June 18, 2018

No licence? No firearm

On 4 July last year, Judge Tolmay of the Gauteng North High Court in Pretoria ruled in favour of South African Hunters and Game Conservation Association’s (“SA Hunters”) application, declaring sections 24 and 28 of the Firearms Control Act (Act 60 of 2000) unconstitutional.

Section 24(1) of the Act required for the renewal of a firearm licence, an application must be brought to the Registrar at least 90 days before the expiry date of the existing licence.

Section 28 set out four different scenarios in which a licence will terminate:

  1. Expiration of a licence
  2. Voluntary surrender of a licence
  3. Declaration by the Registrar or a Court that the holder of a licence is unfit to hold a firearm
  4. Cancellation of a licence

Even though sections 102 and 103 of the Act provides for procedures to safeguard proper process in situations where a person is declared unfit to hold a firearm, no similar provisions exist when a firearm licence expires.

The High Court found these two sections to be constitutionally invalid, stating that these provisions were irrational and vagueand that the absence of a proper procedure for the surrender of a firearm after the license lapsed was a violationof the right to property in terms of section 25 of the Constitution.

Judge Tolmay ordered that all firearms issued in terms of the Act that are or were due to be renewed shall be regarded valid until the Constitutional Court considered matter.

The Minister of Police appealed against this ruling while SA Hunters applied for the confirmation of Judge Tolmay’s ruling in the Constitutional Court.

Both applications were heard on 7 February 2018 and on 7 June 2018 the Constitutional Court made its ruling and handed down a unanimous judgment written by Justice Johan Froneman.

In the written judgment, it was stated that the purpose of the Act is broad and Section 3 prohibits an individual to hold a firearm without a valid licence. As it is a criminal offence to hold a firearm without a valid licence, any person found guilty of such offence may be fined or imprisoned for a period of up to fifteen years. The argument that the Act was irrational and vague was rejected outright; the Constitutional Court found that sections 24(1) and 28 were clear. The licencing process exists to accomplish lawful possession of a firearm and the fact that non-compliance of this process results in unlawful possession and criminalisation, was not irrational at all.

The Constitutional Court further found that the absence of a proper procedure for the surrender of a firearm after the license has expired was not a violation of the right to property in terms of section 25 of the Constitution, as a compensation regime is contained in the Act for surrendered firearms; the Court stated that “Even if the balancing exercise required in terms of the Court’s jurisprudence on section 25 had to be undertaken, it is clear that relinquishing some incidents of ownership in a potentially life-threatening firearm is not too great a price to pay for enhancing the constitutional rights to life and bodily integrity.”

The outcome of this judgment is quite clear: to own a firearm is not a fundamental right, but rather a privilege regulated by the Firearms Control Act. Accordingly, all firearm owners whose licences have expired are ordered to surrender their firearms to the SAPS immediately. Vishnu Naidoo, the national police spokesperson welcomed the ruling and said that those who fail to surrender their firearms will be arrested.

 

Almie Fourie
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