UNFIT TO POSSESS FIRE ARM – DECLARATION – NATURE OF ENQUIRY

S v RASENA 2017 (1) SACR 565 (ECG)

Arms and ammunition — Declaration of unfitness to possess firearm in terms of s 103(2)(a) of Firearms Control Act 60 of 2000 — Enquiry — Nature of — Enquiry performed in perfunctory fashion — Consideration of all relevant factors required for proper enquiry.

 

Having found the accused guilty of contravening a protection order in terms of s 17(a) of the Domestic Violence Act 116 of 1998 and assault, the magistrate then considered the application by the prosecutor in terms of s 103 of the Firearms Control Act 60 of 2000 that the accused be declared unfit to possess a firearm. The magistrate considered the J88 form which showed the injuries sustained by the complainant (relating to the assault charge) and then stated that he was making no order, which meant that the accused was automatically declared unfit to possess a firearm. On review,

Held, that the record made it abundantly clear that the debate during oral submissions on behalf of the state and the accused related to the accused’s fitness or otherwise to possess a firearm following his conviction on the domestic violence charge, and not on the assault charge. Nothing precluded a court, however, from holding one enquiry in relation to two separate offences in respect of which the section applied where the offences were committed at the same time and place. (Paragraphs [13]–[14] at 569f–h.)

Held, further, that the enquiry conducted by the magistrate into the accused’s unfitness to possess a firearm had been embarked on in a perfunctory fashion. In approaching its task a 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, the court should cause those facts to be discovered and placed before it. (Paragraph [16] at 570f–h.)

The matter was remitted to the magistrate to conduct a proper enquiry in terms of the provisions of s 103 of the Firearms Control Act.

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