S v Kolobe (1667/2004) [2004] ZAFSHC 132; 2006 (1) SACR 118 (O) (9 December 2004)

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[2004] ZAFSHC 132
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S v Kolobe (1667/2004) [2004] ZAFSHC 132; 2006 (1) SACR 118 (O) (9 December 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 1667/2004
In
the review of:
THE
STATE
versus
TEBOHO
DANIEL KOLOBE
CORAM:
WRIGHT
et
MUSI
JJ
JUDGMENT:
MUSI
J
_____________________________________________________
DELIVERED
ON:
9
DECEMBER 2004
_____________________________________________________
The accused was convicted
of possession of dagga in contravention of section 4(b) of Act
140/1992 and sentenced to a fine of R1 600,00
or 8 months
imprisonment. I asked the magistrate to give reasons for the
sentence, in particular for declaring the accused unfit
to possess a
firearm in terms of section 103 of the Firearms Control Act 60/2000.
The magistrate’s response was that he had enquired
from the accused
why he should not be declared unfit to possess a firearm and the
accused had no problem with such order. Indeed
the accused had
indicated that he had no intention to possess a firearm. The
magistrate also said that people who smoke dagga behaved
badly and
that prevention was better than cure.
With respect, there was
no basis for assuming that this particular accused has a propensity
for violence or that he was likely to
misuse a firearm in the future.
As a matter of fact, the offence for which he has been convicted has
nothing to do with a firearm
or use of violence of whatever nature.
The question I posed was
specifically whether it was competent to make the order in question
in the circumstances of this case. Section
103(1) of the Firearms
Control Act lists the offences in respect of which a person may be
declared unfit to possess a firearm. Subsections
(h) and (j) are the
only ones that may possibly apply to the instant case. Subsection
(h) provides for declaration of unfitness
in respect of any offence
for which an accused has been sentenced to a period of imprisonment
without the option of a fine. This
provision is certainly not
applicable to the instant case. Subsection (j) relates to any
offence involving the abuse of alcohol
or drugs. Now the accused has
confessed that he kept the dagga found in his possession for purpose
of smoking it. There is no indication,
however, that he abuses it.
It is significant that the subsection says “abuse of alcohol or
drugs”. Just as one may drink alcohol
without abusing it, so is it
that one may smoke dagga without abusing it. It is significant also
that possession of dagga has not
been included in the offences listed
under section 103(1), whereas dealing in dagga is specifically listed
under the subsection immediately
following subsection (j). In my
view, that clearly shows that the legislature could not have intended
that unfitness to possess
a firearm should befall a person convicted
of mere possession of a drug.
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.
I come to the conclusion
that it was not competent to invoke the provisions of section 103 of
Act 60/2000. There was no basis for
invoking such provision in the
instant case. I note also that in declaring the dagga forfeited, the
magistrate stated that the dagga
is forfeited to the police. I hope
that this is a slip of the tongue. It is not the police, but the
State to which the dagga must
be forfeited.
I do not think that there
is any reason to interfere with the fine imposed on the accused and
that part of the sentence should be
confirmed.
The following order is
made:
The conviction of the
accused is confirmed and so is the sentence of R1 600,00 or 8 months
imprisonment and that the dagga be forfeited
to the State in terms of
section 23 of Act 140/1992. The order declaring the accused to be
unfit to possess a firearm is set aside.
___________
H.M. MUSI, J
I
concur.
_____________
G.F. WRIGHT, J
/spieterse