S v Solomon (ECJ 2004/027) [2004] ZAECHC 31 (9 September 2004)

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ NO : 027/2004

PARTIES:

THE STATE

and

WAYNE SOLOMON

RERENCE NUMBERS -

Registrar: 200401068

DATE HEARD: N/A

DATE DELIVERED: 9 SEPTEMBER 2004

JUDGE(S):

LEACH AND PLASKET JJ

CASE INFORMATION -

Nature of proceedings : SPECIAL REVIEW

Topic: CHARGE

BROUGHT UNDER WRONG ACT

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO:200401068

DATE DELIVERED:9/9/04

In the matter between

THE STATE

JUDGMENT

PLASKET J:-

[1] This is a special review in which a Regional Court magistrate, Mr P Campbell, has requested that the conviction of the accused on charges of contravening s2, read with ss1, 39 and 40 of the Arms and Ammunition Act 75 of 1969 (unlawful possession of a firearm) and of contravening s36, read with ss1, 39 and 40 of the same Act (the unlawful possession of ammunition) be set aside and referred back to him.

[2] The basis for the request is set out fully in the magistrate’s letter referring the matter on special review. He wrote (and I quote the entire letter for the sake of completeness):

‘Attached is the record of proceedings in the above matter. The accused was charged with possessing an unlicensed firearm and ammunition. He pleaded not guilty to both counts on 6 July 2004 and on 14 July 2004 I convicted him on both counts. The matter was remanded for a correctional supervision report.

When the matter came before me on 26 July 2004 I realized the accused should have been charged under the new Firearm Control Act 60 of 2000 which came into effect on 1 July 2004 with retrospective effect. I therefore request that the matter be placed before a judge with the request that the convictions be set aside and the matter referred back to me to enable the State to apply for the amendment of the charge sheet. In view of the fact that the definition of a firearm and ammunition differs from the previous Act, the State will have to lead evidence in this regard to prove that the relevant objects fall within the ambit of the new definitions.

It is submitted that there will be no prejudice to the accused as it does not affect the defence he raised but is intended merely to rectify the oversight of which I, the attorney and prosecutor are guilty of.’

[3] The Firearm Control Act (which I shall refer to as the new Act) was assented to on 4 April 2001. Section 154 provides that it was to come into effect ‘on a date to be fixed by the President by proclamation in the Gazette. That date has now been determined, as the magistrate correctly stated, to be 1 July 2004. See Proclamation 28 of 2004, promulgated in Government Gazette 26374 of 28 May 2004.

[4] Section 153 of the new Act provides that, subject to Schedule 1, ‘the laws mentioned in Column 1 of Schedule 3 are hereby repealed to the extent mentioned in Column 3 of Schedule 3’. The whole of the Arms and Ammunition Act is repealed in this way.

[5] Schedule 1 of the new Act contains transitional provisions. Item 8 of Schedule 1 deals with matters pending under what is termed ‘the previous Act’. (This term is defined in s1 to mean the Arms and Ammunition Act.) Item 8 provides:

‘(1) Subject to subitems (2) and (3), this Act does not affect any proceedings instituted in terms of the previous Act which were pending in a court of law immediately before the date of commencement of this Act, and such proceedings must be disposed of in the court in question as if this Act had not been passed.

(2) Proceedings contemplated in subitem (1) must be regarded as having been pending if the person concerned had pleaded to the charge in question.

(3) No proceedings may continue against any person in respect of any contravention of a provision of the previous Act if the alleged act or omission constituting the offence would not have constituted an offence if this Act had been in force at the time when the act or omission took place.

(4) (a) Despite the repeal of the previous Act, any person who, before such repeal, committed an act or omission which constituted an offence under that Act and which constitutes an offence under this Act, may after this Act takes effect be prosecuted under the relevant provisions of this Act.

(b) Despite the retrospective application of this Act as contemplated in paragraph (a), any penalty imposed in terms of this Act in respect of an act or omission which took place before this Act came into operation may not exceed the maximum penalty which could have been imposed on the date when the act or omission took place.’

[6] The offences with which the accused in this case was charged were allegedly committed on 4 May 2003. He was thus correctly charged with contravening the relevant sections of the previous Act. He pleaded on 6 July 2004, when the new Act was in force but item 8(4)(a) makes specific provision for offences under the previous Act, which are also offences under the new Act, being prosecuted under the new Act.

[7] From the foregoing it is clear that the convictions must be set aside. As the basis for so doing is perhaps best described as an error common to the parties, I can see no reason why the matter should not be referred back to the trial magistrate so that the trial can proceed in terms of the new Act, as contemplated by item 8(4)(a) of Schedule 1 of the new Act.

[8] In consequence, the following order is made:

(a) the convictions of the accused for contravening s2, read with ss1, 39 and 40 of the Arms and Ammunition Act, and for contravening s36, read with ss1, 39 and 40 of the Arms and Ammunition Act are set aside;

(b) the matter is remitted to the trial court for the matter to proceed.

__

C PLASKET

JUDGE OF THE HIGH COURT

I agree

_____

LE LEACH

JUDGE OF THE HIGH

COURT