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2009
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[2009] ZAGPPHC 61
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S v Lombaard (A147/09) [2009] ZAGPPHC 61 (2 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL
PROVINCIAL DIVISION]
REVIEW
CASE NUMBER 53/08/NPM
In
the matter between:
THE
STATE APPELLANT
AND
NICOLAAS
JACOBUS LOMBAARD RESPONDENT
REVIEW
JUDGEMENT
MAKGOKA
AJ
[1] The
accused, a 46 year old male, was charged in the Magistrate Court,
Wolmaranstad, with contravention of section 39(l)(j),
read with
sections 1, 12, 39(2) and 40 of the Arms Ammunition Act, 75 of 1969
("the Act").
[2] He
pleaded guilty to the charge and he was convicted accordingly. He was
sentenced to a fine of R900.00 or 3 months imprisonment,
wholly
suspended for a period of five years on condition that he is not
convicted of contravening section 39(l)(j) or 39(l)(k)
of the Act,
committed during the period of suspension.
[3] What
transpired during the trial is that the magistrate omitted to make
the accused aware of the provisions of section 12(1)
of the Act,
namely that upon conviction, the accused was deemed to be unfit to
possess a firearm, unless after a proper enquiry,
the court
decides otherwise.
[4] The
magistrate therefore referred the matter to this court in terms of
section 304(4) of Act 51 of 1977, as a special review
with the
following questions for determination:
a) is
the accused properly deemed to be declared unfit to possess a
fire-arm in terms of the Act
9
b) if
not, would it accord with justice to recall the accused for the
purpose of holding an enquiry in terms of section 12(1) of
the Act?
[5] Upon
receipt of the review, I referred the questions to the Director of
Public Prosecutions with the following questions:
a) is
the magistrate
functus
officio?
b) if
not, can the magistrate proceed to conduct an enquiry into the
fitness of the accused to possess a fire-arm?
[6] The
Senior State Advocate, Advocate Marriott, with whom Advocate HE van
Jaarsveld agrees, is of the view that the magistrate
is not
functus
officio
before
the enquiry in terms of section 12 of the Act has been concluded.
[7] Advocate
Marriott is therefore of the view that the matter be remitted to the
magistrate for compliance with the provisions
of the Act. I agree and
intend doing so.
[8] In
the premises I make the following order:
the
conviction and sentence are confirmed.
the
matter is remitted to the magistrate for holding of an enquiry terms
of section 12(1) of the Arms and Ammunition Act, 75 of
1969.
TM MAKGOKA
ACTING
JUDGE OF THE HIGH COURT, PRETORIA
I
agree and it is so ordered
MF
LEGODI
JUDGE
OF THE HIGH COURT, PRETORIA