A Note on Sentencing Practices for the Offence of the Unlawful Possession of Semi-Automatic Firearms

  • Pieter Gerhardus Du Toit NORTH-WEST UNIVERSITY
Keywords: Minimum sentencing, semi-automatic firearm, substantial, compelling circumstances

Abstract

Violent crimes in South Africa are often accompanied by the possession or use of semi-automatic firearms. The Criminal Law Amendment Act 105 of 1997 (the CLA) provides for the imposition of minimum sentences for certain firearms-related offences. The question whether the minimum sentencing regime actually applies to the offence of the unlawful possession of a semi-automatic firearm has led to a number of conflicting judicial decisions by different High Courts. This note discusses the statutory interpretation challenges the courts had to grapple with regarding the interplay between the CLA and South Africa's successive pieces of firearms legislation. The Supreme Court of Appeal ultimately found that the offence of the unlawful possession of a semi-automatic firearm must indeed be met with the prescribed minimum sentence. The recent sentencing practices of South African courts in respect of the unlawful possession of semi-automatic firearms within the framework of the CLA are analysed. From the investigation it is evident that courts are more likely to impose the minimum sentence in cases where the accused is also convicted of other serious offences such as murder and robbery. In such cases little attention is given to the firearm-related offences as the courts are more concerned with the cumulative effect of the sentences imposed on different counts. In cases where the accused is convicted of the stand-alone offence of the unlawful possession of a semi-automatic firearm, the courts are nevertheless taking an increasingly unsympathetic stance towards offenders, and terms of imprisonment in the range of 7 to 10 years are commonly imposed. In addition to the accused's personal circumstances, one of the most important factors in deciding on an appropriate sentence is the explanation of how the unlawful possession came about. It seems that the judicial sentiment increasingly does not support the view that the possession of an unlicensed firearm should be treated as serious only if the weapon has been used for the commission of a serious crime.

 

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References

Bibliography
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Case law
Baartman v S 2011 2 SACR 79 (WCC)
Calvin v The State 2014 ZASCA 145 (26 September 2014)
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Motaung v S 2005 ZAFSHC 130 (18 August 2005)
Nieuwenhuizen v S 2015 ZASCA 90 (29 May 2015)
Radebe v S 2017 ZAGPPHC 233 (11 May 2017)
Rontlai v S 2018 1 SACR 1 (SCA)
S v Asmal 2015 ZASCA 122 (17 September 2015)
S v Bhadu 2011 1 SA 487 (ECG)
S v Delport 2016 2 SACR 281 (WCC)
S v Dodo 2001 3 SA 382 (CC)
S v Dube 2012 2 SACR 579 (ECG)
S v Khonye 2002 2 SACR 621 (T)
S v Legoa 2003 1 SACR 13 (SCA)
S v Madikane 2011 2 SACR 11 (ECG)
S v Malgas 2001 1 SACR 469 (SCA)
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S v Molahi 2016 ZAGPJHC 74 (21 April 2016)
S v Mokomela (TPD) (unreported) case number A751/2002 of 17 February 2003
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S v Motloung 2015 1 SACR 310 (GJ)
S v Motloung 2016 2 SACR 243 (SCA)
S v Mukwevho 2010 1 SACR 349 (GSJ)
S v Radebe 2006 2 SACR 604 (O)
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S v Thembalethu 2008 3 All SA 417 (SCA)
Sibande v S 2017 ZAGPPHC 754 (10 November 2017)
Sukazi v S 2014 ZAGPPHC 728 (16 September 2014)
Tau v S 2017 ZAFSHC 42 (23 March 2017)
Witbooi v S 2015 ZAWCHC 185 (8 December 2015)
Legislation
Arms and Ammunition Act 75 of 1969
Criminal Law Amendment Act 105 of 1997
Firearms Control Act 60 of 2000
Magistrates' Court Act 32 of 1944

Internet source

Cameron E 2017 Imprisoning the Nation: Minimum Sentences in South Africa - University of the Western Cape, Faculty of Law: Dean's Distinguished Lecture https://www.concourt.org.za/images/phoca
download/justice_cameron/UWC-Deans-distinguished-lecture-19-October-2017--Minimum-Sentences.pdf accessed 4 April 2019
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Published
2020-03-17
Section
Notes