Recent Case: Firearms

• Jurisdiction: South Africa
• Pages: 483-492
• Date: 16 August 2019
• Citation: (2018) 31 SACJ 483
• Author: Marita Carnelley
• Published date: 16 August 2019

Firearms

MARITA CARNELLEY

North-West University

1 Introduction

Legal commentary on t he criminal asp ects of the Firearms Cont rol Act

60 of 2000 (FCA) is general ly fractured. With more tha n 90% of the

reported cases resulting from t he FCA being crimi nal in nature, it is

understandable that certai n criminal lega l issues have already received

attention. Three publications should be noted: McKenzie dealt with

the various elements of a s 3-of fence of being in possession of an

unlicensed rear m in ‘S v Mukwevho and the elevation of a “minimum

sentencing fact” to an element of the offence of the unlawful p ossession

of a rearm’ (2014) 131 SALJ 61. Du Toit discussed the prosecutor as

dominus litis in decidi ng the charge the accused should face in terms

of the FCA: s 3 (general prohibitions) or s 4 (prohibited rearms) in

light of S v Sehoole 2015 (2) SACR 196 (SCA): ‘Recent cases: Criminal

procedure’ (2015) 27 SACJ 387 at 387-9. Van der Merwe focused her

article on the sentencing regimes in t he FCA based on three judgments:

S v Swartz 2016 (2) SACR 268 (WCC), S v Delport 2016 (2) SACR 281

(WCC) and S v Motloung 2016 (2) SACR 243 (SCA) in ‘Recent cases:

Sentencing’ (2016) 29 SACJ 363.

The aim of this di scussion is not to repeat these issues, but to

highlight other recent crim inal judgments that have arisen f rom the

FCA. Five aspects are discu ssed: one, the proof required to determine

what constitutes a rearm in ter ms of the FCA (S v Jordaan 2018

(1) SACR 522 (WCC)); two, joint possession of a rearm during the

commission of a crime (S v Makhubela 2017 (2) SACR 665 (CC); Nthuli

v S [2018] 1 All SA 780 (GJ); and S v Ramoba 2017 (2) SACR 353 (SCA));

three, the court enquir y to consider the tness of an accused to

possess a rearm in ter ms of s 103 (S v Horn 2018 (1) SACR 685 (WCC)

and S v Rasena 2017 (1) SACR 565 (ECG)); four, the availability of

estoppel in crimina l proceedings where an earlier court had al ready

made a determination on an factu al issue also relevant to a subsequent

matter (Parkins v S [2017] JOL 37572 (WCC)); and ve, the criminal

law consequences of the retained possession of a previously licensed

rearm where the licence was not timeously renewed in terms of s 24

(Minister of Safety and Security v South African Hunters and Game

Conservation Association 2018 (2) SACR 164 (CC)).

Recent cases 483

(2018) 31 SACJ 483

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