I love being outside, I do a lot of hunting. -Sam Hunt
“There is value in any experience that exercises those ethical restraints collectively called sportsmanship.”
– Aldo Leopold
LEGISLATION REPORT 2009 – FIREARMS CONTROL ACT
by Adri Kitshoff
SA Hunters’ and Game Conservation Association’s (SAHGCA) urgent application to the Court:
On 26 June 2009, the North Gauteng High Court, Pretoria, issued an interim order pending the finalisation of SAHGCA’s main application in that all firearm licences issues in terms of the Firearms Act (1969), contemplated in sub-item 1 of Schedule 1 of the Firearms Control Act, 2000 (Act No 60 of 2000) (hereinafter “the Act”), will be deemed to be lawful and valid, pending final adjudication of the main application.
This effectively means that where a person is in possession of a firearm and relevant licence, permit or authorization, issued in terms of the Arms and Ammunition Act, 1969 (Act No 75 of 1969) (hereinafter the “previous Act”), as amended, such a person will remain legally in possession of such firearm and may not be prosecuted in terms of section 3 of the Act. In terms of section 3 of the Act no person may possess a firearm unless he or she holds a license, permit or authorization issued in terms of the Firearms Control Act, 2000 (Act No 60 of 2000), for that firearm.
The main effect of the order is that persons (natural / juristic persons) who have not yet re-licenced their firearms as provided for in the transitional provisions of the Act, or have not yet disposed of the firearms as required by the Act, may lawfully remain in possession of those firearms, at least until the main application has been decided.
In terms of a SAPS press release dated 27 June 2009, all firearms that have been voluntarily surrendered to the South African Police Service, for the purpose of destruction, may not be destroyed until further directives in this regard has been disseminated from the Central Firearms Registrar’s office. These firearms may not be handed back to the original firearm owner. However, any person who opted to sell/donate their firearms to other persons/legal entity, and who in the meantime have surrendered such firearms for safe keeping to the South African Police Service, may retrieve (if so desired), their respective firearms and firearm licences from the police stations where they were handed in.
All storage permits issued for firearms in terms of the previous Act will remain valid until the expiry date of such permit. Further storage permits (SAPS 539) may be issued in terms of Regulation 86(4) of the Firearms Control Regulations, 2004, for a further period if required. All firearms which are currently in safe storage with licenced firearm dealers and gunsmiths, will remain valid and need not be handed to the South African Police Service for destruction. In the case where a person applied for the renewal of his/her firearm licence and such renewal application has been refused and/or the appeal has not been successful, such person may legally continue to possess such firearms in terms of the previous Act, until further notice from this office.
SAHGCA’s main application to the Court: In the main application yet to happen, the Court will have to pass judgement on the following: – The constitutional principles regarding private property;
- The principles of criminal prosecution; and
- Whether fair administrative procedures were applied.
CHASA Board has taken a decision on 5 September to enter as a “Friend of the Court”. CHASA has in the mean time requested member associations to pledge money towards a legal fund. Our association made R27500 available, to be paid over on request from CHASA.
Justice Alliance of SA (JASA) Court Case:
The Western Cape High Court has given Police Minister Nathi Mthethwa 90 days to draw up guidelines for compensation for firearms surrendered under the Firearms Control Act. The ruling could result in payouts totalling millions of rands for gunowners who have handed in weapons since 2004. The order was handed down on 31 August by Acting Judge President Jeanette Traverso following an application by JASA and the False Bay Gun Club. They argued that the Firearms Control Act, which came into force in 2004, required the minister to come up with guidelines on the amount of compensation to be paid for guns surrendered or forfeited to the State. By failing to do so, the Minister had acted in breach of the “ethos of accountability” in the Constitution.
Our Association appreciates the ruling. It is, however, important for firearm owners to understand that the court case did not address the issue whether every firearm owner who has handed in firearms, is entitled to compensation. The judgement purely instructed the Minister to provide the necessary guidelines regarding the compensation for firearms handed in, within 90 days. Those guidelines should give an indication of how compensation would be paid.
The Constitution makes it very clear that Government cannot expropriate a person’s assets without compensation. This is a very important step towards the compensation for firearm owners who have effectively been expropriated of their firearms. However, long discussions will still take place regarding who qualify for compensation and how it would be done, especially in respect of firearms already handed in.
Our advice to members who want compensation for firearms to be handed in, would be to complete the necessary forms at the SAPS and clearly indicate that they apply for compensation. It might also be a good idea to take photos and obtain a valuation as proof of the firearm’s condition and value for future use.
DEPARTMENT OF WATER & ENVIRONMENTAL AFFAIRS:
The then Minister of DEAT, Minister Van Schalkwyk, invited the wildlife industry last year to make recommendations with respect to self-regulation in order to enhance service delivery. The wildlife industry consisting of CHASA, SAHGCA, PHASA and WRSA including Wildlife Translocators, Taxidermists and SA Nurseries developed a proposal for self-administration and presented same to the Wildlife Forum at the meeting on 1 July. The Wildlife forum nominated a task team consisting of representatives from Environmental Affairs, 3 provinces (Gauteng, Limpopo and Mpumalanga), CHASA, SAHGCA, PHASA, WRSA, Taxidermists and SA Nurseries. The Task Team discussed the proposal in depth and compiled a draft terms of reference and discussion document which were tabled at the meeting on 22 September.
Provinces felt that the current proposal was focusing too “heavy” on permits, whilst the industry urged that the industry is growing fast and that there is a definite need to look at a new operating model. After a long discussion, it was agreed to expand the task team to include all 9 provinces.
TOPS (Threatened and/or Protected Species)
The Department of Environmental Affairs is currently reviewing amendments to the TOPS list and regulations.