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S v Williams (4013/00) [2005] ZAWCHC 35 (9 May 2005)

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Vredenburg Case No : 1301/2003

High Court Ref No : 0401300

Magistrate’s Serial No : 26/2004




[1] This matter comes on review ostensibly in terms of Section 173 of Act 108 of 1996 (The Constitution of the Republic of South Africa), although it would seem that reliance has also been placed on Section 24(1)(d) of Act 59 of 1959 (the Supreme Court Act). The matter has been referred by the Magistrate in the Court a quo (the Vredenburg Magistrate's court) in the following circumstances.

[2] On 3 March 2004 the accused was charged with being in possession of an unlicensed weapon in contravention of the provisions of Section 2, read in conjunction with Sections 1, 39(2) & 40 of Act 75 of 1969 (the Arms and Ammunition Act) and of discharging a weapon in a public place in contravention of the provision of Sections 39(2)(d) & 39(3) of that Act. The alleged offences were committed on 30 June 2003. In addition, the accused was charged with housebreaking with intent to steal and to commit robbery on 24 December 2002.

[3] The accused pleaded not guilty to all three charges, and at the close of the State's case the accused's attorney successfully applied for a discharge in terms of Section 174 of Act No 51 of 1977 (the Criminal Procedure Act) on the basis that the State had failed to prove all the elements of the crime, more specifically that the object concerned was indeed a weapon in terms of the Act.

[4] In reaching his conclusion, the Magistrate found that the State had erroneously relied on the definition of a weapon as contained in Section 1 of Act 75 of 1969. Section 1 of Act 75 of 1969 had, however, been repealed by Section 1 of Act 60 of 2000 (the Firearms Control Act) with effect from 1 June 2001, and it was thus the requirements contained in this Act (Act 60/2000) that had to be proven.

[5] The evidence submitted in proof of the allegation that the object in question constituted a firearm was contained in Exhibit "A", an affidavit of Sergeant Felicia Theresa St. Clair deposed to in terms of Section 212(4)(a) and 212(8)(a) of Act 51 of 1977. The pertinent section of her affidavit confirmed that the object in question was, inter alia,

"capable of discharging ammunition…self-loading but not capable of discharging more than one shot with a single depression of the trigger……designed to discharge centre-fire ammunition."

[6] In considering the evidence, the Magistrate found that the State had failed to prove that a bullet or projectile could be propelled at a muzzle energy exceeding 8 joules, and had thus failed to prove all the necessary elements of the offence.

[7] In coming to this conclusion, the Magistrate relied on the interpretive guidelines laid down in S v F (1999 (1) SASV 571 (K)) where Albertus AJ concluded at p578 B-D:

"…that the insertion of the conjunction 'or' between

paras (d) and (e) … and not between paras (a), (b)

and (c) of the said subsection, makes it clear that

the Legislature intended that the requirements set

forth in paras (a), (b) and (c) must co-exist with

each other…"

Against this background, the Magistrate held that the factual ingredients contained in all the sub-paragraphs of Section 1 of Act 60 of 2000 had to be proven.

[8] Subsequent to reaching this conclusion, the Magistrate doubted the correctness of his decision and in consequence of research conducted post factum, concluded that his finding was indeed incorrect. As the magistrate is functus officio, he is correctly unable to correct the mistake (See S v van As 1989 (3) SA 881 (W) at 884 and Sefatsa & Others v Attorney-General, Transvaal, & Another 1989 (1) SA 821 (A) at 835A-C) and the matter was submitted for special review. For this purpose the Magistrate has set forth his decisions on the question of law and his findings of fact in so far as they are material to the question of law, together with his post factum finding of law.

[9] The latter findings are stated as follows:

Although Section 1 of Act 60 of 2000 repeals Section 1 of Act 75 of 1969 with effect from 1 June 2001, Section 153 of Act 60 of 2000 (which repeals the whole of Act 75 of 1969) has not yet taken effect. Accordingly in terms of the provisions of Section 11 of Act 33 of 1957 (the Interpretation Act), Section 1 of Act 75 of 1969 has also not been repealed. As a consequence, the State was entitled to rely on the definition of an "arm" as contained in the old Act, and the court had thus granted discharge on the basis of incorrectly rejecting the admissible and competent evidence contained in Exhibit "A".

[10] His question of law is formulated as follows:

The repealing legislation is fundamentally flawed and as a consequence either the original definition of an "arm" as contained in the old Act is applicable, or alternatively both the definitions contained in the old act and new act are now in force, which leads to the legislative intention being frustrated and gives rise to an absurdity.

[11] In considering the merits of the finding, two questions fall to be decided. The first is whether a mistake has been made, and if so whether the mistake is one of law or fact and the second is whether the matter is in fact reviewable? For the purposes of this judgment, it is not necessary to consider the second or third charges as the evidentiary requirements will mutatis mutandis apply to the second charge and the Magistrate's finding in respect of the third charge appears to me to be correct.

[12] An essential element of the alleged crime which the State must prove is the possession of an "arm". In terms of the 1969 Act, the word "arm", subject to certain special exclusions and inclusions, means any "firearm". "Firearm" is not defined in the old act and accordingly has to be construed in its ordinary sense (See S V Shezi 1980 (4) SA 494 (N) at 495D) which it has been held means that it is a weapon capable of discharging or propelling missiles with enough force or velocity for it to be used for offensive or defensive purposes. (See S v Hlongwa 1990(2) SACR 262 (N) at 263G) With effect from I June 2001, the term "firearm" is now defined, and although "arm" is no longer defined, having regard to the old definition it is clear that the legislative intention was to interpret "arm" to still mean a "firearm", but as now defined in the new act. Such a construction is supported by the fact that in terms of the transitional provisions, the new act specifies in Section 6 of Schedule 1 that any person deemed to be unfit to possess an arm under the old act, will be deemed to be unfit to possess a firearm in terms of the new act.

[13] This being so, the elements required to be proven are those contained in the definition clause of a " firearm" in the new act. In my view the Magistrate was thus correct in relying on this definition, but erred in interpreting its provisions.

[14] In the English text, which is the signed text, a firearm is defined as meaning -


(a) device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant, at a muzzle energy exceeding 8 joules (6 ft-lbs);

(b) device manufactured or designed to discharge rim-fire, centre-fire or pin-fire ammunition;

(c) device which is not at the time capable of discharging any bullet or projectile, but which can be readily altered to be a firearm within the meaning of paragraph (a) or (b);

(d) device manufactured to discharge a bullet or any other projectile of a calibre of 5.6 mm (.22 calibre) or higher at a muzzle energy of more than 8 joules (6 ft-lbs), by means of compressed gas and not by means of burning propellant; or

(e) barrel, frame or receiver of a device referred to in paragraphs (a), (b), (c) or (d),

but does not include any device contemplated in section 5."

[15] Of significance is the word "any". This word is not defined in the Act, and although it has been construed as a word of 'wide and unqualified generality', it may be restricted by the subject matter or the context. (See R v Hugo 1926 AD 268 at 271)

[16] The meaning of the term “any” as contained in the Act must therefore be determined with reference to its plain and ordinary meaning with appropriate regard to its context. “Any” is defined in the Shorter Oxford English Dictionary in the singular as “no matter which, or what", and in the plural as "no matter which, or what kind or how many…"

[17] The legislature therefore provided that any one of the devices enunciated or a barrel, frame or receiver of any one of those devices would constitute a firearm. This conclusion is strengthened by the fact that any other interpretation is self-contradictory, in that it ostensibly requires the device simultaneously to be both capable of performing certain functions and of not being capable, but of being readily alterable to perform such functions.

[18] It appears to me that in relying on S v F (supra) the Magistrate overlooked the significance of the inclusion of the word "any" in Section 1 of Act 60 of 2000, which word does not appear in Section 158(3) of the Criminal Procedure Act (the section under consideration in S v F). Based on this mistaken interpretation of law, the Magistrate found that the State had failed to prove the charge.

[19] The next question thus arises, namely, does this error give grounds for review in our law either in terms of an inherent jurisdiction or in terms of statutory review powers conferred upon this court ?

[20] The statutory grounds for review are found in the Criminal Procedure Act (Act 51 of 1977) and the Supreme Court Act (Act 59 of 1959). It is clear that neither the automatic review provisions contained in Section 302 nor the special review provisions under Section 304 (4) of the Criminal Procedure Act apply to the present situation in that the accused was legally represented (See S v Klaase 1998 (1) SACR 317 (C)) and no sentence was passed (See S v Mametja 1979 (1) SA 767 (T) at 768). Are the proceedings nonetheless reviewable in terms of Section 24 of the Supreme Court Act?

[21] Broadly speaking, this section enables proceedings in inferior courts in respect of which there is a complaint against the method of the proceedings, as opposed to the result, to be brought before a higher court. In the latter instance, the correct remedy is by way of appeal. (See Johannesburg Consolidated Investments v Johannesburg Town Council 1903 TS 111 at 114 and Bester v Easigas (Pty) Ltd 1993 (1) SA 30 (C) at 43B)

[22] The relevant section reads:

"24 Grounds of review of proceedings of inferior courts

(1) The grounds upon which the proceedings of any inferior court may be brought under review before a provincial division, or before a local division having review jurisdiction, are-

(a) absence of jurisdiction on the part of the court;

(b) interest in the cause, bias, malice or the commission of an offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004, on the part of the presiding judicial officer;

(c) gross irregularity in the proceedings; and

(d) the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.

(2) Nothing in this section shall affect the provisions of any other law relating to the review of proceedings in inferior courts."

[23] In the present case the review has been requested by the Magistrate. This creates a procedural problem in that Section 24, read in conjunction with Rule 53 of the Uniform Rules of Court, clearly contemplates a review brought before the High Court by one of the parties to the proceedings sought to be reviewed. (See Narodien v Andrews 2002 (3) SA 500 (C) at 506D-E)

[24] In addition, Section 24(d) upon which the Magistrate specifically relies, requires that there must have been prejudice, actual or probable, failing which any review, or where applicable, appeal would be merely academic, and thus impermissible. (See Mendes and Another v Kitching NO and Another 1995 (2) SACR 634 (E) at 644D-E) Whilst there can be no prejudice to either the accused or the State in instances of acquittal (See the unreported case of Hubbard v Regional Magistrate, Cape Town CPD 22 March 1984) prejudice can include prejudice to the prosecution and will arise where the prosecution is prevented from prosecuting. In the present case the prosecution was not so barred.

[25] In invoking the provisions of Section 24(d) the Magistrate avers at paragraph 4.7 that pursuant to a mistaken interpretation, competent and admissible evidence was erroneously rejected. The transcribed court proceedings do not, it would appear, support this conclusion. At page 45 line 18 the court, having considered the evidence tendered and in the exercise of its discretion, finds that the evidence tendered is insufficient.

[26] Against this background it seems to me that the matter does not fall within the ambit of Section 24(d).

[27] Neither does it qualify for review in terms of Section 24(c). A mistake of law is generally speaking not per se an irregularity. (See S v Bushebi 1996 (2) SACR 448 (Nmb) at 450D) Mistakes of law are however, under certain circumstances liable to lead to the review of decisions made in consequence thereof. (See Hira & Another v Booysen & Another [1992] ZASCA 112; 1992 (4) SA 69 (A)) Such circumstances arise where the mistake is of such a nature that as a consequence, the lower court declines to exercise the function entrusted to it. In this situation there is an irregularity in the proceedings, which is reviewable. (See Goldfields Investments Limited & Another v City Council of Johannesburg & Another 1938 TPD 551 at 559-560) As stated by Froneman J in Qozeleni v Minister of Law & Order & Another 1994 (3) SA 625 (E) at 638G, in determining whether a mistake constitutes an irregularity, it is necessary to draw a distinction between mistakes of law which lead to a situation where the law is not applied at all, as opposed to situations where the law is applied, but incorrectly. Applying that principle to the present matter, as the Magistrate evalutated a set of facts against a legal standard, albeit the wrong standard, the mistake does not amount to an irregularity in the proceedings.

[28] By analogy, in S v Basson [2004] ZACC 13; (2004 (6) BCLR 620 (CC) at 625D-C) it was held that a recusal challenge involved a juristic evaluation which was a matter of law, the correctness of which evaluation raised a question of law.

[29] For these reasons the provisions of Section 24(c) are also not applicable to the present case.

[30] As it is self evident that neither Section 24 (a) nor (b) apply to the instant case, this matter does not qualify for review in terms of the Supreme Court Act.

[31] This court is also enjoined to review this matter on the basis of its inherent jurisdiction as prescribed in terms of Section 173 of the Constitution of the Republic of South Africa.(The Constitution)

[32] Section 173 provides as follows:

"173 Inherent power

The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice."

[33] A review of the cases reveals a reluctance on the part of our Courts to exercise its inherent jurisdiction, particularly in criminal matters. In Sefatsa & Others v Attorney-General, Transvaal, & Another (supra at 834E) Rabie ACJ concluded that it was settled law that the courts’ jurisdiction in criminal matters "is determined by Statute, i.e. the Criminal Procedure Act and such other relevant statutory provisions as there may be." In S v Makopu (1989 (2) SA 577E), in rejecting the finding in S v Lubisi (1980 (1) SA 187(T)) the court found that for a number of policy reasons a court should not, in the exercise of its inherent jurisdiction or in the interests of justice, set aside an acquittal. In formulating this finding Jones J stated that " there are a number of policy considerations which underlie our criminal law which may be raised to support an argument that, even if the Court has inherent power to make this kind of order (the setting aside of an acquittal), it should not do so. I refer, for example, to the policy considerations which require certainty and finality in criminal cases, or which preclude a second prosecution when fresh evidence is found." At p578C-D Jones J continued that a court should, in any event, "not exercise an inherent jurisdiction to set aside an acquittal without first hearing the accused." In S v Makopu the court was asked to exercise its inherent jurisdiction and in the interests of justice set aside an acquittal. In commenting on the desirability of this, Jones J at p578C stated that a court "should not exercise an inherent jurisdiction to set aside an acquittal without first hearing the accused."

[34] Similarly, in S v Bushebi (1996(2) SACR 448 (Nmb) at 451C) Leon AJA cautioned that even if it is assumed that a court does have the inherent power to intervene, such a power "should be exercised sparingly and only in the most exceptional circumstances." The court went on to point out that it would appear that there were at that stage only two cases where the South African Supreme Court has, in the exercise of its inherent power of review, set aside an acquittal. These were the unreported case of Hubbard v Regional Magistrate, the ratio of which was that the mistake in that instance deprived the party of the right to a fair trial and S v Lubiso. The latter case, the facts of which were extremely unusual, has not found favour in subsequent cases (See S v Makriel and Others 1986 (3) SA 932 (C); S v Makopu supra; Attorney-General, Eastern Cape v Linda 1989 (2) SA 578 and S v Ntswayi en 'n Ander 1991 (2) SACR 397 (C)). None of the unusual facts in Lubisi's case exist in the present case.

[35] In Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service (1996 (3) SA (A)) the court adopted a similar approach, concluding that its inherent power was reserved for extraordinary cases where grave injustices would not otherwise be preventable. This does not appear to me to be the situation in the present case.

[36] All these cases have now to be considered in the light of the provisions of the Constitution. In Hansen v The Regional Magistrate, Cape Town & Another (1999 (2) SACR 430) Davis J, in commenting on the effects of Section 173 on the inherent jurisdiction of the courts, stated at p433E "Section 173 of the Republic of South Africa Constitution Act 108 of 1996 ('final Constitution') has broadened the inherent jurisdiction of the court in that it provides that the Constitutional Court, Supreme Court of Appeal and High Courts have inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice. Section 173 of the Constitution confirms a concept of inherent jurisdiction which promotes the interests of justice within the context of the values of the Constitution. This is a wider concept than that provided for in s 19(1)(a) and s 19(3) of the Supreme Court Act 59 of 1959…" The facts of that case involved a review of a disturbing disparity between the sentence imposed on the accused and that imposed on a co-accused at a subsequent trial. Of significance was the basis for the Court’s intervention, namely that the disparity only arose after the accused had exhausted all his other legal remedies, which is not the position in the instant case.

[37] In S v Tshabalala (2002 (1) SACR 605 (WLD)), a case also involving a review of an acquittal, Goldstein J likewise invoked the provisions of Section 173 on the basis of the special circumstances of that case. With reference to the correct procedure Goldstein J at p607G-H said

"A difficulty in the present matter is that the Criminal Procedure Act 51 of 1997 (as amended) does not appear to sanction a referral of an acquittal to a High Court for review, as the learned magistrate has done. The State ought to have appealed against the judgment of the Court below in terms of s 310 of the Act or possibly brought the decision on review in terms of Rule 53 of the Uniform Rules of Court, joining the learned magistrate and the accused."

The special circumstances in that case were stated to be that:

(a) The magistrate himself had referred the matter to the Court as a special review. He had thus approved of the procedure himself.

(b) The accused was informed by the magistrate through her attorney that she had the right to make representations in regard to the merits of the matter.

(c) The State had dealt in full with the issue.

(d) The issue in dispute, namely the application of the de minimis rule, was an easy one and if the procedure of an appeal had been followed it would have been highly unlikely that the accused would have been able to say anything in support of the acquittal. (The present case differs from that case both with regard to the issue in dispute and more significantly in that the accused is unaware of the review proceedings.)

[38] Although the mistake in the instant case is regrettable, it would seem to me that no special circumstances exist. The accused has not been heard and all the legal remedies have not been exhausted. There is thus in my opinion no basis on which the provisions of Section173 can be invoked.

[39] A decision to acquit on the basis that there is no evidence upon which a reasonable person can convict is a question of law involving "the social judgment of the court" (See S V Basson [2004] ZACC 13; 2004 (6) BCLR 620 (CC) at 646 F-H and S v Bochris Investments (Pty) Ltd and Another 1988 (1) SA 861 (A)) and as such is appealable (See Attorney-General ,Venda v Molepo and Others 1992 (2) SACR 534 (V) at 538 A-C).

[40] In the circumstances it appears to me that the matter has been erroneously submitted on review. I would merely note that the matter was submitted on review and make no ruling in respect of the matter. The Director of Public Prosecutions is at liberty to institute appeal proceedings to have the mistake of law corrected.

[41] The record on review was submitted to the Director of Public Prosecutions, Cape of Good Hope with a request that he should comment on the matter, and I am indebted to him for doing so. The Director concurs with the opinion of a member of his staff who states that because of the uncertainty created by the lack of clarity of the applicable definition, the matter qualifies for special review in the interests of the administration of justice. It is accordingly recommended that the acquittal be set aside and the matter be referred back to the magistrate for a resumption of the trial only on the first charge. For the reasons already stated, I cannot agree with this.



I concur.