It has come to our knowledge that on 3 February 2016 the Acting National Commissioner of Police, Lt Gen Phahlane issued an instruction to the police regarding the renewal of firearms licenses in terms of section 24 of the Firearms Control Act, No. 60 of 2000 (FCA). Although it is aimed at providing “further clarity regarding the renewal of firearm licenses” it fails to do that and seems not to provide solutions to real problems. The SAPS instructions will be available shortly on our website homepage at www.saga.org.za
Section 24 provides as follows: “(1) The holder of a licence issued in terms of this Chapter who wishes to renew the licence must at least 90 days before the date of expiry of the licence apply to the Registrar for its renewal”. SAGA members (in fact, all licensed firearm owners) are urged to lodge their applications for renewal not less than 90 days prior to the expiry date of the license (but preferably also not more than 120 days prior to the expiry date since the renewed license will carry the date upon which it was renewed and not the original day and month). License holders are reminded that the onus rests on them to file the application with their relevant DFOs – do not rely on a reminder, it may not be forthcoming or it may come too late and bear in mind that licenses issued in terms of section 13 (for self-defence) have a shorted shelf-life (5 years) than those issued under sections 15, 16 and 17, (10 years) for instance.
If, however, the application for renewal is submitted in less than 90 days, the application may be accepted but it must provide reasons for such late submission (e.g. s/he was hospitalized; out of the country for a substantial period of time, etc.). It would be beneficial if proof about the particular fact could be provided (e.g. medical certificate or passport). It appears that the discretion to accept the late application rests on the particular DFO and that s/he has to apply her or his mind to whether or not the reason submitted is sufficient. On the wording of the instruction, however, it is my view that, provided an explanation/reason has been provided, the DFO is obliged to accept it and that s/he does not have the discretion to consider the validity of the reason. The instruction states that in the event of a late submission (within the 90 day period) the relevant license remains valid until the application has been decided upon. This instruction, albeit contrary to subsection (4) of section 24, which provides that only in the event of an application lodged in accordance with subsection (1) (if submitted “at least 90 days” before the expiry date), such license remains valid, provides some leeway for applicants.
The instruction further provides for people still in possession of “green licenses” issued in terms of the repealed Arms and Ammunition Act, No. 75 of 1969 who now wish to apply for renewal of such licenses, to apply for new licenses in terms of the FCA and that they would be regarded as lawful possessors until the applications have been decided upon. It also states that this dispensation is applicable only to those who have never migrated to the FCA, in other words, it is not applicable to those who had retained their “green licenses” despite having been issued with or denied licenses under the FCA. The National Commissioner recognizes that the court order granted by the North Gauteng High Court on 26 June 2009 in favour of SA Hunters and Game Conservation Association in their application against the Minister of Safety and Security (case no. 33656/2009) remains valid, but states that “This Order covers persons who at no stage migrated to the current Act of 2000”. Although this is also my view, there are other (equally convincing) opinions that the order is in fact applicable to all who are still in possession of “green licenses”, irrespective of whether or not they had migrated to the FCA. Since the migration of “green licenses” to the FCA will have to be negotiated between the parties and will probably be covered thereafter in the Amendment Act, members are advised not to rush out and apply for the renewal of their “green licenses” but to wait for further information.
Paragraph 8 of the National Commissioner’s instruction is of significance. It reads: “In the case where a person want to renew or apply for a licence, but the validity of the licence has already expired, the person must be informed that he/she is not anymore in lawful possession of the firearm and that the firearm must be surrendered to the nearest police station” (it does not say that it must be surrendered for destruction, though). The instruction goes no further to explain how the renewal process now needs to continue. There seems to be no reason why, after having surrendered the firearm, the affected person could not apply for a fresh license (SAPS 271).
The instruction is unfortunately a generalized one, which does not cater for the situation I alluded to above where the “green licenses” remain valid.
More importantly, it must be borne in mind that the police have created a situation from which they can hardly escape and that is their acceptance and processing of late applications for renewal and (in many instances) the issue of licenses under such circumstances. We are aware of people who have been granted licenses despite their having applied for renewal as long as two years after the expiry date. Members are referred to section 9(1) of the Constitution of the Republic of South Africa which provides that “Everyone is equal before the law and has the right to equal protection and benefit of the law”; and to section 33(1) which provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair”. Although the police commissioner’s instruction might portray a lawful process, it surely is not fair in comparison with how others have been dealt with. Although estoppel is a defence usually raised in civil matters (it means that if one has allowed a situation to be perceived and has done nothing to rectify (wrong) believes, one cannot jeopardize others by suddenly and unfairly relying on and enforce the correct fact), it could with success be raised in criminal prosecutions as well, especially when relying on fair and equal treatment in terms of our Constitution. Members are, however, advised not to take the law into their own hands by disobeying lawful instructions (and to possibly be arrested) but rather to obtain a court order or other legal intervention. The instruction does not provide for the surrender of unlicensed firearms to a licensed dealer, simply because dealers are not expected and allowed to take possession of such firearms.
Paragraph 9 provides that “When a firearm in respect of which the licence has expired is voluntarily surrendered, the owner will not be prosecuted”. Although this is good to know, one hopes this instruction has first been cleared with the National Director of Public Prosecutions since he is the only one who may institute criminal prosecutions. The instruction, however, implies that if the firearm is not voluntarily surrendered, the affected person could be prosecuted.
Members are reminded that this information is provided as part of SAGA’s advisory service and must not be construed as legal advice since it does not take cognizance of particular circumstances or facts.
Issued by: The SAGA Office tel +27 31 5629951 fax: +27 86 5539615