Implications of the 23 Julie 2020 Court of Appeals Order re the 2018 GOSA case
Date: Vol 16-40
VOL. 16 (40) - 24-07-2020
IMPLICATIONS OF THE 23 JULY 2020 APPEALS COURT ORDER RE THE 2018 GOSA CASE
We once again extend our appreciation towards GOSA for their sincere effort to protect legal firearm ownership in our country.
Below follows the interpretation of the Natshoot legal advisor, Mr. Juan Kotzé, re the implications of the Court of Appeals’ order of 23 July 2020 on the validity of the interim court order of the Gauteng High Court in the so-called GOSA case issued on 27 July 2018 by Judge Prinsloo.
The interim court order of Judge Prinsloo of 27 July 2018 can be read in the Natshoot Newsletter Vol. 14(27) of 11-08-2018
Mr. Kotzé’s interpretation reads as follows:
“Juan Kotzé, a lawyer specialising in firearms legislation, said the judgment by the Supreme Court of Appeal in the GOSA case handed down on 23 July, is a huge blow to firearm owners.
The Court set aside the interim judgement of Judge Prinsloo on 27 July 2018, preventing the Police from acting against firearm owners whose firearm licences had expired, pending the outcome of the GOSA main court case. According to Juan Kotzé, the interim judgement had “kept the wolf from the door” because it had prevented the Police to prosecute firearm owners whose licences had lapsed.
The GOSA application against the Police followed on the Constitutional Court’s judgement of 7 June 2018, which ruled that Sections 24 and 28 of the Firearms Control Act which determine that licences are only issued for a specific period and application for renewal of such licences had to be submitted at least 90 days prior to the expiry date, were indeed constitutional. At the time, the Constitutional Court was unanimous in its judgement that firearms of which the licences had expired, were in illegal possession. Therefore, such firearms could not be sold or given away, but had to be surrendered to the Police for destruction.
Subsequently, the Police threatened to persecute firearm owners and implemented comprehensive plans for the destruction of firearms handed in at police stations. In its court papers, GOSA indicated that the Police was incapable of storing these firearms safely.
The effect of the Court of Appeals now setting aside the previous interim judgement in the GOSA case of 2018, means that the Police may now act against firearm owners whose licences had expired.
Kotzé says this is a serious matter. Should a person be found guilty of illegal possession of a firearm, a minimum sentence of 15 years could be handed down for the illegal possession of a semi-automatic firearm (which includes a pistol).
According to court papers filed by SAPS in 2018, there were 436 366 firearms of which the licences had expired. Today that figure is estimated to be more than 450 000. Kotzé says the firearms owners in question, could fill a Loftus stadium at least eight times.
It is, however, important to note that according to the Police, approximately 1,7 million people in the same time period did apply for renewal of the firearm licences.
Since September 2019, the Minister of Police, had started with a process to have an amnesty approved by parliament. The Parliamentary Portfolio Committee was informed that an amnesty was necessary to remove illegal firearms from society towards combating violent crime. During the portfolio committee debates the Police admitted that previous amnesties did not result in the surrendering of a single firearm which could be linked to a single crime.
In these debates, the Police did not reveal their intentions to target firearms owners with lapsed licences. Parliament approved the Minister of Police’s request for an amnesty and asked the Minister to develop a process which will allow individuals with expired firearm licences to apply for the renewal of their licences.
When the amnesty was announced, it soon transpired that the intention of the amnesty was to target firearm owners with expired licences. The amnesty made provision for firearm owners to hand in their firearms and to apply for new licences (not renewal).
Following a court application by Natshoot to declare the amnesty null and void, the Police changed their processes and allowed applicants to apply for a new licence and renewal of relevant competency certificates simultaneously. This amendment made the amnesty workable, even if it compelled the handing if of these firearms with the Police (see Natshoot Newsletter Vol. 16(02) of 17-01-2020).
Only an estimated 30 000 people made use of the amnesty period from 1 December 2019 to 31 May 2020. Less than 10 000 people had applied for new licences of which only a few applications were finalised by the end of the amnesty period.
It is evident that firearm owners were reluctant to surrender their firearms of which the licences had expired, because it became clear that it would take very long (one year plus) to obtain a new licence when they needed their firearms for self-defence.
Parliament is expected to approve the implementation of a new firearms amnesty from 1 August 2020 to 31 January 2021.
What will happen between today and 1 August? Kotzé believes there is no legal restriction on the Police to start acting against illegal firearm owners immediately (those with lapsed firearm licences). However, no action is expected, given the new amnesty that might start within a week.
The following question would be; what would happen during the amnesty?
According to Kotzé, the Police will most probably not focus their attention to act against firearm owners with expired licences, by rather give them the opportunity to surrender their firearms voluntarily and participate in the amnesty process by applying for new licences.
He expects the Minister of Police to threaten those firearm owners who do not surrender their firearms with lapsed licences during the amnesty. Kotzé believes there is currently no legal protection for firearm owners with lapsed firearm licences.
What will happen after 1 February 2021 (teh end of the new amnesty)? Kotzé predicts that “all hell will break loose” on firearm owners with expired licences from 1 February 2021. He says it is clear that objections such as the Police’s ability to store firearms safely or that the process of renewal is unfair, will fall on deaf ears because the Police will merely use this situation to reduce the number of privately owned firearms.
Kotzé believes the situation is unfair because there are many firearm owners whose firearm licences were still valid on 4 July 2017 (and who could have renewed since) when Judge Ronel Tolmay ruled in the SA Hunters case in 2016, that the conditions of section 24 and 28 (which provide for the relicensing of firearms) were unconstitutional. Thousands of firearm owners failed to renew their licences based on that court’s decision and on the communication from Police officials who advised firearm owners that as a result of the court’s judgement, it was no longer necessary to apply for renewal.
This situation lasted for 11 months until 7 June 2018, when the Constitutional Court ruled that licences had to be renewed. Unfortunately, neither the Constitutional Court nor the Police had implemented any measures to address the position of this group disadvantaged by the Tolmay judgement, or gave them the opportunity to renew their firearm licences. These people have been seriously disadvantaged.
Kotzé explains that those people who owned firearms prior to1 July 2009, but never participated in the renewal process (change from green licences to white licences) are still in possession of a legal firearm licence. These people (the disobeyers of the law) are now still in legal possession of their firearms and may do as they please because they have only green licences for those firearms (which needs no renewal).
On the contrary, a person who had a firearm licence before the implementation of the new 2,000 Act, but who abided by the new act and applied for renewal of the old green licence, are now in illegal possession for various reasons because they did not renew their licences based on the Police’s interpretation and advice following the interim court order that SA Hunters had obtained in 2009. They can neither relicense nor sell the firearm of which the white licence has expired, and are compelled to hand it to the Police as part of the amnesty and apply for a new licence. If they are not prepared to do so, they run the risk of prosecution.
Kotzé says it is seriously unfair that the earlier disobeyers of the law are now in a much better position than those that wanted to adhere to the new law, but who have been seriously compromised by prevailing legal uncertainty (between the Tolmay order and the Constitutional Court's order).
It would appear that firearm divisions at several police stations have been closed due to Covid-19. Persons who want to renew their licences are running the risk of not being attended to before the expiry date for renewal applications (cases are know where this has already happened).
Kotzé’s advice to firearm owners is to make sure that they renew their firearm licences before they expire. They should also accept that the Police will not make any concessions to firearm owners”.
Accept that the Police definitely wants to limit the number of privately owned firearms as well as those you own.
The best way to prevent this from happening is to make sure your firearms licences and your competencies are always up to date.
Please stay safe !!