Arms and ammunition — Declaration of unfitness to possess firearm in terms of s 103(1) of Firearms Control Act 60 of 2000 — Magistrate failing to hold inquiry into unfitness of accused

S v HORN 2018 (1) SACR 685 (WCC)

Arms and ammunition — Declaration of unfitness to possess firearm in terms of s 103(1) of Firearms Control Act 60 of 2000 — Magistrate failing to hold inquiry into unfitness of accused on conviction of housebreaking with intent to steal and theft — Magistrate since having resigned — Court ordering on review that accused not unfit to possess firearm.

 

The accused was convicted in a magistrates’ court by an acting magistrate, an advocate who was appointed on a contract basis for six months. It appeared on review that the magistrate had committed a number of misdirections, inter alia, she had imposed an incompetent sentence; had failed to get the accused to sign his previous-convictions form, indicating that he admitted the previous convictions; had imposed a fine (wholly suspended) on an accused who was unemployed; had failed to conduct an inquiry required by s 103 of the Firearms Control Act 60 of 2000; referred the accused to the Department of Social Development after sentence was handed down; and had ‘discharged’ a co-accused against whom the charges had been withdrawn by the state.

 

The court held that the proceedings, as far as the sentence was concerned, were not in accordance with justice and had to be set aside and corrected. Because no inquiry was held in terms of s 103 of the Firearms Control Act 60 of 2000 it would be prejudicial to the accused to make an order that he be disqualified from possessing a firearm. In the light of the fact that he was not given an opportunity to address the court in this regard, it was appropriate in the circumstances to order that he not be declared unfit to possess a firearm. The court substituted the sentence with a competent sentence and ordered that the charges against the other accused be withdrawn by the state.

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