CASE NO.: CR 56/2010
NOT IMPORTANT
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
LEANETH GAWANAB
(HIGH COURT REVIEW CASE NO.: 1354/2010)
CORAM: MULLER, J et HOFF, J
Delivered on: 27 September 2010
REVIEW JUDGMENT
MULLER, J.: [1] The accused was convicted of a charge of contravening S 2 of the Arms and Ammunition Act, no. 7 of 1996 (the Act). He was sentenced to pay a fine of N$3000.00, or in default, imprisonment of 1 year.
[2] Together with the review the Magistrate addressed the following letter to the Court:
“Attached herewith, find the above case for review. Please be informed that I have omitted to apply the provisions of Section 10(5) of Act 7 of 1996. I realized this only today whilst preparing the said case for it to be sent on review. I humbly apologize for inconveniences caused by such omission”.
[3] Except that the provision in S 10(5) of the Act is not the applicable provision in the present circumstances, the Magistrate’s submission seems to be correct. The correct provisions seem to be S 10(6) and (7) of the Act. In both instances the Magistrate has discretion to declare the convicted accused unfit to possess a firearm after the accused had the opportunity to convince the Magistrate otherwise.
[4] In the light thereof that the accused is entitled to have an input in this regard, after the Magistrate informed him that he may be declared unfit to possess a firearm for at least 2 years (S10(8)), the matter has to be remitted to the Magistrate to act in terms of the appropriate provisions of the Act.
[5] I am satisfied that the conviction is in order and it will be confirmed. The issue regarding declaring the accused being unfit to possess a firearm for a specified period may be a consideration for imposing a particular sentence. Consequently, the sentence will be set aside and the Magistrate would be entitled to consider the sentence, which he intends to impose, afresh, together with a possible declaration in terms of S 10(6) and (7) of the Act.
[6] In the result the following orders are made:
The conviction of the accused is confirmed;
The sentence imposed is set aside;
The matter is remitted to the Magistrate to impose a sentence and to comply with the appropriate provisions of Act 7 of 1996.
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MULLER, J
I agree
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HOFF, J