RE-POST: Legal Position re Expired White Licences; Advice after ConCourt Judgment of 7 June 2018
Date: Vol 15-08
VOL. 15 (08) - 12-03-2019
REVISIT: LEGAL POSITION RE EXPIRED WHITE LICENCES
This is a repeat posting of our Newsletter Vol. 14(20) of 24-06-2018 - the contents thereof is important enough to repeat in a Newsletter again.
1. PURPOSE WITH THIS NEWSLETTER
1.1 It has come to our attention that there is still uncertainty among some members regarding their rights pertaining to legal possession of firearms where they had overlooked the timeous renewal of their white firearm licences (for whatever reason - it is after all human to forget). This Newsletter is our final attempt to endeavour to clear up any possible existing confusion and indicate possible legal recourse for members who find them in this unenviable predicament.
1.2 For easier reading, we refer to licences issued under the previous Arms & Ammunition Act (Act 75 of 1969) (the Old Act) as “green licences” and licences issued under the Firearms Control Act (Act 60 of 2000) (the New Act) as “white licences”.
1.3 Remember that certain “older” green licences were simply pasted into old identity books (blue or green) without a green licence card being issued. If it is indicated on the licence that it was “issued in terms of the Arms & Ammunition Act, 75 of 1969", it is thus, also a green licence.
1.4 We emphasise that what follows below is advice, based on the best legal opinions and legal guidance we could muster. We are also aware that some of our advice might differ from advice given to members of other respected accredited associations. We are, however, certain that our advice below is, and remains legally sound since 4 April 2016 when we stated it for the first time in Our Newsletters, Vol. 12(25) and Vol. 12(26).
1.5 How you as a member act on the advice below as it concerns your specific situation, has to remain your decision. NHSA can never be prescriptive in trying to push you into taking decisions you are not comfortable with when it comes to the legal possession of your firearms.
2. FIREARM FOR WHICH OWNER ONLY HAS A GREEN LICENCE: NEVER APPLIED FOR A WHITE LICENCE
2.1 The recent case in the Constitutional Court on which the judgment was delivered on 7 June 2018, is NOT applicable to green licences, it only concerns white licences (a link to the full judgment of the Concourt is provided at the bottom of this Newsletter);
2.2 However, the interim court order, which was handed down by Judge Prinsloo on 29 June 2009 in the first SA Hunters versus the then Minister of Safety and Security case and which deals with the validity of the transitional provisions between the Old Act (1969) and the New Act (2000), determines that ALL licences issued under the Old Act remain valid until that case is finalised. That case has never taken place and SA Hunters have never indicated that they step away from it. Therefore that main case is still pending and therefore in our opinion the interim order of 2009 remains valid.
2.3 Everyone, including the police, accept that green licences of firearms for which no application for a white licence was ever made, are still valid. This effectively means that the police accept, and act according to the 2009 interim order of Judge Prinsloo (see Genl. Pahlane's Directive of 8 May 2017 at the link provided at the bottom of this Newsletter);
2.4 The owner of such firearm may therefore travel with the firearm with the green licence, use it for sport shooting, hunting or self-defence and may even sell such firearm, or hand it to a dealer.
2.5 It is, however, our considered opinion that members who have firearms for which they only have green licences, should seriously contemplate moving over to the 2000 Act and apply for white licences for those firearms. The interim court order of Judge Prinsloo of 29 June 2009 cannot remain in place indefinitely, and when a higher court decides that Judge Prinsloo's order is to be rescinded, people with only green licences under the 1969 Act, might find themselves "between a rock and a hard place". Rather be prepared and correctly "legal" under the 2000 Act.
2.6 Despite Judge Prinsloo's order, the 1969 Act must stop to function at some or other time as it was replaced by the promulgation of the 2000 Act. The Constitutional Court's decision of 7 June 2018, might just create the environment for the powers that be, to ask for rescinding of the 2009 order (as it is, they may find or have compelling reasons to apply for this decision to be made by the High Court). One can apply for renewal of a green licence for which there never was a white licence, or for a new licence, depending on how one's DFO assists one (with one having the correct competency certificates, of course).
2.7 The other option you can consider is to hand over the firearm with the green licence for which there was never a white licence, to a dealer (get it off your name). Then you apply for a new licence for that firearm as if you are buying it from the dealer. It might be the way of "least resistance" to manage the matter at this stage (the police in rural areas have sent back three of our members wanting to renew green licences as described in 2.6, because they say they have no instructions on how to manage such a process - many police stations in rural areas do not have Email facilities and are, thus, unfortunately, not always well informed).
3. FIREARM OF WHICH WHITE LICENCE HAS EXPIRED: OWNER ONLY HAD WHITE LICENCE FOR THAT FIREARM
3.1 Die judgment of the Constitutional Court on 7 June 2018 (which deals with the constitutionality of the wording in sections 24 & 28 regarding the renewal of white licences) is very clear that white licences which have expired, are “dead” and cannot be renewed (see section 28(1)(a) of Act 60 of 2000);
3.2 Someone who only has a white licence for a firearm, and which licence had expired without a timeous application for renewal of such licence having been submitted at least 90 days before expiry date, is thus in unlawful possession of such firearm;
3.3 It is a criminal offence to be in possession of a firearm without a valid licence;
3.4 The police have not yet arrested people for unlawful possession of firearms (of which the white licences have expired) and nobody has (as far as we know) been prosecuted in this regard. The police are only now starting to issue orders of how their stations should manage their administrative process after the Concourt's decision was handed down on 7 June 2018.
3.5 The National Commissioner is on record that at the very least SAPS will probably have to start to confiscate firearms of which white licences have expired in the foreseable future. (see link to National Commissioner's Directive in this regard at bottom of this Newsletter). However, the police cannot (and will not) arrest a person who brings in to their stations, a firearm of which the licence had expired, if the owner wants to hand in the firearm for destruction (unfortunately that is all that can be legally done with such a firearm).
3.6 If you hand in your firearm for destruction because its white licence had lapsed and you have no other option, you must accept that you will not be compensated for the firearm and that you will not be allowed to re-apply for a licence for that firearm (but that does not disqualify you from applying for another new firearm);
3.7 If you decide to hand in your firearm as described above, please remember to also hand in the ammunition for that firearm, if you do not still have a firearm in the same calibre, otherwise you will also be in illegal possession of such ammunition. Or give that ammunition to a friend who might have the same calibre of firearm you will be handing in.
3.8 For the past year there have been indications that an amnesty regarding firearms might be declared. It is probable that such amnesty could make provision that persons whose licences had expired, will be given the opportunity to re-apply for a licence for that particular firearm. Nothing in this regard is sure and anyone who chooses to wait on an amnesty, does so at his / her own risk.
3.9 Firearms for which one had a white licence which has now expired, cannot be sold or handed in to a dealer. At this stage your only options if you have a firearm in your possession for which you only had a white licence which has expired, are, thus:
3.9.1 That you retain the firearm unlawfully with the risks involved, in the hope that an amnesty will bring relief, or;
3.9.2 That you surrender the firearm and its ammunition to the police for destruction, and ascertain you get officially stamped documentation from the police that you had handed in the firearm of destruction (make, calibre and serial number plus date and police station clearly indicated).
Please read Newsletter Vol. 14(27) as regarding this paragraph.
3.10.1 Anyone with a valid white licence must ensure that s/he applies for the renewal thereof at least 90 days before the expiry date of the licence (and if necessary, the competency certificate applicable to such firearm as well). Remember if you apply in time, your licence remains valid until the police have finalised your evaluations.
3.10.2 Inspect all your firearm licences immediately and especially confirm the expiry date of your self-defence (Section 13) firearm, of which the licence is valid for 5 years only.
3.10.3 Enter all detail of your firearms on the My Firearms page on your Natshoot Profile Page, so that you can be sure the Natshoot data-system will send you a reminding Email, 120 days before the expiry date of such licence, so that you can timeously apply for renewal of a specific firearm's licence (and the competency if necessary).
4. FIREARM OF WHICH WHITE LICENCE HAS EXPIRED: OWNER HAS (HAD) A GREEN LICENCE FOR THE SAME FIREARM
4.1 NHSA’s view has always been that all green licences (irrespective of whether the owner took part in the transition between the Old Act and New Act), remain valid in light of Judge Prinsloo’s 2009 order (see 2.2 above);
4.2 Uncertainty arose after Acting Police Commissioner, Genl. Pahlane, during February 2016, sent a circular to the police wherein he stated that holders of green licences which took part in the transition process from the Old Act to the New Act (“migrated”) are no longer in possession of a valid green licence for that firearm. Simply put, his stance is that, once you have been issued a white licence in respect of a firearm for which you also had a green licence, the green licence’s validity terminates and only the white licence is then valid (and will expire after a certain period of time);
4.3 As a result hereof, NHSA in April 2016 obtained a written legal opinion from Adv Herman van Eeden SC, in order to ascertain how the court order of 2009 must be interpreted against Genl. Pahlane's legally unsupported administrative ruling. Adv van Eeden's opinion, in short, is that a firearm owner’s green licence (which licences does not have an expiry date) remains valid despite the fact that the owner might have taken part in the transition process from the Old Act to the New Act (because the provision in the New Act, which determines that green licences would have expired on 30 June 2009, has been suspended by the interim court order of Judge Prinsloo in 2009, until the main case had been heard, which has not taken place yet). NHSA thus stand by Adv van Eeden's re-confirmed legal opinion - which members can again read at the link at the bottom of this Newsletter;
4.4 The effect is that in the opinion of Adv van Eeden SC, such firearm owners could well actually have two licences for the same firearm. If the white licence has expired due to it not being renewed, the owner still has the original green licence, which remains valid;
4.5 The practical problem regarding this legal position, is that the police’s computer system is set up in such a manner that it does not allow a firearm owner, who has so-called “migrated” to the white licence system (have renewed his licences under the 2000 Act), to sell such firearm or hand it in to a dealer using the green licence. Members of the police are still using Genl. Pahlane’s 2016 circular due to their electronic database being set-up in this manner.
4.6 This does not, however, mean that the police’s interpretation is correct (carries legal weight) due to their administrative "problem" caused by the manner in which their electronic database was originally set-up. In practice it does, however, and unfortunately, limit your practical ability to transfer the firearm, untill such time as the order of Judge Prinsloo has been confirmed to stand in its full meaning if someone would take the police to court, and thus force the police to change their administrative process to treat ALL green licences as valid; or if and when the interim order of Judge Prinsloo has been rescinded by a higher court;
4.7 In this context, it becomes important that one must differentiate between the lawful possession of a firearm and the lawful disposal of a firearm. The fact that you cannot in practice sell the firearm or give it to a dealer with the green licence, because of the police's administrative management of the 4.5 described process, thus, does not mean that you are in unlawful possession of the specific firearm (the police concur with this point of legal possession - read the 8 May 2017 Directive of Genl. Pahlane on this issue at the link at the bottom of this Newsletter);
4.8 Our (NHSA) view is therefore, that when there are threats from the police that someone whose white licence has expired, is in unlawful possession and at risk of prosecution (or the police wants to confisctae such a firearm), such person does not in our opinion have to hand in his firearm for destruction if s/he also has a green licence for the same firearm.
4.9 In no way resist the police when they come to your home to confiscate such a firearm. Let the Natshoot office know of this "event" immediately so that we can assist you as best we can.
5. DO NOT JUST KEEP FIREARMS WITH EXPIRED WHITE LICENCES LOCKED IN THE SAFE
5.1 The question has been raised as to whether firearm owners who only had a white licence and which licence had expired, must rather just leave such firearm locked up in the safe until something more favourable transpires out of possible negotiations between associations and SAPS, or until a favourable amnesty is declared. In this instance, we have to again emphasize that it is a criminal offence to possess a firearm without a valid licence.
5.2 “Possession” in the legal sense does not only mean to carry the firearm on your person, but also to keep in under your control (such as in a safe of which you have the keys). We can therefore not support such advice, albeit that we agree that one must wait a little bit until the police have given clearer instructions to their stations on how to deal with firearms of which the white licences had expired, before handing in such a firearm (with "wait a little bit" we, however, do not mean several weeks or even months - keep watching out for our Emails and Newsletters in this regard, or the press).
5.3 Should you carry your firearm of which the white licence has expired, on your person or travel with it, or use it, the chances of a possible confrontation with the police will just increase. The locking up of a firearm of which the legal possession is in doubt, may very well only temporarily limit your risk.
6. DO NOT DESTROY PARTS OF FIREARMS TO BE HANDED IN TO THE POLICE
6.1 There are continuously people advising (especially on social media) that one should bend the barrel or break the firing pin or do something to a firearm to make it inoperable, before handing it in with the police.
6.2 Section 150 of the FCA (Act 60 of 2000) is clear where its states: "...'to deactivate' means to render permanently inoperable and 'deactivation' has a corresponding meaning...". Section 150(2) states: "A firearm may only be deactivated by a gunsmith in the prescribed manner". It is thus, illegal to render a firearm inoperable before handing it in because the licence has expired.
6.3 The police will ballistically test all firearms handed in, in order to determine if no crime was commited with the firearm. If you break the firearm you hand in (cause it to be inoperable), in any manner, they will immediately pick that up with their testing. Be sure that the police will seek to prosecute you for making a firearm inoperable if they can prove that against you.
6.4 This also means that you cannot hand in a firearm for destruction if you have taken such a firearm appart before handing it in.
7. RENEWAL OF COMPETENCY CERTIFICATES
7.1 We remind members that the New Act provides that you must have a competency certificate before you may apply for a firearm licence. Your competency certificate is valid for the duration of the firearm licence it has reference to. If your licence has expired, the possibility exists that your competency has also expired.
7.2 If you have only one handgun, and it is licensed for self-defence (section 13), that licence is valid for 5 years as is your competency to own a handgun. If, however you have more than one handgun, the same handgun competency will be valid for 10 years as it is also relevant to the handguns you have licensed under sections 15 or 16 (this is also true if you have a shotgun licensed for self-defence). Licences for sport shooting or hunting firearms are valid for 10 years. The corresponding competencies are also valid for 10 years (rifles, shotguns, semi-auto rifles).
7.3 Your competency certificates for the possession of certain classes of firearms will, according to the manner in which the police implement this process, remain valid until the expiry date of the longest standing licence for a specific class of firearm.
7.4 We have, however, constantly advised members to rather renew competencies on time - it is after all just paper work. Always rather renew your competency 5 years after its date of issue (self defence) and 10 years after its date of issue for sport shooting or hunting firearms (obviously 90 days before the specific period expires). We reiterate - its just simple paper work (thus, don't be lazy, it is your legal firearm ownership we are talking about).
7.5 We urge you to please again read our relevant 2017 Newsletters in which we explain how competency works and how the police implement the process - see links to relevant Newsletters at the bottom of this Newsletter.
7.6 If you are indeed planning to wait for an amnesty (which will have a limited timespan), it is important to apply for a new competency certificate NOW in order to be ready to benefit from the entire period of the renewal process, which might be part of such an amnesty. But we again state that we are of opinion that you wait for an amnesty at your own peril.
8.1 We do believe that an amnesty and amendments to the new Act are necessary in order to remove the current uncertainty and unfairness towards firearm owners who were legally in possession of their firearms (they were never criminals).
8.2 NHSA will, along with other role players, endeavour to engage in a process with the Minister of Police and the National Commissioner to request them to urgently declare a relevant and appropriate amnesty. This in a bid to try and avert the absolute chaos we foresee will result from what we perceive to be, the flawed administrative process the police intend to implement for the handing in of hundreds of thousands of firearms.
8.3 As stated above, we can unfortunately at this stage not give any undertakings in this regard. We reiterate, that anyone who chooses to wait upon an amnesty, is therefore doing so at his / her own risk.
9.1 It is clear that there is currently much uncertainty regarding the rights of firearm owners also among the police. This might very well even be more so at wide flung police stations in deep rural areas. If you are being threatened with arrest or prosecution, or if the police come to confiscate firearms at your home, please do not resist (let the law take its course). It will, however, be appreciated if you would provide us with the details of such eventualities as quickly as you possibly can.
10.1 NHSA thanks you for your continued loyal support. Rest assured that we will do everything in our power to protect, what the Concourt described as your privilege, to continue to legally own and use firearms.
Please be sure you are safe at all times !
Dr Herman Els (NHSA Executive Chair)
Referred to Links in the text
NHSA Newsletter Vol. 14(16) of 8 June 2018
Full Judgment of ConCourt on constitutionality of sections 24 & 28 of FCA - read HERE
Download the 2009 order of Judge Prinsloo HERE (we suggest you always carry a copy hereof with your green licence).
National Commissioner's Undated Directive re management of implications of ConCourt decision (possibly dated 18 or 19 June 2018) - read HERE
Adv van Eeden's re-confirmed legal opinion on validity of green licences - read HERE
8 May 2017 Directive of Genl. Pahlane read - HERE - see first button of paragraph 2
Notice of this Newsletter originally circulated to all members per Email on 24-06-2018