Court name
High Court
Case number
13 of 2012
Title

S v Nengongo (13 of 2012) [2012] NAHC 167 (27 June 2012);

Media neutral citation
[2012] NAHC 167
Coram
Smuts J
Geier J














11












CASE NO.: CA 13/2012



IN THE HIGH COURT OF
NAMIBIA







In the matter between:







MATHEUS NENGONGO
…..............................................................................APPELLANT







and











THE STATE
…...............................................................................................RESPONDENT















CORAM: SMUTS, J et
GEIER, J







Head on: 22 June 2012



Delivered on: 27 June 2012











JUDGMENT















SMUTS, J.: [1] The
appellant was charged with and convicted of contravening s 38(1)(j)
of the Arms and Ammunition Act, 7 of 1996 (the Act) - of failing to
safeguard a fire arm his lawful possession - in the Magistrates’
Court in the district of Windhoek on 20 September 2011. The District
Magistrate sentenced the appellant to a caution and discharge and
found that the appellant should not be deemed to be declared unfit to
possess a fire arm under s16 of the Act. Dissatisfied with his
conviction, the appellant appealed against it.







[2] The appellant is represented by Mr
Nekongo and the State by Mr Marondedze. In Mr Marondedze’s
heads of argument, the State took issue with the sentence imposed by
the Magistrate and submitted that it should be substituted by a more
appropriate sentence. When the matter was set down on 28 May 2012,
this court also gave notice to the appellant through his legal
representative of an intention to increase the sentence if the appeal
were not to succeed. The appeal was then postponed to 22 June 2012 to
afford the appellant an adequate opportunity to address that aspect.







[3] On 15 June 2012 the appellant
sought to withdraw his appeal by way of a notice dated 14 June 2012.
In view of the notice given by this court of an intention to increase
sentence, this attempt to withdraw the appeal is not competent by
reason of the provisions of s309 of the Criminal Procedure Act, 51 of
1977. At the hearing of this appeal Mr Nekongo accepted this.







[4] At issue in this appeal is whether
the appellant was correctly convicted and, if so, whether the
sentence should be interfered with.







[5] The appellant was legally
represented (by Ms A. Angula) at the trial. He pleaded not guilty to
the charge. Most of the facts were not in issue.







[6] At the trial, the appellant
testified that he is an instructor in the Namibia Defence Force (NDF)
with the rank of sergeant. He was at the time based at the Military
School near Okahandja. Whilst off duty over a long weekend, he
travelled to Windhoek and went with a friend to a bar in Katutura.
Whilst there, his friend (who did not testify) apparently asked the
appellant for his car keys to collect some money from the car. The
appellant also went to his car whilst at the bar to collect his cell
phone charger. It was in his bag in the boot of his car. He testified
that he took the bag from the boot and placed it inside the car when
gathering his charger, and then returned to the bar.







[7] When the appellant later left the
bar, the appellant noticed that his bag had been stolen. There were
no signs of a break-in. The appellant testified that his driver’s
door was locked and speculated that it was possible that keys could
be manufactured which could open the doors of his car. Inside his bag
was his pistol. He testified that the pistol was in a small safe
(inside the bag).







[8] The appellant proceeded to the
Wanaheda Police Station to report the theft of the bag which included
the theft of the firearm. When doing so, he was charged with
contravening s38(1)(j). This subsection provides:



Any
person who –



Fails to lock away an arm in his or
her lawful possession in a strongroom or other place of safety or
safe, device, apparatus or instrument for the safe-keeping of an arm
referred to in section 3(8) when such arm is not carried on his or
her person or is not under his or her direct control.”







[9] This provision refers to 3(8)
which is to the following effect:



A licence
in terms of subsection (1) and an authorization in terms of
subsection (4) shall only be issued to a person if he or she is, or
will be, on the date that it is so issued to him or her, in
possession of or has access to such strong-room or other place of
safety or safe, device, apparatus or instrument for the safe-keeping
of an arm as may be prescribed.”







[10] The appellant acknowledged in his
testimony that he was acquainted with the law governing possession of
firearms. He stated that a firearm must be kept in a safe or properly
on his person. He considered that he met this requirement because the
firearm was in a safe. The appellant’s case at the trial was
thus that it was sufficient for him to have the firearm in a portable
safe inside his car. He said that the firearm was secure in his car,
even though he had provided his car key to his friend. He testified
that the safe was roughly A4 size and was not too heavy to be carried
around. It was thus portable. The appellant was not cross-examined
about why he had not placed the bag back into the boot of his car.
Nor was he cross-examined as to why he would carry around his firearm
in a safe which was portable in the context of the underlying purpose
of safe-keeping. He also testified that his vehicle did not have an
alarm. Nor did he state that it had an immobiliser.







[11] The appellant’s legal
representative at the trial argued that it was not contested that the
pistol was in a safe and that s38 was thus not contravened. That
argument was initially persisted with on appeal in the appellant’s
heads but underwent a change in oral argument before us, as I set out
below. The presiding magistrate rejected that approach and found that
the appellant’s car was not a place of safety for a firearm and
convicted the accused. Despite being referred to the prescribed
sentences for a contravention of s38(1)(j) – being a fine not
exceeding N$12 000 of 3 years imprisonment or both for a first time
offender, the magistrate sentenced the appellant to a caution and
discharge. The magistrate was also alerted to s10. As I have said,
the magistrate proceeded to find that the deeming provision contained
in that section should not apply. Neither the prosecutor nor the
appellant’s representative in the court below referred the
magistrate to the provisions of regulation 26 of the regulations
promulgated pursuant to the Act, it provides:



(1) For
the purposes of section 3(8) of the Act the safe which shall be used
for the storage of an arm shall comply with the requirements of
regulation 5(2) (d) (i).



(2) The safe which is referred to
in sub regulation (1) shall –



(a) be affixed to the immovable
part of the building where the arm is to be kept; or



(b) if the safe is to be installed
in a vehicle, it shall be fitted in such a manner that it is not
conspicuous from outside the vehicle and the applicant must produce a
written document from the person who installed the safe and the
document must contain –



(i) the date of installation;



(ii) the name and address of the
installer;



(iii) the registration number,
engine and chassis number and make of the vehicle; and



(iv) a statement that the vehicle
is fitted with an immobiliser.”







[12] This regulation prescribes the
requirements a safe must meet in order to satisfy the requirement of
safe keeping a firearm posited by s3(8) for those possessing
firearms.







[13] In his oral argument, Mr Nekongo
correctly accepted that the appellant’s safe did not meet the
requirements of the Act, read with the regulations. He however
submitted that the appellant’s motor vehicle was a “place
of safety” as contemplated by the Act and that his conviction
could not stand.







[14] In examining this question, the
term “place of safety” found in s38 and s3 (8) is to be
construed within the context of the Act considered as a whole.







[15] At the very outset of the Act,
and after the definitions section, is s2. It creates an offence to
possess a firearm unless in possession of a licence to do so. This is
the cornerstone of the Act as reflected in the statutory intention as
stated in its long title:



to
provide for control over the possession of arms and ammunition, to
regulate the dealing in, importation, exportation and manufacture of
arms and ammunition...”







[16] The licencing regime brought
about by the Act is central to furthering this statutory purpose. A
key condition and pre-requisite for a licence, as stated in s3(8), is
to have access to “a strong room or other place of safety or a
safe, device or apparatus or instrument for the safe keeping of an
arm as may be prescribed.” The Act establishes a fundamental
duty upon those seeking to lawfully possess a firearm (by means of a
licence) to keep that firearm in a safe and secure place when not
being carried on his or her person.







[17] In furtherance of the Act and its
statutory intention, the Act creates a range of offences in s38.
Subsection 38(1)(j) makes it clear that when a firearm is not
properly carried on a person or is not under a person’s direct
control, an offence is committed if such a person fails to lock it
away in a strong-room or other place of safety or safe, device or
apparatus or instrument for the safekeeping of an arm referred to in
s3(8). The purpose of thus locking it away is for the safekeeping of
a firearm to avoid the obvious harm of it coming into the wrong
hands, as I further stress below.







[18] Despite being alerted to the fact
that this requisite may be prescribed and the reference to s3(8) in
s38(1)(j), the prosecutor and defence counsel did not at the trial
refer to the way in which this has been prescribed under the power to
regulate under s42 of the Act







[19] The duty upon licencees to
properly lock away or seure their firearms for the purpose of
safekeeping is further demonstrated by s38(1)(k) which makes if an
offence for a licencee to lose a firearm or from whom one is stolen
if either event is owing to the licencee’s failure to lock away
the firearm as required by s38(1)(j) or to take reasonable steps to
prevent the loss or theft. In a prosecution under s38(1)(k), s 39(2)
provides for a presumption that, upon proof of the loss or theft of a
firearm:



...(I)t
shall be prima facie evidence that –




  1. such arm has been lost, stolen, if
    it is proved taht the accused failed to produce the arm at the
    request of a member of the Police and that he or she was unable to
    furnish such member with a reasonable explanation as to such failure



  2. the loss or theft is due to –





  1. the accused’s neglect to
    lock the arm away as contemplated in paragraph (j) of section 38(1);
    or



  2. his her neglect, while the arm was
    on his or her person or under his or her direct control, to take
    reasonable steps to prevent the loss or theft thereof.








[20] Whilst the appellant was not
charged under this subsection, it serves to demonstrate the
importance of the duty of safekeeping of firearms and the centrality
of that duty to the overall purpose of the Act to control firearms.







[21] It is clear that the keeping of
the firearm in a portable safe did not meet the requirements of
s38(1)(j) re3ad with s3(8), as amplified by the regulations. Mr
Nekongo in argument correctly conceded this. The defence based upon
the firearm being in a safe thus does not avail the appellant. Mr
Nekongo however contended that its presence in the appellant’s
car was place of safekeeping contemplated by the Act and thus
constituted a defence to the charge. The vehicle did not have an
alarm. It may also not have been properly locked and, as stated by
the appellant, it may have been accessible by others with similar
keys.







[22] The regulations promulgated
further prescribe the type of safekeeping contemplated by s3(8) when
it comes to fitting a safe in a vehicle. Had the regulations intended
that the mere placement of a firearm in a vehicle would meet the
requirement of a place of safe keeping, the further regulations
prescribing the nature and manner of fitting of safes in motor
vehicles would not have been necessary. The statutory intention to be
evinced from the Act and regulations is in my view that when a
firearm is in a vehicle without being carried on a person or under
his or her direct control, then it is to be in a safe fitted to the
vehicle as prescribed. It is common cause that this was not the case
in this matter. But even if I were to be mistaken in this regard, it
is also clear to me that the mere placing of his firearm in his car
in a bag in the circumstances of this matter, does not meet the
requirement of safe keeping contemplated by that subsection construed
in the context of the Act.







[23] The appellant had after all
removed the bag in which the firearm was contained from the boot and
placed it inside the vehicle where the bag would have been visible.
He also provided access to the vehicle to a friend and testified that
he was aware that keys could be manufactured or obtained which could
have access to his car. Furthermore, he had parked the vehicle in a
public place – and not a secure place – at a public bar
at night. This Court can also take judicial notice of the high
incidence of theft from parked vehicles in public places, as
frequently occur in the number of matters of that nature which serve
before this court in automatic reviews. Most tellingly, there were no
signs of any break-in on the appellant’s motor vehicle. Plainly
the mere presence of the firearm in the appellants motor vehicle in
these circumstances does not meet the statutory requirement of a
place of safety for the safekeeping of the firearm.







[24] It follows that the appellant was
correctly convicted of contravening s 38(1)(j), and that the appeal
against conviction must fail. What remains is the appellant’s
sentence.







[25] I have already referred to the
statutory intention in having a licencing system to control the
possession of firearms. There is plainly a compelling public interest
to ensure that those who are granted a licence to possess a firearm
must meet the stringent requirements regarding its safekeeping, lest
it fall in the wrong hands. The deleterious consequences of laxity in
the possession of firearms which then are obtained by criminals or,
for that matter, even children, are self evident. This is
demonstrated by the facts of this case. The appellant’s
contravention has resulted in a criminal or criminals possessing that
firearm, given that it was stolen. This in turn has the real risk of
exacerbating the incidence of crime, and especially serious crime
involving the use of firearm. That in turn has the obvious potential
of grave and possibly even fatal consequences.







[26] The legislature, appreciative of
the potentially serious consequences of contraventions of s 38,
provided for appropriately severe penal provisions, with a maximum
fine of N$12 000 or 3 years imprisonment or both for a first
offender. Furthermore the legislature also visited a contravention
with a further potential consequence by empowering the court upon a
conviction to declare an accused unfit to possess a firearm in the
future. These provisions thus amply demonstrate the seriousness of
this offence. Yet the magistrate, with little motivation, merely
sentenced the appellant to a caution and discharge. The single factor
she referred to in passing this extraordinary sentence was the fact
that the firearm was stolen. But that is precisely the evil which the
Act and s38 seeks to prevent, namely firearms being stolen and thus
falling into the hands of criminals because of the failure to
properly safeguard firearms by persons in the position of the
appellant. It is clear to me that the magistrate comprehensively
misdirected herself in doing so, by failing to appreciate the
seriousness of the offence and its potential consequences. It follows
that the sentence must be set aside and substituted by a more
appropriate sentence.







[26] The magistrate’s enquiry
under s10 would also seem to me to have been inadequate. But it would
appear that she had applied her mind to the section, having been
alerted to it by, taking into account the appellant’s
employment as an instructor in the NDF. As this is a relevant factor,
it would indicate that her discretion was exercised in deciding not
to make a declaration under the section. I would however have
expected the magistrate to have dealt more fully with this important
provision in her judgment. In my view it is incumbent upon a court
when convicting a person under s38 to make the appropriate enquiry
and duly apply the mind to s10. This should appear from the judgment
of the court. Even though this was not fully dealt with by the
magistrate, it would appear, as I have indicated, that the magistrate
did apply her mind to s10 even if perfunctorily in her judgment.
Having considered relevant matter, being the appellant’s
employment, I am not inclined to substitute the finding made by the
magistrate to invoke s10 against the appellant.







[27] In the result, the appeal against
conviction is dismissed and the sentence imposed upon the appellant
is set aside and substituted with a fine of N$3000.00 or three months
imprisonment.































__________



SMUTS, J







I concur











____________



GEIER, J



















































































































ON BEHALF OF THE APPELLANT: MR.
NEKONGO







Instructed by: SISA NAMANDJE &
CO. INC.























ON BEHALF OF THE RESPONDENT: MR.
MARONDEDZE







Instructed by: OFFICE OF THE
PROSECUTOR-GENERAL