About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 742
|
|
Magagula v S (A55/16) [2016] ZAGPPHC 742 (19 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A55/16
DATE:
19 AUGUST 2016
In
the matter between:
DAVID
MAGAGULA
...............................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
[1]
The crisp issue in this appeal is whether the Magistrate erred in
ordering that the appellant whom he had convicted of common
assault
should have been declared unfit to possess a firearm in terms of the
provisions of Section 103(2)(a) of the Firearms Control
Act No. 60 of
2000 (“the Act”).
[2]
The appellant aged 6^ appeared without legal representation in the
Magistrates’ Court held at Mkobola on a charge of assault
with
intent to do grievous bodily harm, it being alleged that on or about
the day of August 2015 he unlawfully and intentionally
assaulted one
Babby Sophie Magagula by hitting her with fists.
[3]
He pleaded guilty but denied having used his fists and said that he
only clapped the complainant with an open hand. The State
accepted
the appellant’s version and without much ado accepted the plea
in terms of Section 112(1 )(a) of the Criminal Procedure
Act. The
appellant was on that basis found guilty and sentenced to a fine of
R300-00 or 30 days imprisonment. The Court below further
made an
order in terms of Section 103(2)(a) of Act 60 of 2000 and declared
the appellant unfit to possess a firearm.
[4]
During mitigation of sentence the Magistrate asked the accused to
tell him why he should not declare him unfit to possess a
firearm. In
response the accused told the Magistrate that he already is in
possession of a licenced firearm.
[5]
The Learned Magistrate thereafter proceeded to pass sentence and the
order that is now being appealed against. He thereafter
informed the
appellant that the appellant has 10 days within which to appeal
against the sentence, interestingly the appellant
then said the
following words to the Magistrate:
“
I
understand the sentencing. The part that I did not understand is the
issue with regard to the firearm Your Worship. I have been
in
possession of this firearm for many years Your Worship. I have never
negligently used it.”
[6]
Section 103(2)(a) required that “a Court which convicts a
person of crime or offence referred to in Schedule 2 and which
is not
a crime or offence contemplated in subsection (1) must enquire and
determine whether that person is unfit to possess a firearm”.
[7]
Subsection (1) of the Act details 15 categories of crimes. The
offence of common assault with which the appellant has been convicted
is not amongst the 15 categories listed therein. Accordingly this
means that common assault falls under Schedule 2 of the Act and
if
that is so this therefore enjoins the presiding officer to
hold
an enquiry and to determine if the appellant is a fit and proper
person to possess a firearm.
[8]
In his reasons filed on the iV of January 2016 the Learned Magistrate
concedes that the record does not show “the full
enquiry due to
problems with inaudible words and phrases in the Section 103(2) and
therefore he cannot remember the reasons he
advanced for declaring
the appellant unfit to possess a firearm”.
[9]
The interesting thing is that the Learned Magistrate does not say
what is it that was omitted in the record and what attempts
did he
take to reconstruct the record.
[10]It
is clear that the Learned Magistrate despite his reasons did not hold
an enquiry as stipulated in the Act. All that he asked
the appellant
is why should he not declare him unfit to possess a firearm. That is
not an enquiry it was more of a conclusion by
the Learned Magistrate
and in that respect the Magistrate erred.
[11]
The Magistrate’s statement that it is his humble submission
that a person who assaults ladies should not be permitted
to possess
a firearm is not based on any reasons advanced to justify such a
conclusion.
[12]An
enquiry contemplated in Section 103(2)(a) requires of a judicial
officer to ask questions in order to establish whether the
accused’s
conduct or the circumstances of the crime justifies depriving him of
his right to possess a firearm. Section 103(2)(a)
is peremptory that
such an enquiry be held. In the present matter it was not held, that
much the Learned Magistrate concedes.
[13]
In the matter of S v Phuroe and Others
1991 (2) SACR 384
(NC) the
Court dealt with a similar section in the old Arms and Ammunition Act
75 of 1969. Section 12(1) (a) thereof bears similarity
to Section 103
(2) (a) of the present Arms and Ammunition Act. It was held in that
matter that in Section 12(1 )(b) of that Act
requires a Court which
finds an accused guilty of certain crimes must bring the provisions
of Section 12(1)(a) to the attention
of the accused and invite the
accused to advance reasons why the Court should not declare that the
provision of the section are
applicable to him. The accused may then
state his case either by way of evidence or by way of argument. If
the state contends that
the disqualification should stand then it
should also be given an opportunity to give evidence or to present
argument. Even if
an accused does not avail himself of his right to
advance reasons the Court should nonetheless consider whether the
disqualification
should stand. The proceedings under Section 12(1
)(a) and (b) should be properly recorded.
[14]
In the present matter no enquiry has been held. Accordingly the order
by the Learned Magistrate was unjustified and should
not be permitted
to stand as it was not in accordance with justice.
[15]
In the circumstances the following order Is made:
(a)
The conviction and sentence imposed is confirmed.
(b)
The matter is remitted to the Magistrate so that he can conduct an
enquiry in terms of
Section 103(2)
of the
Firearm Controls Act No. 60
of 2000
to determine whether the accused is unfit to possess a
firearm.
Dated
at Pretoria on this the 18th day of August 2016.
M.A.
IMAKUME JUDGE OF THE HIGH COURT
I
agree
NTNKO'SI
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: A55/16
HEARD
ON: 18 August 2016
FOR
THE APPELLANT: MR. O.P. MAKOBE
INSTRUCTED
BY: Makobe & Associates
FOR
THE RESPONDENT: ADV. J.P. VAN DER WESTHUYSEN
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 19 August 2016