WELCOME TO SOUTH AFRICAN GUNOWNERS’ ASSOCIATION

SAGA Portfolio Committee Update: 15 JUNE 2018
SAGA Portfolio Committee Update: 15 JUNE 2018
SAGA Portfolio Committee Update 15 JUNE 2018.pdf (108.73KB)
SAGA Portfolio Committee Update: 15 JUNE 2018
SAGA Portfolio Committee Update: 15 JUNE 2018
SAGA Portfolio Committee Update 15 JUNE 2018.pdf (108.73KB)

 Dear Member,

SAGA Trustees, John Welch and Damian Enslin, attended the Parliamentary session of the Portfolio Committee on Police (PCoP) on 14th June 2018. The recent Constitutional Court decision handed down on the 7th June 2018 and the Firearm Amnesty were discussed.

With respect to the Firearm Amnesty, it appears that this is not on the near horizon and according to the National Commissioner, General Sithole, the two processes are completely separate i.e. the process in dealing with the Constitutional Court decision about expired firearm licences will be dealt with separately to the Firearm Amnesty process, if and when the Firearm Amnesty proceeds.

The National Commissioner, was at pains to emphasise the fact that SAPS would not be treating anyone with expired licences as a criminal and all they wanted was everyone’s co-operation.

There were various questions put to the National Commissioner and SAPS by the Members of the PCoP and some of the Members enquired with the National Commissioner about the possibility of issuing Section 21 permits to persons who are in possession of firearms with expired firearm licences. However the National Commissioner and General Masemola (the Head of Visible Policing) were not prepared to give a finite answer as to whether Section 21 permits would be issued.

What they did ask for, was for the co-operation of all parties when the Directive, which is apparently due today, is released.

The National Commissioner as well as General Masemola advised that they will be engaging with stakeholders throughout the process and will assess the process in 3 months and 6 months respectively.

Once more, SAPS emphasised that they do not want to arrest people for being in possession of a firearm with an expired licence and that there will be a process going forward.

Further questions were put to the National Commissioner and General Masemola by the Members of the PCoP about whether SAPS had the capacity and administrative means to deal with the influx of upwards of 400 000 persons surrendering firearms, and whether these firearms would be secured. This was not really adequately addressed by SAPS.

The National Commissioner confirmed that the old / green licence cards issued in terms of the Arms and Ammunitions Act 2 of 1969 are still valid.

The National Commissioner also confirmed, that although a Firearm Amnesty had been pronounced by the Minister, this however excluded the Judgment of the Constitutional Court on expired firearm licences.

Our members may recall that one of the aspects of the Firearm Amnesty was the inclusion of those with expired firearm licences and now it appears that this will no longer be the case.

We should know the content of the Directive today and will keep everyone updated with respect to this very important situation.

Media Statement: Constitutional Court Judgment
Media Statement: Constitutional Court Judgment 8 June 2018
SAGA Con Court Judgment 8 Jun2018.pdf (521.6KB)
Media Statement: Constitutional Court Judgment
Media Statement: Constitutional Court Judgment 8 June 2018
SAGA Con Court Judgment 8 Jun2018.pdf (521.6KB)


Dear SAGA Member,
On Friday the 8th June 2018 at 09:47 we sent out a Media Release concerning the Constitutional Court Judgement from the 7th June 2018.
This version of the Media Release unfortunately had a number of mistakes and was amended, but the incorrect version was distributed in error.
The below Media Release is the one that should have been distributed. We apologise for any inconvenience caused.

The SAGA Trust
Media Statement: Constitutional Court Judgment
For immediate release 8 June 2018
Yesterday morning, 7 June 2018, the Constitutional Court (by Froneman J) delivered judgment in the matter where SA Hunters and Game Conservation Association (SA Hunters) in the North Gauteng High Court sought, and was granted a ruling that sections 24 and 28 of the Firearms Control Act, No. 60 of 2000, were constitutionally invalid. The trial court had found the provisions invalid on the basis of their being (i) irrational and vague; (ii) breaching the right of equality; and (iii) in violation of the protection of property rights in the Constitution.

The Constitutional Court ruled that neither of the provisions was irrational or vague since the constitutional validity of the licensing process and the criminalisation of unlawful possession upon termination of a license were unchallenged and that, accordingly, "non-compliance with the licensing process (was) leading to unlawful possession and criminalisation". Justice Froneman was rather critical in his approach where he said: "The gun-owner knows that he must either apply in time for renewal or dispose of the firearm before expiry". According to him the rule of law requirements of clarity and certainty were clearly met. The court then also rejected the contention that there are no lawful means to dispose of a firearm after termination of the license.

In rejecting the argument about inequality of treatment under section 28, the court ruled that since a license terminates at the end of a prescribed period (dependent on the type of license), no administrative action was required since the license expires by operation of law. This termination differs from other forms or license termination.
With regards to the deprivation of property argument the court ruled that the deprivation is not arbitrary since there is a compensation regime for surrendered firearms. 
A single-line summary of the judgment is: "It is not a right to own firearms in South Africa, it is a privilege – it is your responsibility to timeously renew your license or otherwise dispose of the firearm according to the law".

In reality the highest court in the land has now ruled that persons who have not renewed their licenses and have not disposed of them, are in illegal possession thereof. Before rushing off to your closest police station to surrender your unlicensed firearm, we suggest that you wait a few days for the police's reaction. We suspect that the Minister or National Commissioner will soon distribute a directive informing affected persons what to do. There is currently a police instruction stipulating that persons who have failed to renew their licenses must not be prosecuted, hence we believe further instructions will be given.

If no such guidelines are forthcoming, we propose you hold onto your firearm and wait for the amnesty declaration. However, we do not know when it will come into operation – in fact it is yet to be approved by parliament. Although we are extremely concerned about corruption and the theft and robbery of firearms at police stations, there is no other alternative and firearms may only be surrendered to the police. No unlicensed firearms may be disposed of through licensed firearm dealers or gunsmiths. You will also not be able to deactivate or destroy the firearm, as such a process involves a gunsmith, and this can only be attended to with a licensed firearm. 

Persons who have never applied for licenses under the Firearms Control Act and who are still in possession of the "green" licenses issued under the previous Act, are, in our view, still covered by the judgment of the North Gauteng High Court of 26 June 2009. However, where a person has applied for and was issued with a "white" license under the Firearms Control Act, but this has expired, in light of the Constitutional Court judgment, it is probable, that such a person could not fall back on the "green" license that he/she still happens to have. SAGA is aware that there are arguments to the contrary, however, but we are wary to rely thereon.

SAGA will soon be meeting with SAPS with a view to clarifying matters, especially the proposed amnesty and the enforcement of the law after the Constitutional Court judgment.
In the meanwhile we urge members to ensure compliance with the law and make sure they apply for renewal of licenses not less than 90 days before the expiry thereof. Also, should you wish to surrender a firearm during the amnesty period, we strongly advise against carrying or using it.
Advocate John Welch

2018 FIREARM AMNESTY
2018 FIREARM AMNESTY
SAPS Amnesty 2018 Presentation.pdf (558.82KB)
2018 FIREARM AMNESTY
2018 FIREARM AMNESTY
SAPS Amnesty 2018 Presentation.pdf (558.82KB)

2018 FIREARM AMNESTY

Issued by SAGA on 19 February 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.

Despite a number of concerns, from amongst others, members of the Portfolio Committee on Police, and firearm lobby groups (including SAGA), the Minister of Police has persisted with the Amnesty. Broadly speaking, the concerns raised dealt with the practicalities of whether or not firearms handed into SAPS in terms of the Amnesty can be safely secured.

These questions appear to be well founded having regard to the fact that the number of firearms lost or stolen from many police stations indicates that the SAPS themselves have a serious problem with safekeeping of firearms. Even more concerning are the documented cases in which SAPS personnel have been convicted of selling large volumes of unlicenced firearms directly to criminals. This would indicate that there is little guarantee that firearms handed to SAPS under the 2018 Amnesty may also not be at risk of finding their way directly into the hands of gangs and criminals.

Firearms Officers at SAPS stations around the country are traditionally under-resourced and battle to cope with their workload under the Firearms Control Act. Therefore, a separate capacity, the Amnesty Officer, has been created to properly receive, document and safeguard firearms handed in under the Amnesty conditions. A valid concern exists as to who will occupy such a responsible position (and what standards of security clearance and vetting will be applied to such appointment) and what oversight will be exercised over the function.

A key debate issue over the last year in Parliament, questions whether the main purpose of the Amnesty, which is apparently the reduction of illegally possessed firearms and the prevention of crime, amongst others, will ever be achieved. Criminals are unlikely to inexplicably shun a life of crime and take advantage of the Amnesty to hand in their illegal firearms.

Despite many direct questions and requests for information, SAPS are either unwilling or unable to provide useable statistics or records as to whether any firearms in previous amnesties have ever been unequivocally linked to crimes or criminal activities. Therefore the success or failure of previous Amnesties is unclear and SAGA finds no reason to support this latest Amnesty.

Despite these clear concerns, the Amnesty is however upon us and inter alia covers a number of situations, and such persons who fall into the categories below, may take advantage of the Amnesty:

1. Possess stolen firearms or ammunition

2. Possess firearms which were lawfully or unlawfully imported and never licensed

3. Possess firearms which were lawfully imported by a foreigner who visited the country, then donated or sold to you but never licensed by you

4. Possess firearms from a deceased estate, either as heir or as Executor, which have never been licensed in the deceased’s name or relicensed in the heir’s name

5. Failed to renew their firearm licence or permit

6. Were declared unfit to possess a firearm but are still in possession of the firearm/s

7. Possess firearms where the import/export/temporary authorisation has lapsed

8. Wish to voluntary surrender firearms which are no longer needed

9. Possess business firearms where the business has ceased trading

10. Official and non-official institutions wishing to surrender obsolete, redundant or discarded firearms

11. Those with licences issued in terms of the repealed Arms and Ammunition Act, No. 75 of 1969, or issued in terms of any other authority under previous firearm legislation, may apply afresh for a firearm licence in terms of the Firearms Control Act

12. Possess ammunition under an ammunition collector’s permit in terms of the previous Act and not having applied to become a collector under the new regime

 

Note further that in terms of the Amnesty, a person who surrenders a firearm or ammunition is indemnified against prosecution only for the unlawful possession of such firearm and ammunition. If the police investigations reveal a link between the surrendered firearm and another crime (e.g. murder, robbery, theft), the police may approach you for an explanation. In fact you could be arrested and prosecuted. 

With respect to category number 5 above, although persons with expired firearm licences would be entitled to surrender and reapply (not apply to renew) for a licence for such firearm/s within fourteen (14) days of surrendering the firearm, SAGA does not at this stage advise its members or anyone with a firearm with an expired licence to do so, because we are still waiting on the outcome of the judgement of the Constitutional Court case of 7 th February 2018, which case dealt specifically with Section 24 and Section 28 and expired firearm licences. The judgement could however be handed down by the 1 st June 2018 and this would provide more clarification herein.

When the Amnesty is in effect from the 1 st June 2018, those persons who do possess firearms in the other categories above (or in circumstances not envisaged above), may wish to take advantage of the Amnesty, and should you wish do so, please note the following:

1. A written Amnesty application form must be completed by the applicant.

2. The firearm must be surrendered to a Designated Amnesty Officer at ANY police station (excepting the three mentioned in the Amnesty notice), who must issue a receipt for the firearm and ammunition.

3. When surrendering the firearm and should you wish to do so, you must at the same time notify the Designated Amnesty Officer in writing that you intend on applying for a firearm licence for the firearm. SAGA will put an example of such a notification on its website.

4. Should you wish to apply for a firearm licence for the firearm/s that you have surrendered, such application must be lodged, within fourteen (14) days of surrendering the firearm, to the relevant SAPS Designated Firearms Officer. Please note that the relevant Designated Firearms Officer “means the Designated Firearms Officer responsible for the area in which the applicant ordinarily resides, and if an application under these Regulations pertains to a business of the applicant, the Designated Firearms Officer responsible for the area in which the business is or will be situated, as the case may be”.

5. The firearm will be sent for ballistic testing.

We believe that those with firearms in category 11 above do not have to surrender the firearm to SAPS and may just re-apply for a new licence, but we will confirm this in due course in a following newsletter.

SAGA will post the SAPS presentation on the Amnesty and the Amnesty Notice, as soon as it is gazetted, to our website and Facebook page.

We will continue to keep out members informed concerning the 2018 Firearm Amnesty as developments occur.

 

 

CON COURT SUMMARY
CON COURT SUMMARY
CON COURT SUMMARY.pdf (286.65KB)
CON COURT SUMMARY
CON COURT SUMMARY
CON COURT SUMMARY.pdf (286.65KB)

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.

Addendum to Release issued on 8 February 2018

Fidelity argued (in our view convincingly) 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.


 SAGA 1985-2015 : 30 YEARS OF DEDICATED SERVICE

 

SAGA IS NOW ON FACEBOOK

WHAT IS SAGA ABOUT

The South African Gunowners' Association (SAGA) is a non-profit, non-discriminatory organization, whose sole purpose is to represent the interests of all people who embrace the principles of safe and responsible ownership and usage of firearms for sport, recreation, hunting and self-defence.
        
SAGA is the watchdog that endeavours to safeguard the rights of the South African public by engaging government in discussion regarding firearm related issues and to provide technical assistance and expertise where needed. This is achieved by collecting and disseminating information regarding all aspects of the legitimate use of firearms. This is to enable responsible, non-discriminatory and enforceable legislation that would benefit all South Africans, irrespective of race, colour or creed.

World Forum on Shooting Activities  (WFSA)

The World Forum on Sport Shooting Activities (WFSA) is an ECOSOC NGO at United Nations representing over 100 million hunters and sport shooters.  We also represent most of the major civilian firearms and ammunition manufacturers. SAGA is a paid up voting member and is represented on the EXCO.

 If you want to get in touch with SAGA, just click on Contact.  

 Enjoy your visit!