Case Title:

The State v Luyanga Charles Mwala

Case No: CR 21/2023

High Court MD Review No:

1895/2022

Division of Court:

High Court, Main Division

Coram: Liebenberg J et Claasen J

Delivered on:

23 February 2023

Neutral citation: S v Mwala (CR 21/2023) [2023] NAHCMD 68 ( 23 February 2023)

ORDER:

1.       The convictions and the sentences imposed on counts 1 and 2 are confirmed.

2.       The matter is remitted to the court a quo to invoke the provisions of s 10(6)(a) and 10(7), of the Arms and Ammunition Act, 7 of 1996.

REASONS FOR ORDERS:

LIEBENBERG J (CLAASEN J concurring):

[1]      The unrepresented accused appeared in the magistrate’s court for the district of Katima Mulilo on a count of contravening s 2 of the Arms and Ammunition Act 7 of 1996 – Possession of a firearm without a licence (count 1) and contravening s 33 of the same Act – Possession of ammunition without a licence (count 2).

[2]      I directed a query to the magistrate whether the court a quo, upon convicting the accused on count 1, invoked the provisions of s 10 (6)(a) and 7 of the Arms and Ammunition Act 7 of 1996 (the Act).

[3]      The magistrate conceded that there was an oversight by not applying the provisions of s 10 (6)(a) and 7 of the Act. For this reason the proceedings are not in accordance with justice.

[4]      After convicting the accused the court a quo ought to have acted in terms of s 10(6)(a) and 10(7) of the Act 7 of 1996 which provides as follows:

            ‘Subject to subsection (7), a person who is convicted by a court of -

(a) a contravention of a provision of this Act relating to the unlawful possession of an arm without the required licence, permit or other authorization, or of section 38(1)(i), (j), (k), (l) or (m), or of any other offence in the commission of which an arm was used (excluding any such conviction following upon the payment of an admission of guilt fine in terms of section 57 of the said Criminal Procedure Act, 1977), is deemed to be declared unfit to possess an arm, unless the court determines otherwise;

(7) The court shall upon convicting any person referred to in paragraph (a) of subsection (6) or where the court exercises a discretion as referred to in paragraph (b) of that subsection, bring the provisions of the paragraph concerned to the notice of such person and afford him or her an opportunity to advance reasons and present evidence why he or she should not be declared or deemed to be declared unfit to possess an arm’. (Emphasis provided)

[5]      The concession by the presiding magistrate is correctly made in that the court a quo ought to have afforded the accused the opportunity to address the court in terms of s 10(7) of the Act.

[6]      In the result, it is ordered:

1. The convictions and the sentences imposed on counts 1 and 2 are confirmed.
2. The matter is remitted to the court a quo to invoke the provisions of s 10(6)(a) and 10(7), of the Arms and Ammunition Act, 7 of 1996.

J C LIEBENBERG

JUDGE

C CLAASEN

JUDGE