BY Aslam Moosajee , Willem van der Colff AND Ariane Nevin
What are the implications of the recent SCA judgment for firearm owners?
The South African Constitutional Court previously held that “(G)un ownership is not a fundamental right under our Bill of Rights. It is a privilege regulated by law, under the Firearms Control Act.”
The objectives of the Firearms Control Act, 2000 (the “Act”), involves the prevention of the proliferation of illegally owned firearms. According to the Constitutional Court, the Act seeks to achieve this by imposing the following restrictions on gun ownership:
- No person may possess a firearm without a valid licence;
- No licence may be issued to a person without a relevant competency certificate;
- A licence is valid only for a limited period, after which the gun owner must either apply for a new licence or surrender their firearm to the South African Police Service (“SAPS”); and
- Possession of a firearm without a licence is a criminal offence and subject to minimum penalties.
Confusion regarding “green licences” and “white licenses”
There has also been significant uncertainty in respect of the so-called “green licences” issued pursuant to the Act’s predecessor, the Arms and Ammunitions Act, 1969.
Unlike the “white licences” issued under the Act and subject to numerous restrictions, the green licenses were issued for the lifetime of the holder and without the requirement of a competency.
According to an interim order granted by the Pretoria High Court in 2009 (pending the outcome of further litigation which never happened), if a person holds a green licence and has never applied for a white licence, the green licence remains valid. If, on the other hand, the person holds both a white licence and a green licence, the “green licence” is no longer valid.
In the matter of National Commissioner of Police and Another v Gun Owners of South Africa, Gun Owners of South Africa (“GOSA”) launched an urgent court application against the Commissioner for Police and the Minister of Police seeking that the period of validity of white licences (those issued pursuant to the Act) be extended to the lifetime of the licence holder, and that the time periods for licence renewal applications under section 24 of the Act be extended in order to allow licence holders with expired licences to apply for the renewal of the licences (“the main application”).
Pending the determination of their main application, GOSA also sought an interim interdict preventing SAPS from confiscating any firearm only on the basis that its licence had expired (“the interim interdict”).
The presiding judge suggested certain amendments to the relief GOSA claimed in its main application, and GOSA accepted the judge’s suggestions. The judge then granted the interim order in terms of which gun owners with expired licences were protected, pending the determination of the main application. The Minister and Commissioner appealed to the Supreme Court of Appeal (“SCA”).
Parliament periodically declared firearm amnesties to allow for voluntary surrender of illegal, unlicensed or unwanted guns without risking prosecution.
In November 2019, Parliament approved such an amnesty against the backdrop of the interim interdict. The amnesty commenced on 1 December 2019 and continued until 31 May 2020
On 23 July 2020, the SCA handed down a unanimous judgment overturning the interim interdict and holding that it ought not to have been granted in the first place for the following reasons:
First, the SCA held that an interim order should only be granted if an applicant has prospects of succeeding in the main application. In the original application, before it was reframed by the Judge, GOSA was asking the court to do something a court is not competent to do, namely, to discard valid provisions of the Act by making a gun licence valid for the duration of the holder’s lifetime. Essentially, GOSA asked the court to legislate. This is a clear violation of the separation of powers. Courts adjudicate; Parliament legislates.
Second, the SCA held that the Judge in the Pretoria High Court was aware that the main application originally brought by GOSA could not succeed and then suggested substantive amendments to the application by severing the relief that a court would not be competent to grant. On the Judge’s recommendation, GOSA changed its main application and on that basis, the Judge granted the interim interdict. In short, the Judge made a new case for GOSA. The SCA held that this “inappropriate intervention” by the Judge is “unusual, troubling and regrettable”.
The SCA also found that GOSA failed to meet the requirements for an interim interdict.
GOSA had argued that gun owners had a prima facie right based on a legitimate expectation.
The SCA held that for an expectation to be legitimate, it would need to have been reasonable and induced by the SAPS based on a clear and unambiguous representation that was lawful and competent for the SAPS to make. The concession relied on by GOSA and any practices of renewing expired licences could not be regarded as a clear, unambiguous, competent or lawful representation that firearm licences would be extended to the lifetime of their holders. This is especially so in light of the Act’s express provision for expiry and renewal of licences.
The SCA also found that the interim interdict “fundamentally undermined” SAPS’ ability to administer and enforce the Act.
Implications of the SCA judgment and a second amnesty
The outcome of the SCA’s decision is that SAPS is free, once again, to demand the surrender of firearms with expired licences on the grounds only that the licence has expired. The extension of periods for licence renewal applications also falls away. In the meantime, the firearm amnesty has also ended.
So, what does this mean for owners of guns with expired licences, who did not manage to surrender their guns during the amnesty? They can be prosecuted for possession of an illegal firearm.
However, a second firearms amnesty may be in the pipeline. On 11 June 2020, the Portfolio Committee for Police resolved to affirm the Minister’s request on behalf of the SAPS for a second firearms amnesty. It is likely that once the second amnesty is approved, gun owners will have a further opportunity to apply for renewal of their licences, or simply to hand in guns that they no longer want, without the risk of prosecution.
Willem van der Colff
Executive | Dispute Resolution
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