the Criminal Procedure Act. But, the State contends that there is no misdirection and that this Court has no reason to interfere with the sentence imposed by the Trial Court.

[20]       Determination of the issues regarding sentencing in this appeal is primarily located in the application of section 51 of the Criminal Law Amendment Act 105 of 1997 (“the Minimum Sentences Act”).[2] The sentence imposed on the appellant imprisonment for the unlawful possession of a semi-automatic firearm is prescribed in section 51(2)(a) of the Minimum Sentences Act. This was as a result of the Trial Court finding no substantial and compelling circumstances to deviate from the prescribed minimum sentence, contemplated by section 51(3)(a) of the Minimum Sentences Act.[3]

[21]        The appellant’s appeal against his sentence is premised on two pivots or essential grounds. The first pivot is that the Trial Court erred in not deviating from the minimum sentence prescribed in section 51(2) due to its finding that there were no substantial and compelling circumstances. The second pivot is that his sentencing to 15 years’ imprisonment is disproportionate to the crime for which he was convicted. Therefore, in the event of this Court finding in favour of the appellant on the first pivot or ground that would dispose of the appeal. However, a finding that the Trial Court did not err in finding that there were no substantial and compelling circumstances to deviate from the prescribed minimum sentence would still require this Court to determine whether the 15 years’ sentence is disproportionate. Both grounds are dealt with under self-explanatory subheadings, below.

Whether or not there were substantial and compelling circumstances?

[22]       The Trial Court labelled the submissions advanced by the appellant as being only ordinary personal circumstances[4] and not substantial and compelling circumstances. Further, it is submitted that the Trial Court ought to have found that the following factors cumulatively considered amounted to substantial and compelling circumstances: that, the appellant was incarcerated for 6 months whilst awaiting his trial; he was a first offender for this type of crime (i.e. unlawful possession of a firearm), and that no other crime was committed with the firearm. The State supports the finding by the Trial Court that there were no substantial and compelling circumstances warranting deviation from imposing the prescribed minimum sentence of 15 years for the firearm count.

[23]        Determination of whether or not substantial and compelling circumstances exist (or existed at the time of sentencing) would depend on the facts or circumstances of the particular matter, the offender involved, the circumstances of the crime and interests of society. A review or consideration of previous similar decisions and sentences imposed in those decisions would be significantly beneficial for the determination to be made. But decided cases or precedents are generally only useful to determine a general trend and to ensure a measure of consistency in sentencing, as the sentencing process need to be individualised.[5] Be that as it may, some of the issues in this appeal are similar or comparable to those in some of the cases about to be discussed, below.[6] Gratefully, both counsel - in their written argument - cited an array of cases some of which will be included in the discussion.

[24]         In the decision of S v Shabalala,[7] by a full court of then Natal Provincial Division, the Court dealt with an appellant or accused who was 44-years old, married and also a first offender. The appellant had been convicted by the regional court after pleading guilty for the unlawful possession of an AK47 assault rifle, a 9 mm pistol and ammunition for both firearms. He had explained that his possession of all these weapons was for safekeeping them and the ammunition for his brother, and that he had never intended to use the weapons. The regional court sentenced him to an effective term of 15 years’ imprisonment on all counts. In the appeal it was held that on the facts of the matter the sentence of 15 years imprisonment for possession of the AK47 induces a sense of shock as the weapon had not been used in the commission of any other offence and there was an explanation that the weapon was kept for the appellant’s brother.[8] The sentence was replaced with one of 5 years imprisonment, with 3 years of the sentence further conditionally suspended for 5 years. But in this case the provisions of the Minimum Sentences Act were not applied due to the fact that the appellant has not been made aware at the appropriate time that the provisions would be relied upon by the State. This and the facts in Shabalala render the decision clearly distinguishable from the appeal before us. But it is noteworthy that despite there being two weapons involved in Shabalala, the Court nevertheless deemed it fit to drastically reduce the sentence and even suspended part of the reduced sentence.

[25]        Another decision is that of S v Radebe,[9] by a full bench of the then Orange Free State Provincial Division. This decision concerned an appellant who had been convicted by the regional court of culpable homicide, apart from his conviction for the unlawful possession of a firearm and ammunition. The appellant had been found in possession of the firearm, reasonably suspected to have been stolen. He could not give a satisfactory account of possessing the firearm. He was sentenced to an effective period of 18 years’ imprisonment. The Court had ordered that his sentences run concurrently, which included a sentence of 15 years’ imprisonment for the unlawful possession of a firearm. On appeal, it was held that it was clear that the Legislature did not intend that the minimum sentence of 15 years’ imprisonment prescribed for the unlawful possession of a semi-automatic firearm should be applied to the unlawful possession of a pistol, even if the pistol had a semi-automatic function or mechanism or was commonly known as a semi-automatic firearm.^1[10] The Court substituted a sentence of 3 years’ imprisonment for the sentence of 15 years’ imprisonment and also antedated the substituted sentence.[11] But the view that the Minimum Sentences Act was not intended for semi-automatic pistols was debunked in subsequent decisions. This diminishes the significance of this decision for purposes of the appeal before us.

[26]         The case of S v Thembalethu[12] of the Supreme Court of Appeal (the SCA) concerned an appellant who had been convicted by the regional court on four counts, including for the unlawful possession of a semi-automatic firearm and robbery with aggravating circumstances. The regional court sentenced the appellant to 15 years’ imprisonment on the firearm count and imposed an effective sentence of 25 years’ imprisonment for all counts, after ordering the concurrent running of the individual sentences on the counts, which had amounted to almost 37 years’ imprisonment. He approached the SCA after the dismissal of his appeal against the sentence of 15 years’ imprisonment for the firearm count by the Eastern Cape High Court. The SCA was also required to interpret section 51 (2) of the Minimum Sentence Act. The SCA - after it criticised views from previous decisions that the Minimum Sentence Act was ill- conceived and the imposition of the mandatory sentences prescribed therein was absurd, held that though the way the Minimum Sentence Act was drafted is not “a specimen of clarity”, its relevant provisions were not rendered nugatory.[13] Further, the SCA held that the fact that one of the consequences of the Minimum Sentence Act is that a sentence to be imposed for unlawfully possessing a pump-action shotgun would be more lenient than one for unlawfully possessing a semi-automatic firearm, this does not render this legislation or its provisions absurd.[14] The Legislature may have singled out semi-automatic firearms due to their frequent use in violent crimes.[15] The SCA emphasised the principles from S v Malgas that the prescribed minimum sentences in the Minimum Sentences Act may be departed from when there are substantial and compelling circumstances.[16] The SCA dismissed the appeal after finding as a laudable and “a sound approach” the fact that the trial court had ordered that 11 years of the sentence of 15 years’ imprisonment for the unlawful possession of firearm run concurrently with the sentence imposed on the robbery count, which resulted in “tempering that which would otherwise have been a very harsh sentence”.[17] The comparative value of the outcome in Thembalethu to the appeal before us is significantly diluted by the fact that a large portion (i.e. 11 years) of the 15 years’ sentence for the unlawful possession of a firearm was “tempered” with by the order for the concurrent running of the sentences imposed. However, it is clear that the original sentence of 15 years would not have been allowed to stand and the proportionality of the ultimate sentence was filtered by the concurrency order.

[27]         In S v Madikane[18] the Eastern Cape (Grahamstown) Division of the High Court dealt with an appellant who had been sentenced to 15 years’ imprisonment after his conviction (based on a guilty plea) by the regional court for the unlawful possession of a firearm. Madikane came a few years after Thembalethu. The appellant in Madikane admitted obtaining a 9 mm Norinco pistol from some other boys in the area and explained his possession as safekeeping the firearm. The firearm was found in his possession when the police were searching some other premises where the appellant happened to be. The personal circumstances of the appellant included that he was 32 years old; he was not permanently employed but survived on occasional casual work; he lived with and was dependent on his aunt, who did domestic work. His previous brushes with the law resulted in three previous convictions for housebreaking with intent to steal and theft, and two other previous convictions immaterial to the firearm charge. The following factors were considered by the trial court for purposes of sentencing the appellant: (a) he had pleaded guilty and therefore took responsibility for his actions; (b) there was no evidence that the firearm had been used in the commission of any offence;[19] (c) society is outraged by the commission of the type of offence involving unlawful possession of firearms; (d) unlawful possession of a firearm is in its own right a serious offence;

(e) violent crimes are often committed by those in unlawful possession of firearms, and (f) society is or members of society are entitled to live peacefully and to be protected. The trial court sentenced the appellant to 15 years’ imprisonment, after it had found that no substantial and compelling circumstances existed to impose a lesser sentence.[20] The Court explained that circumstances which constitute substantial and compelling circumstances in terms of section 51(3) of the Minimum Sentences Act may comprise “any of the factors that courts traditionally take into account as mitigation, and may be the cumulative effect of a number of such factors”.[21] The Court further held that if imposition of the prescribed minimum sentence would render the imposed sentence disproportionate to the crime, the offender and the legitimate needs of society, that fact on its own constitutes a substantial and compelling circumstance warranting or indeed requiring the court to impose a lesser sentence than the prescribed minimum sentence.[22]

[28]         Further, the Court in Madikane, after an intensive review of similar cases in the law reports, bemoaned the fact that apart from Thembalethu, it was unable to find a case in which the accused had been sentenced to 15 years’ imprisonment for possessing a semi-automatic pistol.[23] The Court further held that it appears that a sentence of 15 years imprisonment for unlawfully possessing automatic firearms is for exceptional cases.[24] In as far as the unlawful possession of semi-automatic pistols is concerned, the Court held that, apart from Thembalethu (in which a sentence of more than 3 years’ imprisonment was imposed) it had found no other reported decision.[25] Although the circumstances of cases differed, the historical moment of cases also differed and some cases involved mitigating factors, but there is a notable pattern in the cases generally placing the sentences in the region of two years’ imprisonment, the Court held.[26] Ultimately, the Court concluded that the prison term of 15 years is unlikely to be proportional to the crime, the criminal and the legitimate needs of society, save for the most serious of cases, even if more severe sentences for the unlawful possession of automatic or semi-automatic firearms were to be imposed under the Minimum Sentences Act.[27] The prescribed sentence of 15 years’ imprisonment is unjust and, in itself, constituted a substantial and compelling circumstance “justifying and requiring [the Court] to impose a less severe sentence than the prescribed sentence”, the Court found. It replaced the sentence with one of 7 years imprisonment.[28] Few facts in Madikane are comparable with those in the appeal before us. In Madikane the weapon involved was Norinco pistol; the appellant was 32 years old and survived on casual work. He had three previous convictions for housebreaking with intent to steal and theft, and other immaterial ones in this case. In the appeal before us a Norinco pistol was also involved; the appellant was 34 years old and is self-employed and his previous convictions are for two counts of housebreaking with intent to rob and robbery, as well as a drugs-related conviction. Whereas the appellant in Madikane pleaded guilty to the offences, in the appeal before us the appellant unsuccessfully tried to distance himself from the crime(s). In both cases there was no evidence that the firearm had been used in the commission of any offence,[29] although the serial numbers of the firearm in the appeal before us has been obliterated. Also, in this appeal the appellant was in custody for about 6 months at the time of his trial.

[29]         In S v Madlala,[30] a full bench decision of the KwaZulu Natal (Pietermaritzburg) Local Division, the Court dealt with the appellant who had been sentenced to a 15 years’ prison term for the unlawful possession of automatic firearm in the form of an AK47. The sentencing court had ordered that the firearm sentence run concurrently with the other sentences (including for attempted murder) resulting in an effective sentence of 18 years’ imprisonment of the appellant. The trial court taking into account the appellant’s personal circumstances (which included that he was a 35-year-old unmarried father of a 3-year-old child; was unemployed when he was sentenced; had passed grade 11 at school and had previous convictions for robbery, unlawful possession of a firearm and ammunition) found no substantial and compelling circumstances. The appeal Court agreed with the latter finding and dismissed the appeal against sentence. As in Thembalethu, discussed above, the order for concurrent running of the firearm sentence in Madlala significantly influenced the proportionality aspect of the ultimate sentence imposed.[31] In Madlala the Court ordered that the sentence of 15 years for the unlawful possession of a firearm run concurrently with the sentence for attempted murder. Some of the personal circumstances of the appellant in Madlala, for example, that the appellant in the latter case was 35 years old, unmarried, but with a 3-year-old child; having left school at grade 11 and with previous convictions for robbery, unlawful possession of a firearm and ammunition, are similar to those of the appellant in the appeal before us. But the two decisions are clearly distinguishable.

[30]          In S v Swartz[32] the Court dealt with an appellant who had been sentenced by the full court of the Western Cape, Cape Town Division on two counts of unlawful possession of a semi-automatic firearm and two counts of unlawful possession of ammunition. He was sentenced to 15 years’ imprisonment per count on the firearm counts (i.e. counts 1 and 3) and 3 years’ imprisonment for unlawful possession of ammunition (i.e. counts 2 and 4). But the trial court ordered that 10 years of count 3 and 2 years of count 4 run concurrently with the sentence of 15 years’ imprisonment on count 1, resulting in an effective sentence of 24 years’ imprisonment. The appellant’s previous convictions, which were considered aggravating, included convictions for possession of a dangerous weapon and the unlawful possession of a firearm and ammunition (for the latter he was sentenced to 2 years’ imprisonment).[33] The Court remarked that the unlawful possession and the use of semi-automatic firearms is a very serious matter and that the Minimum Sentences Act required the courts to impose the prescribed minimum sentence of 15 years’ imprisonment, in the absence of substantial and compelling circumstances, as the Legislature bore in mind the general involvement of unlicensed weapons in other serious crimes, such as murder and robbery by those who possess these weapons or those who may access them, very often without being apprehended.[34] But the Court found that the trial court erred in finding that there were no substantial and compelling circumstances in respect of one of the two counts of the unlawful possession of a semi-automatic firearms. The appellant explained his possession of the firearm to have been fortuitous at a rubbish dump, the day he was arrested, which meant that he did not possess the firearm for a very long time when he was apprehended.[35] He also entered a plea of guilty on the two counts, which redound in his favour. The appeal court considered the sentence for count 3 (i.e. 15 years’ imprisonment) to be disproportionate and reduced it to 7 years, but left unchanged the sentence of 15 years’ imprisonment on count 1.[36] The different sentences on the firearm counts, the reduction of the 15 years sentence for count 3 and the retention of the entire 15 years sentence for count 1, represented mixed outcomes for the appellant. There was further tempering with the reduced sentence of 7 years for count 3 by the Court’s order that 4 years thereof should run concurrently with the other sentences. But. the impact of the sentences was more pronounced only in respect of the sentence of 15 years’ imprisonment (on count 1) which was not reduced and on 3 years for count 3 on the firearms counts, which was not to run concurrently with the others. These factors and the previous convictions of the appellant in Swartz renders this case clearly distinguishable from the appeal before us.

[31]        The unreported decision of Asmal v S[37] represented another opportunity for the SCA, after Thembalethu,[38]to deal with the appropriate sentencing for the unlawful possession of firearms. The appellant in Asl was convicted for the unlawful possession of a fully automatic rifle, an AK47. He was sentenced to 15 years’ imprisonment, which sentence was ordered to run concurrently with another sentence of life imprisonment for murder of an 18-year-old boy (he had employed as a herdsman) on suspicion that the boy had stolen his property. The full court of the KwaZulu-Natal (Pietermaritzburg) Division had partially dismissed his appeal and leave to appeal to the SCA was granted only on a limited basis in respect of the sentence for the firearm charge. The firearm had been found by the police when they searched the appellant’s house after his arrest on suspicion of murder. He appealed against the sentence of the trial court on the grounds that the following constituted substantial and compelling circumstances: the recovered firearm was unloaded and had no ammunition, although it had automatic mechanism, but it had not been used in the commission of another offence. The SCA agreed with the State’s concession that the sentence of 15 years imprisonment induces a sense of shock and that the cumulative effect of the personal circumstances of the appellant, together with the circumstances of the matter, constituted substantial and compelling circumstances.[39] The personal circumstances, among others, were that the appellant was 42 years old; was married with 4 children and had been employed at a store, as a junior manager.[40] Because the appellant’s previous convictions were immaterial, he was considered a first offender for purposes of sentencing. The SCA labelled the sentence of 15 years’ imprisonment for the unlawful possession of a firearm to be not only shockingly harsh, but disproportionate when considered against the facts of the matter[41] and substituted a sentence of 8 years’ imprisonment for it, which it ordered to run concurrently with the sentence of life imprisonment.[42] The SCA did not mention its previous decision of Thembalethu,[43] which – with respect – is quite remarkable. The facts in Asmal and the personal circumstances of the appellant involved, are totally distinguishable from the appeal before us, particularly the involvement of the sentence for life imprisonment, with which the reduced 8 years sentence for the firearm was ordered to run concurrently.

[32]         The Western Cape (Cape Town) Division had another opportunity in S v Delport[44] (after Swartz, discussed above)[45] to consider an appeal against a sentence for the unlawful possession of a firearm. The personal circumstances of the appellant in Delport, among others, were that he was 30 years of age; unmarried and without dependants; unemployed, but doing odd jobs from time to time; had two recent prior convictions for drug possession, and awaited his trial and sentencing in custody for over 9 months.[46] The appellant had been sentenced to 15 years’ imprisonment for unlawfully possessing a fully automatic firearm and 3 years’ imprisonment for possession of 34 rounds of ammunition. The sentences were ordered to run concurrently. The trial court held that there were no substantial and compelling circumstances justifying deviation from imposition of the prescribed minimum sentence.[47] On appeal, a full bench of the Western Cape Division after distinguishing the facts in the matter from those in he cases of Asmal,[48] Madikane[49] and Swartz,[50] held that it had difficulty with suggestions from some decided cases that the unlawful possession of a firearm was to be considered a serious offence only if the particular firearm was used for committing a serious crime, as the suggestion loses sight of the fact that where unlawfully possessed firearm is used to commit another crime, the two crimes ought to be punished separately.[51] The Court further endorsed heavy penalties for those unlawfully possessing firearms, as the unlawful weapons are often used in violent crimes.[52] The Legislature clearly intended to curb and disincentivise the commission of violent crimes, when it altered the statutory context with the introduction of the Minimum Sentences Act, which the sentencing Courts are obliged to recognise and apply.[53] The seriousness of the offence will be defined by the particular circumstances of a matter and there is a need for a gradation of the seriousness of the offence for the unlawful possession of firearms, as in some instances the innocuous of the unlawful possession and where the firearm was not likely to have been possessed or used for nefarious purposes would mean that being sentenced to 15 years’ imprisonment is “clearly … disproportionate, and irreconcilable with a constitutionally compatible implementation of the prescribed minimum sentence”.[54] This means that the accused person has some level of evidential burden to establish that his or her unlawful possession of the firearm was relatively benign.[55] The offence in this case had features pointing towards the seriousness of the offence, the Court held.[56] It ruled that the sentences imposed were appropriate and dismissed the appeal. The following personal circumstances of the appellant in Delport are similar to those in the appeal before us: he was 30 years old; unmarried (but without dependants, unlike in this appeal); prior convictions for drug possession and over 9 months spent in custody awaiting trial. But the weapon involved in Delport was a fully automatic firearm, accompanied by a large stash of 34 rounds of ammunition. There is also a further similarity in that the sentence of 3 years on the ammunition charge was ordered to run concurrently with the prescribed minimum sentence for the firearm charge.

[33]         In S v Pillay[57] the Court dealt with an appeal involving an appellant who had been convicted for murdering his girlfriend or fiancée and for the unlawful possession of a firearm. His sentence of 15 years’ imprisonment for the firearm count was ordered to run concurrently with the one for his life imprisonment for the murder count. He was 32 years old; had completed grade 11 at school and was unmarried, although the sole breadwinner for his family (comprising his parents and siblings). The appeal Court substituted a sentence of 5 years’ imprisonment for the concurrently with the one sentence on the murder charge for his imprisonment of 20 years. This matter is distinguishable from the appeal before us, particularly due to the presence of the murder count and its associated long sentence.

[34]          Recently, in S v Jansen,[58] a full bench decision of the Eastern Cape Division, an appellant involved had been convicted for the unlawful possession of a 9 mm pistol and ammunition for which he had been sentenced to 15 years’ imprisonment and 18 months’ imprisonment, respectively. The shorter sentence was ordered to run concurrently with the longer sentence. The Court fully associated itself with the reasoning and the findings in Swartz and Delport,[59] and further agreed with the view in S v Vilakazi[60] which stated that the Minimum Sentences Act was a response to an upsurge of serious crimes when it was introduced.[61] Therefore, it is “a narrow approach” to criticises this legislation by focusing on the failure of the prescribed sentences imposed by the courts to reflect the differences in the calibre of the firearms involved in the cases before the courts in question.[62] Further, the Court disagreed with Madikane that the prescribed minimum sentence for unlawful possession of a semi-automatic pistol ought to be imposed only in exceptional cases.[63] The Court reviewed the appellant’s personal circumstances recorded in the trial court, being that the appellant was 31 years old; left school after he had completed grade 10; had been employed temporarily as a taxi conductor; unmarried with two minor children from different mothers and had a number of previous convictions, including for unlawfully possessing a firearm (for which he received a 5 years suspended sentence), which was considered by both the appeal Court and the trial court to be an aggravating factor.[64] The Court, considered several features pointing towards the seriousness of the offence and held that all indications were to the effect that the appellant had intended to use the firearm and the ammunition for a criminal purpose.[65] It further held that whilst time spent in custody (being two years in that matter) was a necessary factor to be considered for purposes of sentencing, this factor does not on itself constitute sufficient circumstance to deviate from imposing the prescribed minimum sentence,[66] but a factor in the context of all relevant factors to be considered when determining the proportionality of a sentence.[67] The Court recognised the trial court’s consideration of the interests of society and the prevalence of offences relating to the unlawful possession of firearms and the use thereof in violent crimes, more particularly in gang activities in the Port Elizabeth area.[68] It ruled that the 15 years sentence was not disproportionate and dismissed the appeal.[69] The following features from this case are comparable with those in the appeal before us: the involvement of a 9 mm pistol and ammunition; the age of the appellant, being 31 years; his leaving school after completing grade 10; temporary employment as a taxi conductor; being unmarried with two minor children and the presence of previous convictions, although this included one for the unlawful possession of a firearm (with 5 years suspended sentence), an aggravating factor in the eyes of both the appeal Court and the trial court.

[35]         The above reviewed cases will be used in the determination of the outcome of the appeal against sentence, particularly the length of the sentence imposed by the Trial Court. But such determination would also require a discussion of the proportionality element in sentencing, which I turn my attention to next.

The proportionality element of sentences

[36]        To recap: the appeal against the sentence of 15 years’ imprisonment is mounted on the bases that the Trial Court’s finding that no substantial and compelling circumstances existed is erroneous and that the sentence of the Trial Court is disproportionate, when considered against the factors in the matter. It has been held that at the heart of the proportionality requirement lies the value of human dignity.[70] It is “incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offence” and in the event the court is satisfied that a sentence lesser than the prescribed minimum sentence is justified then such court is bound to impose the lesser sentence, to avoid being a vehicle for injustice.[71] The proportionality principle will be considered when discussing the conclusions of this matter, below.

Conclusion

[37]         In the appeal before us, the Trial Court found no substantial and compelling circumstances to justify deviation from imposing the prescribed minimum sentence of the imprisonment of the appellant for a period of 15 years. I agree with the Trial Court’s finding that there are no substantial and compelling circumstances justifying deviation from the imposition of the prescribed minimum sentence. But this is not the end of the matter.

[38]         The imposition of a sentence that is disproportionate, in itself, constitutes a substantial and compelling circumstances warranting or indeed requiring the imposition of a sentence lesser than the prescribed minimum sentence.[72] The sentence imposed ought to be proportionate to the crime, the offender and the legitimate needs of society,[73] when determined from the context of all the circumstances of the particular matter. In my view, the sentence of 15 years’ imprisonment of the appellant is disproportionate when considering all relevant factors in the appeal before us. The Trial Court’s recorded intentions are clear. It intended to send out a clear message to the appellant, whom it had convicted for the unlawful possession of a firearm (whose serial numbers were obliterated) and other perpetrators of this prevalent crime by infusing elements of deterrence and retribution in the sentence imposed. But, as a sentencing court, the Trial Court ought not to have over-emphasised deterrence, as deterrence is not the only legitimate element of punishment or the overriding element of punishment.[74] Therefore, with respect, the Trial Court misdirected itself in this regard and this Court is at large to interfere on appeal. But the question that immediately surfaces is what length of sentence would be proportionate considering the crime committed, the appellant involved and legitimate needs of society?

[39]           The decided cases reviewed above reflect an array of lengths of sentences or jail terms.This is quite expected as the sentences are borne by the peculiar circumstances of each case. But also to be considered is that in some respect the appellate courts after finding reason to interfere with the sentences of the trial courts, imposed sentences influenced by different considerations. Very seldom the prescribed minimum sentence of 15 years’ imprisonment remained intact.[75]

[40]          In this matter the fact that the firearm’s serial numbers were obliterated is aggravating, as held by the Trial Court. I also agree with the Trial Court that the obliteration of the serial numbers suggests possession of the firearm for unlawful purposes, if ever unlawful firearms could be possessed for a lawful purpose. It is also a factor that the appellant did not even attempt to offer an explanation for his possession of the firearm, choosing instead to accuse the police officers involved of a cover-up or for planting the weapon on him. His finding of the firearm does not appear to have been fortuitous.[76] Further, the appellant had previous convictions for housebreaking with intent to rob and robbery for which he received an effective prison term of 6 years. These convictions are suggestive of violent behaviour and the appellant’s subsequent access to and possession of the unlawful firearm suggest a person who is not keen on rehabilitation.

[41]        Therefore, although the sentence of 15 years’ imprisonment is found disproportionate, a proportional sentence has to be reflective of (and justified against consideration of) all the factors in this matter. Under the circumstances of this matter, I find that the sentence of the Trial Court ought to be set aside and for it substituted a sentence of 10 years’ imprisonment of the appellant. Therefore, the appeal against sentence would be upheld as reflected in the order below, which would also reflect the dismissal of the appeal against conviction.

Order

[42]      In the result, I propose that the following order be made:

a)      the appeal against conviction is dismissed;

b)      the appeal against sentence is upheld to the extent set out in c) below;

c)      the sentence of the Regional Court for the Gauteng Regional Division, Benoni is set aside and the following sentence is substituted for it antedated to 13 September 2017:

“1.        The accused is sentenced to imprisonment as follows:

(a)    10 years in respect of count 1, and

(b)   2 years in respect of count 2.

2.         the sentence in count 2 shall run concurrently with the sentence in count 1.”

d)         The effect of the order in c) hereof is that the accused is sentenced to effective imprisonment for 10 years as at 13 September 2017.

K La M. Manamela

Acting Judge of the High Court

M.J. Teffo

Judge of the High Court

I agree and it is so ordered

Appearances:

For the Appellant                   :                       Adv LA van Wyk

                                                                            Legal Aid South Africa, Pretoria

For the Respondent              :                       Adv L Williams

:                        Director of Public Prosecutions

                                                                             Gauteng Division, Pretoria

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