Court name
High Court
Case number
CRIMINAL 20 of 2008

S v Namfolomwa (1) (CRIMINAL 20 of 2008) [2008] NAHC 33 (01 April 2008);

Media neutral citation
[2008] NAHC 33


CASE NO.: CR 20/08
In the matter between:

                  (HIGH COURT REVIEW CASE NO.: 176/08)






Delivered on:    2008-04-01



VAN NIEKERK, J:  [1]      The accused in this matter was convicted by the magistrate, Tsumeb, of unlawfully possessing a fire-arm, namely a shotgun, without a licence in contravention of section 2 of the Arms and Ammunition Act, 1996 (Act 7 of 1996). He was sentenced to a fine of N$1000 or 8 months imprisonment, conditionally suspended for 2 years.



The magistrate failed to comply with the mandatory provisions of section 10(6), (7) and (8) of Act 7 of 1996.




[2]      In the State v Colin L Shanika (High Court Review Case No. CR 78/2004 - unreported judgment delivered on 11 October 2004), the following was said by Maritz, J (as he then was) at p2-3:



"This Court has repeatedly pointed out that if an accused is convicted of such an offence the magistrate is called upon in peremptory terms by s. 10(7) of the Act to-
(a)      bring the provisions of subsection (6) (i.e that by reason of his conviction, the accused is deemed under the provisions therof to be declared unfit to possess an arm) to his attention;
(b)      afford him an opportunity to advance reasons and present evidence why he should not be deemed to be declared unfit to possess an arm.
In addition, the magistrate is required-
(a)      to afford the accused an opportunity to advance reasons and present evidence which may assist the Court in determining the period for which he should be declared unfit to possess an arm in the event that the magistrate might decline to make an order as contemplated in subsection (7);
(b)      to afford the prosecution an opportunity to advance reasons and present evidence in relation to the matters I have referred to earlier:
(c)      to make or to decline to make an order under subsection (7);
(d)      if he or she declines to make an order under subsection (7), to determine in terms of subsection (8) a period (not less than two years) for which the accused shall be unfit to possess an arm.
For the reasons mentioned in earlier judgments handed down on review (compare S v Kashikola Theophilus; S v Nahale Paulus: CR Nos. 149 and 150/2001 dated 17th August 2001) it is also appropriate that sentence should only be imposed after compliance with those requirements except, perhaps the requirements under paragraphs (c) and (d) supra, which may dealt with together with sentence."
[3]      The magistrate, when queried about his failure to comply with these requirements, conceded the oversight and suggested that this Court may alter the sentence. This would of course not be the proper course to follow as it is imperative to first inform the accused and hear him as set out in para [2], supra. Alternatively, the magistrate suggests that the matter be remitted for him to apply the relevant provisions of section 10. This clearly should be done. I therefore make the following order:
1.       The conviction of the accused is confirmed, but the sentence is set aside.
2.       The case is remitted to the Magistrate's Court, Tsumeb, and the magistrate is directed to comply with the provisions of section 10(7), read with sections 10(6) and 10(8) of Act 7 of 1996.
3.       The magistrate is directed thereupon to impose a sentence on the accused in accordance with law, taking into consideration the effect, if any, of the application of the provisions of section 10 of Act 7 of 1996 on the accused.
4.       After imposition of the sentence, the record of the proceedings must be submitted to the Registrar of the High Court for consideration by this Court on ordinary review.



I agree