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[2015] ZAFSHC 140
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Motseki v S (97/2015) [2015] ZAFSHC 140 (11 June 2015)
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Special Review Number: 97/2015
In the review between:
M MOTSEKI
and
THE STATE
Appellant
Respondent
CORAM:
VAN ZYL, J et REINDERS, AJ
JUDGMENT
BY:
REINDERS, AJ
DELIVERED
ON:
11 JUNE 2015
[1]
This matter has been sent on special review in terms of
Section
304(4)
of the
Criminal Procedure Act, 51 of 1977
, from the Welkom
Magistrate’s Court.
[2]
Mr SF Ferreira, Senior Magistrate (Welkom) in a letter attached to
the special review, briefly set out the following summary
of the
relevant circumstances and facts:
“
The
accused was charged with contravening
section 49(1)(a)
of Act 13 of
2002- Illegal Foreigner.
The
accused person was legally represented.
The
accused was sentenced to a Fine of R 1000 or 3 months imprisonment.
In
terms of section 103 (2) of Act 60 of 2000 the accused was declared
unfit to possess a firearm.
The
clerk of court had also informed the Registrar of the Firearms
Registry Centre of the magistrates order declaring the accused
unfit
to possess a firearm.
It
is respectfully submitted that the provisions of section 103 of the
Firearms Control Act, Act 60 of 2000 is not applicable in
this
instance. Section 103(1)(a) – 103(1)(o) as well as section
103(2) with reference to Schedule 2 does not warrant an enquiry
into
the competency of a person to possess a firearm.
Therefore
the order must be declared ultra vires.
The
magistrate was requested to comment of the writers view but declined
to do so.”
[3]
Having read the record of the transcriptions together with the
supporting documentation attached thereto, I am in agreement
with Mr
Ferreira’s view that the presiding magistrate acted ultra vires
in declaring the accused unfit to possess a firearm
in terms of
section 103(2)
of the
Firearms Control Act, 60 of 2000
. The offence
of which the accused had been found guilty is not an offence/crime
referred to in Schedule 2, and therefore it follows
that the offence
falls without the scope and ambit of declaring the accused unfit to
possess a firearm.
[4] Consequently the following order is made:
4.1
The conviction and sentence are confirmed.
4.2
The declaration in terms of
Section 103(2)
of the
Firearms Control
Act, 60 of 2000
, is set aside.
4.3
The Senior Administration Officer (Magistrate Court: Welkom) is
ordered to forthwith
inform the Registrar: Firearms Registry Centre
(Pretoria) of the order in terms of paragraph 4.2 above.
C. REINDERS, AJ
I
concur:
C. VAN ZYL, J