REPUBLIC OF SOUTH AFRICA

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE

Case number:  75/2002

In the matter between:

SAM NDLOVU
Appellant

and

THE STATE
Respondent

CORAM:
SCHUTZ, MPATI and NUGENT JJA

HEARD:
5 NOVEMBER 2002

REASONS HANDED IN ON: 27 NOVEMBER 2002

Criminal Law – unlawful possession of firearm – imposition of sentence – effect of failure of
prosecution to ask for minimum sentence – effect of failure by presiding officer to inform
accused of possible application of minimum sentencing provisions of Act 105 of 1997 – need for
State to prove firearm automatic or semi-automatic.
___________________________________________________________________

REASONS
__________________________________________________________________

MPATI JA:
[1] Three important issues arise in this case.  The first is whether it is incumbent
upon the State to allege in the charge sheet, or otherwise pertinently bring it to the
attention of the accused, that it is relying on the firearm with whose possession he is
charged being an automatic or semi-automatic one, and is consequently seeking the
imposition of the minimum sentence of 15 years.  The second is the extent of the
obligation resting on the presiding judicial officer to satisfy himself that the accused
fully understands that he/she stands to be sentenced to the minimum period of
imprisonment, unless substantial and compelling circumstances are found to exist, such
as justify the imposition of a lesser sentence.  The third is the extent of the onus resting
on the State to prove that the firearm in question is automatic or semi-automatic.
[2] The appellant stood trial in the regional court, Germiston, on two charges, viz
unlawful possession of a firearm in contravention of s 2 of Act 75 of 1969 (count 1)

and unlawful possession of eight rounds of ammunition in contravention of s 36 of the
same Act (count 2).  He was convicted on both charges.  In the course of his judgment
the magistrate made a finding that the weapon, a 9 mm Star pistol, was a semi-
automatic firearm.  This finding brought the appellant within the ambit of the minimum
sentencing provisions of the Criminal Law Amendment Act 105 of 1997 (the Act), the
offences having been committed on 28 November 1998.  The minimum sentencing
provisions came into force on 1 May 1998.
[3] In terms of s 51(2)(a)(i) of the Act the minimum sentence to be imposed on a
first offender following a conviction of unlawful possession of an automatic or semi-
automatic firearm is 15 years’ imprisonment unless substantial and compelling
circumstances exist, which justify the imposition of a lesser sentence (s 51(3)(a)).
Having found that no substantial and compelling circumstances were present the
magistrate thereupon sentenced the appellant to 15 years’ imprisonment on the first

charge and on the second to imprisonment for one year, the two sentences to run
concurrently.
[4] The appellant’s appeal to the Witwatersrand Local Division against his
convictions and sentences failed, but that Court granted him leave to appeal to this
Court.
[5] After it had heard argument this Court issued the following order (on 5
November 2002):

‘1.
The appeal against conviction is dismissed.

2.
The appeal against sentence is upheld.  The sentences of 15 years
and one year are set aside and are replaced with a sentence of three
years on charge one and one year on charge two, such sentences to
run concurrently.

3.
The appellant is ordered to be released forthwith, the sentence
above already having been served.’

The reasons for this order were to be given later.  They now follow.
[6] The appellant pleaded not guilty to both charges before the magistrate and

denied that he was found in possession of the firearm loaded with eight cartridges.  In
this Court, however, his counsel conceded that the appellant’s denial was correctly
rejected by the magistrate as not being reasonably possibly true.  But he persisted with
the argument that the magistrate’s finding that the firearm was a semi-automatic
weapon was erroneous.  The facts are these.  Three members of the South African
Police Service, Sergeants Phineas Maja and Makoba and Constable Sepo Lawrence
Motsamai, were patrolling in a street in Katlehong, Germiston, in a police vehicle.
Sergeant Makoba was the driver.  Constable Motsamai, on seeing the appellant who
was walking along the street with his shirt hanging over his trousers on one side,
suspected that the appellant was carrying a firearm.  He asked Sergeant Makoba to stop
the vehicle and he and sergeant Maja approached the appellant.  He searched the
appellant and found the 9 mm Star pistol tucked in the appellant’s trousers.  On
examining the firearm, he and Maja found 8 rounds of ammunition in the magazine.

The appellant could not produce a licence entitling him to possess the firearm.
[7] The prosecutor did not lead any evidence on the issue of whether the firearm
was semi-automatic.  It was only during the following exchange between the
magistrate and the appellant at the end of the examination-in-chief of Motsomai that
mention was made of it:
‘Meneer, watse tipe wapen is die 9 mm pistool? --- Dit is `n pistool,
handwapen, Edelagbare.
Meneer, is dit outomaties of semi-outomaties of nie een van die twee nie?
--- Dit is `n semi-outomatiese pistool.’

Apart from Motsamai’s other testimony that he tested the firearm to ascertain that it
was in working condition, there was no evidence on which to base his conclusion that
the firearm was semi-automatic.  It is on this evidence that counsel for the appellant
argued that it had not been proved that what was found in the appellant’s possession
was a semi-automatic firearm and that therefore the sentence imposed in respect of the
first charge was not competent.

[8] An allied submission made by counsel was that at no stage was the appellant
pertinently alerted to the fact that he stood in peril of the sentencing regime of the Act
being applied if he was convicted.  In response to this latter submission counsel for the
State contended that apart from the fact that reference was made in the charge sheet to
s 50 of the Act the appellant was legally represented and that ‘everyone knew what it
was all about’.
[9] The difficulty with this argument of course is that there is no indication
whatsoever in the record that the appellant or his legal representative had the slightest
idea, prior to sentence, that the appellant was facing the prospects of imprisonment of
15 years in terms of the minimum sentencing provisions of the Act.  Apart from
mentioning, in the course of his judgment and while summarising the facts, that ‘[d]ie
wapen is `n semi-outomatiese vuurwapen’, the magistrate does not appear to have
advised the appellant at any stage of the consequences of this finding, if made.  At the

end of his judgment he convicted the appellant ‘op BEIDE DIE AANKLAGTE …
SOOS AANGEKLA’.
[10] The first charge (which is really the one in issue in this appeal) reads:
‘That the accused is guilty of the offence of contravening Section 2 read
with Sections 1, 39(1)(h), 39(2) of Act 75 of 1969 as amended.  Read
with Section 50 Act 105/97.

In that upon or about the 28 day NOVEMBER 1998 and at or near
KATLEHONG in the Regional Division of Southern Transvaal the
accused did unlawfully have an arm/arms to wit 9 mm PISTOL in his
possession without being the holder of a licence issued in terms of Act 74
of 1969 to possess the said arm/arms.’

Section 39(2) of the Arms and Ammunition Act 75 of 1969, to which the accused was
directed in the charge sheet, stipulates the penalties for contravening that Act (the
penalty for contravening s 2 is a fine of R12 000 or imprisonment of 3 years or both).
The very reference to that section was calculated to convey the impression that the
State would seek the penalty provided for in that Act.  It was pointed out on behalf of

the State that the charge sheet also referred the appellant to the Act.  The section of that
Act to which the appellant was referred (s 50) does not relate to the sentencing regime
but instead reads as follows:
‘The laws mentioned in the second column of Schedule 1 are hereby
amended to the extent set out in the third column of that Schedule.’

It was submitted on behalf of the State that the reference to s 50 was clearly an error
and that the charge sheet must have been intended to refer rather to s 51.  If that is so
the charge sheet was at the very least ambiguous as to whether the State would seek the
sentence provided for in the Arms and Ammunition Act or whether it would seek the
sentence provided for in the Act.  Nothing in the remainder of the charge provided any
further enlightenment.  Indeed, it seems that the State had no intention of seeking the
sentence provided for in the Act because it led no evidence at all to bring the matter
within its terms.  It was only after the State had completed leading the evidence of the
witness concerned that the magistrate’s questions elicited the relevant facts.

[11] Whilst it is desirable that the charge sheet should set out the facts the State
intends to prove in order to bring an accused within an enhanced sentencing
jurisdiction, to do so is not essential.  R v Zonele and Others 1959 (3) SA 319 (A) at
323 A-H;  S v Moloi 1969 (4) SA 421 (A) at 424 A-C.  But in a recent judgment of this
Court Cameron JA reminds us that an accused person has a constitutionally guaranteed
right to a fair trial that embraces a concept of substantive fairness.  He said the
following:
‘The Constitutional Court has emphasised that under the new
constitutional dispensation, the criterion for a just criminal trial is “a
concept of substantive fairness which is not to be equated with what
might have passed muster in our criminal courts before the Constitution
came into force”.  (S v Zuma and Others 1995 (2) SA 642 (CC) para 16,
drawing a contrast with S v Rudman and Another, S v Mthwana 1992 (1)
SA 343 (A) 377;  and see Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38 (CC) para 22, per Kriegler J.)  The Bill of Rights
specifies that every accused has a right to a fair trial.  This right, the
Constitutional Court has said (in S v Zuma, supra, para 16), is broader
than the specific rights set out in the subsections of the Bill of Rights’
criminal trial provision (s 35(3)(a)-(o) of the Constitution).  One of those

specific rights is “to be informed of the charge with sufficient detail to
answer it” (s 35(3)(a)).  What the ability to “answer” a charge
encompasses this case does not require us to determine.  But under the
constitutional dispensation it can certainly be no less desirable than under
the common law that the facts the State intends to prove to increase
sentencing jurisdiction under [the Act] should be clearly set out in the
charge sheet.’

(Michael Legoa v The State, case no 33/2002, judgement delivered on 26 September
2002, para 20.)  Cameron JA declined, however, to lay down a general rule that the
charge sheet must in every case recite either the specific form of the scheduled offence
(in that case dealing in dagga with a value of more than R50 000) with which an
accused is charged, or the facts the State intends to prove to establish it.  He held, in
the end, that ‘Whether the accused’s substantive fair trial right, including his ability to
answer the charge, has been impaired, will … depend on a vigilant examination of the
relevant circumstances’ (para 21).
[12] The following extract from the judgment of the Full Court in S v Seleke en

Andere 1976 (1) SA 675 (T) at 682H was quoted with approval by Cameron JA (his
translation from Afrikaans):
‘To ensure a fair trial it is advisable and desirable, highly desirable in the
case of an undefended accused, that the charge sheet should refer to the
penalty provision.  In this way it is ensured that the accused is informed
at the outset of the trial, not only of the charge against him, but also of the
State’s intention at conviction and after compliance with specified
requirements to ask that the minimum sentence in question at least be
imposed.’

The enquiry, therefore, is whether, on a vigilant examination of the relevant
circumstances, it can be said that an accused had had a fair trial.  And I think it is
implicit in these observations that where the State intends to rely upon the sentencing
regime created by the Act a fair trial will generally demand that its intention be
pertinently brought to the attention of the accused at the outset of the trial, if not in the
charge sheet then in some other form, so that the accused is placed in a position to
properly appreciate in good time the charge that he faces as well as its possible

consequences.  Whether, or in what circumstances, it might suffice if it is brought to
the attention of the accused only during the course of the trial is not necessary to decide
in the present case.  It is sufficient to say that what will at least be required is that the
accused be given sufficient notice of the State’s intention to enable him to properly
conduct his defence.
[13] Upon conviction in the present matter the appellant became liable to a minimum
sentence of 15 years’ imprisonment in view of the magistrate’s finding that he had
been found in possession of a semi-automatic firearm, unless substantial and
compelling circumstances were present justifying a departure from the prescribed
sentence.  Were it not for the magistrate’s finding the sentence which would have been
imposed would not have exceeded R12 000 or 3 years’ imprisonment or both (s
39(2)(b)(i) of Act 75 of 1969).  The difference is huge and, in my view, where the
minimum sentencing provisions apply an accused must not be subjected to the risk of

being visited with them without having been made fully aware that such will be the
case unless substantial and compelling circumstances are present which would justify a
lesser sentence.  And in this regard the presiding officer bears the responsibility of
satisfying himself and should not simply conclude, without more, as appears to have
been the position in the present matter, that no substantial and compelling
circumstances exist.  Cf S v Dlamini 2000 (2) SACR 266 (T) at 268 d-g;  Rammoko v
Director of Public Prosecutions (case no 85/2001, unreported judgment of this Court,
delivered 15 November 2002, paras 13 and 14).
[14] In the circumstances of this case it cannot be said that the appellant suffered no
prejudice from the magistrate’s failure to warn him of the consequences of his finding,
should he make such a finding, that the weapon found on him was a semi-automatic
farearm.  In invoking the provisions of the Act without it having been pertinently
brought to the appellant’s attention that this would be done rendered the trial in that

respect substantially unfair.  That, in my view, constituted a substantial and compelling
reason why the prescribed sentence ought not to have been imposed.   Hence the order
that we have already made.

[15] In view of this conclusion it is unnecessary to consider the question whether the
State proved that the firearm concerned was a semi-automatic weapon.  It is, however,
well to repeat the caveat in S v Metu 1995 (2) SACR 681 (A), a case in which this
Court took judicial cognisance that an AK47 can be operated as a machine gun, that
this does not mean that ‘the State may with impunity be careless about proving the
qualities of possibly less well-known weapons’ (at 684 e-f).

…………………………………

L MPATI

JUDGE OF APPEAL
CONCUR:
…………………………..
SCHUTZ JA

……………..……………
NUGENT JA