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[2023] ZAKZPHC 21
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Khanyeza v S (AR167/2022) [2023] ZAKZPHC 21 (17 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE/NOT
REPORTABLE
CASE
NO. AR167/2022
In
the matter between:
VUYO
LUTHER KHANYEZA
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from: Estcourt Magistrates’ Court
(sitting as court
of first instance):
1.
The decision by the magistrate not to determine otherwise in terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
is set aside
and replaced by a decision that the court determines otherwise for
the purposes of
section 103(1)
of the
Firearms Control Act 60 of
2000
.
JUDGMENT
Steyn
J (M E Nkosi J concurring)
[1]
The appellant on 8 February 2022 pleaded guilty and was convicted on
the
count of contravening
section 120(8)
(b)
read with
sections
1
,
103
,
120
(1)
(a)
,
121
read with schedule 4, and 151 of the
Firearms Control Act 60 of 2000 (the Act) in that he negligently lost
his firearm. Upon conviction,
the appellant was sentenced to a fine
of R10 000 or in default to undergo 6 (six) months’
imprisonment which was wholly suspended
for a period of 5 (five)
years on the condition that he is not convicted of contravening
section 120 of the Act. The court
a quo
in terms of
section 103(1) of the Act also declared that no otherwise
determination is made in terms of the Act, which resulted
in the
appellant being unfit to possess a firearm.
[2]
The appellant appeals against the declaration order. Leave to appeal
was
granted solely against the refusal to make an otherwise
determination in terms of section 103(1) of the Act.
[3]
In terms of
section 103(1) of the Act, a person convicted on any of the offences
listed in section 103(1)
(a)
to
(o)
becomes automatically disqualified to possess a firearm unless the
court orders otherwise.
[1]
[4]
The appellant submits that the court
a quo
has failed to
properly consider the facts tendered in mitigation:
(a)
The appellant was employed as a security guard in the VIP protection
unit. A vital requirement of his
employment is to be in possession of
a firearm;
(b)
The appellant is the sole breadwinner of his family and has two minor
children;
(c)
The appellant is 38 years of age and will find it difficult to find
other employment;
(d)
The appellant had pleaded guilty and was remorseful; and
(e)
His highest level of education is grade 12.
[5]
In my view, the facts regarding his negligence are important in
determining
his suitability of being fit to possess a firearm. This
is what was admitted in his statement in terms of
section 112(2)
of
the
Criminal Procedure Act 51 of 1977
:
‘
I admit that on
the day in question I had in my possession a pistol whilst I was
under the influence of intoxicating liquor. Later
when I checked for
my pistol, I, could not find same. The pistol was then handed over to
the police by the person who had found
it and then I went to report
the loss of the firearm, I was informed that someone had handed it
over.’
[6]
The State in its address before sentence asked that the appellant be
declared
unfit to possess a firearm.
Ex facie
the record, the
learned magistrate then asked the defence counsel to address the
court on section 103 of the Act. The appellant
exercised his right to
testify under oath and placed circumstances before the court. Based
on the facts and the circumstances presented
to the court, the court
decided not to make an otherwise declaration in terms of section 103
of the Act. At this juncture it is
important to note that the State
elected not to cross-examine the appellant on the facts that he had
tendered in support of his
fitness to possess a firearm. He stated
that opportunities to find other employment would be difficult, and
furthermore, that the
chances to be employed as a security guard
without having a firearm licence are slim. The State never probed him
on the circumstances
under which he had lost the firearm, nor was he
questioned on how frequently he uses alcohol. In my view these are
important factors
to examine because it goes to the heart of the
appellant’s suitability to possess a firearm in future.
[7]
On behalf of the respondent it has been submitted that the trial
court
was justified in declaring the appellant unfit since he handled
the firearm whilst under the influence of alcohol and not only posed
a danger to himself but also the broader community. This submission
is however not borne out by the facts of this case. In oral
argument
before me, counsel for the respondent conceded that the State ought
to have challenged the appellant’s evidence
in mitigation. This
concession, in my view, is properly made.
[8]
It is not
necessary to decide on the appealability of an order in terms of
section 103 of the Act, since the court in
S
v Mkhonza
,
[2]
decided that such an order is appealable.
[3]
The importance of an enquiry has been highlighted in
Mkhonza
where it was stated that:
‘
In
the light of the differences between ss 103(1) and 103(2)
(a)
it
has been suggested in some of the cases that, in the case of a
conviction and sentence falling within s 103(1), it
is not
incumbent on the court to hold an enquiry into the offender's fitness
to possess a firearm. All that is necessary is that,
where the
accused person is unrepresented, the court should draw his or her
attention to the provisions of s 103(1) and invite
him or her, if he
or she so chooses, to place facts before the court to enable it to
determine that he or she is indeed fit to
possess a firearm.
For
my part I doubt whether this goes far enough.
The problems of the undefended accused are well known and it is
unnecessary for me to explore them here in any detail. Such persons
will have little idea as to what is or is not relevant to the
question of their fitness to possess a firearm if convicted. They
will have little or no ability to make a proper presentation on
fact or law to the trial court. Records that come before this
court
on review or appeal demonstrate that this issue is usually addressed
in the most perfunctory fashion, in part, at least,
because the
accused has no idea of what they should do in relation to these
matters. If the court is under no obligation other
than to draw the
attention of a person not qualified to do so, to their right to make
representations or lead evidence on
this issue, there is a risk
of grave injustice.
’
[4]
(Footnote omitted, and my emphasis.)
[9]
Over time,
the Legislature has introduced more stringent requirements relating
to the safekeeping of firearms. Given the alarming
amount of offences
committed with illegal firearms, the rationale for introducing new
provisions to safeguard firearms should be
applauded. I do not intend
summarising the developments in the legislation since it has already
been succinctly stated by Mudau
J in
Venter
v S
.
[5]
[10]
In
Phuroe
en Agt ander Soortgelyke Sake
[6]
the court held that amongst the issues that should be considered by a
court deciding on the fitness of an accused, or not, to possess
a
firearm should be:
(a)
the accused’s age and personal circumstances;
(b)
the nature of the accused’s previous convictions or the absence
thereof;
(c)
the nature and seriousness of the crime of which the accused has been
found guilty of and
the connection that the crime has with the use of
a firearm;
(d)
whether the accused is a licensed firearm holder and any history that
shows that he is unfit
to possess it; and
(e)
whether it is in the interests of the community that he be declared
unfit to possess the
firearm since he poses a danger to the society.
[11]
In my view the list is not exhaustive and at times factors could be
added to the list,
for example how long the accused has been a
licence holder, the profession of the accused and circumstances under
which he lost
his firearm, to name but a few.
[12]
Having considered the provisions of section 103 of the Act and
affording the defence counsel
opportunity to address the court on the
fitness of the accused to possess a firearm, the magistrate ought to
have given reasons
for the appellant being unfit to possess a
firearm.
[13]
I consider it necessary, for the sake of completeness, to quote the
entire sentencing judgment
of the court
a quo
:
‘
COURT
In consideration of sentence, the Court considers the interest of
society, the offence that
he accused have been convicted of and his
personal circumstances. The offence is serious, it is prevalent and
it is posing danger
to other people. Firearms is (sic) a dangerous
weapon, that is why there are rules and regulations that governs it
or its possession
which means a person in possession of it should be
a responsible person.
What the accused did on
the day in question as (sic) very irresponsible.
The sentence passed must
send out a message to him and others who are still thinking of
committing this kind of an offence. The
Court takes into account that
he has pleaded guilty and did not waste the Court’s time, that
shows an element of remorse.
Having considered all
relevant circumstances, his personal circumstances that have been
placed on record –
HE IS SENTENCED TO PAY
A FINE OF TEN THOUSAND RAND OR SIX MONTHS’ IMPRISONMENT WHOLLY
SUSPENDED FOR A PERIOD OF FIVE (5) YEARS
on condition that he is
not convicted of contravening Section 120 of Act 60 of 2000 committed
during the period of suspension.
In terms of Section 103
of Act 60 of 2000 no otherwise determination is made, the accused is
unfit to possess a firearm.’
[7]
[14]
The court failed to take into account that the appellant was a first
offender and that
he needs his firearm for his work. Given that he
was gainfully employed in a job that requires him to have a licence
to possess
a firearm, by not declaring that he remains fit to possess
a firearm, the impact of the order is unduly harsh. The court in its
order never gave reasons as to why a declaration should follow. In my
view after the enquiry was conducted, the court ought to
have given
reasons why the circumstances stated by the appellant were not
sufficient to not declare the appellant unfit. In failing
to do so,
the court
a quo
was misdirected. This court will have to
interfere with the order in terms of section 103 of the Act.
[15]
An enquiry is defined in the Oxford Concise Dictionary as an act of
asking for information
or an official investigation. In my view an
investigation into collecting facts is only the first leg of the
enquiry, the second
leg would be to make a ruling on the facts
obtained. Simply put in the context of an enquiry in terms of section
103 of the Act,
the court will have to give reasons for exercising
its discretion either in favour of the fitness of the accused to
possess a firearm
or not.
[16]
Our courts
have over the years stated that facts are required that justify a
declaration and such facts would only be placed before
the court if
an enquiry is conducted.
[8]
[17]
In
casu
the sentencing judgment is silent on the reasons justifying his
unfitness to possess a firearm. The evidence in support of his
fitness to possess a firearm stands uncontradicted. I am mindful of
the distinction between section 103(1) and 103(2) of the Act
and that
the Act only requires in terms of section 103(2)
(a)
that an enquiry be held. The fact that a court in terms of section
103(1) of the Act has to determine otherwise, requires however
of the
court to consider the fitness of an accused and give reasons for its
conclusions, which should form part of the record.
[9]
[18]
In the result the following order is issued:
1.
The decision by the magistrate not to determine otherwise in terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
is set aside
and replaced by a decision that the court determines otherwise for
the purposes of
section 103(1)
of the
Firearms Control Act 60 of
2000
.
Steyn
J
Case
Information
Date
of Hearing
: 17 February 2023
Date
of Judgment
: 17 February 2023
Appearances
Counsel
for the Applicant
: Mbatha
Instructed
by
Applicant’s
Attorneys
: L Marais
c/o
Pmb Justice Centre
183
Church Street
Pietermaritzburg
3201
Tel:
033 394 2190
Ref:
Ms A Hulley/X913266622
Counsel
for the Respondents
: M Chamane
Instructed
by
Respondent’s
Attorneys
: The Director of Public Prosecutions
High
Court Buildings
Pietermaritzburg
3201
Tel:
031 830 5046
[1]
In
some instances, the automatic disqualification will only be in
circumstances where upon conviction, the accused is sentenced
to a
term of imprisonment without the option of a fine. See
section
103(1)
(g)
,
(h)
,
(l)
and
(m)
of the Act.
[2]
S v
Mkhonza
2010 (1) SACR 602 (KZP).
[3]
Also
see
S
v Wakefield
1996 (1) SACR 546
(C) where the court decided on the appeal ability
of section 12(2) of the Arms and Ammunition Act 75 of 1969.
[4]
S v
Mkhonza
2010 (1) SACR 602
(KZP) para 18.
[5]
Venter
v S
2017 ZAGPPHC 384
paras
6 and 7.
[6]
Phuroe
en Agt ander Soortgelyke Sake
1991 (2) SACR 384
(NC) at 387b-d.
[7]
See
the record at 7, lines 1 to 21.
[8]
See
S
v Smith
2006 (1) SACR 307
(W) and
Masakazi
v S
[2007] JOL 20613 (E).
[9]
Also
see
Mkhonza
supra
para 23.