S v Upora (Case No. CR 64/08) [2008] NAHC 61 (24 June 2008);


Full judgment

CASE NO. CR 64/08


In the matter between:



                           (HIGH COURT REVIEW CASE NO.: 1181/07)

CORAM:            MAINGA, J. et MANYARARA, A.J.

Delivered on:    2008.06.24


MANYARARA, A.J.:        
[1]      In this case the magistrate convicted the accused, firstly of dealing in cannabis in contravention of section 2(d) of Act 41 of 1971 and, secondly of possession of a firearm without a licence in contravention of section 2 of Act 7 of 1996.

[2]      On the first count, the magistrate sentenced the accused to N$2000-00 or one year imprisonment and, on the second count to N$1000-00 or six months imprisonment.

[3]      The convictions are proper and they are hereby confirmed. The sentence on count 1 is also proper but the sentence on count 2 appears to be manifestly lenient because the sentencing provision of Act 7 of 1996, section 38(2)(b)(ii) provides for a maximum fine of N$40 000-00 or ten years imprisonment or both such fine and imprisonment. In my view the provision indicates that the legislature takes a serious view of the offence relating thereto. For the reasons to be canvassed, it is late in the day to interfere with the sentence and it is allowed to stand. A further issue arising from the record of the proceedings is that the Reviewing Judge had also requested a record of the enquiry conducted in terms of section 10(6)(a) and (7) of Act 7 of 1996 (the Act). The reason for the request is that the only note of the enquiry is as follows:
Section 10 Act 7 of 1996 explained ‘I stay in reservation area. I cannot stay without rifle need it for protection’ (sic).”

[4]      The reply received from the Clerk of Court was simply that the magistrate dealing with the matter is currently on suspension “and therefore unable to attend to the matter”. The implication is that the accused was allowed to keep the firearm.

[5]      Be that as it may, the offence of which the accused was convicted is possession of a firearm without a licence. The effect of allowing him to keep the firearm is actually to permit him to continue committing the offence of possessing the firearm without a licence which is clearly not within the power of the Court to do. The magistrate was obliged to declare the firearm forfeited to the State.

[6]      Accordingly, the order now made is that:

The firearm in question is declared forfeited to the State forthwith; and
The accused is declared unfit to possess a firearm for a period of two years from today’s date. The Court a quo is directed to put this order into effect immediately and advise the accused accordingly.

[7]      Subject to the above order, the proceedings are confirmed.


I agree