Motseki v S (97/2015) [2015] ZAFSHC 140 (11 June 2015)

Motseki v S (97/2015) [2015] ZAFSHC 140 (11 June 2015)

The court found that the magistrate acted outside the scope of his powers by declaring the accused unfit to possess a firearm under section 103(2) of the Firearms Control Act, as the offence of being an illegal foreigner is not listed in Schedule 2 of the Act. Therefore, the declaration was ultra vires and invalid. The conviction and sentence for the offence were confirmed, but the firearm declaration was set aside.

Citation
[2015] ZAFSHC 140
Parties
Appellant: M Motseki; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 June 2015
Case Number
97/2015
Procedural Posture
Special Review / Review From Magistrate's Court
Outcome
Conviction and sentence confirmed; firearm declaration set aside.
Judges
C. REINDERS, C. VAN ZYL
Legal Topics
Illegal Foreigner, Firearms Control Act, Ultra Vires Magistrate Order
Criminal Law Illegal Foreigner Firearms Control Act Ultra Vires Magistrate Order

Case Brief

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Parties

M Motseki

Appellant

The State

Respondent

Procedural Posture

Special Review / Review From Magistrate's Court

Legal Issues

  1. 1 Whether the magistrate was empowered to declare the accused unfit to possess a firearm under section 103(2) of the Firearms Control Act, 60 of 2000.
  2. 2 Whether the offence of contravening section 49(1)(a) of Act 13 of 2002 falls within Schedule 2 of the Firearms Control Act.

Ratio Decidendi

The court found that the magistrate acted outside the scope of his powers by declaring the accused unfit to possess a firearm under section 103(2) of the Firearms Control Act, as the offence of being an illegal foreigner is not listed in Schedule 2 of the Act. Therefore, the declaration was ultra vires and invalid. The conviction and sentence for the offence were confirmed, but the firearm declaration was set aside.

Court Disposition

Conviction and sentence confirmed; firearm declaration set aside.

Orders

  • The conviction and sentence are confirmed.
  • The declaration in terms of Section 103(2) of the Firearms Control Act, 60 of 2000, is set aside.