S v Kele and Others (996/07) [2008] ZAFSHC 13 (6 March 2008)

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[2008] ZAFSHC 13
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S v Kele and Others (996/07) [2008] ZAFSHC 13 (6 March 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 996/07
In
the review between:-
THE
STATE
versus
TEBOHO
BRAND KELE & ANOTHER
_____________________________________________________
CORAM:
BECKLEY
J
et
MOCUMIE,
AJ
JUDGMENT
BY:
MOCUMIE,
AJ
_____________________________________________________
DELIVERED
ON:
6
MARCH 2008
_____________________________________________________
[1] The accused were
convicted of robbery in the Magistrate Court, Marquard in the Free
State. They were both sentenced to 12 months
imprisonment wholly
suspended on certain conditions.
[2] The
matter came before me on automatic review in terms of section 302
read with 304 of the Criminal Procedure Act, 51 of 1977
(“the
CPA”). It was clear from the record that the Magistrate had not
considered the provisions of section 103(1) read with
(2) and (3) of
the Firearms Control Act, 60 of 2000 (“the Act”). I sent a query
to that effect.
[3] In my view the
conviction and sentence are in accordance with justice. But the
problem as correctly conceded by the Magistrate,
lies with the
non-compliance with the provisions of section 103(1) read with (2)
and (3) of the Act set out below.
[4] For
convenience and purposes of this judgment the provisions of s103 (1)
(2) and (3) of the Act will be quoted
verbatim
.
The section reads as follows:
“
Declaration
by court of person to be unfit to possess firearm
(1) Unless the court determines
otherwise, a person becomes unfit to possess a firearm if convicted
of-
(a) the unlawful possession of a
firearm or ammunition;
(b) any crime or offence involving
the unlawful use or handling of a firearm, whether the firearm was
used or handled by that person
or by another participant in that
offence;
(c) an
offence regarding the failure to store firearms or ammunition in
accordance with the requirements of this Act;
(d) an
offence involving the negligent handling or loss of a firearm while
the firearm was in his or her possession or under his or
her direct
control;
(e) an
offence involving the handling of a firearm while under the influence
of any substance which has an intoxicating or narcotic
effect;
(f) any
other crime or offence in the commission of which a firearm was used,
whether the firearm was used or handled by that person
or by another
participant in the offence;
(g) any
offence involving violence, sexual abuse or dishonesty, for which the
accused is sentenced to a period of imprisonment without
the option
of a fine;
(h) any
other offence under or in terms of this Act in respect of which the
accused is sentenced to a period of imprisonment without
the option
of a fine;
(i) any
offence involving physical or sexual abuse occurring in a domestic
relationship as defined in section 1 of the Domestic Violence
Act,
1998 (Act 116 of 1998);
(j) any offence involving the
abuse of alcohol or drugs;
(k) any
offence involving dealing in drugs;
(l) any offence in terms of the
Domestic Violence Act, 1998 (Act 116 of 1998) in respect of which the
accused is sentenced to a period
of imprisonment without the option
of a fine;
(m) any
offence in terms of the Explosives Act, 1956 (Act 26 of 1956), in
respect of which the accused is sentenced to a period of
imprisonment
without the option of a fine;
(n) any
offence involving sabotage, terrorism, public violence, arson,
intimidation, rape, kidnapping, or child stealing; or
(o) any
conspiracy, incitement or attempt to commit an offence referred to
above.”
(2) (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 subsection (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.
(My
underlining)
(3) 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.
[5] From
the wording of the section 103 (2) it is clear that once the accused
has been convicted of an offence which does not fall
in ss1 the Court
must hold an enquiry. The section is obviously peremptory. In this
matter, the accused were convicted of robbery.
Robbery by definition
is an offence which involves violence. See ss2 (g). It is also one of
the listed and specified offences in
Schedule 2. It does not fall in
ss1 (a) but falls squarely within the ambit of s2.
[6]
Where a provision is of such a nature that it does not allow the
exercise of any discretion it must be complied with. In his
or her
reasons the Magistrate explains this non-compliance as an “
oversight
”
and goes a step further to say even if it was not done in this case
it will not happen in future which is acceptable. But his
or her
last comment that (s)he is of the view that the accused has suffered
no prejudice is of concern.
[7] The
purpose of the Act, is
inter
alia
,
“(
T)o
prevent the proliferation of illegally possessed firearms and, by
providing for the removal of those firearms from society and
by
improving control over legally possessed firearms, to prevent crime
involving the use of firearms
…”
See section s2(b) of the Act. The use of illegally obtained firearms
is a grave concern in South Africa. Society and different
agencies
have a role to play in the achievement of the purpose of this Act in
order to enhance the Constitutional rights to life
and bodily
integrity. See ss2(a) of the Act. The judiciary is no exception.
Judicial officers should not only adhere because the
Act is
peremptory. It must be adhered to well aware of the intention of the
legislature in its noble endeavour to curb the use of
illegal
firearms in the broader context of the protection of human rights of
all citizens of this country.
[8] It is well known that
robbery is committed by the use of dangerous weapons including
firearms. That is why the legislature in
its own wisdom included it
in the list of specified offences.
[9] In
my view this is one case in which there should have been compliance
with the Act. In my view the section is no different from
its
predecessor, s12 (1) (b) of the Firearms and Ammunition Act 75 of
1969.Numerous cases in the early 90’s addressed this anomaly
in a
very lucid and analytical exposition of what the provisions entailed
and what was expected of any judicial officer under the
same
circumstances. See
S
v Phuroe en Agt Ander Soort Gelyke Sake
1991 (2) SACR 384
(NC);
S
v Flatela
1991 (2) SACR 395
(NC);
S
v Modise
1992 (1) SACR 358
(O). It is in the light of this background that I
am of the view that the Magistrate must hold an enquiry in terms of
s103 (2) read
with (3) of the Act and make an order in consequence
thereof. The Magistrate is referred to two recent decisions which
give guidance
to hold a proper enquiry in terms of the Act. See
S
v Lukwe
2005 (2) SACR 578
(WLD);
S
v Smith
2006 (1) SACR 307
(WLD).It will not only be prudent or in the
interests of justice but also for the sake of good administration of
justice to refer
this matter to the Magistrate Commission and the
Justice College so that this anomaly is brought to the attention of
all Magistrates
country wide and a repetition of this oversight does
not occur.
[10] In the circumstances
I make the following order:
The conviction and
sentence are confirmed.
The matter is
remitted to the Magistrate to comply with the provisions of
section
103(1)
, (2) and (3) of the
Firearms Control Act, 60 of 2000
.
________________
B.C. MOCUMIE, AJ
I concur.
_______________
A.P.
BECKLEY, J
/sp