“There is no question that firearms are hazardous objects and that possession and ownership must be strictly controlled. A failure to comply with the Act exposes the public to potential harm, especially in a society like ours where violence is rife.” (Extract from judgment below)
Whilst our law quite correctly treats unlawful possession of a firearm as a most serious offence – you could go to prison for 15 years if convicted – law-abiding citizens who hold valid firearm licences face a major problem if for whatever reason they fail to renew them in time.
To set the scene, the Firearms Act provides that all licences are valid for a limited period only (10 years for hunting licences and 5 years for self-defence) and you must apply for renewal at least 90 days before expiry. If you drop the ball on that one, you have a major problem …
The 90 day guillotine: High Court to the rescue
“The difficulty that arises, and which causes confusion” held the High Court recently when asked to intervene on behalf of firearm owners “is that, if a person fails to apply for a renewal at least 90 days before expiry there is no provision in the Act that permits one, after the guillotine has dropped, to bring oneself back within the parameters of the law. This then leads to the result that one is in unlawful possession of a firearm, with no means to rectify the position…”.
Worse, there is no way to surrender the firearm to the police without risking prosecution, nor any way to get value for the surrendered firearm – clearly an untenable position.
Having analysed the purpose and effect of the Act, and in particular of the sections dealing with renewal of licences and the consequences of not doing so in time, the Court declared those sections unconstitutional and gave Parliament 18 months to amend the Act so as to ensure constitutional compliance.
What happens now if your licence has already expired?
This must now go to the Constitutional Court for confirmation, but fear not, you are covered in the interim. The Court directed that all licences “issued in terms of the Firearms Control Act, 2000 (Act 60 of 2000), which are or were due to be renewed in terms of section 24 of the Firearms Control Act, 2000 (Act 60 of 2000), shall be deemed to be valid, until the Constitutional Court has made its determination on the constitutionality of the aforesaid sections”.
In other words, provided that you did in fact hold a valid licence in the first place, and provided that it has lapsed purely through “effluxion of time” (none of this applies to termination of licences for other reasons), you have a good defence to any prosecution.
Of course your best defence will always be to apply for renewal timeously. But if for any reason you forget or can’t comply, don’t take any chances – ask your lawyer to confirm that you are protected by this new ruling, and get help immediately if the police come after you.
URGENT UPDATE – Since time of writing of the above article, media reports suggest that SAPS has now appealed against the above judgment to the Constitutional Court and that the effect of this is that gun owners must continue to comply strictly with the relevant sections of the Firearms Act. SAPS has reportedly also stated that “no prosecutions will be instituted against persons whose firearm licences have expired and who voluntary surrendered such firearms to the South African Police Service.” Take immediate advice in any doubt!