Court name
High Court Main Division
Case number
CRIMINAL 20 of 2013
Title

S v Zambwe (CRIMINAL 20 of 2013) [2013] NAHCMD 77 (22 March 2013);

Media neutral citation
[2013] NAHCMD 77
Coram
Van Niekerk J
Ueitele J













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK







JUDGMENT



Case No: CR 20/2013







In the
matter between:







THE
STATE



and







ANTON
ZAMBWE ZAMBWE







(HIGH
COURT MAIN DIVISION REVIEW REF NO 833/2012)







Neutral
citation:
S
v Zambwe
(CR
20-2013) [2013] NAHCMD 77 (22 March 2013)







Coram:
VAN NIEKERK, J and UEITELE, J







Delivered:
22
March 2013







Flynote:
Criminal law

The maxim ‘ignorance of the law is no excuse’ is no
longer part of our law since the decision in
S
v De Blom

1977 (3) SA 513 (A) – Conviction and sentence based in reliance
on this maxim set aside









ORDER









The conviction and
sentence are set aside.









REVIEW JUDGMENT










VAN NIEKERK, J (UEITELE,
J concurring):



[1] The accused was tried
and convicted in the magistrate’s court held at Ngoma on a
charge of possession of a firearm, namely a shotgun, in contravention
of section 2 of the Arms and Ammunition Act, 1996 (Act 7 of 1996).
Although he initially pleaded guilty to the charge, questioning in
terms of section 112(1)(b) of the Criminal Procedure Act, 1977 (Act
51 of 1977), revealed that the accused denied knowledge that it was
unlawful to be in possession of a firearm without a licence. He
stated that he was given the gun by the owner to carry for self
defence. A plea of not guilty was then entered.



[2] The only State
witness was the arresting police officer, Sergeant Peya, who
testified that, while driving on patrol, he found the accused
standing at the side of the road in the Lusese area. The accused had
the shotgun in his possession and could not produce a licence or a
permit for it. The accused stated that the gun belongs to someone
else who stays in Katima Mulilo. The accused also said that the owner
had given him the gun to keep with him while he was driving cattle
from the cattle post. The accused did not seem to realize that it is
an offence to possess a firearm without a licence. The accused gave
his cooperation throughout. He arrested the accused. Under
cross-examination he denied the accused’s allegation that he
actually told the officer that the owner was in the village. He
admitted that the accused told him that a copy of the firearm licence
was in Ngweze.



[3] The accused
testified. His version is that the father-in-law gave him the gun to
use for self protection when he had to escort the former’s
grandchildren on foot in the area, which is dangerous, to a
particular place where they got a lift. After that he was walking
back when the police met him. He told the police that the firearm was
not his, that a copy of the licence was in the village at Nweze and
that the original was in the owner’s possession.



[4] The accused called
his father-in-law as a witness. He confirmed the accused’s
story, except to state that he is in fact not the owner of the gun,
but that his father is the licence holder.



[5] As can be seen from
the prosecutor’s submissions before judgment, he was of the
view that ignorance of the law is no excuse. He therefore made no
effort to establish whether the accused in fact had knowledge that he
was acting unlawfully when he possessed the firearm without a
licence. The trail magistrate was also of the view that ignorance of
the law is no excuse and that the State proved its case beyond a
reasonable doubt. She also found that the accused knew that one
needed a licence to possess a firearm because he told the police that
a copy of the licence was in Ngweze. In my view she overlooked that
the accused did not volunteer this information, but gave this
information upon questions by the police officer. In my view this
evidence does not show that he knew one needed a licence to possess a
firearm and also not that he knew that it was an offence if one
possessed a firearm without a licence.



[6] On review of this
matter I asked the magistrate to provide legal authority for her
statement that ignorance of the law is no excuse. In reply she
concedes that this maxim is no longer part of our law since the
decision in S v De Blom 1977 (3) SA 513 (A) and that she
laboured under a misconception when she tried the case. She also
concedes that there is not sufficient evidence to uphold the
conviction. I agree.



[7] The result is that
the conviction and sentence are set aside.


















_______________



K van Niekerk



Judge













I agree.


















­________________



S F I Ueitele



Judge