1. 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 this judgement provides no option for the relicensing of such a firearm. Therefore, the owners are compelled to hand these firearms in at their nearest police station. You can apply for compensation for handing in your firearm.
2. Possible amnesty
The only possible alternative for this dilemma, is if a firearm licence amnesty is implemented. We know that SAPS intended to declare an amnesty period from 1 June to 30 November 2018. This has not happened yet, because the SAPS neglected to submit their application for the approval of such an amnesty to Parliament in time.
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.
- You 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.
- You have the right to apply for a new licence for the firearm handed in during the amnesty period. If you comply with all the requirements, SAPS can issue a new licence and you will be able to collect your firearm from the police station.
SA Hunters will advise its members about the process should an amnesty be announced.
3. The principles on which the judgement rested
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 decided that Sections 24 and 28 were not unconstitutional. This judgement entirely rejected the ruling of Judge Tolmay in the North-Gauteng Hight Court.
4. Some questions
The first question that we expect from our members is most probably: “If I hand in my firearm of which the licence expired, can I be prosecuted for illegal possession of a firearm?”
The answer is: Yes, it can happen.
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.
The second question we expect is: “If I hand in my firearm now, may I apply for a new licence?
The answer is: “No”
The Act does not make provision for relicensing of a firearm that was handed in under these circumstances. The Judge suggested in his judgement that the Police does not have the jurisdiction to store a firearm until a new licence has been issued.
The third question we expect is: “Will I be compensated for the handing in the firearm?”
The answer is: “Yes, but the compensation will not be equal to the real value of the firearm.”
Section 137 of the act makes provision for a person that was compelled to hand in a firearm, to apply for or compensation.
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.
The published amounts for compensation in this instance is a maximum of R500 for a handgun and a maximum of R1000 for a rifle.
5. What do we do now?
This is the most difficult question to answer. As law-abiding citizens, we should hand in our firearms of which the licences had expired to the Police and accept that these firearms would be destroyed.
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. We do not know if an amnesty will be implemented. We will keep members informed on any further developments.
We regard the Constitutional Court’s judgement as a legalistic narrow ruling on the specific matter on whether Section 24 and 28 are constitutional or not. We regret the fact that although the court acknowledged the chaotic administration and management of the Act, no relief is offered to address any of the problems that are being experienced.
I expect that SA Hunters will engage with the Minister and the authorities to discuss a pragmatic approach and to resolve the ongoing problems going forward.
Thank you to every member for your support during this process and for accepting this unfortunate outcome to our case. We hoped for an improvement to the situation, but it seems that we must start fighting for justice all over again.
The full ruling is available here for perusal.
If you still do not know what to do, phone us and we will try our best to explain.
SA Hunters: CEO