Court name
High Court
Case number
24 of 2012
Title

S v Mbalulu (24 of 2012) [2012] NAHC 284 (31 October 2012);

Media neutral citation
[2012] NAHC 284
Coram
Liebenberg J
Tommasi J












NOT
REPORTABLE






REPUBLIC OF NAMIBIA


HIGH
COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI







JUDGMENT


Case
no: CR 24/2012







In the matter between:







THE STATE







and







JULIUS MBALULU







High Court NLD Review Case Ref No.:
126/2012







Neutral citation: The State
v MBALULU
(CR 24/2012) [2012] NAHCNLD 04 (31 October 2012)











Coram: LIEBENBERG J and TOMMASI
J



Delivered: 31 October 2012











Flynote: Criminal law —
Arms and ammunition — Conviction of crime involving use of
firearm — Section 10 of Arms and Ammunition Act 7 of 1996
peremptory — Accused having to be afforded opportunity by court
to state why he should not be declared unfit to use firearm.







Summary: The accused was
convicted on his plea of guilty on a charge of contravening s 2 of
the Arms and Ammunition Act 7 of 1996 – Prosecution did not
invoke s 10 of Act – Court should do so mero motu –
Provision is peremptory and to afford an accused an opportunity to
advance reasons or lead evidence why he or she should not be declared
unfit to possess an arm.











ORDER











In the result the following orders are
made:








  1. The conviction and sentence are
    confirmed.



  2. The matter is remitted to the
    magistrate in order to comply with the provisions set out in
    subsections (6), (7) and (8) of s 10 of the Arms and Ammunition Act
    7 of 1996.
















JUDGMENT











LIEBENBERG J (TOMMASI J concurring):







[1] The accused appeared in the
Eenhana magistrate’s court and was convicted on his plea of
guilty on a charge of possession of a firearm without a licence in
contravention of s 2 of the Arms and Ammunition Act 7 of 1996 (‘the
Act’) and sentenced to 36 months’ imprisonment of which
24 months’ imprisonment suspended on condition of good conduct.







[2] The conviction and sentence appear
to be in order and will be confirmed on review.







[3] When the matter came before me on
review I directed a query to the magistrate enquiring from her why
she, in view of the accused’s conviction, failed to comply with
the provisions of subsecs 6, 7 and 8 of the Act (there was a
typographical error and it should have read) s 10 (6); 10 (7) and 10
(8) of the Act. The aforementioned subsections of s 10 provide that a
person convicted of being in possession of an arm without the
required licence (s 2) is deemed to be declared unfit to possess an
arm unless the court determines otherwise (subsec (6)(a));
that the provisions of subsec (6) should be brought to the attention
of the accused and afford him or her the opportunity to advance
reasons and present evidence why such person should not be declared
or deemed to be declared unfit to possess an arm (subsec (7)); and
that the court may declare such person unfit to possess an arm for a
period fixed by the court, but which period may not be less than two
years (subsec (8)).







[4] The prosecution did not invoke the
provisions of these subsections once the court convicted the accused
and by failing to do so, the court should mero motu have done so. See
S v Titus 2011 NR 109 (HC).







[5] The magistrate now concedes that
she omitted to comply with the provisions set out above and requests
the court to remit the matter for compliance with s 10 of the Act.
Whereas the relevant subsections of section 10 are in peremptory
terms, the magistrate’s proposal is properly made.







[6] In the result, it is ordered:








  1. The conviction and sentence are
    confirmed.



  2. The matter is remitted to the
    magistrate and she is directed to give effect to the provisions set
    out in subsections (6), (7) and (8) of s 10 of the Arms and
    Ammunition Act 7 of 1996.























________________


JC
LIEBENBERG


JUDGE








________________


MA
TOMMASI


JUDGE