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REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA
“ANNEXURE 11”
Practice Direction
Case Title: THE STATE vs SAMUEL NAOBEB ACCUSED | Case No: CR 35/2022 | |
Division of Court: High Court, Main Division | ||
Heard before: Honourable Lady Justice Usiku et Claasen, J | Date of hearing: 25 April 2022 | |
Delivered on: 10 May 2022 | ||
Neutral citation: S v Naobeb (CR 35/2022) [2022] NAHCMD 229 (10 May 2022) | ||
COURT ORDER | ||
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REASONS FOR ORDERS: | ||
[1] The matter before me is an automatic review from the Magistrates’ Court in terms of s 302 of the Criminal Procedure Act 51 of 1977. [2] The accused faced 3 charges, namely Count 1 – dealing in dependence producing substance; Count 2 - possession of a firearm without a license; and Count 3 - possession of ammunition to which he pleaded not guilty. After a trial he was convicted on all the charges where after he was sentenced to 4 years imprisonment part of which was suspended for 3 years on certain conditions in respect of count 2 and 3. [3] The accused was ordered to pay a fine of N$ 10 000 or 24 months imprisonment and N$5000 or 12 months imprisonment respectively in respect of count 2 and 3. [4] When the review was submitted to me, I directed the following query to the learned magistrate: ‘Can the learned magistrate explain why the provisions of s 10(7) of the Arms and Ammunition Act 1996, was not brought to the accused’s attention as required in respect of counts 2 and 3?’ [5] The learned magistrate responded: ‘I concede, it was an oversight on my part and I apologize.’ [6] The concession made by the learned magistrate is correct, as s 10(7) of the Arms and Ammunition Act 7 of 1996 is peremptory in nature. It places an obligation on the magistrate to enquire from the convicted person why he / she should not be declared unfit to possess a firearm and advance reasons to the magistrate.1 [7] The provisions of s 10(7) must be complied with, it is directed that the accused shall be summoned in order for the learned magistrate to inform him about such provisions which are pre-emptory in nature and for the accused to give reasons why he should not be declared to be unfit to possess a firearm for a specified period of time. It must be noted that these provisions are often being ignored by magistrates despite numerous review judgment on the topic.2 [8] In light of the reasons above, I make the following order:
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D USIKU JUDGE | C CLAASEN JUDGE |
1 See S v Matroos (CR 24/2020) [2020] NAHCMD 175 (11 May 2020).
2 S v Stefanus; S v Johannes (CR 20& 21 – 2013) [2013] NAHCMD 74 (19 March 2013);
S v Mbalulu (CR 24/2012) [2012] NAHCNLD 04 (31 October 2012).