S v Stemmet (A502/2008) [2009] ZAWCHC 118 (13 February 2009)

S v Stemmet (A502/2008) [2009] ZAWCHC 118 (13 February 2009)

The magistrate erred in applying s 103(2) of the Firearms Control Act, as the offence of drunken driving falls squarely under s 103(1)(j), which automatically renders the accused unfit to possess a firearm unless the court determines otherwise. The appellant was represented and chose not to place any facts before the court to challenge this automatic consequence. There was no procedural irregularity or insufficient evidence to warrant a referral back for an enquiry. The order made under s 103(2) was incorrect and is substituted with the correct order under s 103(1), confirming the appellant's unfitness to possess a firearm.

Citation
[2009] ZAWCHC 118
Parties
Appellant: Marius Anton Stemmet; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
13 February 2009
Case Number
A502/2008
Procedural Posture
Criminal Appeal / Appeal From Magistrate's Court Conviction and Sentence
Outcome
Appeal dismissed; conviction and sentence confirmed. The order under s 103(2) is set aside and substituted with an order under s 103(1) declaring the appellant unfit to possess a firearm.
Judges
R B Cleaver, D O Potgieter
Legal Topics
Drunken Driving, Firearms Control Act, Automatic Forfeiture, Fitness to Possess Firearm
Criminal Law Drunken Driving Firearms Control Act Automatic Forfeiture Fitness to Possess Firearm

Case Brief

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Parties

Marius Anton Stemmet

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Magistrate's Court Conviction and Sentence

Legal Issues

  1. 1 Whether the magistrate was correct to declare the appellant unfit to possess a firearm under s 103(2) of the Firearms Control Act.
  2. 2 Whether the offence of drunken driving triggers s 103(1) or s 103(2) of the Firearms Control Act.
  3. 3 Whether the order should be corrected on appeal or referred back for an enquiry.

Ratio Decidendi

The magistrate erred in applying s 103(2) of the Firearms Control Act, as the offence of drunken driving falls squarely under s 103(1)(j), which automatically renders the accused unfit to possess a firearm unless the court determines otherwise. The appellant was represented and chose not to place any facts before the court to challenge this automatic consequence. There was no procedural irregularity or insufficient evidence to warrant a referral back for an enquiry. The order made under s 103(2) was incorrect and is substituted with the correct order under s 103(1), confirming the appellant's unfitness to possess a firearm.

Court Disposition

Appeal dismissed; conviction and sentence confirmed. The order under s 103(2) is set aside and substituted with an order under s 103(1) declaring the appellant unfit to possess a firearm.

Orders

  • The conviction and sentence are confirmed.
  • The determination and declaration in terms of s 103(2)(a) and s 103(2)(b) of Act 60 of 2000 are set aside and substituted with: 'No order of determination is made; the accused is therefore unfit to possess a firearm.'