S v S v Thunzi; Mlonzi [2009] ZAECMHC 30; [2009] ZAECMHC 13 (5 August 2009)

S v S v Thunzi; Mlonzi [2009] ZAECMHC 30; [2009] ZAECMHC 13 (5 August 2009)

The court found that the operation of section 4 of the Dangerous Weapons Act 71 of 1968 (Transkei) results in differentiation between offenders in the former Transkei and those in the rest of South Africa, as only the former are subject to mandatory minimum sentences and restricted sentencing options. This territorial discrimination is not justified by any rational connection to a legitimate government purpose, as there is no evidence that violent crime is more prevalent in the former Transkei. The limitation on equality and dignity cannot be justified under section 36 of the Constitution. The court declared the continued applicability of section 4 in the former Transkei unconstitutional...

Citation
[2009] ZAECMHC 30
Parties
Applicant: Kholekile W. Thunzi; Applicant: Siyabulela Mlonzi; Respondent: The State
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
5 August 2009
Case Number
213749
Procedural Posture
Constitutional Review / High Court Judgment; Automatic Review (thunzi); Petition for Leave to Appeal (mlonzi)
Outcome
Section 4 of the Dangerous Weapons Act 71 of 1968 (Transkei) declared unconstitutional and invalid to the extent that it differentiates between perpetrators in the former Transkei and the rest of South Africa. The order of invalidity is referred to the Constitutional Court for confirmation. Mlonzi's application for...
Judges
I Schoeman, S Miller
Legal Topics
Equality Before Law, Territorial Discrimination, Dangerous Weapons Act, Minimum Sentencing, Limitation Clause, Automatic Review
Constitutional Law Criminal Law Equality Before Law Territorial Discrimination Dangerous Weapons Act Minimum Sentencing Limitation Clause Automatic Review

Case Brief

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Parties

Kholekile W. Thunzi

Applicant

Siyabulela Mlonzi

Applicant

The State

Respondent

Procedural Posture

Constitutional Review / High Court Judgment; Automatic Review (thunzi); Petition for Leave to Appeal (mlonzi)

Legal Issues

  1. 1 Does the operation of section 4 of the Dangerous Weapons Act 71 of 1968 (Transkei) infringe the constitutional rights of persons committing violent crimes in the former Transkei due to its selective application?
  2. 2 Are the rights affected by the operation of section 4 justifiably limited under section 36 of the Constitution?
  3. 3 If rights have been unconstitutionally infringed, what is the position of the two accused in these matters?

Ratio Decidendi

The court found that the operation of section 4 of the Dangerous Weapons Act 71 of 1968 (Transkei) results in differentiation between offenders in the former Transkei and those in the rest of South Africa, as only the former are subject to mandatory minimum sentences and restricted sentencing options. This territorial discrimination is not justified by any rational connection to a legitimate government purpose, as there is no evidence that violent crime is more prevalent in the former Transkei. The limitation on equality and dignity cannot be justified under section 36 of the Constitution. The court declared the continued applicability of section 4 in the former Transkei unconstitutional...

Court Disposition

Section 4 of the Dangerous Weapons Act 71 of 1968 (Transkei) declared unconstitutional and invalid to the extent that it differentiates between perpetrators in the former Transkei and the rest of South Africa. The order of invalidity is referred to the Constitutional Court for confirmation. Mlonzi's application for...

Orders

  • It is declared that the applicability of section 4 of the Dangerous Weapons Act 71 of 1968 (Transkei) is inconsistent with the Constitution and invalid to the extent that it differentiates between perpetrators in the area of jurisdiction of this Court and the rest of South Africa.
  • Any change to the applicability of section 4 shall not invalidate any charge, proceedings, conviction or sentence instituted or imposed in terms of the said Act unless an accused has not yet pleaded to such charge.