S v Dlhamini (A300/15) [2015] ZAGPPHC 320 (12 May 2015)

S v Dlhamini (A300/15) [2015] ZAGPPHC 320 (12 May 2015)

The court found that the accused was improperly charged and convicted under the Arms and Ammunition Act 75 of 1969, which had been repealed by the Firearms Control Act 60 of 2000. The conviction under the obsolete statute is invalid. The court distinguished between the unconstitutional presumption in section 40(1) of the repealed Act and the evidential presumption in section 117 of the Firearms Control Act, which does not violate constitutional rights. Accordingly, the conviction is set aside and the prosecution is ordered to proceed de novo under the correct legislation.

Citation
[2015] ZAGPPHC 320
Parties
Respondent: THE STATE; Applicant: KABELO DLHAMINI
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 May 2015
Case Number
A300/15
Procedural Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction set aside; prosecution to proceed de novo under the Firearms Control Act 60 of 2000.
Judges
S.A.M Baqwa, J.W. Louw
Legal Topics
Obsolete Legislation, Firearms Control Act, Constitutional Invalidity, Presumptions in Criminal Law
Criminal Law Civil Procedure Obsolete Legislation Firearms Control Act Constitutional Invalidity Presumptions in Criminal Law

Case Brief

Summary, issues, holding and outcome

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Parties

THE STATE

Respondent

KABELO DLHAMINI

Applicant

Procedural Posture

Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the conviction under the repealed Arms and Ammunition Act 75 of 1969 is valid.
  2. 2 Whether the prosecution should proceed under the Firearms Control Act 60 of 2000.
  3. 3 Whether the presumption in section 40(1) of the repealed Act is constitutional.

Ratio Decidendi

The court found that the accused was improperly charged and convicted under the Arms and Ammunition Act 75 of 1969, which had been repealed by the Firearms Control Act 60 of 2000. The conviction under the obsolete statute is invalid. The court distinguished between the unconstitutional presumption in section 40(1) of the repealed Act and the evidential presumption in section 117 of the Firearms Control Act, which does not violate constitutional rights. Accordingly, the conviction is set aside and the prosecution is ordered to proceed de novo under the correct legislation.

Court Disposition

Conviction set aside; prosecution to proceed de novo under the Firearms Control Act 60 of 2000.

Orders

  • The conviction is set aside.
  • The prosecution is ordered to continue de novo in terms of Sections 313 and 324 of the Criminal Procedure Act 51 of 1977.