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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
High Court Ref No: 136/2024
Case No: H897/22
Magistrate’s Serial No: 01/2024
[REPORTABLE]
In the matter between:
THE STATE
v
HENDRICKS ANTONIO
___________________________________________________________________
SPECIAL REVIEW JUDGMENT: 03 MAY 2024
ANDREWS, AJ
Introduction
[1] This matter serves before me as a special review in terms of Section 304(4)
of the Criminal Procedure Act 51 of 1977 (“the CPA”).
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Factual Background
[2] On 22 February 2024, Mr Hendricks Antonio (“the accused”) was found
guilty of contravening section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992
(“the Drugs Act”) , pursuant to making formal admissions in terms of section 220 of
the CPA. The following sentence was imposed:
‘Fined R3000 (Three Thousand Rand) or 4 (four) months imprisonment
which is suspended for a period of 3 (three) years on condition that
accused is not convicted of contravening Section 4(b) of Act 140 of 1992
committed during the period of suspension.
Section 103(1) Act 60/2000: Accused deemed unfit to possess a firearm.’
[3] The presiding magistrate referred this matter for special r eview for the
setting aside of the ancillary order in terms of Section 103(1) of the Firearms Control
Act 60 of 2000 (“the Firearms Control Act”) , citing the following reasons in the
covering letter dated 4 April 2024:
‘There was no evidence before court that the accused abused drugs. The
aforementioned provision of Act 60/2000 was therefore not triggered. The order
granted will be prejudicial to the accused.’
The evidence
[4] The admissions made by the accused included that he was unlawfully in
possession of substances listed in the charge sheet. He further admitted that the
drugs were his and that he had the intention to possess the said drugs.
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[5] During the address on sentenc ing, it was placed on record that the accused
has the intention of ap plying for a firearm licence in the future as he was intent on
applying for employment as a security officer. The defence pertinently requested that
the court not declare the accused unfit to possess a firearm. The state on the other
hand, did not make any submissions in relation to Section 103 (1) of the Firearms
Control Act and left the decision in the hands of the court.
Discussion
[6] The various instances in which a court will declare a person unfit to possess
a firearm is listed in s ection 103(1) of the Firearms Control Act , which stipulate as
follows:
‘Unless the court determines otherwise, a person becomes unfit to possess a firearm if
convicted of-…
(j) any offence involving the abuse of alcohol or drugs;
(k) any offence involving dealing in drugs…’
[7] According to the forensic report, two evidence bags were received. In the
one bag there were 3 three tablets, as well as 0.78g of tablet pieces which contained
methaqualone, a prohibited substance listed in Part III of Schedule 2 of the Drugs
Act. The other bag contained 9 units of sol id material (1.21g) each packed in plastic,
which contained methamphetamine , a prohibited substance listed in Part III of
Schedule 2 of the Drugs Act . The contents of the report made in terms of Section
212(4) of the CPA was not disputed by the accused. It is trite that the contents of the
report is regarded as prima facie evidence on its mere production.
[8] The accused admitted that he possessed the mentioned substances . There
is no evidence on record that the accused abused drugs, although it may have been
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inferred if regard is had to the quantity of drugs found in his possession at the time. It
is also manifest that the accused did not admit to having a drug dependency. This
aspect was not canvassed during the hearing of the matter. The presiding magistrate
stated that there was no evidence before the court in respect of the main count,
namely dealing in drugs.
[9] The state proved no previous convictions against the accused. Relevant
factors such as whether the accused has a propensity towards violence or abuse of
drugs, were not canvassed during the hearing.
[10] The court, in handing down the ex tempore judgment, lamented about the
seriousness of the offence, highlighting the destructive consequences on families
and communities. The court considered that the accused may apply for a position in
the security industry and that possessing a firearm may be an essential prerequisite.
The court nevertheless concluded that there is no evidence before the court that the
accused no longer uses drugs and expressed a concern about the dangers of
‘putting a firearm in the hands of a person using drugs ’. The court proceeded to
deem the accused unfit to possess a firearm , which in my view, was a serious
misdirection.
[11] Referring this matter for special review begs the question whether the
powers of this court to review a matter in terms of Section 304(4) of the CPA extends
to ancillary orders. Section 304(4) of the CPA provides that:
‘If i n any criminal case in which a magistrate’s court has imposed a sentence (my
emphasis) which is not subject to review in the ordinary course in terms of section 302 or
in which a regional court has imposed a ny sentence, it is brought to the notice of the
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provincial or local division having jurisdiction or any judge thereof that the proceedings in
which the sentence was imposed were not in accordance with justice, such court or
judge shall have the same powers in respect of such proceedings as if the record
thereof had been laid before such court or judge in terms of section 303...’
[12] Section 276 of the CPA provides for various sentencing options and is the
general empowering provision that authorises courts to impose sentences.
‘276 Nature of punishments
(1) Subject to the provisions of this Act and any other law and of the common law, the
following sentences may be passed upon a person convicted of an offence,
namely-
(a)…’
[13] Ancillary orders are not listed amongst the sentence options set out in
Section 276 of the CPA, yet, Section 103(1) of the Firearms Control Act requires the
court to make a determination on the fitness of an accused person to possess a
firearm when an accused is convicted of one of the listed offences. It therefore
triggers the following questions, namely:
(a) Whether an ancillary order is a form of or an extension of the punishment as
envisaged in Section 276 of the CPA; and
(b) If so, whether such orders are subject to Review.
[14] The development of the criminal law jurisprudence in South Africa has seen
the introduction of ancillary orders for many legislated offences. These include, but
are not limited to the following orders and/or findings in terms of:
(a) Section 103 of the Firearms Control Act;
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(b) Section 50 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32, 2007;
(c) Section 120 of the Children’s Act 38 of 2005;
(d) Section 31 of the Older Person’s Act 13 of 2006;
(e) Section 29 of the Prevention and Combating of Corrupt Activities Act, 12 of
2004; and
(f) Section 35 of the National Road Traffic Act 93 of 1996.
[15] The court in S v Lourens 1 considered section 35 of the National Road
Traffic Act 93 of 1996 ( “the Traffic Act” ), insofar as it relates to the automatic
suspension of the accused’s licence. In this matter the accused was convicted of
contravening section 65(1) of the Traffic Act and was sentenced to pay a fine which
was partly suspended. In addition to the sentence , the trial court suspended the
accused’s licence for a period of 6 months, in terms of Section 35(1)(c) of the Traffic
Act, which makes it peremptory for a court to suspend the licence of anybody
convicted of certain offences. The case was sent on review to the High Court where
Savage J (Henney J concurring) remarked2:
‘Section 276 of the CPA details the sentences that may be passed upon a person
convicted of an offence. While the suspension or cancellation of a driving licence is
not a sentence provided in s 276, in terms of s 35 of the Act it is clearly a
punishment imposed consequent to an offence committed under s 65 (as is s 34 in
relation to the offences cited in that provision). With sentences often combined by judicial
officers in order to arrive at an appropriate punishment, 3 a decision to cancel or suspend
a driving licence is integral to such a determination. A suspension or cancellation order is
1 2016 (2) SACR 624 (WCC).
2 Supra para [7].
3 Du Toit et al Commentary on the Criminal Procedure Act at 30-12.
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therefore not a purely administrative adjunct to the sentence but constitutes a significant
part of the punishment imposed.’4 (my emphasis)
[16] Savage J noted that the suspension of a licence is not a sentence as
provided for in Section 276 of the CPA and clearly identifies the consequences of
invoking the provisions of Section 35 of the Traffic Act as a punishment. It was
further emphasised that a decision to cancel or suspend a driving licence forms an
integral part to determining an appropriate sentence. Of seminal importance, Savage
J stated that the suspension or cancellation order is not a purely administrative
adjunct to the sentence but constitutes a significant part of the punishment imposed.5
[17] Similarly, it must be noted that orders in terms of Section 103 (1) and (2) of
the Firearms Control Act cannot be made separately to the sentencing and m ore
often than not, the nature and circumstances of the offence informs whether the
provisions of Section 103(1) or (2) are triggered. Information elicited for the purposes
of the Section 103(1) or (2) enquiry therefore assists the court when considering an
appropriate sentence. Thus, whilst the enquiry appears to be a separate process, it
is interwoven and integral to the overall sentencing considerations.
[18] Section 103(3) of the Firearms Control Act6, makes it peremptory for a court
to notify the Registrar in writing of that conviction, determination or declaration , as
the case may be , pursuant to a determ ination in terms of Section 103 (1) and (2)
respectively. Furthermore, Section 103(4) instructs that a notice contemplated in
4 S v Van Rensburg 1967 (2) SA 291 (C) at 297E-F.
5Lourens supra para [7].
6 ‘A court which has convicted a person of a crime or an offence contemplated in subsection (1), has made a
determination contemplated in that subsection or has made a declaration in terms of subsection (2) must
notify the Registrar in writing of that conviction, determination or declaration.’
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Section 103 (3) is to be accompanied by a court order for immediate search for and
seizure of:
(a) all competency certificates, licences, authorisations and permits issued to the
relevant person in terms of this Act;
(b) all firearms in his or her possession; and
(c) all ammunition in his or her possession.
[19] The Firearms Control Act recognises the possibil ity of a matter being taken
on a ppeal and gives specific directions that any order pertaining to competency
certificates, licences, authorisations and permits remains in effect pending the
finalisation of an appeal in terms of Section 104(1):
‘(1) (a) All competency certificates, licences, authorisations and permits issued in terms
of this Act to any person who becomes or is declared unfit to possess a firearm in
terms of section 102 or 103, cease to be valid from the date of the conviction, or the
declaration, as the case may be.
(b) Despite the noting of an appeal against the decision of a court or of the Registrar,
the status of unfitness contemplated in paragraph (a) remains in effect pending the
finalisation of the appeal.’
[20] In terms of Section 104(6) 7 the period of unfitness is 5 years, after which a
person may apply for a competency certificate, license, authorisation or permit. It is
therefore, apparent that the legislature did not intend for the provisions in the
Firearms Control Act to be administratively managed, but envisaged the
implementation to be a judicial function and in my view, constitutes a significant part
of the punishment imposed. It follows that the general principles that guide a court
7 ‘(6) Subject to section 9 (3) (b) and after a period of five years calculated from the date of the decision leading
to the status of unfitness to possess a firearm, the person who has become or been declared unfit to possess a
firearm may apply for a new competency certificate, licence, authorisation or permit in accordance with the
provisions of this Act.’
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when sentencing must , as a matter of course , be applicable when making
determinations in respect of any ancillary order.
[21] It is also apposite to be mindful that the punitive nature of an ancillary order
may at times have a harsher consequence for an offender .8 Examples include
instances where an accused is given a suspended sentence but his driver’s licence
is suspended, which renders him unable to continue to perform his job as a driver, or
such as in the matter in casu where the accused intends applying for employment as
a security officer, but the ancillary order deems him unfit to possess a firearm, thus
disqualifying him from applying for a job as a security officer.
[22] Therefore, I am of the view that a determination in terms of Section 103(1) or
(2) is a punishment consequent to an offence for which the accused has been found
guilty of. Having found that it is a punishment, it follows that it forms part of a
sentence imposed and as such may be sent on special review in terms of Section
304(4) of the CPA, which serves to guarantee an accused’s constitutionally
entrenched right to a fair trial. This determination is further underscored by the fact
that discretionary orders may not always be correctly interpreted and/or considered
and/or imposed in principle as earlier demonstrated.9
Conclusion
[23] On a conspectus of the evidence, I am satisfied that the accused was not
convicted of an offence involving abuse of drugs and as such , the provisions of
Section 103(1) of the Firearms Control Act was not triggered. Consequently, I am of
8 Terblanche S ‘Sentencing, South African Journal of Criminal Justice 30 (2017) at 104.
9 Terblanche SS ‘A Guide to Sentencing in South Africa’ 3rd Ed (LexisNexis), at 436.
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the view that the order in terms of Section 103(1) of the Firearms Control Act was not
in accordance with justice and falls to be set aside.
Order:
In the result, I propose the following order:
1. The order in terms of Section 103(1) of Firearms Control Act 60 of 2000 is
hereby set aside.
2. The Registrar is ordered to inform the Registrar: Central Firearms Control
Register in writing of this order.
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ANDREWS, AJ
I agree, and it is so ordered.
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HENNEY, J