S v Tau and Another (92/07) [2007] ZANWHC 77 (22 November 2007)

IN THE HIGH COURT

OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO: 92/07

In the matter between:

THE STATE

and

NTHABISENG TAU & ANOTHER

JUDGMENT BY REVIEWING

JUDGE

PAKO AJ

[1] The accused were charged in the Magistrate Court with contravening Section 5(a) or (b) of Act 140 of 1992. Alternatively they were charged with contravening Section 4(a) or (b) of Act 140 of 1992. It is alleged in the charge sheet that on 19 June 2006 they were dealing in dagga or they possessed or used dagga. Accused no. 1 was rightly convicted of possession of dagga. Accused no. 2 was rightly convicted of dealing in dagga. Accused no. 1 was sentenced to 12 months imprisonment which was wholly suspended for 5 years on certain conditions. Accused no. 2 was sentenced to 36 months imprisonment, half of which was suspended conditionally for five years. The Magistrate, in terms of Section 103(2)(a) of the Firearms Control Act 60 of 2000 declared both accused unfit to posses a firearm.

[2] The matter first came before Gutta AJ by way of automatic review. Gutta AJ requested the Magistrate to comment on the severity of the effective sentence of 18 months imprisonment imposed on accused no.

2. The Magistrate was also requested to comment on the appropriateness of the order made in terms of Section 103(2)(a) of the Act and to give reasons why accused no. 1 was also included in that order. I have received the Magistrate’s comments. I am satisfied with the reasons she gave for imposing the affective sentence of 18 months imprisonment on accused no.

2. She also conceded that the order she made in terms of Section 103(2)(a) of the Act is not appropriate and that accused no. 1 should not have been included in that order.

[3] An order in terms of Section 103(2) of the Act can only be made in cases where an accused person has been convicted of an offence referred to in Schedule 2 of the Act. Dealing in or possession of dagga is not included in Schedule 2. The appropriate order for dealing in dagga is the one provided for by Section 103(1)(k) of the Act. In terms of Section 103(1)(k) if a person is convicted of any offence involving dealing in drugs he/she becomes automatically unfit to possess a firearm unless the Court orders that he/she is fit to possess it. From what accused no. 2 said during an enquiry into his fitness or unfitness to possess a firearm, as well as the facts of the case, I am satisfied that no order should be made declaring accused no. 2 fit to possess a firearm. The provisions of Section 103(1) of the Act should remain in operation.

[4] In the result, the conviction and sentence in respect of both accused are confirmed. The order made in terms of Section 103(2)(a) of Act 60 of 2000 in respect of both accused is set aside and the following order in respect of accused no. 2 only is substituted therefore:-

“No order is made in terms of Section 103(1) of Act 60 of 2000.”

O A PAKO

ACTING

JUDGE OF THE HIGH COURT

I agree.

M M LEEUW

JUDGE

OF THE HIGH COURT

22 NOVEMBER 2007