Stemmet v S (A502/2008) [2009] ZAWCHC 23 (13 February 2009)

Stemmet v S (A502/2008) [2009] ZAWCHC 23 (13 February 2009)

The magistrate erred in applying section 103(2) of the Firearms Control Act to the appellant's conviction for drunken driving, as this offence falls squarely under section 103(1)(j), which provides for automatic forfeiture of the right to possess a firearm unless the court determines otherwise. No enquiry under section 103(2) was required. The appellant, represented by counsel, was given the opportunity to present information regarding his fitness to possess a firearm but elected not to do so. The order made under section 103(2) was incorrect and is set aside. The correct order is that no determination is made under section 103(1), and the accused is therefore unfit to possess a firearm.

Citation
[2009] ZAWCHC 23
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 Magistrates' Court
Outcome
Appeal succeeds in part; conviction and sentence confirmed; declaration under s 103(2) set aside and substituted with automatic unfitness under s 103(1).
Judges
R B Cleaver, Potgieter AJ
Legal Topics
Drunken Driving, Firearms Control Act, Automatic Forfeiture, Fitness to Possess Firearm
Criminal Law Civil Procedure Drunken Driving Firearms Control Act Automatic Forfeiture Fitness to Possess Firearm

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Parties

Marius Anton Stemmet

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Magistrates' Court

Legal Issues

  1. 1 Whether the magistrate was correct to declare the accused unfit to possess a firearm under s 103(2) of the Firearms Control Act.
  2. 2 Whether an enquiry was required before making a determination under s 103(2).
  3. 3 Whether the offence falls under s 103(1) or s 103(2) of the Firearms Control Act.

Ratio Decidendi

The magistrate erred in applying section 103(2) of the Firearms Control Act to the appellant's conviction for drunken driving, as this offence falls squarely under section 103(1)(j), which provides for automatic forfeiture of the right to possess a firearm unless the court determines otherwise. No enquiry under section 103(2) was required. The appellant, represented by counsel, was given the opportunity to present information regarding his fitness to possess a firearm but elected not to do so. The order made under section 103(2) was incorrect and is set aside. The correct order is that no determination is made under section 103(1), and the accused is therefore unfit to possess a firearm.

Court Disposition

Appeal succeeds in part; conviction and sentence confirmed; declaration under s 103(2) set aside and substituted with automatic unfitness under s 103(1).

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.