The Constitutional Court (“Con Court”) handed down a judgment last week in the case with the South African Hunters and Game Conservation Association (“the SAHGCA”) which dealt with firearm licenses. The appeal by the Minister of Safety and Security was upheld and the Supreme Court of Appeal’s ruling reversed.
The result of the Con Court’s judgment is that firearms with expired licenses and for which the owner has not timeously applied for renewal, are illegal and the owner may therefore be prosecuted. Such a firearm, once having become illegal, cannot be legalized again and must be handed in to the South African Police Services (“the police”). According to regulations in the Firearms Control Act (“the Act”), the police have the discretion in deciding whether or not compensation will be given for the firearm once handed in. The current compensation rates are R500 for a handgun and R1 000 for a rifle. It is doubtful whether the police will be willing to pay this compensation or whether such a claim for compensation will succeed.
It however remains an open question whether or not the “old green licenses” can ever expire at all. The police believe these licenses have expired, but there is no statutory provision that supports this. If a person was in possession of both a green and new license, he had two valid licenses. If the new license lapsed, we are of the opinion that such owner may have a valid defence against any criminal charge brought against him.
Based on preliminary information, the police are considering granting an amnesty period of a few months. Such amnesty will have to be approved by Parliament, yet the application for such approval is apparently yet to be submitted. If amnesty is approved, illegal firearms must be handed in and the owner thereof will not be prosecuted. The firearm will be tested and if the firearm is found to be linked to a criminal offence, prosecution for that particular offence may be instituted, save for the offence of illegal possession of a firearm.
It is currently uncertain whether an owner of an illegal firearm will be able to apply for a new license for a weapon handed in under amnesty. It is doubtful whether the police will be willing to allow this and neither the Act nor the Con Court's ruling make provision for this.
The result of the Con Court's ruling is, simply put, that any firearm for which the license has expired must be handed in to the police. Where the police will keep these firearms and how they will handle the volume is uncertain, but the idea is that the firearm will eventually be destroyed.
Interest organizations such as the SAHGCA are currently in talks with the police regarding the process moving forward, seeking meaningful solutions to the confusion and uncertainty that the Con Court's ruling may now have sparked. It seems that the police are willing to participate in talks and to find solutions. Certain political parties are also participants to these talks and the FF+ has indicated that they are proposing a bill of amendment by means of a motion from private members to amend the Act and by doing so, address the problem.
The police and the Minister got their way, it remains to be seen whether they have the ability and capacity to perform accordingly. What remains important, however, is that firearm owners must timeously apply for the renewal of their firearm license (i.e. 90 days before the expiration date).
Article by Danie Acker. For further information or enquiries, kindly contact Ferdi Scheepers at 083 772 2777 or via e-mail at firstname.lastname@example.org