Police Minister Bheki Cele. Picture: Nigel Sibanda
In a ruling which will be an administrative nightmare for the SA Police Service (Saps), Police Minister Bheki Cele has lost his bid to stop thousands of gun owners whose licences had expired from re-licencing their guns.
Constitutional Court judges upheld the Supreme Court of Appeal’s (SCA’s) finding that the Firearms Control Act contained a mechanism by which a gun owner could regain lawful possession of a firearm as it remained the property of the gun owner.
This means even if a gun owner handed in their firearms to the police after the lapse of the renewal period, the gun owner retains ownership of that firearm.
According to the unanimous judgment, because a gun owner may not have timeously applied to renew their licence within the 90-day period, it did not mean they may not apply for a licence.
The Constitutional Court judges agreed with the SCA that the police ministry’s interpretation of the Act – that gun owners whose licences have expired must buy new guns and apply for new licences – was not sensible.
Fidelity Security Services had earlier approached the high court in Pretoria to force the Saps to renew expired licences of about 700 guns after the police refused to do so.
The case was initially dismissed by the high court, leaving the security company with no other option but to appeal the finding with the SCA or give the guns up for destruction.
The SCA ruled in favour of Fidelity but Cele appealed the finding. The highest court in the land has since upheld the ruling but granted the police minister leave to appeal.
The ruling means thousands of gun owners, whose licences have lapsed and had handed in their firearms to Saps, can apply to licence their guns.
Gun lobby group Gun Owners South Africa has warned that this judgment will not only result in a massive administrative and logistical nightmare but also a legal quagmire for the police.
Chairperson Paul Oxley said they had offered the police a way out of this, by accepting the provision the law makes to extend the period allowed for late renewal, but the police turned down it down.
He said fortunately Fidelity had the finances to fight this in the Constitutional Court and now the Saps sat with a massive administrative and logistical problem.
“They have nowhere to store the firearms and they do not have the capacity to process the paperwork… or the budget. Licence card printing was shut down from end of February to mid-May to allow Saps’ new budget to kick in so they could pay their bill at the Government Printing Works,” Oxley said.
He said there was also an outside chance that Saps may want to prosecute people for being in technically unlawful possession of their firearms, but added that he doubted the prospects of successful prosecution as there was no criminal intent.
Cele’s spokesperson Lirandzu Themba said their legal team still has to study the judgment before making a statement.
Afrikaner lobby group AfriForum welcomed the “ground-breaking” judgment, saying it also confirmed the property rights gun owners possess in respect of their firearms as envisaged in section 25 of the Constitution, irrespective of their licensing status.
Armand Greyling, the organisation’s Legal and Risk Officer, said they were “thrilled” and trust the police minister will issue directives and promulgate regulations timeously to give effect and reflect the judgment.
He said AfriForum has been inundated with queries and complaints from gun owners over the past few years who have had their weapons confiscated and subsequently destroyed by the Saps due to late renewal applications and a clearly incorrect interpretation of the legislation.
“This judgment makes it clear that this practice is now in contradiction with the provisions of the FCA. AfriForum will monitor and place pressure on the minister to clarify the processes to be followed by gun owners to renew their expired licences as a matter of urgency,” Greyling added.
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