IN THE HIGH COURT OF SOUTH AFRICA
 (CAPE OF GOOD HOPE PROVINCIAL DIVISION)

v

JUDGMENT GIVEN THIS FRIDAY, 13 FEBRUARY 2009

CLEAVER J:

[4]	The accused was found guilty of drunken driving, an offence which brings the provisions 	of s 103(1) (j) into operation; namely
"Unless the court determines otherwise, a person becomes unfit to
possess a firearm if convicted of-

a)	

j) any offence involving the abuse of alcohol or drugs,"

"Where the provisions of s 103(1) apply, the Court, if it contemplates overriding the automatic forfeiture of the right to possess a firearm, is required to adjudicate upon the accused's fitness to possess such arm. " 

[8] 	This is not a case where insufficient evidence was put before the magistrate thus indicating that the implications of the section were not understood. The appellant, who was duly represented by an attorney, was in effect asked to place information before the court for an enquiry. He elected not to do so and in the circumstances there was no reason for the court to determine him to be fit to possess a firearm. The fact that the order was made in terms of s 103(2) does not mean that the matter should be referred back to the magistrate. The order can be corrected on appeal.

In the result
1.The conviction and sentence are confirmed.
	2.The determination and declaration in terms of s 103(2) (a) and s 103(2) (b) of Act 60 of 2000 is set aside and substituted with the 	following:
"Determination in terms of section 103(1)
No order of determination is made; the accused is therefore unfit to possess a firearm."

			POTGIETER AJ
I agree,