REPORT ON STATUS OF (EVER?)GREEN FIREARM LICENCES.
APPLICATION TO HAVE INTERIM 2009 SA HUNTERS VS MINISTER OF SAFETY AND SECURITY ORDER UPLIFTED.
1. RECENT DEVELOPMENTS.
It is important that your members should take notice of recent developments in respect of the continued validity of licences that had been issued in terms of the previous Arms and Ammuntion Act (Act 75 of 1969) (“The Previous Act.”). I refer to all licences issued in terms of the previous act, irrespective whether they were in green credit card format or pasted into an identity book, as “old green licences.”
2.1. Old green licences didn’t have an expiry date and were therefore valid untill the owner died or sold the firearm. The Firearms Control Act (Act 60 of 2000) (“The New Act”) came into existence on 1 July 2004 and provided that the licences of all firearms with old green licences had to be renewed.
2.2. The New Act also provided that all old green licences would expire on 30 June 2009 (unless renewed in terms of the New Act), whereafter the possession of such firearms would become illegal.
3. 2009 INTERIM ORDER.
3.1. In 2009 SA Hunters and Conservation Association brought an application in the High Court, Pretoria against the Minister of Safety and Security and challenged the constitutionality of the transitional provisions of the New Act (“the main application”). They also brought an urgent application for an interim order to govern the legality of the green licences pending the outcome of the main application (“the interim application”).
3.2. PHASA was admitted in the application as a second applicant and it’s advocate also argued the matter to protect the rights of the holders of green licences.
3.3. On 26 June 2009, Judge Prinsloo after hearing the interim application, issued an order stating that all licences issued in terms of the previous act will remain valid pending the outcome of the main application.
3.4. The effect was that old green licences were deemed to be valid pending the outcome of the main application. The Police respected this interim order and regarded all old green licences to remain valid. However in February 2016 Commissioner Pahlane issued a directive that the interim order was only valid in respect of firearms that had never migrated to the new system. According to the Pahlane -interpretation, once a firearm had been relicensed in terms of the New Act and a white licence card had been issued, the old green license was no longer valid. This interpretation has been disputed by firearm owners’ associations but the Police could not be convinced otherwise. The Police will continue to follow the Pahlane -interpretation. The effect is that if a firearm owner had an old green licence, and renewed the licence to get a white licence, but allowed that new white licence to expire (for whatever reason) the owner is in illegal possession of such firearm.
3.5. The effect is that the only two categories of firearm owners who are presently regarded by the Police as being in legal possession of a firearm, are the following:
3.5.1. A person who has an old green license in respect of a firearm that was never relicenced in terms of the new act; and
3.5.2. A firearm that has a valid white license.
4. THREAT OF UPLIFTMENT OF INTERIM ORDER WHICH PROTECTS OLD GREEN LICENCES.
4.1. SA Hunters (and PHASA) have for a variety of reasons not proceeded with the main application. It is now 11 years later and the Police have decided that the matter should be brought to finality.
4.2. During September 2020 the State attorney wrote to SA Hunters that their instructions from the Minister of Police are to bring an application for the uplifment of the interim order.
4.3. If such an order is granted, the effect will be that the licences of approximately 500 000 green licences (which have until present been regarded as being valid) will lapse and such firearms will (unless the application is dismissed or a settlement is reached) be regarded to be in illegal possession thereof.
5. PHASA’S INVOLMENT AND PRESENT PROPOSAL.
5.1. Although PHASA was not notified of the threat to apply for the upliftment of the interim order, PHASA insisted to be part of the negotiations between the State Attorney and SA Hunters.
5.2. The State Attorney has made a proposal according to the following lines:
5.1.2. That all old green licences be phased out over a six months period;
5.1.2. That new firearm licence applications for such firearms can be submitted;
5.1.3. That applications for competency certificates in respect of such firearms can be submitted simultaniously with applications for new licences;
5.1.4. Firearms can be kept by the the owners pending the outcome of the application for a new licence.
6. PHASA’S LEGAL TEAM.
PHASA appointed this firm to provide it with legal advice and a consultation was held with adv Pearce Rood SC and adv Henry Cowley to give advice in respect of the way forward. PHASA’s President, Pieter Potgieter and CEO, Dries van Coller also attended the consultation.
7. PHASA’S POINTS OF DEPARTURE.
7.1. PHASA supports the idea that there should be a single register and that old green licenses should be phased out, but can not support the idea that the phasing out should take place over a six month period;
7.2. It is clear that the Central Firearms Registry don’t have the capacity to process the present new firearm licenses, renewal of licenses or license applications in terms of the amnesty. We shall propose that the phasing out of green licenses should take place in four groups over a 24 month period;
7.3. We shall also address the dilemma of firearm owners who have converted from old green licences to white licences, but who allowed their white licences to lapse. We believe that many firearm licences didn’t lapse as a result of negligence on the part of the firearm owner, but rather due to various circumstances.
8. CONTACT WITH OTHER ROLL PLAYERS.
8.1. We had a video conference on 17 February 2021 with SA Hunters and their legal team as well as the Arms and Ammunition Collectors Association (who was admitted as an amicus curiae in the 2009 application).
8.2. It was decided that PHASA’s legal team will make proposals to the State Attorney on how to phase the green licences out in a practical and fair manner. This proposal must be done by 15 March 2021. If an agreement can not be reached, the State Attorney will probably bring an application for the uplifment of the order and PHASA and other parties will then have to take a decision on whether to defend the order or not.
8.3. Our impressions are that the Minister of Police will not look for a practical sollution to the problem and will insist on the phasin out over the proposed 6 month period.
9. URGENT STEPS TO BE TAKEN BY FIREARM OWNERS WHO HAVE ONLY A GREEN LICENCE FOR A PARTICULAR FIREARM.
9.1. Firearm owners with fireams with only old green licences must accept that those licences are not as evergreen as they believe and that the sooner they are converted to new white licences, the better;
9.2. Such conversion can NOW already be effected by completion of an SAPS 517(e) -form and an Annexure A in respect of the firearm;
9.3. If you still need to obtain a competency certificate, you must immediately do the proficiency course and apply for a competency certificate.
10. GENERAL WARNING.
10.1. Check the expiry date of all your firearm licences and ensure that your applications for renewal are submitted at least 90 days before the expiry date;
10.2. If it is impossible to comply with the 90 day period, make notes of the reasons and include it in your application for renewal of your licences.
REGSPRAKTISYN / LEGAL PRACTITIONER: Juan Kotze B.Juris (UP) LLB (SA)
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