The State v Sehoole

On 25 January 2011, the respondent Bongani Sehoole was driving a vehicle with three passengers when he was stopped by two SAPS officers, Sergeant Kladie and Constable Filtane. During a search, Kladie noticed Sehoole attempting to hide his hands and moving his right hand towards his back. Upon searching him, Kladie found a 9mm Beretta pistol tucked in the back of Sehoole's trousers. The firearm had a magazine containing fifteen rounds of ammunition. The serial number of the firearm had been filed off. The respondent was arrested. On 14 November 2011, the Kempton Park Regional Court convicted the respondent of contravening sections 3 and 90 of the Firearms Control Act 60 of 2000 (unlawful possession of a firearm and ammunition) and sentenced him to 10 years' and 5 years' imprisonment respectively, to run concurrently. The respondent appealed to the South Gauteng High Court, which set aside the convictions and sentences. The State appealed to the Supreme Court of Appeal on a question of law.

• Whether a person found in unlawful possession of a firearm with its serial number filed off can only be charged under section 4(1)(f)(iv) of the Firearms Control Act, or whether the State has discretion to charge under section 3 (the lesser offence)
• Whether the high court erred in finding that the respondent should have been charged under section 4 instead of section 3
• The scope of the State's discretionary power as dominus litis regarding the preference of charges
• Whether a ballistic report is the only manner of proving that ammunition was found in a case of unlawful possession of ammunition
• Whether the high court erred in requiring a 'chain linking the finding of the ammunition with a ballistic report' to prove it was ammunition

The appeal was upheld in respect of both points of law. The order of the high court was set aside in its entirety, with the effect that the convictions and related sentences by the regional court were reinstated. The matter was remitted to the South Gauteng High Court for a de novo hearing on the respondent's appeal.

The binding legal principles established are: (1) The State as dominus litis has discretion to elect which charges to prefer against an accused person and may choose to charge a less serious offence even where facts might support a more serious charge; (2) A person found in unlawful possession of a firearm with its serial number filed off may be charged under section 3 of the Firearms Control Act (general prohibition on unlawful possession) rather than section 4(1)(f)(iv) (prohibition on possession of firearms with serial numbers removed) at the State's election; (3) Courts should not interfere with the prosecutor's discretion in preferring charges unless there are truly exceptional circumstances, such as where discretion has been improperly exercised; (4) While a ballistic report provides proof that an object is ammunition, the State is not compelled to produce such evidence in every case - where acceptable evidence shows ammunition was found in a properly working firearm, it can be deduced to be ammunition in the absence of countervailing evidence; (5) Each case regarding proof of ammunition must be judged on its own particular facts and circumstances.

The court observed that courts might in an appropriate case have room to comment on choices made by the prosecution, but indicated this was not such a case. The court also noted that if courts were to decide what charges an accused should face and dictate to the State when and how an accused should be charged, this would undermine the independence of the prosecution as provided for in section 179 of the Constitution. The court referenced Minister of Police & another v Du Plessis 2014 (1) SACR 217 (SCA) for the proposition that while courts are not overly eager to limit or interfere with the legitimate exercise of prosecutorial authority, a court should intervene if there is no reasonable and probable cause to believe the accused is guilty before prosecution is initiated. The court cited S v Khalema and Five Similar Cases 2008 (1) SACR 165 (C) approvingly on the prosecutor's role as dominus litis in controlling prosecution decisions.

This case is significant in South African criminal law for clarifying the relationship between sections 3 and 4 of the Firearms Control Act 60 of 2000 and establishing important principles regarding prosecutorial discretion. It affirms that the State as dominus litis has discretion to choose which charges to bring and can elect to charge a less serious offence even where a more serious charge might also be available on the facts. The judgment reinforces the constitutional principle of prosecutorial independence under section 179 of the Constitution and limits judicial interference with prosecutorial decision-making to truly exceptional circumstances where discretion is improperly exercised. The case also clarifies evidentiary requirements in ammunition possession cases, establishing that a ballistic report is not always necessary where other acceptable evidence exists. This judgment has implications for firearms prosecutions generally and for the separation of powers between the judiciary and the prosecuting authority.