S v Kayawala (CR 62/2017) NAHCMD 313 (02 November 2017);

Group

Full judgment

NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

                                                                                                           Case no:    CR  62/2017

In the matter between:

THE STATE

And

KAYAWALA DANIEL                                                                       ACCUSED

 

(HIGH COURT MAIN DIVISION REVIEW REF NO.  1634/2017)

 

Neutral citation:      S  v  Kayawala (CR 62/2017) [2017] NAHCMD 313 (02 November 2017)

 

Coram:          USIKU, J and UNENGU, AJ

Delivered:     02 November 2017

 

Flynote:         Criminal Procedure – Special Review – Request by Divisional Magistrate – Accused declared unfit to possess an arm for a period of one year while s 10(8) of the Arms and Ammunition’s Act 7 of 1996 providing for a period not less than two years – A period of one year substituted for a period of two years.

Summary:     The accused who was convicted of attempted murder was declared unfit to possess an arm for a period of one year, while the period provided for in s 10(8) of Arms and Ammunition’s Act, 7 of 1996 is a period of not less than two years.  The court, on the request of the divisional magistrate corrected the mistake by substituting the one year period for a period of two years.


ORDER


(i)         In terms of the provisions of s 10(8) of Act 7 of 1996, the accused is declared unfit to possess an arm for a period of two years.

(ii)        The order is back-dated to 14 September 2016.


REVIEW JUDGMENT


UNENGU, AJ (USIKU, J concurring):

[1]        The accused was convicted of the crime of attempted murder involving a fire-arm.  He was sentenced to pay a fine of N$10 000.00 or two years imprisonment and declared unfit to possess an arm in terms of s 10(8) of the Arms and Ammunition’s Act 7 of 1996, for a period of one year.

[2]        It is the order declaring the accused unfit to possess an arm for a period of one year which prompted the learned divisional magistrate for the Otjiwarongo division to send the matter on special review with a request to correct the order of the presiding magistrate with regard to the period of one year the accused was declared unfit to possess an arm.

[3]        The divisional magistrate is correct.  The provisions of s 10(8) of the Arms and Ammunition’s Act 7 of 1996 are peremptory and provide that when a person is declared unfit to possess an arm such period shall not be less than two years.

[4]        That being the case, the order made by the magistrate that the accused is declared unfit to possess an arm for a period of one year is set aside and substituted for the following order:

(i)         In terms of the provisions of s 10(8) of Act 7 of 1996, the accused is declared unfit to possess an arm for a period of two years.

(ii)        The order is back-dated to 14 September 2016.

 

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P E  UNENGU

Acting Judge

 

 

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D  USIKU

Judge

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