Sections of Firearms Act declared unconstitutional

The High Court in Pretoria has declared Sections 24 and 28 of the Firearms Control Act unconstitutional and gave parliament 18 months to amend the Act.

Judge Ronel Tolmay ruled in favour of the SA Hunters’ Association that all firearm licences issued in terms of the Firearms Control Act which were due to be renewed in terms of the Act would be deemed to be valid until the Constitutional Court had ruled on the constitutionality of the sections.

The association turned to the court for relief because of the chaos and uncertainty that reigns pertaining to various aspects relating to firearm administration.

The association in 2009 obtained an urgent interim interdict declaring all licences issued in terms of the old Act to remain valid, pending an application to have certain provisions of Schedule 1 of the Act declared unconstitutional.

This was to prevent criminalisation of firearm owners who did not apply for the renewal of their licences in time.

Negotiations which followed led to the publication of a Draft Firearm Control Amendment Bill in 2015, which would have addressed the Association’s concerns about the Act, but the bill was never introduced in parliament.

Judge Tolmay said one could safely assume that, but for the failure to introduce the Bill to Parliament, the association’s constitutionality application would not have seen the light of day.

She said it was rather unfortunate the court was forced to entertain a matter which could have been resolved by introducing the proposed bill and the legislature dealing with it according to its processes.

The draft Bill pointed to an acknowledgment by the police minister that the Act posed serious problems and should be amended and the minister’s opposition to the court application was therefore “rather perplexing”, she added.

It would seem that despite various meetings, workshops and summits since at least 2010, very little was achieved to ensure a properly functioning system.

The then Police Minister Nathi Nhleko in 2015 admitted the Central Firearms Registry (CFR) was “dysfunctional and in constant decay”.

Judge Tolmay said the minister had no rebuttal for the association’s evidence that different branches of the police in different parts of the country were issued with different directives and some were contradictory. The directives were then withdrawn when complaints were lodged, leaving firearm owners in a state of confusion about their obligations.

“It can be accepted that chaos reigns in firearm licensing and administration. The state of affairs is highly unsatisfactory and results in a dysfunctional system of firearm licensing and control,” she said.

Section 24 of the Act provides that firearm licence holders have to apply for renewals at least 90 days before the expiry date, but the association argued that it was almost impossible to meet the requirements of legality once one failed to comply with the 90-day limit as there was no provision in the Act for late applications – not even if there were legitimate reasons.

Judge Tolmay said the Act made no provision for a situation where the licence had expired due to the effluxiation of time and such people were not granted due process, nor any manner in which they could bring themselves back within a scheme of legality, nor was there any clarity as to how they should the surrender the now unlicensed firearm.

She said it was clear that there was no proper procedure to effect surrender of a firearm where a licence came to an end by the effluxion of time, nor was there any regime created under which one could surrender it for value, which impacted on the property rights of firearms owners and violated the constitutional protection of property rights.