VOL. 15 (28) - 29-11-2019
IMPLICATIONS OF THE CURRENT FIREARMS AMNESTY: 01-12-2019 to 31-05-2020
This Newsletter talks to the following:
4. The factual aspects of the amnesty
5. What do I do if I have an expired licence (which decisions will I have to make)
6. Estate firearms under the amnesty
7. The situation with so-called green licences
8. What one would need if one would want to apply for a new licence under the amnesty
1. We advise that you first be a little patient before your rush off to take “advantage” of the announced firearms amnesty.
2. The exact processes to be implemented by SAPS are not yet known. We also still have no knowledge of the questions which will be asked on the forms to be used in the amnesty (could be a potential minefield for the unsuspecting).
3. We shall let members know the moment we have the forms and can give more responsible advice to those members who decide to “make use” of the amnesty.
4. THE FACTUAL ASPECTS OF THE AMNESTY
4.1 The current firearms amnesty was on 21-11-2019 voted by Parliament to run for the six months between 1 December 2019 and 31 May 2020.
4.2 The amnesty provides for people to hand in what is termed to be illegal firearms (i.e. firearms of which licences have expired due to not having been renewed in time) without the possibility of being prosecuted for being in possession of such a firearm (section 138 of FCA).
4.3 People with firearms with expired licences can hand in such firearms at their police station and indicated that they want to apply for a new licence for that firearm under the amnesty (application has to be submitted within 14 days after the firearm was handed in). If one does not clearly indicate that one will apply for a new licence for the handed in firearm, SAPS will take that firearm to be destroyed.
Take Note that there are 46 police stations which MAY NOT receive any firearms during the amnesty. You can download that list here
4.4 An application for a new licence for a firearm handed in under the amnesty may, according to the Minister of Police, only be submitted by the owner of the firearm; provided that the applicant can show that it was previously legally owned (one’s expired licence is that proof). We are not certain the Minister was correct in this aspect - we shall advise members per Email when we have a clear answer.
4.5 In the last paragraph of the notice of the amnesty, the Minister orders SAPS to ballistically test all firearms handed in under the amnesty to determine if that firearm had been used in any crime. Any application for a new licence for a firearm handed in under the amnesty will thus probably be subject to the firearm first being ballistically tested before a new licence application will be finalised.
4.6 It is clear that the Minister of Police did not consider the request included in the Parliamentary Committee on Police’s (PCoP) report of 30 October 2018 to Parliament in support of the amnesty. In that report the PCoP requests that a separate process for the renewal of expired licences be run concurrently to the current amnesty.
4.7 But then the Minister could not have even seen that request, contrary to the promises made by the Deputy Minister to the PCoP on 23-10-2019 that the request would be considered. Because by that time the Minister had already two months before, on 28-08-2019, signed the notice of the amnesty (three months before it was debated in Parliament on 21-11-2019). That notice signed on 28-08-2019 was eventually published in the Government Gazette of 27-11-2019. Who asked about a flawed legal process ? Remember SAPS first put their request to implement the current amnesty before the PCoP in March 2017.
5. WHAT DO I DO IF I HAVE AN EXPIRED LICENCE ?
5.1 There is no right way or wrong way to act here. There is only a possible better way to manage your own situation.
5.2 What is, however, very clear is that you will in the very near future, have to decide on what YOU want to do if you hold a firearm with an expired licence.
5.3 Obviously, you can decide to do absolutely nothing and wait for things to change to the better so that you can again in one or other way legally licence your firearm with the expired licence. We would strongly advise against taking such a position. Reality is not on your side.
5.4 This “fight” can never be just about approximately 500,000 expired firearm licences, despite all firearms stakeholders being prepared to, and will, “fight this fight” in a responsible manner. An irresponsible and concerted public disobedience campaign in this regard, will only end up in government withdrawing all licences for more than 2 million firearms to the detriment of 1,5 million other legal firearm owners in this country. As firearm owners we are responsible for each other.
5.4.1 Never forget that Judge Froneman on 07-07-2018 in the Constitutional Court clearly stated that owning a firearm in this country is a privilege – see our Newsletter Vol. 14(17) on the Constitutional Court’s judgment on the constitutionally of sections 24 & 28 of the FCA
5.5 We therefore, suggest that the first decision you will have to take on, when and how to act, very much depends on the outcome of the SAPS Appeal against the 27-07-2018 interim court order in the so-called urgent GOSA application - see our Newsletter Vol. 15(09) on the interim order in the GOSA case.
5.6 The interim court order states that SAPS may not confiscate firearms with expired licences until the GOSA main case has been heard and outcome thereof has been determined – see our Newsletter Vol. 14(25) on the urgent court case brought by GOSA in 2018.
5.7 The outcome of the SAPS Appeal will decide whether you will have to hand in your firearm with expired licence for destruction, or whether you will still remain “protected’ by that interim order to remain in possession thereof until the GOSA main court case has been heard (no certain date yet).
5.8 We cannot pretend to know which way the court’s decision will go in the SAPS Appeal against the interim order in the GOSA case, nor in the so-called GOSA main court case.
5.9 Best outcomes of both court cases are that the process of renewal of firearm licences will be favourably different (best if licences will not have to be renewed at all).
5.10 Worst outcomes of both court cases are that you will have to hand in your firearm with the expired licence for destruction without any option of trying to get that firearm into the legal system again (specifically if the GOSA main court case is decided after the current amnesty has run its course).
5.11 Despite the interim court order stating that the police cannot come and confiscate a firearm with an expired licence, the legal reality is that one can only keep such firearm in your safe. One cannot use the firearm, neither sell the firearm, or hand it in with a dealer, as its licence has expired. You will thus have to wait the outcome of both court cases before deciding what to do with your firearm with expired licence.
5.12 We suggest that the second decision you will have to take on, when and how to act, very much depends on how you view your options under the current amnesty. That is if you would want to try and get your firearm of which the licence has expired, legally licenced in your name.
5.13 We know that there were many reasons why people had not renewed their licences timeously. SAPS are, however, not interested in those reasons. You can accept that they will not open a new procedure for late renewals of firearms of which licences have expired.
5.14 If the GOSA cases are not decided favourably for firearms owners, SAPS only offers you one opportunity to apply for a new licence for the firearm you have with an expired licence. That is under the current amnesty. The amnesty, however, has its own pitfalls. We suggest you do not take any hasty decision here, right now, which you might regret later.
5.15 All law-abiding citizens are loath to hand in firearms with SAPS. None of us are convinced of SAPS’ ability to safeguard such firearms, despite the Minister of Police on 28-11-2019 declaring SAPS to be 100% geared to present a secure amnesty. In response we have to ask the Minister of which other country he knows where private security companies guard over police stations, and where 46 police stations are excluded from receiving firearms during a firearms amnesty ?
5.16 Neither are we as law-abiding citizens convinced that SAPS can responsibly handle the number of firearms they might have to work with, if only half of the owners of the approximately 500,000 firearms with expired white licences would make use of the amnesty.
5.17 Be that as it may, there are currently no other mechanism, other than an amnesty, provided for in the FCA to get a firearm of which the licence has expired, back into the legal system. That is unless the FCA is amended favourably in this regard in the very near future, which we all know is highly unlikely to happen.
5.18 The amnesty does thus offer you limited options to consider if you are stuck with a firearm of which the white licence has expired.
5.19 From where we sit you have only two options to decide if you would possibly want to take advantage of what you are presented with under the current amnesty:
5.19.1 You can hand in the firearm of which the licence has expired, to be destroyed (but that you can do any day of the week if you would so decide).
5.19.2 You can opt to make use of the amnesty and hand in your firearm at your police station and indicate that you want to apply for a new licence within 14 days after having handed in the firearm under the amnesty.
5.20 These are the options you will have to take a decision on if you have a firearm with an expired white licence, as we see it.
6. ESTATE FIREARMS UNDER THE AMNESTY
6.1 This is probably the only real good part of the amnesty.
6.2 The amnesty allows for people who are in possession of estate firearms, which are not licenced in the name of the present possessor, to licence such firearms in his/her name.
6.3 If you would want to apply for a new licence for an estate firearm within 14 days after handing it in under the amnesty, you must at the least get a print out from your DFO to confirm that the firearm was previously legally possessed (ascertain your competency for that type of firearm is valid when you apply).
7. THE SITUATION WITH SO-CALLED GREEN LICENCES
7.1 SAPS have since February 2016 taken the position that once you have “migrated” to the FCA (white licence), your green licence has lost its validity. This is their administrative position despite the interim order of Judge Prinsloo in the 2009 SA Hunters court case still being legally valid as the main case has never been heard.
7.2 Although we at NHSA hold a different legal opinion than that of SAPS on this matter, please accept that SAPS will act according to their interpretation of green licences not being “evergreen” - see our Newsletter Vol. 14(14) on the validity of green licences: judgment in 2009 SAHGCA court case.
8. WHAT DO I NEED IF I WOULD WANT TO APPLY FOR A NEW LICENCE UNDER THE AMNESTY?
8.1 Make sure that the competency for the specific firearm type you want to apply for is valid.
8.2 If it is not valid, apply for renewal of the relevant competency as quick as you can (right now), so that you can receive the renewed competency to submit with your application for the licence under the amnesty before the six months has gone by.
8.3 NHSA will petition the National Commissioner of Police to afford people who would want to submit applications for new licences under the amnesty the opportunity to at the same submit renewal of competency apllications. We can promise nothing, however.
8.4 Make sure that you have all documentation you will need for a new licence application before you surrender the firearm under the amnesty - see NHSA suggestions for a new licence applications.
In closing, we reiterate what was stated in paragraphs 1, 2 & 3 above.
Please be vigilant at all times !
Dr Herman Els (Executive Chair)
All members on 29-11-2019 informed per Email of this Newsletter being posted on the Natshoot website