COURT NOT AT LIBERTY TO INTERFERE WITH PROSECUTOR’S DECISION UNLESS TRULY EXCEPTIONAL CIRCUMSTANCES PRESENT

S v SEHOOLE 2015 (2) SACR 196 (SCA)

Prosecuting authority — Prosecutor — Authority of — Charge — State having discretion regarding prosecution and pre-trial procedures and could decide inter alia whether or not to institute prosecution — No statutory provision compelling state to charge for more serious offence where more than one option.
Arms and ammunition — Unlawful possession of ammunition in contravention of s 90 of Firearms Control Act 60 of 2000 — Proof that items are ammunition — Although ballistics report would provide proof, no authority compelling state to produce such evidence — Where ammunition had been found inside properly working firearm, it could be deduced to be ammunition related to firearm.

The respondent was convicted in a regional magistrates’ court of contravening ss 3 and 90 of the Firearms Control Act 60 of 2000, in that he was found in unlawful possession of a firearm and ammunition. He was sentenced to ten and five years’ imprisonment, respectively, for the possession of the firearm and ammunition. The sentences were ordered to run concurrently. He appealed to the High Court against the convictions and sentences. The High Court set aside the convictions and sentences on the ground that the respondent should have been charged with the more serious offence of a contravention of s 4 of the Act, having been in possession of a firearm, the serial number of which had been filed off. As regards the conviction for being in possession of the ammunition, the High Court held that there was no evidence before the court that the items found in the possession of the respondent constituted ammunition. The state appealed against the judgment of the court on questions of law in terms of s 311(1) of the Criminal Procedure Act 51 of 1977, with the leave of the court a quo.
Held, as to the issue of the correct charge, that the state, as dominus litis, had a discretion regarding prosecution and pre-trial procedures. The state could elect to charge a person with a less serious offence. In the present case the state had so elected under that general prohibition of possession of a firearm without a licence in terms of s 3, rather than under s 4 of the Act. There was no statutory provision which compelled the state to charge a person with the more serious offence.
Held, further, that, ordinarily, courts were not at liberty to interfere with the prosecutor’s discretion unless there were truly exceptional circumstances for doing so. In the present case the state’s decision to prosecute the respondent under s 3 of the Act did not fall into any category warranting the court to interfere and to be prescriptive regarding the charge that was preferred. Held, further, as to the charge of the possession of ammunition, that, whilst it was undoubtedly so that a ballistics report would provide proof that a specific object was indeed ammunition, there was no authority compelling the state to produce such evidence in every case. Where there was acceptable evidence disclosing that ammunition had been found inside a properly working firearm, it could, in the absence of any countervailing evidence, be deduced to be ammunition related to the firearm. It followed that the High Court had erred in finding that a ballistics report was the only manner of proving that the offence had been committed. The appeal was accordingly upheld and the order of the High Court was set aside in its entirety, and the convictions and sentences of the regional court were reinstated, and the matter was remitted to the High Court for a de novo hearing on the respondent’s appeal.

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