You arrive home one night after a long day’s work, only to realise that your firearm is not in the holster anymore. You immediately run to your motor vehicle to establish if it maybe “slipped-out” there, but the firearms is still nowhere to be found. It is important to immediately act in accordance with the Firearms Control Act, 2000 (Act No 60 of 2000) and the relevant regulations. (Hereinafter referred to as the “Act”)
Read the full act here:
Read the regulations here:
Section 120(11) of the act places an obligation on the holder of a licence, permit or authorisation to possess a firearm, and any other person who was in the possession of or who had the control of a firearm when it was lost, stolen or destroyed, must report such loss, theft or destruction within 24 hours after having become aware of the loss, theft or destruction of the firearm to the nearest police station.
Failure to comply with section 120(11), could lead to criminal prosecution with the possibility of imprisonment for up to 10 years in terms of schedule 4 of the act.
In terms of section 35 of the South African Constitution, you have the right to an attorney of your choice who can assist you in this process. You also have the right to remain silent and anything you say can and will be used against you in a court of law. You also enjoy the right against self-incrimination, and you are under no obligation to depose an affidavit which incriminates yourself. Taking into account all these legislation and obligations, it is important to instruct the right attorney to guide you through the process.
Read the Constitution here:
Your 5 step plan of action:
- Upon realization that you lost your firearm, you should immediately contact your criminal law attorney who specializes in firearm related issues. This is of the utmost importance. Always keep in mind your 24 hour window to report the lost and/or theft of the firearm.
- Briefly explain the facts surrounding the matter to your attorney. This could be done by telephone. Be honest to your attorney. He is your best friend! Your attorney will schedule a meeting with you as soon as possible. Subject to the time frame of 24 hours. If the 24 hours is about to expire, your attorney must immediately act and assist you with the necessary, even if it is after hours!
- Your attorney will have a thorough consultation with you regarding the matter and draft an A1 police statement on behalf of yourself in accordance with your instructions. This affidavit will only contain the necessary averments to report the firearm as stolen. Remember, you don’t have to assist the police in their investigation and you have the right to remain silent.
- After step 3, you and your attorney must go to the nearest police station and report the firearm as stolen. Kindly take note that this must be done within 24 hours upon establishing the firearm is lost and/or stolen.
- At the police station the police officer will open a docket and file your A1 statement which was drafted by your attorney. If the police officer starts asking questions regarding the facts and background surrounding the incident, your attorney will inform the police officer that you have already filed your affidavit and you have nothing to add. Police officers sometimes “fish” for more facts to incriminate you.
After reporting the firearm as being stolen, the South African Police Service will most probably open a criminal docket against you and will start the process to investigate the matter and possibly charge you of a criminal offence in terms of section 120(8) of the act.
Section 120(8) states as follows:
“(8) A person is guilty of an offence if he or she-
- loses a firearm, or is otherwise dispossessed of a firearm owing to that person’s failure to-
- lock the firearm away in a prescribed safe, strong-room or device for the safekeeping of a firearm;
- take reasonable steps to prevent the loss or theft of the firearm while the firearm was on his or her person or under his or her direct control;
- keep the keys to such safe, strong-room or device in safe custody.”
After the police docket is opened, the police will assign an investigating officer to investigate the matter, where after they will take the docket to the control prosecutor for a decision on the matter. Your attorney will draft and file representation on the merits of the case, which includes relevant legislation and/or case law, to convince the control prosecutor not to proceed with prosecution. If the control prosecutor is of the opinion that they have a prima face case against you, they will charge and prosecute you with the negligent loss of a firearm. If the prosecutor is of the opinion that there is reasonable doubt that they will successfully prosecute you, they will withdraw the charges.
It is of utmost importance to phone your attorney the moment you establish that your firearm is lost and/or stolen. Don’t go to the police station by yourself to report the lost and/or stolen firearm, and refrain from deposing your own affidavit regarding the matter. It is more than likely that you could say something in the “self-drafted” affidavit that could later on be used against you in the criminal trial. Ensure that you always have your criminal law attorney’s cell phone number on your phone for an after hour crisis.
In terms of schedule 4 of the act, you could be imposed direct imprisonment for up to 5 years if found guilty of an offence in terms of section 120(8) of the act. The stakes are high and the risk is serious. Get the right advice from a specialist.
(This article is an information piece and not a formal legal opinion. HFG Attorneys accepts no liability for damages caused by errors and omissions)