All you need to know about your rights pertaining to firearms
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It seems that uncertainty still exists among members of the public regarding their rights pertaining to firearms.
For convenience, we refer to licences issued under the previous Arms & Ammunition Act (Act 75 of 1969) as “green licences” and licences issued under the Firearms Control Act (Act 60 of 2000) as “white licences”.
It should also be noted that certain green licences were simply pasted into old identity books without a licence card being issued. If it is indicated on the licence that it was “issued in terms of the Arms & Ammunition Act, 75 of 1969”, it is also a green licence.
• Scenario one: White licences which have expired where the owner does not possess a green licence.
Regarding this scenario, take note of the following:
The judgment of the Constitutional Court on June 7, 2018, (which deals with the constitutionality of renewal of white licences) is very clear that white licences which have expired, are “dead” and cannot be renewed.
Someone who only has a white licence for a firearm, which licence has expired, is thus in unlawful possession of such firearm.
It is, therefore, a criminal offence to be in possession of a firearm without a valid licence for the possession thereof.
It should be noted the police have not yet arrested people for unlawful possession of firearms (of which the licences have expired) and nobody has (as far as we know) been prosecuted in this regard.
The police are clearly still considering what to do but the possibility does exist that such steps may be taken in future.
Police have recently, subsequent to the Constitutional Court judgment, issued comprehensive instructions according to which firearms can be surrendered to their SAP 13-store for destruction.
If you do this, you must accept that you will not be compensated for the firearm and that you will not be allowed to re-apply for a licence for that firearm. Nobody who has surrendered a firearm for destruction has (as far as we know) been prosecuted for the illegal possession of a firearm.
There have for the past year been indications that an amnesty regarding firearms will be declared. It is probable that such amnesty will make provision that persons whose licences have expired, will be given the opportunity to re-apply for a licence for the particular firearm.
Nothing in this regard is sure and anyone who chooses to wait on an amnesty does so at his or her own risk.
Such firearms cannot be sold or handed in to a dealer. The choice at this stage is that you retain the firearm unlawfully with the risks involved, in the hope that an amnesty will bring relief; or that you surrender the firearm and the ammunition in respect thereof to the police for destruction.
Anyone therefore with a valid white licence must ensure that he applies for the renewal thereof at least 90 days before the expiry (and if necessary, the competency certificate applicable to such firearm).
It is advised to inspect all your licences immediately and especially confirm the expiry date of your self-defence (section 13) firearm, which licence is valid for five years only.
• Scenario two: Firearms which have only green licences and never migrated to white licences.
Take note of the following:
The recent case in the Constitutional Court is in no way applicable to green licences. The interim court order determines that all licences issued under the Old Act remain valid until that case is finalised. The case is still pending and therefore the order remains valid.
Everyone, including the police, accepts that green licences (which have not been migrated to white licences) are still valid and that the owner of such firearms may, therefore, use it for sport shooting, hunting or self-defence and may even sell such firearms.
• Scenario three: White licences which have expired, where the owner does have a green licence for the same firearm.
Our opinion is that all green licences (irrespective of whether the owner took part in the transition between the Old Act and New Act), remain valid in light of the court order.
Uncertainty arose after former acting police commissioner Lieutenant General Khomotso Phahlane, during February 2016, sent a circular to the police wherein he stated that green licences which took part in the transition process from the Old Act to the New Act (“migrated”) are no longer valid.
Simply put, his stance is that, once you have been issued a white licence in respect of a firearm for which you also have a green licence, the green licence’s validity terminates and only the white licence is then valid (and will expire after a certain period of time).
As a result hereof, we obtained a written legal opinion from Adv Herman van Eeden SC, in order to ascertain how the court order must be interpreted.
His opinion, in short, is that a firearm owner’s green licence (which licences do not have an expiry date) remains valid despite the fact that the owner took part in the transition process (since the provision in the New Act, which determines that green licences would have expired on June 30, 2009, has been suspended by the court case challenging the constitutional validity of the transitional provisions).
The effect is that such firearm owners actually have two licences for the firearm. If the white licence has expired due to not being renewed, the owner still has a green licence, which remains valid.
The practical problem is that the police’s computer system is set up in a manner which does not allow a firearm owner who has “migrated” to the white licence system, to sell such firearm or hand it in to a dealer using the green licence.
One must differentiate between the lawful possession of a firearm and the lawful disposal thereof. The fact that you cannot in practice sell the firearm, does not mean that you are in unlawful possession.
Our view is therefore that when there are threats from the police that someone whose white licence has expired, is according to the police, in unlawful possession and at risk of prosecution, such person does not in our opinion have to hand in his firearm for destruction if he has a green licence for such firearm.
• Competency certificates.
We point out that the New Act provides that you must have a competency certificate before you may apply for a firearm licence. Your competency certificate is valid for the duration of your firearm licence. If your licence has expired, the possibility exists that your competency has also expired.
If you, however, have more handguns, of which one licence is valid for five years and others for 10 years, your competency certificate for the possession of handguns will remain valid until the expiry date of the last licence in that class.
If you are indeed planning to wait for an amnesty, it is important to apply for a new competency certificate now.
Article compiled by Juan Kotze Attorneys. Contact them at juan@therescueshop.co.za or francois@the rescueshop.co.za for assistance.
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