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An Overview: The Constitutionality of relicencing of firearms in terms of the Firearms Control Act 60 of 2000

An Overview: The Constitutionality of relicencing of firearms in terms of the Firearms Control Act 60 of 2000

  1. Introduction:

South Africa has a comprehensive firearms-control regulatory regime in place which consists of the following:

  • The Firearms Control Act[1] (hereinafter “the Act”), and
  • The Firearms Control regulations.

The abovementioned framework imposes strict substantive and procedural requirements for obtaining the folowing:

  • competency certificate, license, permit, or authorization to possess a firearm;
  • to deal in firearms, or to carry out other firearm-related activities, including running a firearms-training enterprise or a hunting business.[2]

Before these laws, firearms were regulated through the Arms and Ammunition Act[3]. The Act provides for a transitional regime. The purpose of this regime is to migrate the regulation of firearm ownership from the regime created by the Arms and Ammunition Act to the regime created by the Act. This transition caused confusion with regards to the relicensing of firearms.

Sections 24, 27 and 28 of the Act provide a system of automatic periodic relicensing of firearms. The Act specificaly deals with the relicensing of firearms which states that one should apply to the Registrar for a renewal of a licence at least 90 days before the date of expiry.[4] The confusion arose in that there was no requirements to meet once one fails to comply with the 90 day time limit contained in sec 24 of the Act.

During 2016 a judgement was delivered that gave a preliminary light to the cloud of confusion with regards to relicencing of firearms.[5]

  1. Case history and judgment:

In June 2009, the South African Hunters and Game Conservation Association[6] filed two applications against South African Police Services[7] in the North Gauteng High Court to request that some of the regulations in the Act be declared unconstitutional.

The High Court application followed the SAPS’ arbitrary handling of late applications for the renewal of firearm licences. It was the second time that SA Hunters succeeded in legal action in the interest of all firearm owners.

The court also ruled in favour of SA Hunters in the urgent application. The court declared that all licences issued in terms of the old Act (also known as the old green licence) will remain valid until the main application had been dealt with. As a result of the last mentioned thousands of firearm owners escaped criminalisation.[8]

On 4 July 2017 the North Gauteng High Court made a judgement that offers relief to law-abiding firearm owners that simply forgot to renew their licences and that are looking for a sensible process and a fair system to own a firearm and to renew its licence. The court ruled that Sections 24 and 28 of the Act were unconstitutional.

A few weeks later, on 28 July 2017, the SAPS filed an appeal with the Constitutional Court against the Gauteng High Court ruling. Further we await the ruling of the Constitutional Court.

This ruling is not the end of the road to a long and frustrating battle, but merely the beginning towards implementing practical legislation that is in the interest of an individual’s rights to own a firearm.

In the interest of proper legal procedures and the law, SA Hunters advises firearm owners as follows:

  1. ”If your firearm licence is due to lapse, please apply in good time for the renewal of that licence. Complete the application, attach the required documents and submit it to the designated firearms officer at your local police station as required by law.
  2. If you already handed in a firearm to the Police, retain the proof thereof very carefully. Do not ask the Police to return your firearm. They will not do it.
  3. If you are in possession of a firearm of which the licence has lapsed, keep it locked away in your safe.“[9]

[1] Firearms Control Act 60 of 2000.

[2] https://www.loc.gov/law/help/firearms-control/southafrica.php

[3] Act 75 of 1969.

[4] Section 24 of the Firearms Control Act 60 of 2000.

[5] South African Hunters and Game Conservation Association v Minister of Safety andSecurity of the Republic of South Africa (21177/2016) [2017] ZAGPPHC 299

[6]  Hereinafter known as SA Hunters.

[7] Hereinafter known as the SAPS

[8] The main application was never heard due largely to the SAPS not responding to the founding statement.

[9]  http://www.sahunters.co.za/index.php/hunting-jagsake/item/298-concourt-s-review-on-firearms-control-act-set-for-8-february-2018

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