S v Malito (784/07) [2007] ZAFSHC 124 (1 November 2007)

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[2007] ZAFSHC 124
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S v Malito (784/07) [2007] ZAFSHC 124 (1 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 784/07
In
the review between:-
THE
STATE
versus
CELEMENT
MOTHETSI MALITO
_____________________________________________________
CORAM:
WRIGHT,
J
et
MOCUMIE,
AJ
JUDGMENT
BY:
MOCUMIE,
AJ
_____________________________________________________
DELIVERED
ON:
1
NOVEMBER 2007
_____________________________________________________
[1] The
accused appeared with another in the magistrate court on a charge of
contravention of section 5(b) of Act 140 of 1992 (dealing
in dagga)
alternatively contravention of section 4(b) of Act 140 of 1992,
(possession of dagga). He, alone, was convicted of possession
of
dagga and sentenced to R6 000,00 or 24 (twenty four) months
imprisonment, half of which was suspended on certain conditions.
He
was also declared unfit to possess a firearm in terms of the
provisions of the Firearms and Ammunition Amendment Act, No. 60 of
2000.
[2] The
matter came before my sister
Molemela
AJ
on an automatic review. She sent a query to the magistrate for
declaring the accused unfit to possess a firearm in the following
words:
“
In
the light of this court’s judgment in the case of
S
v Kolebe
2006 (1) SACR 118
(O) on what grounds was the accused no1 declared
unfit to possess a firearm?”
[3] The
magistrate responded as follows:
“
My
Lord, I have studied the judgement of
Kolebe
and confirm that this court was not competent to invoke the
provisions of s 103 of Act 60 of 2000 as the accused was convicted of
Possession of Dagga i.t.o. the Drugs and Trafficking Act 140 of
1992....”
[4]
H.M.
Musi J
in
S
v Kolobe
2006 (1) SACR 118
(O) at 119 stated:
“
Section
103(2) refers to offences listed in Schedule 2 to the Act and
stipulates that a court convicting a person of such offences
must
enquire whether the person is fit to possess a firearm. The only
instance that may possibly apply to the instant case is that
listed
under item 7(a), but then, this refers to an offence provided for in
the Firearms Control Act or its predecessor. The accused
has not been
convicted of a contravention of the provisions of the Firearms
Control Act and this provision does not apply to him.
”
[5] In
this case too, as correctly conceded by the magistrate, there was no
basis on which the accused was declared unfit to possess
a firearm.
The order ought not to have been made.
[6] In the circumstances
I make the following order:
1. The conviction and
sentence are confirmed.
2. The
order declaring the accused unfit to possess a firearm is set aside.
________________
B.C. MOCUMIE, AJ
I concur.
_____________
G.F. WRIGHT, J
/sp