Constitutional Court Judgement on SAPS Appeal on SA Hunters – download HERE
Statement by Martin J Hood – 7th June 2018
The Constitutional Court, in dismissing the application of SA Hunters and Game Conservation Association, upheld the constitutionality of Sections 24 and 28 of the Firearms Control Act. This means that you are compelled to relicence your firearm in terms of Section 24 and if you fail to do so, the possession of your firearm is illegal and you are criminalised.
The Judgment of the Constitutional Court is short, simple and to the point. It is also a final Judgment and any criticism of the Judgment is of no purpose or consequence.
What we need to consider now, is the consequences of the Judgment and if you have an expired licence, and what you can do.
The Constitutional Court ruled that the life of your licence is finite as determined by the Act and if you do not renew the licence, your licence terminates, the firearm becomes illegal and possession thereof is criminalised i.e. you become a criminal. The Constitutional Court pointed out, however, that if you intend to surrender the firearm to the police on an expired licence, you cannot be prosecuted, because handing in the firearm is a solution to the illegal possession. Froneman J specifically stated “I can see no legal obstacle to hand in a firearm over to the police after termination.” (of the licence)
This means that the safest most precautionary approach to take, is to surrender your firearm to the police for destruction if you have an expired licence.
The other alternative, which comes without any guarantees at this stage, is to wait for the proposed amnesty that the police are busy trying to finalise and put before Parliament and apply for a licence in terms of such amnesty. This comes, however, with some potential risks inasmuch as your possession of a firearm on an expired licence remains illegal until you have handed it in to the police and applied for an licence in terms of the amnesty.
Under no circumstances and as a result of this Judgment, should anybody with an expired licence carry and/or use their firearm until they have been granted a licence in terms of the proposed amnesty.
In summary therefore you can:
1) Immediately surrender your firearm to the police for destruction and avoid being criminalised; or
2) You can keep your firearm, not use it or carry it and wait for the proclamation of the amnesty to surrender your firearm in terms of the amnesty and to apply for a licence in terms of the amnesty.
I do not know exactly when the amnesty will be proclaimed.
The Judgment does not change the status of green or old Act licences which remain valid.
Statement by SA Hunters and Game Conservation Association
MEDIA RELEASE: Constitutional Court ruling on renewal of firearm licences
8 June 2018
SA Hunters will continue discussions with SAPS for pragmatic approach to firearm legislation
The SA Hunters and Game Conservation Association (SA Hunters) will continue discussions with the SAPS and other authorities to find practical and reasonable solutions for the administrative problems that legal firearm owners experience with the firearm licensing process.
The Association is disappointed that the Constitutional Court judgement on 7 June 2018 overturned Judge Ronel Tolmay’s ruling in the North Gauteng High Court in 2017, when she had declared Sections 24 and 28 of the Firearms Control Act unconstitutional.
The Concourt ruling brings no relief for the estimated 300 000 firearm owners that merely forgot to renew their firearm licences in time. It forces these owners to hand in their firearms at their police stations to be destroyed. The current law makes no provision for these people to renew their firearm licences.
SA Hunters CEO, Fred Camphor, said the Constitutional Court focussed on the constitutionality of Sections 24 and 28 of the Act, while it did not seem to consider the other limitations and difficulties associated with act. “Although the court acknowledged the chaotic administration and management of the Act, no remedy was offered to address any of the problems that firearm owners experience.”
SA Hunters’ case regarding the unconstitutionality of Sections 24 and 28 of the Firearms Control Act, or parts thereof, rested on the following three principles.
- The Act is irrational and vague in terms of the principles and process of relicensing.
- Unequal treatment existed among gunowners.
- Contravention of the property clause in the Constitution.
The Constitutional Court judges rejected all three these principles and ruled that Sections 24 and 28 were not unconstitutional.
The legal battle between SA Hunters and SAPS follows on many years’ frustration and problems among firearm owners about the renewal of firearm licences and uncertainties created by SAPS’ interpretation and implementation of Sections 24 and 28 of the Act.
Direct implication of the judgement
The ruling means that all firearms of which the licences had expired and for which renewal applications have not been submitted in time, are deemed to be in illegal possession. Therefore, the owner of such a firearm could be criminally prosecuted for illegal possession of a firearm.
In addition, the current Act and the Constitutional Court’s judgement provides no option for the relicensing of such a firearm. This compels firearm owners to hand these firearms in at their nearest police station. They may apply for compensation for handing in their firearms but will not necessarily be granted compensation as the Registrar may decide if compensation would be payable.
The only possible alternative for this dilemma, is if a firearm licence amnesty is implemented. Earlier this year, SAPS indicated that it wished to declare an amnesty period from 1 June to 30 November 2018. “As far as we know, SAPS did not submit its application for the approval of an amnesty to Parliament in time,” said Camphor.
Should an amnesty be announced, the law makes provision as follows:
- Illegally owned firearms (including those of which the licences had expired) must be handed in at the SAPS.
- A firearm owner will not be prosecuted for illegal possession of a firearm.
- SAPS will do ballistic tests on the firearm to check if it had been used in criminal activities. If the firearm can indeed be linked to a crime, the owner can be prosecuted for the crime, but not for illegal possession of a firearm.
- The owner may apply for a new licence for the firearm handed in during the amnesty period. If the applicant complies with all the requirements, SAPS can issue a new licence and the applicant can collect his/her firearm from the police station.
Without an amnesty, firearm owners whose licences expired, can be prosecuted for illegal possession of a firearm. Although the judge expressed his opinion in the judgement that he doubted if the SAPS would prosecute an individual that hands in his/her firearm, the Court did not place any restriction on the Police or ordered them not to prosecute in this instance.
Persons that hand in their firearms do not have the option to apply for a new licence because the Act does not make provision for relicensing of a firearm that was handed in under these circumstances. In his judgement the judge suggested that the Police does not have the jurisdiction to store a firearm until a new licence has been issued.
Section 137 of the act makes provision for compensation to be paid to a person that was compelled to hand in a firearm. Regulation 92 determines the nature of the compensation. It is important to note that the Registrar has the authority to decide if compensation should be paid out. Compensation in this instance amounts to a maximum of R500 for a handgun and a maximum of R1000 for a rifle, which is far below the real value of these firearms.
Camphor said law-abiding citizens have no choice but to hand in their firearms of which the licences had expired. “The question remains if the SAPS has the capacity and ability to store the large number of firearms that are expected to be handed in”.
SA Hunters is still considering the full impact of the judgement and other options to resolve the matter. “The highest court in the country has spoken. We will probably engage with the Minister and the authorities to discuss a pragmatic approach and to resolve the ongoing problems going forward,” he said.
Issued by the SA Hunters and Game Conservation Association (SA Hunters)
Editorial enquiries: Fred Camphor on 082 445 0498 or firstname.lastname@example.org
General media enquiries: Magda Naudé on 082 452 5878 or email@example.com
16th May 2018 – Firearms Amnesty Imminent
(Report by Martin J Hood)
FIREARM AMNESTY “IMMINENT”
The South African Police Services have always maintained that an amnesty is appropriate for persons with expired firearm licences. This is misleading and in my opinion is a slap in the face of the Constitutional Court. The Constitutional Court is already seized with the issue of expired licences and is due to make a decision about how expired licences should be dealt with including the constitutionality of the renewal provisions.
It is illogical to encourage people to apply for amnesty for expired firearms, when the renewal of licence provisions may be set aside as unconstitutional. All SAPS is doing, is creating more work for themselves, which they cannot cope with and which will result in more delays and frustration for firearm owners.
However, I take a much more sinister view of the proposed amnesty by SAPS.
The amnesty was the brainchild, I am advised, of Major General Bothma (now retired) because of his totally inflexible attitude to allow late submissions for renewals. We would never have been in this situation and would not have needed to go all the way to the Constitutional Court, if he and the police had adopted a more flexible attitude towards the late submission of renewals. Ironically, the legal representatives for the police in the Constitutional Court conceded that the law does allow late submissions!
We need to be very careful of using an amnesty for expired licences for the following reasons.
1) It potentially undermines the decision of the Constitutional Court, which decision may make applying for amnesty unnecessary.
2) An amnesty does not deal with the ongoing issue of expired licences. People will always allow licences to expire, because it is human nature. An amnesty merely allows a certain group at a certain time to apply for amnesty and does not cure the underlying problem that licences will continue to expire. It is therefore not a long term solution.
3. We need to look at the provisions of Section 139 very carefully, because firstly Section 139(1)(a) presumes that an amnesty is necessary for illegal firearms. I do not think a firearm on an expired licence is illegal.
4) The Minister may impose conditions for an amnesty. This creates uncertainty, subjectivity and quite possibly capriciousness on the part of the police. In other words it will be more difficult to obtain amnesty than it would be to renew a licence if the Constitutional Court says you can apply late or if the court declares the provisions unconstitutional.
5) The police want every firearm to be ballistically tested, and this is a condition of the proposed amnesty.
6) This necessitates you surrendering the firearm to the South African Police Services. This may not be necessary if the Constitutional Court allows late submissions of renewal or if it declares Sections 24 and 28 unconstitutional.
7) You only have 14 days after you surrender your firearm to apply for a licence.
8) The Minister has not disclosed the conditions under which amnesty may be granted and the Minister has not disclosed any criteria or policy that will be used to determine whether amnesty should be granted. This creates uncertainty.
Finally, I do not like the word “amnesty”, because it implies wrongdoing for which you as an expired licence holder must ask for forgiveness.
I have not met a single firearm owner who deliberately i.e. intentionally allowed their firearm licence to lapse. You can only be guilty of wrongdoing if you intend to commit an offence.
For the above reasons I believe that the amnesty should be ignored by firearm owners who have expired licences.
For any other type of illegal possession of a firearm, the amnesty may be appropriate.
20th February 2018 – SAGA statement on firearm amnesty 2018
Parliament, via the Portfolio Committee on Police, endorsed the 2018 Firearm Amnesty on the 14 th February 2018. The Amnesty, except for some unforeseen critical issue, will soon be Gazetted and is expected to be in effect from 1 June until 30 November 2018. READ MORE…..
16th February 2018 : Proposed Firearm Amnesty : Latest Developments – CHASA report
The SAPS have made various ill-conceived attempts during last year to “spring” an amnesty on the public. At least three appearances and presentations were done to the Parliamentary Portfolio Committee for Police (PPCP) and even one attempt to “sneak” it through the National Council of Provinces, rather than as legislated, through the National Assembly. CHASA CEO Stephen Palos was invited to present at the first appearance and pointed out some serious concerns as well as the total lack of consultation with firearm ownership stakeholders. READ MORE…..
SAGA News – 8th February 2018
A CONSTITUTIONAL CHALLENGE
Eight justices of the Constitutional Court, our country’s highest court, will henceforth have to carefully consider the arguments made on behalf of the Minister of Police (as appellant), SA Hunters and Game Conservation Association (as defendant), Gun Free SA and Fidelity Security (both as amici curiae) and then adjudicate the case on the facts as contained in pleadings and the law. Since Judge Tolmay on 4 July 2017 ruled, amongst others, that sections 24 and 28 of the Firearms Control Act, No. 60 of 2000 were unconstitutional, our law requires that any finding of unconstitutionality by a High Court, needs to be confirmed by the Constitutional Court.
On behalf of the minister it was argued that the Gauteng North High Court went beyond what was proven by the applicant (SA Hunters) and that, accordingly, the ruling could not be confirmed. Counsel for SA Hunters, however, argued convincingly that there are clear gaps in the legislation, especially in the sense that no provision is made for firearm owners who had failed to timeously apply for the renewal for their licenses, to do so either during the so-called 90-days period or even after the license has expired. Great emphasis was placed on the fact that the failure to timeously apply for the renewal of licenses criminalise such gun owners and deprive them of their ownership of their firearms. This is an argument based on constitutional principles that protect citizens against vague and irrational legislation and equal protection for all. It also guards against arbitrary deprivation of property. We are satisfied that the court understands that there are gaps in the law and that these gaps cause confusion and uncertainty among firearm owners.
The argument of GFSA was based on emotion and (again) irrelevant statistics and we are of the view that it will not contribute significantly to any finding or decision.
Fidelity’s argument coincided largely with what SAGA argued in the Gauteng High Court, namely that sections 24 and 28 were not unconstitutional, but rather that clear guidelines should be given regarding the interpretation of the provisions. These guidelines could then be utilised by parliament in redrafting the Firearms Control Act.
As expected, at the conclusion of the arguments, the court postponed the matter for consideration and to deliver judgment. Although we have no indication how long this might take, the justices are extremely hard-working and they have very high productivity rate.
Is it possible to predict the ruling of the court? It will be unethical and very irresponsible to do so. The court will declare unconstitutional provisions of an Act only if there are no other remedies. Accordingly, even if the court does not confirm the declaration of unconstitutionality of sections 24 and 28 by the Gauteng High Court, it may nevertheless provide interpretation and guidelines for its application.
Firearm owners are reminded that it remains their responsibility to timeously apply for the renewal of their licenses or to lawfully dispose of such firearms should they no longer wish to possess them. Although the CFR sends out sms notices to remind licensees of the imminent expiry of their licenses, it still does not happen consistently. Rather diarise the expiry dates and apply for renewal in time.
The SAGA Trust
P O Box 35203
SAGA: CONSTITUTIONAL COURT OF SOUTH AFRICA (Pre-hearing summary)
Minister of Safety and Security v South African Hunters and Game Conservation Association
Date of hearing: 7 February 2018
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On7 February 2018 at 10h00, the Constitutional Court will hear an application for confirmation of a declaration of constitutional invalidity and an application for leave to appeal in a matter concerning the expiration and renewal of firearm licences in terms of the Firearms Control Act 60 of 2000 (the Act).
The South African Hunters and Game Conservation Association (SA Hunters) seeks to confirm the order issued by the High Court, Pretoria (High Court) on 4 July2017 which declared sections 24 and 28 of the Act unconstitutional. The Minister of Safety and Security seeks leave to appeal the order.
The purpose of the Act is broad and includes enhancing the constitutional rights to life and bodily integrity as well as the establishment of a comprehensive and effective system of firearm control. Section 3 seeks to achieve this by forbidding individuals from possessing firearms without an appropriate licence. Each licence has a limited lifespan of two to ten years. If an individual, in possession of a firearm, does not possess a valid licence, such a person commits a criminal offence and may be fined or imprisoned for a period of up to15 years.
If a person wishes to renew a license, section 24(1) of the Act requires an application to the Registrar at least 90 days before the expiry date. Section28 sets out four different situations in which a licence will terminate: expiration; voluntary surrender; declaration by the Registrar or a Court that the holder is unfit to possess a firearm; and cancellation in terms of the Act. Certain procedures are in place, under sections 102 and 103, to
Ensure due process in situations where a person is declared unfit to possess a firearm. However no similar provisions exist when a licence expires.
In the High Court, SA Hunters argued that this legislative framework is indefensible on grounds of rationality, clarity or non-arbitrariness and that it operates in a manner inconsistent with the equality clause in terms of section 9(1) of the Constitution and the right to property under section 25 of the Constitution. SA Hunters submitted that it is nearly impossible to meet the requirements of legality after failing to comply with the 90 day limit set out in section 24 of the Act. It argues that there is no provision that allows people who have failed to apply for a renewal at least 90 days before the expiry date to bring themselves back within the parameters of the law. The result is that they will be in unlawful possession of their firearms.
The High Court identified four problems with the challenged provisions: (i) the lack of clarity as to how a licence-holder who failed to comply with the time-limit established by section 24 might rectify the situation; (ii) the lack of due process in circumstances in which a licence expires; (iii) uncertainty as to how a licence-holder is to dispose of a firearm upon expiration; and (iv)the fact that no provision is made for the surrender of a firearm for value. The High Court also held that section 9 of the Constitution is violated insofar as licence-holders are treated differently in the four situations set out in section 28 of the Act. Further, the High Court concluded that the Act is inconsistent with section 25 of the Constitution in that there is no provision allowing licence-holders whose licences have expired to sell their firearms, surrender them for value or deposit them for safe- keeping with the police or a firearms dealer.
In the Constitutional Court, the Minister submits that the High Court’s declaration that the challenged provisions are constitutionally invalid in their entirety is overbroad and that whatever defect these provisions have can be cured more effectively by a remedy other than striking down both sections. The Minister also submits that any differential treatment attributable to the Act or its implementation does not amount to unfair discrimination in terms of section 9 of the Constitution.
With respect to the High Court’s finding on section 25 of the Constitution, the Minister submits that forfeiture of a firearm upon failure to comply with the Act does not amount to unlawful deprivation of property. Such forfeiture is in accordance with a law of general application, arises from a legitimate exercise of power, the purpose of which is to promote public health, welfare, safety and security, and it is proportionate. The Minister also contends that the High Court erred in finding that no procedure exists whereby a firearm can be surrendered and in finding that the failure to provide value for such surrender violates section 25 of the Constitution. Moreover, the Minister submits that the High Court erred in its interpretation of section 28 of the Act and also by not applying section 36 of the Constitution.
The SAGA Trust
P O Box 35203
EXPIRED LICENCES : SUMMARY OF CURRENT SITUATION
Update : 12th July 2017
A summary of the judgement in the SA Hunters’ court case as handed down by the Gauteng North High Court Judge is as follows:
- Sections 24 and 28 of the Firearms Control Act are declared unconstitutional
- Parliament is given 18 months within which to effect the amendment of the Act in order to ensure constitutional compliance
- All firearm licenses that already lapsed or are due to be renewed shall be deemed to remain valid until the Constitutional Court has made its determination on the constitutionality of these sections
- The Respondent (SAPS) is ordered to pay the costs of the Applicant. This means the Police will have to pay the bulk of the legal cost when the case is finalised
You can read the full judgement HERE.
However, the SAPS has taken the judgement on appeal. The implications of this appeal are still being analysed. In the meantime, our advice is to follow the information/advice in the notice dated 27th June 2017 (see below).
As at 27th June 2017
- North Gauteng High Court Judge reserves judgement regarding constitutionality of Section 24 (Renewal of Firearm Licence)
- North Gauteng High Court Judge reserves judgement regarding constitutionality of Section 28 (Termination of Firearm Licence)
- North Gauteng High Court Judge orders no firearms handed in may be destroyed, pending the outcome of the various matters
- SAPS issues confirmation of validity of Arms and Ammunition act 1969 licences (“green” licences)
- Expired “white” licences with no previous “green” licence remain in “unknown territory”
- Holders of expired licences are advised to wait pending the conclusion of the SA Hunters court case and/or the impending amnesty
- The SAPS has implemented a policy of not allowing the transfer or sale of firearms with expired licences to a registered dealer, even though the FCA is silent on this issue.
- See last paragraph for advice on how to surrender a firearm should you wish to do so (and you do not have to unless you feel you want to)
The three court cases relating to the chaos precipitated by the requirement to renew firearm licences on a rotational basis as prescribed by the Firearm Control Act (60 OF 2000) as amended are of critical concern to all firearm owners. These cases were heard on 25th & 26th April. CHASA and CTSASA Spokesperson and advisor for firearm legal issues, Martin Hood, is attorney of record for two of the three cases, being those of the SA Arms and Ammunition Dealers Association and a private security company.
The current situation in a nutshell is that the judge has reserved judgement regarding the constitutionality of Sec 24 and 28 of the Act, and also ordered that no firearms handed in may be destroyed, pending the outcome of the various matters.
Should Judge Ronel Tolmay, who presides over this case, rule in favour of the SA Hunters’ application, an amnesty period for re-application of expired licences will, in all likelihood, be provided for. We are optimistic that the Judge will rule in SA Hunters favour, but there are a number of technical issues, as well as a plethora of issues that the Judge would have to deal with before she could come to a decision. Judgement in this case is expected in a few months.
Also, the Acting National Commissioner: SAPS: Lt-Gen JK Phahlane has issued a document to various stakeholders (see attached) that recognizes the applications brought to the court and acknowledges the validity of firearm licenses issued in terms of the Arms and Ammunition Act, 1969.
Firearm owners with expired “white” licences, who never had a “green” licence remain in “unknown territory” at this stage. CHASA firmly believes that those who had an original “green” licence remain covered by the interim order of 2009, as borne out by the previous paragraph. Advice to those who only have expired “white” licences is to do nothing pending the conclusion of the SA Hunters Court case, and/or the amnesty.
Unfortunately the SAPS is not allowing you to transfer, sell or even hand in firearms with expired licences to a registered dealer, even though the Firearms Control Act is silent this. However, should you wish to surrender the firearm to the police (and you do not have to do so unless you feel you want to), please advise the police that the firearm has been earmarked for reapplication and that you do not want to hand the firearm in for destruction. Special forms are available at police stations for this very purpose.
CHASA Update 12th May 2017 – includes statement by the SAPS – click HERE
An extract from the above document:
“Firstly, cognisance must be taken of the interim court order made in the SA Hunters application which has the effect that the persons who held licenses in terms of the repealed Arms and Ammunition Act, 1969 and failed to apply for the renewal of their licenses in terms of the Firearms Control Act, 2000 in accordance with the transitional provisions set out in Schedule 1 of the Firearms Control Act, 2000 remain in lawful possession thereof pending finalisation of the court application. The court application has to date not been finalised and accordingly the interim order remains valid with the result that persons who are in possession of firearms which were lawfully licensed in terms of the Arms and Ammunition Act, 1969, are in lawful possession thereof.”
Firearms Amnesty 2017 delayed – read more HERE http://saga.org.za/
Martin J Hood & Associates Facebook – check for updates here
8th May 2017 – Update on Court Cases (Martin J Hood) – expired licences – here (Facebook)
8th May 2017 – Update on Court Cases (Martin J Hood) – expired licences (PDF)