Therefore, firearm owners will have to be patient for a little while longer for clarity on their position regarding expired firearm licences and the way forward.
The Constitutional Court hearing emanated from a judgement by the Gauteng High Court on 4 July 2017, when Judge Tolmay ruled in favour of SA Hunters’ application, declaring sections 24 and 28 of the Act unconstitutional. Subsequently, the Minister of Police appealed against this High Court ruling, while SA Hunters applied for confirmation of the same ruling in the Constitutional Court. Both applications were heard on Wednesday, 7 February 2018.
Fred Camphor, CEO of SA Hunters and Game Conservation Association, said they are confident that the full bench of judges heard sufficient arguments to establish a good idea of the limitations inherent in certain sections of the Act, as well uncertainties created by the interpretation and implementation of Sections 24 and 28 of the Act by the SAPS, and the difficulties that law-abiding firearm owners - and the SAPS - have to deal with.
“We are confident that the Court‘s judgement will accommodate and assist us in resolving at least some of these uncertainties,” Camphor said. He was cautious not to speculate about the pending judgement but said that a ruling in favour of the SA Hunters application could create opportunities to not only address the problems regarding Sections 24 and 28, but also to review other shortcomings in the Act. “Should the Court refer the Act to parliament to revise sections 24 and 28, it would make sense to use the opportunity to review the Act in totality.”
Camphor said the Court could also, other than declare sections of the Act unconstitutional, give guidance on the exact interpretation of these two sections within the broader requirements of the Act and give specific instructions on its implementation.
In a media summary released before the court procedures started, the Constitutional Court described the purpose of the Act as “…broad and includes enhancing the constitutional rights to life and bodily integrity as well as the establishment of a comprehensive and effective system of firearm control.”
It further stated that: “Section 3 seeks to achieve this by forbidding individuals from possessing firearms without an appropriate licence. Each licence has a limited lifespan of two to ten years. If an individual, in possession of a firearm, does not possess a valid licence, such a person commits a criminal offence and may be fined or imprisoned for a period of up to 15 years.
If a person wishes to renew a licence, section 24(1) of the Act requires an application to the Registrar at least 90 days before the expiry date. Section 28 sets out four different situations in which a licence will terminate: expiration; voluntary surrender; declaration by the Registrar or a Court that the holder is unfit to possess a firearm; and cancellation in terms of the Act. Certain procedures are in place, under sections 102 and 103, to ensure due process in situations where a person is declared unfit to possess a firearm. However, no similar provisions exist when a licence expires.”
SA Hunters argued that it was nearly impossible to meet the requirements of legality after failing to comply with the 90-day limit set out in section 24 of the Act, and that the Act did not leave any room for people that have failed to apply for a renewal according to the 90-day requirement, to bring themselves back within the parameters of the law.
The High Court identified four problems with the challenged provisions:
- the lack of clarity as to how a licence-holder who failed to comply with the time-limit established by section 24 might rectify the situation;
- the lack of due process in circumstances in which a licence expires
- uncertainty as to how a licence-holder is to dispose of a firearm upon expiration; and
- the fact that no provision is made for the surrender of a firearm for value.
The High Court held that section 9 of the Constitution is violated insofar as licence-holders are treated differently in the four situations set out in section 28 of the Act. It concluded that the Act is inconsistent with section 25 of the Constitution in that there is no provision allowing licence-holders whose licences have expired to sell their firearms, surrender them for value or deposit them for safekeeping with the police or a firearms dealer.
The Minister of Police said the High Court’s declaration that the challenged provisions were constitutionally invalid in their entirety, was overbroad and that defects could be remedied, without having to strike down both sections. The Minister disagreed that any differential treatment occurred in terms of Section 9 of the Constitution.
The Minister also argued that forfeiture of a firearm upon failure to comply with the Act does not amount to unlawful deprivation of property in terms of Section 25 of the Constitution, because it was appropriate and in accordance with a law of general application towards promoting public health, welfare, safety and security.
Issued by the SA Hunters and Game Conservation Association (SA Hunters)
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