S V BARNJUM 1995 (2) ZLR 438 (H)

Criminal procedure (sentence) — statutory offences — Firearms Act [Chapter 10:09] — s 4(1) — possession of firearm — whether forfeiture order is automatic on conviction

Headnote

The accused was convicted of an offence under the Firearms Act involving the possession of a firearm without a certificate. In sentencing the accused the magistrate imposed a fine than was greater than the normal fine because the accused was affluent. He also ordered the forfeiture of the firearm, holding that forfeiture was automatic for this offence.

The accused also pleaded guilty to a charge under the Immigration Act involving the forging of a travel document. The magistrate convicted the accused on the basis of his plea. On review:

Held, that all magistrates must familiarise themselves with the provisions of ss 57(1), 57(3) and 59(1) of the Magistrates Court Act [Chapter 7:10] regarding the procedures relating to forwarding of cases for review. Magistrates must make comments on the reasons given for a request made in terms of the proviso to s 57(1). But if the documents are transmitted under ss 57(3) and 59(1), the magistrate is not required to make comments.

Held, further, that in regard to the charge under the Firearms Act, the magistrate had assessed the fine on a wrong basis and the fine imposed was excessive. The magistrate had also wrongly decided that forfeiture of the firearm was automatic for this offence.

Held, further, that in regard to the charge under the Immigration Act, the magistrate was wrong to convict the accused on the basis of his plea, as it was clear from the agreed statement of facts that the offence with which he had been charged was the incorrect one and that he should instead have been charged with the offence of unlawfully possessing or making use of a travel document issued to another. In these circumstances, the magistrate should have entered a plea of not guilty to the charge.

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