THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 20465/14

In the matter between:

YUSUF MOHAMED ASMAL

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Asmal v S (20465/14) [2015] ZASCA 122 (17 September
2015)

Coram:
Shongwe, Theron and Majiedt JJA

Heard:
19 August 2015

Delivered: 17 September 2015

Summary: Sentence – on a charge of unlawful possession of a fully automatic
rifle (AK47) in terms of s 4 of the Firearms Control Act 60 of 2000 – whether
the sentence imposed for unlawful possession of an AK47 rifle is shockingly
harsh – and whether the court a quo ought to have considered ordering the
sentence on the firearm conviction to run concurrently with the sentence on the
two other counts – this court’s interference justified.

ORDER
________________________________________________________________
On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Patel and Mokgohloa JJ and Skinner AJ sitting as court of appeal):
1 The appeal is upheld and the sentence imposed by the court a quo is set aside.
2 The following order is substituted:
‘The appeal against sentence on count 3, unlawful possession of a fully
automatic firearm, succeeds. The sentence of the trial court is set aside. The
following sentence is substituted in its place:
Accused 2 is sentenced to 8 years’ imprisonment which must run concurrently
with the effective sentence imposed on counts 1 and 2.’
3 The sentence is antedated to 23 January 2009.

JUDGMENT
________________________________________________________________

Shongwe JA (Theron and Majiedt JJA concurring)
[1] On 2 October 2008, the appellant, Mr Yusuf Mohamed Asmal, was
convicted by the KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Murugasen J) on charges of kidnapping, murder and the unlawful possession of
a fully automatic rifle (to wit an AK47 rifle) read with s 51 of the Criminal Law
Amendment Act 105 of 1997. He was sentenced to 8 years’ imprisonment on
the kidnapping charge, life imprisonment on the murder charge and 15 years’
imprisonment on the unlawful possession of a firearm charge. The court ordered
the sentences imposed in respect of counts 1 and 2 to run concurrently with the
sentence imposed on the murder charge, ie life imprisonment.

[2] The appellant’s appeal partially succeeded to the full court, against his
conviction and sentence. The full court confirmed the conviction on the

kidnapping charge, but reduced the sentence to 4 years’ imprisonment and also
changed the murder conviction to culpable homicide and imposed a sentence of
8 years’ imprisonment. The full court confirmed the conviction and sentence on
the unlawful possession of the firearm charge. It ordered the sentence of 4
years’ imprisonment for kidnapping to run concurrently with the 8 years’
imprisonment on the culpable homicide charge only. This appeal is with the
special leave of this court against sentence on the firearm charge only. It further
limited the appeal in the following manner:
‘(i) Whether the sentence imposed for conviction of the firearm charge is shockingly harsh.
(ii) Whether the court ought to have considered ordering the sentence on the firearm
conviction to run concurrently with the sentences on the two other counts.’

[3] It is necessary to set out the facts that led to the conviction and sentence.
The deceased, an 18 year old boy, was employed by the appellant as a herdsman
and also resided on the appellant’s property. Certain goods belonging to the
appellant went missing and the deceased was suspected to have stolen them.
The appellant sought the assistance of Mondli Wilson Majozi (accused 1 in the
trial) and Tholinhlanhla Skhumbuzo Nyathikazi (accused 3 in the trial) to look
for the deceased as he had disappeared from the property. The deceased was
found and apprehended by accused 1 and others on the morning of 18 August
2006, who then summoned the appellant to the place where the deceased was
kept. The deceased was assaulted by the group of people, including the
appellant. The appellant denied that he assaulted the deceased. On the
instructions of the appellant, the deceased was taken to a place where the
appellant was employed as a junior manager. He was made to sit there for hours
on end until the evening of the same day. On the instructions of the appellant
the deceased was questioned by two employees regarding the alleged stolen
goods and was simultaneously assaulted to compel him to admit to the theft.
The appellant is said to have struck the deceased with a shotgun on the head and

he later died of head injuries. The deceased’s body was dumped at La Mercy
beach. On 30 August 2006 the police searched the appellant’s house, after he
had been arrested, and found an unlicensed fully automatic rifle (AK47) in the
spare room. This search occurred in the presence of his wife.

[4] The court a quo did not find any material misdirections in respect of the
sentence on the unlawful possession of the firearm. It, therefore found no reason
to interfere with the conviction and sentence.

[5] The appellant attacked the sentence of the trial court on the basis that the
firearm which, although potentially capable of firing on automatic, was
unloaded and no ammunition was found. He contended further that the firearm
had not been used in the commission of an offence, therefore, it was argued,
substantial and compelling circumstances existed which justified a departure
from the minimum sentence of 15 years’ imprisonment.

[6] The State conceded that 15 years’ imprisonment on this charge induced a
sense of shock. It agreed with the appellant’s contention that the combined
effect of all his personal circumstances together with the surrounding factors
amounted to substantial and compelling circumstances justifying a deviation
from the prescribed minimum sentence. I agree. This approach is fortified by
numerous cases of a similar thread, for example S v Madikane 2011 (2) SACR
11 (ECG); S v Dube 2012 (2) SACR 579 (ECG); S v Sukwazi 2002 (1) SACR
619 (N); S v Manana 2007 (1) SACR 62 (T) at 68.

[7] It is settled law that each case must be adjudicated on its own facts and
that no two cases are the same. In the present case the appellant was 42 years
old when he was sentenced by the trial court, married with four children and
employed at a Hyperstore as a junior manager. His wife was also employed.

Although the appellant had previous convictions, for purposes of sentence he
was considered a first offender. The previous convictions did not concern
firearms and occurred more than ten years before the commission of the offence
under discussion.

[8] This court in S v Barnard 2004 (1) SACR 191 (SCA) para 9 correctly
observed that:
‘A court sitting on appeal on sentence should always guard against eroding the trial court’s
discretion … and should interfere only where the discretion was not exercised judicially and
properly. A misdirection that would justify interference by an appeal Court should not be
trivial but should be of such a nature, degree or seriousness that it shows that the court did not
exercise its discretion at all or exercised it improperly or unreasonably.’

[9] The kidnapping and murder offences occurred on 18 August 2006, but the
AK47 was only found on 30 August 2006. The finding of the rifle may appear
to be unrelated to the other charges, however, it was as a result of his arrest on
those charges that the police, through their intelligence, decided to search his
house. In effect one would be justified to conclude that the AK47 charge
emanates from the other charges. Had the appellant not been suspected of the
kidnapping and murder charges, his house would, in all probability, not have
been searched. This conclusion ought, justifiably, to result in the sentences
running concurrently especially when this court considers the cumulative effect
of the sentences.

[10] In answer to the questions raised by this court when granting special
leave to appeal, the sentence imposed on the possession of the AK47 rifle was
not only shockingly harsh, but also disproportionate considering the facts of this
case. When the rifle was found in the appellant’s house he had been
incarcerated already. The rifle was not loaded and no ammunition was found. It

further had not been used in the commission of other offences for which he had
been arrested. It is a fact that the appellant failed to proffer a reasonable
explanation for the possession save for a bare denial. In my view, the court a
quo ought to have found substantial and compelling circumstances justifying a
deviation from the prescribed minimum sentence.

[11] In view of the reasons above it warrants this court’s interference with the
sentence. It is in the interests of the administration of justice that an appropriate
sentence be imposed where necessary. Therefore the appeal against sentence on
the unlawful possession of a firearm charge stands to succeed.

[12] The following order is issued:
1 The appeal is upheld and the sentence imposed by the court a quo is set aside.
2 The following order is substituted:
‘The appeal against sentence on count 3, unlawful possession of a fully
automatic firearm, succeeds. The sentence of the trial court is set aside. The
following sentence is substituted in its place:
Accused 2 is sentenced to 8 years’ imprisonment which must run concurrently
with the effective sentence imposed on counts 1 and 2.’
3 The sentence is antedated to 23 January 2009.

_______________________

J B Z SHONGWE

JUDGE OF APPEAL

Appearances

For the Appellant:
A D Collingwood

Instructed by:

Carlos Miranda Attorneys, Pietermaritzburg;

Matsepes Inc, Bloemfontein.

For the Respondent:
M V Mcanyana

Instructed by:

Director of Public Prosecutions, Johannesburg;

Director of Public Prosecutions, Bloemfontein.