THE HIGH COURT OF SWAZILAND
the matter between:
WILLIAM MBAGU MTHEMBU
OF LUBOMBO 18 April 1994
accused was convicted by the Magistrate of contravening inter alia
section 11 (1) of the Arms and Ammunition Act, 1964, as amended by
Act 6 of 1988. He was sentenced to three years imprisonment on this
terms of sections 8(a) and (i) and 14 (2) (a) of the amended Act, the
minimum competent sentence is imprisonment for not less than five
years or a fine of not less than E5000. The sentence imposed must
accordingly be corrected on review.
judgments of the Court have held that the minimum sentence prescribed
by the Act can be suspended - see e.g. Rv Sibongiseni Mazibuko RC.
case No. 188/90 and Rv Mabuza, Cr. Case 81/89 (both unreported).
the latter case, Hannah CJ. said:
conclusion I reach is that Parliament intended that firearm offences
should be dealt with more severely that hitherto while at the same
time giving to the courts substantial latitude to have regard to
mitigating factors in individual cases. Whereas the unlawful
possession of a cache of grenades, or automatic assault rifles and
the like may well attract a sentence of at least five years immediate
imprisonment the unlawful possession of a shotgun for hunting
purposes would probably attract the minimum fine of E5,000 with a
substantial part suspended and with a fairly modest sentence of
imprisonment in default".
into account the factors relevant to sentence in the present case, I
believe that an appropriate sentence on Count 3, i.e. the
contravention of Section 11 (1) of the Act, would be imprisonment for
five years of which two years is suspended for three years on
condition that the accused is not found guilty of again contravening
that section during the period of suspension.
convictions are confirmed, as are the sentences on Counts 1 and 2 and
on Count 4. The sentence on Count 3 is set aside on review and the
sentence referred to above is substituted therefor. The effect of
this order is that the sentence will read as follows:
1 and 2 (taken together for the purposes of sentence): 4 (four)
months imprisonment. Count 3: 5 (five) years imprisonment of which 2
(two) years is suspended for 3 (three) years on condition that the
accused is not again convicted of a contravention of Section 11 (1)
of the Arms and Ammunition Act committed during the period of
suspension. Count 4: 4 (four) months imprisonment.
sentence on Counts 1 and 2, and the sentence on Count 4, will run
concurrently with the unsuspended period of imprisonment imposed on