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

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

The accused was charged and convicted under the Arms and Ammunition Act 75 of 1969 for offences committed prior to the commencement of the Firearm Control Act 60 of 2000. However, the new Act came into force on 1 July 2004, repealing the previous Act and introducing new definitions for firearm and ammunition. The transitional provisions of the new Act permit prosecution under its provisions for offences that remain offences under both statutes. The magistrate's request to set aside the convictions and refer the matter back is justified, as the accused should have been prosecuted under the new Act. There is no prejudice to the accused, as the defence is unaffected and the amendment...

Citation
[2004] ZAECHC 31
Parties
Applicant: THE STATE; Respondent: WAYNE SOLOMON
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
9 September 2004
Case Number
ECJ 2004/027
Procedural Posture
Special Review / Review of Conviction and Referral
Outcome
Convictions set aside; matter remitted to trial court for prosecution under the Firearm Control Act.
Judges
C Plasket, LE Leach
Legal Topics
Firearm Control Act, Transitional Provisions, Wrongful Charge, Retrospective Application, Conviction Set Aside
Criminal Law Firearm Control Act Transitional Provisions Wrongful Charge Retrospective Application Conviction Set Aside

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Parties

THE STATE

Applicant

WAYNE SOLOMON

Respondent

Procedural Posture

Special Review / Review of Conviction and Referral

Legal Issues

  1. 1 Was the accused charged under the correct statutory provision given the commencement of the Firearm Control Act 60 of 2000?
  2. 2 Should the convictions under the Arms and Ammunition Act 75 of 1969 be set aside and the matter referred back for prosecution under the new Act?
  3. 3 Do the transitional provisions of the Firearm Control Act permit prosecution under the new Act for offences committed before its commencement?

Ratio Decidendi

The accused was charged and convicted under the Arms and Ammunition Act 75 of 1969 for offences committed prior to the commencement of the Firearm Control Act 60 of 2000. However, the new Act came into force on 1 July 2004, repealing the previous Act and introducing new definitions for firearm and ammunition. The transitional provisions of the new Act permit prosecution under its provisions for offences that remain offences under both statutes. The magistrate's request to set aside the convictions and refer the matter back is justified, as the accused should have been prosecuted under the new Act. There is no prejudice to the accused, as the defence is unaffected and the amendment...

Court Disposition

Convictions set aside; matter remitted to trial court for prosecution under the Firearm Control Act.

Orders

  • 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.
  • The matter is remitted to the trial court for the matter to proceed.