S v Lombaard (A147/09) [2009] ZAGPPHC 61 (2 March 2009)

S v Lombaard (A147/09) [2009] ZAGPPHC 61 (2 March 2009)

The magistrate failed to inform the accused of the consequences under section 12(1) of the Arms and Ammunition Act, which requires a proper enquiry into fitness to possess a firearm upon conviction. The review court found that the magistrate is not functus officio until such enquiry is held. Therefore, the conviction and sentence are confirmed, but the matter is remitted to the magistrate to conduct the required enquiry under section 12(1) of the Act.

Citation
[2009] ZAGPPHC 61
Parties
Appellant: The State; Respondent: Nicolaas Jacobus Lombaard
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 March 2009
Case Number
A147/09
Procedural Posture
Review Application / Special Review From Magistrate's Court
Outcome
Conviction and sentence confirmed; matter remitted for enquiry under section 12(1) of the Arms and Ammunition Act.
Judges
TM Makgoka, MF Legodi
Legal Topics
Arms and Ammunition Act, Fitness to Possess Firearm, Magistrate Functors Officio, Review Procedure
Criminal Law Arms and Ammunition Act Fitness to Possess Firearm Magistrate Functors Officio Review Procedure

Case Brief

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Parties

The State

Appellant

Nicolaas Jacobus Lombaard

Respondent

Procedural Posture

Review Application / Special Review From Magistrate's Court

Legal Issues

  1. 1 Whether the accused is properly deemed unfit to possess a firearm under section 12(1) of the Arms and Ammunition Act.
  2. 2 Whether the magistrate is functus officio regarding the enquiry into the accused's fitness to possess a firearm.
  3. 3 Whether the matter should be remitted for a proper enquiry under section 12(1) of the Act.

Ratio Decidendi

The magistrate failed to inform the accused of the consequences under section 12(1) of the Arms and Ammunition Act, which requires a proper enquiry into fitness to possess a firearm upon conviction. The review court found that the magistrate is not functus officio until such enquiry is held. Therefore, the conviction and sentence are confirmed, but the matter is remitted to the magistrate to conduct the required enquiry under section 12(1) of the Act.

Court Disposition

Conviction and sentence confirmed; matter remitted for enquiry under section 12(1) of the Arms and Ammunition Act.

Orders

  • The conviction and sentence are confirmed.
  • The matter is remitted to the magistrate for holding of an enquiry in terms of section 12(1) of the Arms and Ammunition Act, 75 of 1969.