S v Rasena (CA&R247/2016) [2016] ZAECGHC 78; 2017 (1) SACR 565 (ECG) (13 September 2016)

S v Rasena (CA&R247/2016) [2016] ZAECGHC 78; 2017 (1) SACR 565 (ECG) (13 September 2016)

The magistrate incorrectly invoked section 112(1)(a) of the Criminal Procedure Act for count 2, imposing a wholly suspended sentence of imprisonment without the option of a fine, which is not permitted under the section. The conviction and sentence on count 2 are therefore incompetent and must be set aside. The matter is remitted for a proper enquiry and competent sentence. Regarding the firearm fitness enquiry, the magistrate failed to properly consider all relevant factors and did not conduct a sufficient enquiry as required by section 103 of the Firearms Control Act. The declaration of unfitness to possess a firearm is set aside, and the magistrate is directed to conduct a fresh...

Citation
[2016] ZAECGHC 78
Parties
Applicant: The State; Respondent: Fundile Mabhuti Rasena
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
13 September 2016
Case Number
CA&R247/2016
Procedural Posture
Criminal Review / Review of Magistrate's Conviction and Sentence
Outcome
Conviction and sentence on count 1 confirmed; conviction and sentence on count 2 set aside; matter remitted for proper enquiry and sentencing on count 2 and fresh firearm fitness enquiry.
Judges
S M Mbenenge, J D Pickering
Legal Topics
Domestic Violence Act, Firearms Control Act, Criminal Procedure Act, Fitness to Possess Firearm, Guilty Plea Procedure, Sentencing Review
Criminal Law Domestic Violence Act Firearms Control Act Criminal Procedure Act Fitness to Possess Firearm Guilty Plea Procedure Sentencing Review

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Parties

The State

Applicant

Fundile Mabhuti Rasena

Respondent

Procedural Posture

Criminal Review / Review of Magistrate's Conviction and Sentence

Legal Issues

  1. 1 Whether section 112(1)(a) of the Criminal Procedure Act was correctly invoked for count 2.
  2. 2 Whether a separate enquiry under section 103(2) of the Firearms Control Act should have been conducted for count 2.
  3. 3 Whether the magistrate's declaration of unfitness to possess a firearm was properly motivated.

Ratio Decidendi

The magistrate incorrectly invoked section 112(1)(a) of the Criminal Procedure Act for count 2, imposing a wholly suspended sentence of imprisonment without the option of a fine, which is not permitted under the section. The conviction and sentence on count 2 are therefore incompetent and must be set aside. The matter is remitted for a proper enquiry and competent sentence. Regarding the firearm fitness enquiry, the magistrate failed to properly consider all relevant factors and did not conduct a sufficient enquiry as required by section 103 of the Firearms Control Act. The declaration of unfitness to possess a firearm is set aside, and the magistrate is directed to conduct a fresh...

Court Disposition

Conviction and sentence on count 1 confirmed; conviction and sentence on count 2 set aside; matter remitted for proper enquiry and sentencing on count 2 and fresh firearm fitness enquiry.

Orders

  • The conviction and sentence on count 1 are confirmed.
  • The conviction and sentence on count 2 are set aside.