Expired gun licences in breach of law – Supreme Court rules

Hundreds of thousands of gun owners around the country could be forced to hand in their arms after a high court order – which has for the past two years allowed them to hang onto their weapons despite their licenses having lapsed – was shot down by the Supreme Court of Appeal.

An attorney Martin Hood, who specialises in firearms law, said the judgement effectively places gun owners whose licenses have expired in breach of the law.

“And the court has basically instructed the police to do something about all of those firearms,” Hood said.

With a proposed new firearms amnesty from 1 August yet to be approved by parliament, Hood said the situation for gun owners
was now “very serious”.

SA Police Service (Saps) spokesperson Brigadier Vishnu Naidoo, however, says the police are not looking to criminalise large swathes of the population.

He said yesterday a way forward would be communicated “soon” but that there would likely be a measure of leniency and parliament’s decision on the new amnesty would also come into play.

The judgement comes on the back of an ongoing battle between Gun Owners South Africa (Gosa) and government over the system of firearm licensing and renewal.

In July 2018 – amidst what it described as “chaos” within the system – Gosa secured an urgent interdict against the police, which effectively put a moratorium on the seizure of firearms for which the licenses had expired.

The police were, however, granted leave to appeal the urgent interdict to the Supreme Court of Appeal.

The appeal was heard in May, with Judge Ashton Schippers delivering his ruling late last week. Schippers found the high court had erred and that Gosa had never made out a case for an urgent interdict in the first place.

The group’s case centred on what it labelled a “concession” on the part of the police, that they did not have the capacity to administer the current system of firearm licensing and renewal.

This, Gosa argued, had given rise to a “legitimate expectation” that licenses would be extended. But, Schippers said, this was “neither reasonable nor legitimate”.

“A concession by the relevant authorities or the Saps of incapacity to administer the act, cannot, by any stretch of the imagination, be regarded as a representation, let alone a clear and unambiguous one, that firearm licences – valid only for a limited period under the act – would be extended,” he said.

“What is more, the so-called legitimate expectation is not one that is lawful or competent for an authorised functionary to make. When a firearm licence terminates…it comes to an end by the operation of law.”

The judge described the contents of Gosa’s founding papers as “bald and generalised assertions” and “simply conclusions, with no factual or evidential basis”.

He said the predicament those who had neglected – or refused – to renew their licenses now found themselves in, was “of their own making”.

“What Gosa had sought was the suspension of a central pillar of the act,”

Schippers said: “During that suspension, the administration and enforcement of the act would be fundamentally undermined; the Saps would be prohibited from demanding or accepting the surrender of firearms with expired licences; and lethal weapons would be left in the hands of persons, some or many of whom are no longer competent or capable of handling guns safely”.

Gun Free South Africa – which made representations in the case as amicus curiae – has welcomed the judgement.

“The judgement obliterates the main relief pursued by Gosa, which sought a return to the apartheid era’s permissive Arms and Ammunition Act that facilitated firearm ownership, without real checks and balances,” Adèle Kirsten, GFSA director, said.

“This flies in the face of accepted international norms on gun control”.

– bernadettew@citizen.co.za

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