THE HIGH COURT OF SWAZILAND
the matter of
the District of Hhohho
accused Armando Thunzini was convicted by the senior magistrate at
Mbabane on 7th January 1993 on one charge of unlawfully and
intentionally possessing a Horveat 22 gun without a licence and
permit and one charge of unlawfully and intentionally possessing one
live round of ammunition without a licence or permit.
had earlier pleaded guilty to both charges.
the first charge he was sentenced to five years imprisonment, which
was suspended for 3 years on the condition that he is not during the
period of suspension convicted of an offence under the Arms and
Ammunition Act 1964.
the second charge he was sentenced to a fine of E200, or 100 days
imprisonment in default of payment.
gun in question had part of its barrel cut. When discovered in the
possession of the accused, it was found to be wrapped in a jersey. At
this time, in the evening, the accused was going with another person
(who was also charged but acquitted) in Thembelihle township in
Mbabane. The weapon was serviceable. Although the record is not
explicit on the point, it does appear to be the proper inference,
from the accused's own testimony, that the round of ammunition was in
explanation as to how he came to be in possession of this weapon and
the round was that he was attacked by three men who demanded money
from him. One of them was carrying the gun. According to the accused,
he disarmed him and they made off. Fifteen minutes later when the
accused and his companion were stopped in the street by the police,
the accused said he was going to take the gun to the charge office.
deciding to suspend the sentence wholly on the first charge, the
learned magistrate took account of his personal circumstances. In the
absence of any challenge by the prosecutor to the accused man's
story, he also appears to have accepted his explanation.
accused was 27 years old. He had no previous convictions. It was in
his favour that he had pleaded guilty.
possession of a weapon of this kind, in the circumstances in which it
was discovered by the police, is potentially a very serious matter.
If the truth of it was that the accused was not taking it to a police
station, then - despite his plea and his lack of previous convictions
- a sentence that was wholly suspended would have been
inappropriate. An immediate custodial sentence of some length would
have been called for.
the other hand if, as the learned magistrate accepted, his
explanation was true, then he ought not to have been charged at all.
People who find firearms, or genuinely come into possession of them
in the way described by the accused, should be encouraged to bring
them to the police. It is for the police in the first instance to
form a view as to whether they believe a story of this kind. If they
do not, it should then be for a court to decide the issue.
case has an unsatisfactory flavour about it. If the prosecution
believed that he had committed offences, it should have tested his
explanation critically in court.
did not do so, and the learned magistrate accepted the accused's
explanation. In those circumstances, the convictions are reversed.