Namibia: High Court Main Division

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION

JUDGMENT

CR No: 41/2016

DATE: 16 MAY 2016

NOT REPORTABLE

In the matter between

THE STATE

And

PELEKELO LYATOKA

HIGH COURT MD REVIEW CASE NO 558/2016

Neutral citation: State v Lyatoka (CR 41/2016) [2016] NAHCMD 143 (16 May 2016)

CORAM: LIEBENBERG J et SHIVUTE J

DELIVERED: 16 May 2016

Flynote: Criminal procedure – Trial – Order declaring accused unfit to possess firearm – Accused convicted of unlawful possession of ammunition – Court invoked provisions of s 10(6) of Arms and Ammunition Act 7 of 1996 – Offence convicted of falls outside ambit of s 10(6) – Order set aside.

ORDER

1. The conviction and sentence are confirmed.

2. The order declaring the accused unfit to possess a firearm is set aside.

JUDGMENT

LIEBENBERG J: (Concurring SHIVUTE J)

[1] In this review matter the accused was convicted on a plea of guilty of an offence in contravention of s 33 of the Arms and Ammunition Act, 7 of 1996 (the Act), for the unlawful possession of 60 rounds of live ammunition. He was sentenced to a fine of N$3 000 or 9 months’ imprisonment. In addition, the accused was declared unfit to possess a firearm for a period of 2 years. The conviction and sentence are in order and will be confirmed on review.

[2] In a query directed to the presiding magistrate I posed the question as to whether the court was permitted to declare the accused unfit to possess a firearm in circumstances where the offence committed falls outside the ambit of offences provided for in s 10(6) of the Act. This section defines those offences, once convicted of, the accused is deemed to be declared unfit to possess a firearm (s 10(6)(a)), or where the court may declare such person unfit (s 10(6)(b)). Prohibited acts listed in this section relate only to the possession, placing, handling or use of a firearm and not to the unlawful possession of ammunition, the offence the accused was convicted of.

[3] In response to the query the magistrate concedes that the court had erred when invoking the provisions of s 10(6) by declaring the accused unfit to possess a firearm. The concession is properly made as the court had clearly exceeded its powers vested in it by virtue of the Act when declaring the accused unfit to possess a firearm; hence the order falls to be set aside.

[4] In the result, it is ordered:

1. The conviction and sentence are confirmed.

2. The order declaring the accused unfit to possess a firearm is set aside.

J C LIEBENBERG

JUDGE

N N SHIVUTE

JUDGE