In what a Pretoria News report calls a major victory for SA’s estimated 30 000 gun owners who failed to renew their licences before the expiry date, the Constitutional Court has ruled that they were not barred from reapplying.
The court was unanimous in finding that there was nothing in the Firearms Control Act which prevented a person with an expired firearm licence from being able to renew it. In terms of the judgment, a distinction was not to be drawn between the methods through which the police deprive possession of weapons. Regardless of the circumstances under which possession is forfeited (voluntary surrender or seizure), firearm owners were entitled to restore legal possession of their weapons by applying for new licences.
It further found it was neither sensible nor business-like for the Police Ministry to interpret the legislation as if a firearm owner who handed in weapons to the police, due to expired licences, may not apply for new licences. The apex court found in favour of not only Fidelity Security Services, which initiated the application, but all South African gun owners who failed to renew their firearm licences before their expiry date. The court determined that those who were unable to renew their firearm licences in time and were subsequently barred from further applying, were allowed to follow the processes in the Act to obtain a valid firearm licence. This confirmed the earlier judgment handed down by the SCA, that a firearm, whether licensed or not, was the property of the owner until destroyed.
The Pretoria News report says the judgment is also a confirmation of the property rights that gun owners possess as envisaged in section 25 of the Constitution, irrespective of their licensing status. Gauteng High Court (Pretoria) Judge Natvarlal Ranchod initially found that the law was the law; and a firearm licence had to be renewed before it lapsed. In terms of the law, a firearm owner must apply for the renewal of a firearm licence 90 days before it expires. The SCA then ruled in favour of renewing lapsed licences – a firearm remained the property of the owner until it was destroyed.
The apex court, in agreeing with the SCA, found that the Act contained a mechanism whereby a gun owner could apply for a new licence, even though the previous licence had lapsed. This means that a gun owner can make a new application to possess the firearm, and not irretrievably lose the right to ever regain lawful possession of it.
LEGAL UNCERTAINTY OVER FIREARM LICENCE RULES Groups representing the interests of gun owners have urged them not to take hasty steps following the Constitutional Court judgment paving the way for those with expired licences to keep them. Netwerk24 reports that there is considerable legal uncertainty about the practical implementation of the judgment. The judgment allows gun owners to apply for new licences, but possession remains unlawful until a new licence is obtained. Herman Els, of the National Hunting and Shooting Association, says several groups have urged the police to utilise section 21 of the Firearms Control Act allowing for temporary permits to possess firearms while owners apply for licences, but have yet to receive a response. The permits do not allow owners to use the firearms. Els says licences have expired for more than 450 000 firearms. ‘People do not want to hand in their firearms at police stations as they believe they will get lost, but one has to decide whether it is worthwhile having a criminal record for being in unlawful possession of a firearm,’ he said.
Source: Legalbrief Today, 30 May