SECTIONS 24 AND 28 OF THE FIREARMS CONTROL ACT DECLARED UNCONSTITUTIONAL

The South African Hunters and Game Conservation Association v Minister of Safety and Security of the Republic of South Africa [2017] 3 All SA 1059 (GP)

ALSO REPORTED AS:

SOUTH AFRICAN HUNTERS AND GAME CONSERVATION ASSOCIATION v MINISTER OF SAFETY AND SECURITY 2017 (2) SACR 288 (GP)

Constitutional law – Firearm control and regulation – Renewal of firearm licences – Effect of failure to renew within specified time limit – Sections 24 and 28 of the Firearms Control Act 60 of 2000 – Constitutionality – Regime of renewal not defensible on grounds of rationality, clarity or non-arbitrariness, and violated property rights.

The Firearms Control Act 60 of 2000 (“the Act”) replaced the Arms and Ammunition Act 75 of 1969 (the “1969 Act”), and established a transitional regime to migrate the regulation of firearm ownership from the regime created by the 1969 Act, to the new regime created. Provision is made for a system of automatic periodic relicensing of firearms. Schedule 1 of the Act provides for a five-year transitional period, during which licences obtained under the 1969 Act remained valid until 30 June 2009. On 29 June 2009, the applicant obtained an interim order preserving the status of the 1969 Act licences, pending the finalisation of its main application, in which it sought an order that certain provisions of Schedule 1 of the Act be declared unconstitutional.

The main application was never finalised because, after the initial litigation, the parties started negotiations which led to the publication of a Draft Firearm Control Amendment Bill on 3 March 2015 (the “Bill”).

According to the applicant, the Bill addressed its concerns, as well as the constitutional challenges.

Despite an indication by the Minister that the Bill would be introduced in Parliament by September 2016, that did not happen. The failure to introduce the Bill, and the chaos and uncertainty that reigned pertaining to various aspects related to firearm administration, led to the present application. The affidavits filed by the applicant attested to the uncertainty and lack of clarity on how the legislation should be implemented and illustrated that those charged with administering the legislation simply did not know how to go about it, resulting in highly inconsistent outcomes. As a result, the applicant approached the court. It eventually limited the relief sought to the declaration of unconstitutionality of sections 24 and 28of the Act.

Held – The evidence established that chaos reigned in firearm licensing and administration. The stated purpose of the Act is to establish a comprehensive and an effective system of firearm control. In order to ensure proper control no one is allowed to possess a firearm, unless such a person holds the required licence. Under the Act a firearm licence has a limited lifespan. In respect of licences for self-defence the prescribed period is 5 years and in respect of hunting 10 years. The putting in place of a period of finite licences is one of the central features that distinguishes this Act from its predecessor, which made provision for licences in perpetuity. A person who wishes to renew the licence, must in terms of section 24, apply at least 90 days before the date of expiry to the Registrar for a renewal. The applicant contended that the problems with sections 24 and 28 arose as it was extremely difficult, if not impossible, to meet the requirements of legality once a person failed to comply with the 90-day time limit contained in section 24. If a person failed to apply for a renewal at least 90 days before expiry, there was no provision in the Act that facilitated the person bringing himself back within the parameters of the law – and he would thenceforth be in unlawful possession of a firearm. Section 28 deals with the circumstances in which a licence is cancelled. The crucial discrepancy in the legislation is that people who stand to lose their licences through cancellation, or a declaration by the Registrar or a court that they are unfit to possess a firearm are granted certain procedures to ensure due process. No similar provisions exist if the licence expires due to the effluxion of time. Those affected by the latter scenario are not granted due process nor any manner in which they can bring themselves back within a scheme of legality, nor is there any clarity as to how they should surrender the now unlicensed firearm. The proposed amendment Bill would, according to the applicant, address those issues.

The applicant, therefore, argued that the regime of renewal that was put in place was not defensible on grounds of rationality, clarity or non-arbitrariness. It was argued that the way that the sections operate additionally impacted on the right to equality and on property rights. Closely linked to the rationality issue, was the challenge of vagueness – it being argued that it was not clear what should be done once on the wrong side of the law. The Court agreed that the existing scheme and the legislative framework were both irrational and vague. There appeared to be no rational nexus between the legislative scheme and the pursuit of a legitimate government purpose that could explain the discrepancies in procedure and outcome as referred to above. The mere fact that no proper procedure was provided to bring oneself back under a scheme of legality, nor to surrender a firearm for value or otherwise, pointed to irrationality and vagueness. It was, therefore, concluded that the legislation was unconstitutional on the basis of lack of rationality and clarity.

A final point raised by the applicant was that the impugned provisions violated section 25 of the Constitution, which guarantees one’s right to property and prohibits the arbitrary deprivation of property. The argument arose because of the obligation to surrender a firearm under certain circumstances and the fact that one is not allowed to possess a firearm without a valid licence. The Court held that the deprivation of a firearm in the absence of proper procedure constituted a violation of the owner’s property rights.

Sections 24 and 28 were declared unconstitutional and had to be amended to pass constitutional muster. Parliament was given 18 months within which to effect the amendment of the Act.

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