Mkhonza v S (AR357/08) [2009] ZAKZPHC 9; 2010 (1) SACR 602 (KZP) ; [2009] 3 All SA 358 (KZP) (24 March 2009)

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[2009] ZAKZPHC 9
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Mkhonza v S (AR357/08) [2009] ZAKZPHC 9; 2010 (1) SACR 602 (KZP) ; [2009] 3 All SA 358 (KZP) (24 March 2009)

REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA CASE NO.AR.357/08
KWAZULU-NATAL
HIGH COURT
PIETERMARITZBURG
In the
matter between
JOHAN
JOSEPH MKHONZA
Appellant
and
THE
STATE
Respondent
JUDGMENT
Delivered on
24 March 2009
WALLIS J.
[1] On the 31 December 2007 the appellant lost his
licensed firearm
, a Rossi Calibre 38
Special AB168729 revolver, whilst visiting the toilets at Pick n Pay
in Vryheid. He was charged and convicted
on his plea of guilty of
contravening the provisions of sections 120(8)(b) of the Firearms
Control Act 60 of 2000 (“the Act”).
That section makes it an
offence for a person to lose a firearm owing to that person’s
failure to take reasonable steps to prevent
the loss of the firearm
whilst it was on his person or under his direct control. According
to his plea explanation the revolver
must have been dropped whilst he
was using the toilet facilities and he realised his loss as he was
washing his hands. However,
when he returned to the toilet stall, it
had disappeared. He recalls that another person had used that
particular toilet after
he had emerged. The obvious implication is
that this other person had taken the revolver.
[2] The appellant was sentenced to pay a fine of
R2000.00 or to undergo a period of six months’ imprisonment, with a
further two
years’ imprisonment suspended for five years on
condition that he is not convicted of the offence of contravening
section 120(8)
of the Act during the period of suspension. In
addition the court added the following :
“In terms of section 103((1) Act 60/2000 the Court doesn’t
determine otherwise (unfit to possess a firearm).”
[3] Leave to appeal was sought and obtained solely
against the refusal to declare
otherwise in
terms of section 103(1) of the Act. This had the consequence that the
appellant is in terms of that section unfit
to possess a firearm.
The background to the appeal lies in the fact that when the court
heard submissions on this question it
was told that the appellant had
possessed a firearm for more than ten years without any mishap. He
required the firearm because
he was employed as a security guard at a
community school and paid by the parents of the school. The effect
of the failure to
declare otherwise was that he became unemployed.
He was apparently the sole support of twenty-five children and would
be unable
to obtain employment – presumably as a security guard –
if he could not lawfully possess a firearm.
[4] Before the magistrate the public prosecutor
agreed with the submissions on behalf of the appellant in regard to
his continued
ability to possess a firearm. In other words the
prosecution supported the appellant’s request that the court should
order otherwise
in terms of section 103 of the Act. Notwithstanding
that support the magistrate declined to order otherwise. On appeal
before
us we were advised by counsel for the respondent that he had
discussed the matter with the Deputy Director of Public Prosecutions

who agreed with him that the State should concede that the order that
the appellant is unfit to possess a firearm should be set
aside and
that this court should determine otherwise in terms of section 103 of
the Act.
[5] Notwithstanding the consensus between the
appellant and the prosecution concerning the appropriateness of the
decision by the
magistrate, a resolution of this appeal is by no
means easy. Two questions fall to be considered. The first is
whether, as both
parties have assumed, an appeal lies to this court
against the decision by the magistrate not to order otherwise in
terms of section103(1)
of the Act, in the same manner as does an
appeal against sentence, leave to appeal having been granted in terms
of section 309(1)(a)
of the Criminal Procedure Act 51 of 1977 (“the
CPA”). The second question, if such an appeal does lie, is whether
the evidence
in the present case, taken together with the concession
on behalf of the State and the personal circumstances of the
appellant,
justifies this court in setting aside the magistrate’s
decision and ordering otherwise in terms of section 103(1) of the
Act.
[6] In order to determine the question of
appealability it is necessary to give some consideration to the
structure of the Act.
The right to possess a firearm depends upon
the possession of a licence issued in terms of chapter 6 of the Act.
Different types
of licences are required for different purposes. The
issue of licences is undertaken by the Registrar, who in terms of
section
123 of the Act, is the National Commissioner of the South
African Police Service. The Registrar not only issues licences to
possess
firearms, but also establishes and maintains the Central
Firearms Register in terms of section 124(2)(a) of the Act. In terms
of section 125 the Central Firearms Register must contain all
prescribed information regarding licences, applications for licences

that have been refused, transfers of firearms, the loss of firearms
and other documents appropriate to maintaining a proper record
of all
firearms in use in South Africa.
All of
this is consistent with the Act’s stated purpose of establishing a
comprehensive and effective system of firearms control
in South
Africa; preventing the proliferation of illegally possessed firearms
and detecting and punishing the negligent or criminal
use of
firearms.
[7] In terms of section 27 of the Act a firearms licence is valid for
a limited period. It may, however, be renewed in terms of
section 24
of the Act. Where an initial application for a licence to possess a
firearm or an application for renewal is refused
by the Registrar the
person concerned has a right of appeal to the Appeal Board
established in terms of section 128(1) of the Act.
In terms of
section 133(3) the Appeal Board is, generally speaking, confined to a
consideration of the material before the Registrar,
although it may
in some limited circumstances admit evidence of other facts, and in
terms of section 133(2) it is entitled to confirm,
vary or reverse
any decision against which an appeal has been lodged
[8] Under section 28 of the Act a licence
terminates in various circumstances. Under section 28(1)(c) one of
those circumstances
is if the holder of the licence becomes or is
declared unfit to possess a firearm in terms of section 102 or 103 of
the Act. It
is to those sections that I now turn.
[9
] Section 102 deals
with a declaration by the Registrar that a person is unfit to possess
a firearm. The circumstances in which
the Registrar may make such a
declaration are set out in section 102(1) which reads as follows :
“The Registrar may declare a person unfit to possess a firearm if,
on the grounds of information contained in a statement under
oath or
affirmation including a statement made by any person called as a
witness, it appears that :-
a final protection order has been issued against such person in
terms of the Domestic Violence Act 1998 (Act No.116 of 1998);
that person has expressed the intention to kill or injure himself or
herself or any other person by means of a firearm or any
other
dangerous weapon;
because of that person’s mental condition, inclination to violence
or dependence on a substance which has an intoxicating or
narcotic
effect, the possession of a firearm by that person is not in the
interests of that person or of any other persons;
that person has failed to take the prescribed steps for the
safe-keeping of any firearms; or
that person has provided information required in terms of this Act
which is false or misleading.”
[10] A declaration under this section may only be made after the
Registrar has afforded the person concerned an opportunity to
advance
reasons why the declaration should not be issued and has duly
considered the matter. If the Registrar makes such a declaration

that is appealable to the Appeal Board in terms of section 133(1)(d)
of the Act which provides for such an appeal where a person
has
received a notice of an administrative decision in terms of the Act
which may detrimentally affect his or her rights.
[11] A decision by the Appeal Board is not itself
subject to any further appeal in terms of the Act. Bearing in mind,
however,
that the subject matter of such a decision would be the
entitlement of a person to a competency certificate, licence, permit
or
authorisation in terms of the Act, or the conditions attaching to
any such licence, permit or authorisation, or that an administrative

decision has been made in terms of the Act that may detrimentally
affect his or her rights, it is clear that the decisions of the

Appeal Board are subject to review in terms of the provisions of
PAJA.
1
The Appeal Board is an organ of State in terms of paragraph (b)(ii)
of the definition of that expression in section 239 of the

Constitution in that it is an institution exercising a public power
or performing a public function in terms of legislation. Its

decisions are decisions of an administrative nature falling within
sub-paragraphs (b), (c), or (d) of the definition of a “decision”

in PAJA and as such constitute administrative action in terms of the
provisions of sub-paragraph (a)(ii) of the definition of
“administrative action” in PAJA.
2
[12] I have dealt in some detail with the
circumstances in which a person may be declared by the Registrar to
be unfit to possess
a firearm and with the remedies, by way of appeal
and judicial review, that are available to such a person. My reason
for doing
so is to highlight the fact that access to a court in
relation to such a declaration is available to a person affected
thereby
although the powers of a court on judicial review of
administrative action are narrower than a court’s powers on appeal
from
the decision of a lower court. It would be surprising
therefore, or at least somewhat inconsistent, were the position of a
person
whose unfitness to possess a firearm arises under section 103
not to be able to approach a court for relief against that unfitness.

However, in order to determine whether that is the effect of section
103, it is necessary to consider its terms.
[13] Under section 103(1) it is provided that :-
“Unless the court determines otherwise, a person becomes unfit to
possess a firearm if convicted …”
of the offences described in sub-sections (a) to (o) of that
section. The range of offences is broad covering a number of
offences
under the Act itself as well as crimes in the commission of
which a firearm is used, offences involving violence, sexual abuse,

dishonesty, the abuse of alcohol or drugs or dealing in drugs,
offences under the Explosives Act, 26 of 1956 and offences involving

sabotage, terrorism, public violence, arson, intimidation, rape,
kidnapping or child stealing, as well as any conspiracy, incitement

or attempt to commit any of the offences specified in section 103(1).
In some instances the automatic consequence that the person
becomes
unfit to possess a firearm if convicted only attaches where the
person is sentenced to a period of imprisonment without
the option of
a fine.
[14] The manner in which section 103(1) operates
is that the disqualification of the accused is automatic unless the
court orders
otherwise. The source of the disqualification may
therefore be seen as the statute, rather than an affirmative decision
of the
court. The implication seems to be that if the question is
not raised before the court then the convicted person
ipso
facto
is unfit to possess a firearm
because section 103(1) says as much
3
.
The present case is one that falls under section 103(1). Here,
however, the appellant did raise the issue of his fitness to
possess
a firearm with the magistrate. The issue was raised generally as
part of the submissions on the question of sentence but
it is clear
from the record that regard was had to section 103(1) of the Act,
which was specifically mentioned both at the trial
and in the
magistrate’s reasons for sentence. These were furnished in response
to the court’s request for reasons, arising
from the fact that none
appeared
ex facie
the record. In her reasons the magistrate dealt with the question of
the fine and the declaration that the appellant is unfit to
possess a
firearm, as if they were all part of the same enquiry. Whether that
is right or wrong, the situation is plain that the
magistrate was
seized of the question whether she should determine otherwise in
terms of section 103(1) of the Act and decided
that she should not.
[15] It will be necessary in due course to
consider the nature and effect of the enquiry undertaken by a court
when it is asked
in a case falling within section 103(1) of the Act
to “determine otherwise”, in other words to determine that the
statutory
unfitness to possess a firearm should not apply. However,
before doing so and in order to complete the context in which that
question
must be considered it is necessary to look at the other
circumstance in which, under section 103(2) of the Act
,
a person who has committed a crime or offence may become unfit to
possess a firearm.
[16] Section 103(2) of the Act reads as follows :
“
(a) A court which convicts a person of a crime
or offence referred to in Schedule 2 and which is not a crime or
offence contemplated
in sub-section (1), must enquire and determine
whether that person is unfit to possess a firearm.
(b) If a court, acting in terms of paragraph
(a) determines that a person is unfit to possess a firearm, it
must make a
declaration to that effect.”
Schedule 2 refers to the offences of high
treason, sedition, malicious damage to property, entering premises
with the intent to
commit an offence under either the common law or a
statutory provision, culpable homicide and extortion. The Schedule
then refers
to those offences which, in section 103(1), automatically
result in the person becoming unfit to possess a firearm provided
they
are sentenced to a period of imprisonment without the option of
a fine, and incorporates the same offences where the accused person

is not sentenced to a period of imprisonment without the option of a
fine. Again any conspiracy, incitement or attempt to commit
an
offence referred to the Schedule is included within the Schedule.
[17] It is clear from the language of section
103(2)(a) that where a person has been convicted of a crime or
offence referred to
in Schedule 2 to the Act and which is not a crime
or offence contemplated in section 103(1), the court is obliged to
hold an enquiry
and to make a determination on the question whether
the accused is unfit to possess a firearm. The provisions of the
section are
peremptory and the court seized of the matter is obliged
to conduct an enquiry under the section.
4
[18] In the light of the differences between
sections 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
the section 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 their attention to the provisions of section 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.
5
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.
[19] It is helpful to have regard to the case law
in regard to this section and its predecessor in section 12(1)(a) of
the Arms
and Ammunition Act 75 of 1969. The old section 12(1) was in
terms the same as section 103(1) save in two respects. The first is

that the list of offences in respect of which the sentence applied
was different. The second is that the language of the section
was
slightly differently cast in that it said that a person convicted of
one of the relevant offences “is deemed to be declared
unfit to
possess an arm, unless the court determines otherwise”. I do not
think that there is any material difference in meaning
between that
and the present wording of section 103(1). The pertinent point is
that under both sections unless the court determines
otherwise the
accused person becomes unfit to possess a firearm.
[20] The provisions of section 12(1)(a) of the
Arms and Ammunition Act 75 of 1969, as amended, were considered by
the full court
of the then Northern Cape Division consisting of Kriek
JP and Buys J
6
in
S v Phuroe en Agt Ander Soortgelyke
Sake.
7
That court went substantially further
than the decisions I have referred to above in dealing with the
obligations of a trial court
that had convicted someone of an offence
falling under section 12(1)(a) of the Arms and Ammunition Act. It
endorsed
8
the proposition that the section obliged the court to invite the
accused to advance reasons why the court should order that the

provisions of the section did not apply to him or her. Consequent
upon that invitation the accused would then be entitled to advance
a
case either by way of evidence or by way of oral argument and, if the
State thought that the declaration of unfitness to possess
an arm
should stand, it would in its turn be given the opportunity to
present oral evidence and argument. The court would then
make its
decision.
[21] However the learned judges did not leave the
matter there. They went on to say the following :
“Ons moet byvoeg
dat
selfs indien ʼn beskuldigde nie gebruik maak van die geleentheid om
redes aan te voer soos hierbo uiteengesit nie, moet diE
hof nogtans
oorweeg of dit nie gelas moet word dat die onbevoegdheidsverklaring
nie moet volg nie. Die hof kan byvoorbeeld voel
dat aangesien ʼn
beskuldigde geen vorige veroordelings het nie, en hy slegs aan ʼn
geringe aanranding (soos een klap met die oop
hand) skuldig bevind
is, dit nie behoort te volg dat hy onbevoeg is om ʼn vuurwapen te
besit nie.”
9
I agree with this passage.
A trial court that has convicted an accused person of an offence
falling under section 103(1) of the Act must be mindful of the
fact
that in seeking to ensure that unfitness to possess a firearm should
automatically follow on a conviction of certain serious
offences, the
legislature brought within the ambit of section 103(1) cases that may
not be very serious.
10
The circumstances of the particular offence may be such that when
regard is had to the personal circumstances of the accused there
is
no justification for disqualifying the accused from the right to
possess a firearm.
[22] In my view when the legislature vested in the
courts of this country the jurisdiction to determine that the
statutory unfitness
to possess a firearm imposed under section 103(1)
of the Act should not apply, it did not intend the courts to adopt a
supine approach
to these matters dependent entirely upon whether the
accused had the knowledge, means and resources to place a proper case
before
it that the disqualification should not apply to them, and in
all other cases for the disqualification to apply as a matter of
rote. At the very least it was the intention of the legislature that
the court should have regard to all relevant factors concerning
the
offence, however feeble and limited the case advanced by the accused,
and to consider the issue of whether it should determine
otherwise in
the light of all the facts. In other words there is an obligation on
the trial court to consider properly, having
regard to all relevant
factors, whether the case is one where the statutory disqualification
from possessing a firearm should
remain in place or whether it should
determine otherwise. In approaching that task the court should have
regard to any factor
that bears on the issue and if there is reason
to believe that all material facts bearing on that decision are not
before it to
cause those facts to be discovered and placed before it.
Without attempting to be comprehensive, I agree with the court in
S
v Phuroe en Agt Ander Soortgelyke Sake
11
that amongst the important issues that
should be considered are :-
(a) the accused’s age and personal circumstances;
(b) the nature of any previous convictions or the absence thereof;
(c) the nature and seriousness of the crime of which he has been
found guilty and the connection that the crime has with the use
of a
firearm;
(d) whether there is any background which suggests that the accused
may make use of his or her licensed firearm for the purpose
of
committing offences;
(e) whether it is in the interests of the community that the accused
be declared unfit to possess a firearm because of the fact
that he or
she poses a potential danger to the community.
I would add to that
list that consideration should be given to the period during which
the accused has possessed a licensed firearm
and whether there is any
indication of previous irresponsibility in regard to that possession
and use.
[23] Accordingly, whilst the formal enquiry
mandated by section 103(2) is not a requirement in relation to a
statutory disqualification
under section 103(1), where the trial
court convicts the accused of an offence falling under section 103(1)
it is nonetheless seized
with the question whether it ought to
determine otherwise, that is, whether it ought to depart from the
statutory disqualification
and permit the accused to possess a
firearm. That determination should not take place in a vacuum or
proceed on the assumption
that it is only if the accused raises
something that the court must take positive steps to consider the
question. The consideration
of this issue and the court’s reasons
for its conclusions should be as much a part of the record of
proceedings as the decision
on questions of guilt or sentence. Whilst
some cases will be obvious the more remote the offence from any use
or misuse of firearms
the more comprehensive should be the trial
court’s consideration of the question whether it should determine
otherwise.
[24] Once this is recognised it will also be
recognised that the decision not to determine otherwise is as much a
decision by the
court as is the decision under section 103(2)
determining that an accused person is unfit to possess a firearm.
Whether there
is a determination under section 103(2) or a decision
not to determine otherwise under section 103(1) the consequences are
the
same. The Registrar must be notified in terms of section 103(3)
of the Act and in terms of section 103(4) the notice must be
accompanied
by a court order for the immediate search for and seizure
of all competency certificates, licences, authorisations and permits
issued to the relevant person; or firearms in his or her possession
and all ammunition in his or her possession. All competency

certificates, licences, authorisations and permits cease to be valid
from the date of conviction or declaration as the case may
be (s
104(1)(a)) and the person concerned is obliged within 24 hours to
surrender such competency certificates, licences, authorisations
and
permits, together with all firearms and ammunition in his or her
possession to the nearest police station. They are then entitled
in
terms of section 104(3) to dispose of the firearm and ammunition
through a dealer, but if they fail to do so within 60 days
they are
forfeited to the State and destroyed or disposed of as prescribed.
[24] The fact that these consequences flow from a
decision by the court, irrespective of whether the case falls under
section 103(1)
or section 103(2)(a), is evidenced by the provisions
of section 104(6) of the Act. That section reads as follows :-
“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.”
12
This section plainly states that
in
all instances the status of unfitness to possess a firearm flows from
a decision. Unfitness arising from the application of
section 103(1)
is not exempted. Only three instances of decisions appear from the
provisions of sections 102 and 103. They are
where the Registrar
declares a person as unfit to possess a firearm; where a person
becomes unfit to possess a firearm because
the court, in terms of
section 103(1) declines to determine otherwise and where a person is
declared to be unfit to possess a firearm
in terms of section
103(2)(b) of the Act. All three decisions have the same effect when
the person concerned thereafter has the
status of being unfit to
possess a firearm until they are relieved of that status by the
provisions of section 104(6).
[25] Against that background I turn to consider
the question of appealability in relation to a disqualification
flowing from section
103(1) of the Act. As that disqualification
flows from the decision by a criminal court the point at which to
commence the enquiry
is the relevant provision of the CPA. That is
section 309(1)(a) thereof which reads as follows :-
“Any person convicted of any offence by any lower court (including
a person discharged after conviction) may, subject to leave
to appeal
being granted in terms of section 309B or 309C, appeal against such
conviction and any resultant sentence or order to
the High Court
having jurisdiction …”
[26] A declaration under section 103(2)(b) of the Act or a decision
under section 103(1) not to determine otherwise is not part
of the
sentence of the court. It is neither a sentence provided for in
chapter 28 of the CPA nor a penalty imposed under chapter
16 of the
Act. Accordingly it is only appealable in terms of section 309(1)(a)
if it is a “resultant order” by the Magistrates’
Court flowing
from its conviction of the accused. This is the only possible source
of a right of appeal as no such right is afforded
to an accused
person in the Act itself.
[27] The expression a “resultant sentence or
order” in section 309(1)(a) was the subject of consideration by the
then Appellate
Division in
S v Marais.
13
The court rejected the proposition
that the reference to a “resultant order” is a reference to an
order imposed following upon
a conviction and in lieu of an ordinary
sentence. It followed an earlier decision of the same court
14
in which it had been held that a resultant order is an order that
follows upon the conviction of the accused either in lieu of
or in
addition to the sentence of the court, and that it should be penal in
nature. The court accordingly held that an order of
forfeiture under
section 35 of the CPA is a resultant order for the purposes of
section 309(1)(a), albeit that it is not punishment.
15
[28] There are similarities between the forfeiture
of a firearm’s licence, together with the resultant forfeiture of
the firearm
itself and any ammunition, and a forfeiture under section
35. There is even greater similarity between the forfeiture of a
firearm’s
licence in consequence of a person becoming unfit to
possess a firearm and the forfeiture of a liquor licence, which was
an example
given by Centlivres CJ in
R v
Hobson
16
of a resultant order for the purposes of leave to appeal under the
predecessor in the 1917
Criminal Procedure Act
17
to
section 309(1)(a).
The learned Chief Justice referred to certain
sections under the Liquor Act 30 of 1928 in terms of which, upon a
second or subsequent
conviction of certain offences it was provided
that :
“… the court may, in addition to or in lieu of such penalty,
declare such licencee’s licence to be forfeited.”
as an instance of what was then in the existing
section referred to an “order following thereon”, the present
equivalent of
which is “any resultant order”.
18
[29] To my mind there is no difference between an
order by a court, consequent upon the conviction of a licencee, that
the licencee
forfeit his or her licence and an order by a court
consequent upon a conviction under the Act that a person is unfit to
possess
a firearm in consequence of which that person forfeits not
only any licence to possess a firearm but also possibly any firearm
and any ammunition for such firearm. Accordingly I have no doubt
that an order in terms of section 103(2)(a) of the Act is appealable.

Does an order in terms of section 103(1) stand on any different
footing? This was a question considered by Farlam J (as he then

was) in
S v Wakefield
19
in relation to the provisions of section 12(1) of the Arms and
Ammunition Act. That Act, like the present
Firearms Control Act, had
separate provisions in
sections 12(1)
and
12
(2) regarding the
consequences of a conviction of certain offences. If a person was
convicted of an offence under section 12(1)
then they were deemed to
be declared unfit to possess an arm unless the court determined
otherwise. If they were convicted of
an offence referred to in
section 12(2)
the court was afforded a discretion to declare the
person unfit to possess an arm. The situation precisely parallels
that which
arises under sections 103(1) and 103(2)(b) of the Act.
[30] In
S v Wakefield
Farlam J held that an order under
section 12(2) of the Arms and Ammunition Act was clearly a resultant
order within the meaning
of section 309(1)(a). He then reasoned as
follows in regard to the position under section 12(1)
20
“The real question to be considered in my view is whether a deemed
declaration under s 12(1) is an order under s 309(1)(a) of
Act 51 of
1977. Once one accepts that an order under s 12(2) of the Act, even
though made ‘in the discretion of the court concerned’
is
appealable it is difficult to think of any reason for the Legislature
to wish to exclude appeals against a deemed declaration.
On the
contrary the pressure to accept that such a deemed declaration was
intended to be appealable becomes irresistible in my
view if regard
is had to the fact that a person deemed unfit in terms of s 12(1) has
no appeal to the Minister in terms of s 14(1).
There is another way of approaching the matter which leads to the
same result. Looked at as a matter of substance rather than
form, a
decision not to determine otherwise is in effect an order declaring a
person unfit.
In all the circumstances I am satisfied that a deemed declaration
under s 12(1) is appealable.”
[31]
I find that
reasoning compelling particularly in the light of my analysis of the
duty resting upon the trial court in relation to
an accused convicted
of an offence falling under section 103(1). I would add that I can
see nothing in the list of offences that
fall under section 103(1)
that would cause one to think that they are of their very nature so
much more heinous than the offences
set out in Schedule 2 to the Act,
that a declaration of unfitness in relation to one of the latter
offences under section 103(2(b)
should be appealable, but a decision
by the court not to determine otherwise under section 103(1) would
not. Apart from anything
else the first two offences referred to in
Schedule 2 are high treason and sedition. In addition, I have
already pointed out that
a person declared by the Registrar to be
unfit to possess a firearm has the right to resort by way of appeal
to the Appeal Board
and, if dissatisfied, the right to review the
decision by the Appeal Board in terms of PAJA. Accordingly a person
who becomes
unfit to possess a firearm under either section 102(1) or
103(2)(a) has the means to approach a court if aggrieved at the fact
that they have acquired that status. It would be an extraordinary
situation were a person who becomes unfit to possess a firearm
under
section 103(1) to have no recourse to a higher court, however
egregious the decision by the trial court not to determine
otherwise
in terms of that section.
[32] Lastly it seems to me that there are internal
indications in the Act itself that the legislature contemplated that
a person
who became unfit to possess a firearm in consequence of a
conviction would be entitled to appeal. I accept that section 103(5)

of the Act is not entirely helpful in this regard because it refers
to an appeal against the conviction or sentence and it could

therefore only encompass an appeal against a decision under sections
103(1) or 103(2)(b) if that is thought to be part of the sentence.

However section 104(1)(b) provides that :
“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.”
That language clearly encompasses both an appeal
to the Appeal Board against a decision by the Registrar and an appeal
to a higher
court against the decision by a lower court that created
that status of unfitness. There is nothing to indicate that the
legislature
was here drawing a fine distinction between the positive
declaration of unfitness by a court in terms of section 103(2(b) and
the
negative decision by the same court not to determine otherwise
under section 103(1). What would render that even more anomalous
is
that the question of whether the court was acting under the one
section or the other would in a number of situations depend
upon
whether it sentenced the accused to a period of imprisonment without
the option of a fine or whether it imposed a sentence
of imprisonment
with the option of a fine or simply a fine. In other words its own
decision would determine the appealability of
the accused’s status
of unfitness. That cannot be correct.
[33] For all those reasons I am satisfied that the
accused was properly entitled to appeal against the decision by the
magistrate
in this case not to order otherwise in terms of section
103(1) of the Act.
21
[34] Having decided that Mr Mkhonza was entitled
to appeal against the magistrate’s decision not to determine
otherwise in terms
of section 103(1) the appeal itself must then be
considered. In doing so I think the correct approach is to start
from the proposition
that unless the court determines otherwise the
legislature has provided that conviction of a crime referred to in
section 103(1)
leads to the result that the accused is unfit to
possess a firearm. Accordingly the onus of satisfying the court that
it should
determine otherwise should rest on the accused.
22
As this part of the enquiry by the court is separate from the
criminal trial and the decision on sentence I think that the accused

can discharge that onus on a balance of probabilities.
23
[35] I start by considering the offence of which
the appellant was convicted. The loss of his firearm resulted from
substantial
negligence on his part. To drop a revolver in a public
toilet and be so inattentive as not to notice that one has dropped
it,
bespeaks a high degree of negligence. Clearly that counts
against the appellant being permitted to continue to possess a
firearm.
However, that negligence was no greater than the negligence
of the accused in
S v van Dyk, supra.
She had parked her car in an underground parking basement and was
carrying a briefcase containing a firearm, presumably a revolver
of
some type. When she returned to her car with her briefcase and some
parcels she unlocked the boot of the car, placed her parcels
in the
boot and drove off, apparently leaving the briefcase on the ground in
the parking garage. Realising what she had done she
returned about
half an hour later but the briefcase, together with her firearm, had
vanished. She was convicted of the equivalent
offence under the Arms
and Ammunition Act 75 of 1969.
[36] In giving the judgment in that case Flemming
DJP said the following
24
:
“The magistrate found that the accused had
displayed a high degree of negligence and that the loss of a firearm
by leaving it in a briefcase in a parking area is ‘definitely not
how a fit person will handle a firearm’. This seems to imply
that
negligence on one specific occasion in the form of gross inattention
or forgetfulness, as in the present case, precludes a
view that the
licencee is nevertheless fit, as far as the future is concerned, to
remain qualified to possess a firearm. Neither
s11 nor s12
legitimises such reasoning. Logic dictates that a person is not
necessarily generally unfit for the future because
of an isolated
instance of negligence in the past. It may be useful to remember,
although the analogy is not entirely apposite,
that a person is not
unfit to drive a motor vehicle simply because he has on one occasion
displayed a serious degree of inattention.
I accordingly disagree
with the magistrate’s approach that simply because negligent loss
is a ‘ground’ which is mentioned
in s11, ‘application of that
criterion’ shows that ‘there can be little doubt that the accused
is not fit to possess a firearm’.”
25
[37] Set against the serious negligence of which
he was undoubtedly guilty must be the appellant’s personal
circumstances. He
was a man of mature years, 46 years of age at the
time, married and supporting 25 children, presumably not all of whom
were his
own. He had been in lawful possession of a firearm for more
than ten years and had never been charged with any offence relating

to a firearm. Indeed he had no previous convictions at all. His
possession of the firearm was for the purposes of his employment

which was a security guard at a community school. That he attended
to these duties in a reasonably responsible fashion can be
inferred
from the fact that the parents at the school were willing from their
own resources to pay his salary. As his address
is given in the
charge sheet as being Madresini Reserve, Nqutu, one can infer that
the parents are by and large people of humble
background and modest
means so that making such payment would be a sacrifice on their part.
One can accept therefore that the appellant’s
performance of his
duties was satisfactory.
[37] Turning then to consider the interests of the
community the facts described above do not suggest that if the
appellant is permitted
to possess a firearm in the future he will
pose any danger to the community or to any person. There is nothing
to indicate that
he is a person of violent disposition or one who
might use his firearm for criminal purposes. Indeed the evidence
points firmly
in the opposite direction. I accept that he has been
guilty of serious negligence on this occasion and that it is probable
that
as a result his lost firearm is now in the hands of someone who
is in some measure at least criminally inclined, if only to the
crime
of unlawful possession of an unlicensed firearm. What must be
considered in weighing up whether nonetheless the appellant
should be
permitted to possess a firearm in the future, is whether there is any
basis for thinking that permitting him to do so
could reasonably be
expected to result in a repetition of the incident that led to his
conviction in this case. In other words
is he likely again in the
future to be negligent in caring for any firearm that he may be
permitted to acquire. A determination
of that question involves
weighing the particular offence of which the appellant has been
convicted against his history as a responsible
licencee of a firearm.
In my view that history, taken together with fact that he appears to
be a responsible citizen of mature
years, outweighs this single act
of negligence.
[38] I have also taken into account, as did the
court in
S v van Dyk
,
the appellant’s need to possess a firearm. It is sufficient for me
to say that a person who needs a firearm in order to hold
down the
one type of job in which he has experience and for which he appears
to be qualified, in an environment where jobs are
few and far between
and he is responsible for feeding many mouths, is at least as
significant a need as that of the accused in
S
v van Dyk
who required the firearm for
self-protection.
[39] One further factor that is relevant, albeit
not decisive, is that both at the trial stage before the magistrate
and on appeal
the prosecution accepted that this was a proper case
for the court to order otherwise. That is not simply the decision of
a single
prosecutor in one of the far-flung towns of this province.
It is also the considered view of the Deputy Director of Public
Prosecutions
and independent counsel instructed in this appeal. It
is appropriate for the court to attach weight to those views. I do
however
stress that the mere fact that a prosecutor agrees with the
defence that the court should order otherwise in terms of section
103(1)
does not mean that the court should automatically do so. It
should interrogate the reasons given by the prosecutor for adopting

that stance in order to assess whether it is valid and that the
circumstances of the particular case warrant it determining
otherwise.
[40] There is nothing in the reasons furnished by
the magistrate to suggest that she engaged in a consideration of all
relevant
factors in accordance with the decision in
S
v Phuroe en Agt Ander Soortgelyke Sake
or that she had regard to the judgment in
S
v van Dyk
on the issue of negligence.
All that she said in her reasons is that the revolver had been lost
on 31 December 2007 and that by
the 28 March 2008 it had not been
recovered. The court accordingly bore in mind that “die vuurwapen
deur ander persone gebruik
word om misdrywe te pleeg”. That
conclusion goes too far insofar as the magistrate had in mind any
offence other than unlawful
possession of the lost revolver.
[41] The magistrate made no other attempt to
explain or justify her decision that this was a case where she should
not order otherwise
in terms of section 103(1). In my view her
approach to the issue under section 103(1) of the Act was erroneous
and failed to have
regard to the authorities on the proper approach
to a consideration of the question before her. In those
circumstances the court
is at large to reconsider the question of
unfitness to possess a firearm.
[42] Having weighed up all relevant facts and in
particular the appellant’s history of ten years of responsible
possession of
a licensed firearm, against a single incident of gross
negligence and inattention, I am persuaded that the appellant is not
unfit
to possess a firearm. I accordingly propose that the decision
by the magistrate not to determine otherwise in terms of
section
103(1)
of the
Firearms Control Act should
be set aside and replaced
by a decision that the court determines otherwise for the purposes of
section 103(1)
of the
Firearms Control Act 67 of 2000
.
NILES-DUNÉR J : I agree and it is so ordered.
DATE OF HEARING 19 FEBRUARY 2009
DATE OF JUDGMENT 24
MARCH 2009
APPELLANT’S COUNSEL MS Z ANASTASIOU
INSTRUCTED BY THE JUSTICE CENTRE, PMB
RESPONDENT’S COUNSEL MR J.H. DU PLESSIS
INSTRUCTED BY THE DEPUTY DIRECTOR OF
PUBLIC PROSECUTIONS
1
The
Promotion of Administrative Justice Act 3 of
2000
.
2
c/f
Mzamba Taxi
Owners’ Association v Bizana Taxi Association
2006(2) SA 154 (SCA) at para [27];
Radio
Pretoria v Chairperson, Independent Communications Authority of SA &
another
2008 (2) SA 164
(SCA)
3
I deal below with the question whether the
disqualification may ever occur without any consideration of the
matter by a court
and conclude that it is an irregularity for this
to happen.
4
S v Smith
2006
(1) SACR 307
(W) at paras [8] and [11];
S
v Maake
2007 (1) SACR 403
(T) at para
[18]
5
S v Lukwe
2005
(2) SACR 578
(W) at 580 g-h;
S v Maake
(supra)
at paras [18] and [10]
6
Curiously both judges had close connections with
this Division. Both had practised as members of the Bar in this
Province prior
to the appointment to the Bench and Kriek JP was,
prior to his appointment as Judge President, a member of this court.
7
991 (2) SACR 384
(NC)
8
At
386 g-h
9
At 386 i-387a. In English the
passage reads :
“We must add that even if an accused does not make use of the
opportunity described above to advance reasons the court must
still
weigh up whether it should order that the declaration of unfitness
should not follow. The court could, for example, believe
that
because an accused had no previous convictions and he had only been
found guilty of a minor assault (such as a single slap
with an open
hand), it did not follow that he was unfit to possess a firearm.”
(My translation)
10
S v Lukwe, supra,
580 h-j
11
Supra,
387 a-d
12
The proposed amendment to this section flowing
from section 32(b) of the Firearms Control Amendment Act 28 of 2006,
which has
not yet been implemented, does not affect the point made
in the judgment.
13
1982 (3) SA 988
(A) at 998 H-1000 H
14
S v Heller
1970 (4) SA 679
(A) at 683
15
Attorney-General
Transvaal v Steenkamp
1954 (1) SA 351
(A) at 356 E
16
1953 (4) SA 464
(A) at 466 F-G.
17
Act 31 of 1917.
18
In
S v Marais
,
supra,
it
was held that there is no material distinction between the two
expressions.
19
1996 (1) SACR 546
(C).
20
At 550 f-h
21
While such a decision or a declaration under
section 103(2)(b) is not a reviewable sentence in terms of section
302 of the CPA
any case in which one or other of those sections
operated would be likely to come before the court on review and it
would be
open to the court to deal with the decision of the
magistrate on these matters in terms of its powers under section
304(4) of
the CPA.
22
This was the assumption made in
S
v van Dyk
1991 (2) SACR 48
(W) at 51e
23
See c/f
Ex Parte
Minister of Justice: in re R v Bolon
1941 AD 345
in regard to the burden resting upon an accused in
relation to an enquiry, after conviction, under the Wage Act 44 of
1937 into
the question whether the accused had paid amounts to
employees in accordance with the provisions of a wage determination.
24
At 49j-50c
25
That case was cited with approval in
S
v Wakefield, supra,
at 551g-i