CONCOURT DECLINES SAPS APPEAL IN FIDELITY LAPSED LICENCES CASE
Date: Vol 18 (09)
Some good news for a Friday!
Sincere congratulations and accolades must be extended to Martin Hood and Associates and to Fidelity Security Services for persisting with the specific case since 2019. The persistence and hard work resulted in the positive order received on appeal from the Constitutional Court (ConCourt) on 27 May 2022.
On 27 May 2022 the ConCourt delivered a unanimous judgment in the Fidelity Security Services (“Fidelity”) case and dismissed with costs the Minister of Police’s appeal against the judgment of the Supreme Court of Appeal (you can download the complete Judgment HERE).
The only question the ConCourt had to decide, was whether Fidelity was in terms of the provisions of the Firearms Control Act (FCA) prevented from applying for new licences for approximately 700 of their firearms of which the licences had not been renewed before the expiry thereof.
SAPS previously maintained that an application for a new licence (not a renewal) for a firearm of which the licence had lapsed, could not be submitted. The ConCourt found that this interpretation was incorrect and that SAPS is obliged to receive and process such applications.
In order to protect its members’ rights, Natshoot and PHASA brought applications to be admitted as friends of the court (amici curiae) in the ConCourt case and made substantial submissions in order to assist the court to come to a just decision (see Newsletter Vol. 17(39) of 16-11-2021).
We again congratulate Martin Hood and his legal team, who represented Fidelity, with their sterling work. We are proud that we at the same time, could also protect our members’ rights and interests in respect of the managing firearms with lapsed licences.
In summary, the ConCourt found that there is a difference between “ownership of a firearm” and “the right to possess a firearm” and that the FCA only regulates the possession of a firearm. The fact that a licence to possess a firearm has lapsed, doesn’t mean that a firearm owner’s ownership of such firearm also terminates.
The effect of this finding is that one can still be the owner of a firearm although his/her licence to possess the firearm has lapsed. The ConCourt also stated that although someone is still the owner, it doesn’t mean that he/she can lawfully possess a firearm of which the licence has lapsed. Such conduct constitutes a crime.
Fidelity’s legal representative informed the ConCourt during argument that the firearms under consideration had been handed to SAPS for safekeeping. Fidelity also didn’t submit that a firearm owner was entitled to keep the firearm in his possession after the licence to possess has lapsed.
It is, therefore, important to note that the ConCourt worked from the premise that firearms with lapsed licences had to be handed to SAPS for safekeeping (and not for destruction) pending the outcome of the new licence application. It must be expected that the Police will demand that firearms with lapsed licences must be handed to them before a new application for as firearm licence is accepted.
Natshoot and PHASA have since April 2021 made representation to SAPS (FLASH) to apply section 21 of the Firearms Control Act, which provide for temporary authorizations to legally possess firearms. The Police have not yet responded to the proposal. We shall again take up this issue with FLASH management in the near future in order to find a way how firearm owners with lapsed licences can remain in lawful possession thereof without the firearm being handed in to SAPS for safekeeping.
Please note that the ConCourt also made the following remark in respect of evaluations of new applications for firearms with lapsed licences: “Although the Registrar must assess such an application on it’s (sic) merits, he or she is not obliged to grant the application. The applicant’s record as a gun owner, the circumstances giving rise to the expiry of previous licences, any unlawful possession which then ensued, and the steps the applicant took to remedy the position, could all be expected to feature in the Registrar’s assessment.”
We, thus, advise that you must ensure that any application for a new licence to possess a firearm of which the licence had lapsed, should meet the motivational requirements as set out by the ConCourt (above). You may need legal advice in this regard.
Please do not rush off to your DFO with a new application for a firearm of which the licence had lapsed. We all have to wait for SAPS to indicate how they will manage the procedure at police stations through DFOs. We shall inform members the moment we know.
Be assured that Natshoot will continue to protect you rights in legal firearm ownership and use. We shall keep you informed of any new developments.
Kind Regards, Dr Herman Els
Please ensure that you renew firearm licences at least 90 days before they lapse.
This Newsletter sent to all members via email on 27-05-2022