Declaration as unfit to possess a firearm: Unravelling the process

 

This article is the first of a three-part series that focusses on Chapter 12, Sections 102–105 of the Firearms Control Act, 60 of 2000 (“the Act”). Over the next three weeks, we will publish three articles on the following subjects:

  • Declaration by the Registrar of a person as unfit to possess a firearm (Section 102);
  • Declaration by a court of a person as unfit to possess a firearm (Section 103); and
  • The effect of a declaration of unfitness and the consequences thereof on you as firearm owner (Section 104).

For the purposes of this discussion, we will focus on Section 102 of the Act, which includes the procedures, your rights and the application of the test in these procedures. However, with rights come responsibilities and consequences, and that is exactly what the legislature intends with the relevant sections of the Act.

 

  1. Declaration by the Registrar of a person as unfit to possess a firearm (Section 102)

In terms of Section 102 of the Act, the Registrar has the authority to declare you as a firearm owner unfit to possess a firearm. Suppose, for this discussion, that you recently lost your firearm because you were negligent. After you reported the loss of the firearm within 24 hours, the SAPS opened a docket and proceeded with instituting criminal prosecution through a state prosecutor. However, because the state did not have a strong case against you, the criminal prosecution was withdrawn against you. A couple of weeks after the withdrawal, a SAPS officer serves a notice in terms of Section 102 on you. What should you do? Let’s start!

(Also read https://hfglaw.co.za/blog/item/26-lost-or-stolen-firearms-your-5-step-plan-of-action)

Before we proceed, let’s look at Section 102 again:

 

  1. Declaration by Registrar of person as unfit to possess firearm

...

(1)  The Registrar may declare a person unfit to possess a firearm if, on the grounds of information contained in a statement under oath or affirmation including a statement made by any person called as a witness, it appears that—

a) a final protection order has been issued against such person in terms of the Domestic Violence Act, 1998 (Act No. 116 of 1998);

(aA) a final protection order has been issued against such person in terms of the Protection from Harassment Act, 2011;

       [Para. (aA) inserted by s. 21 of Act No. 17 of 2011.]

b) that person has expressed the intention to kill or injure himself or herself or any other person by means of a firearm or any other dangerous weapon;

c) because of that person’s mental condition, inclination to violence or dependence on any substance which has an intoxicating or narcotic effect, the possession of a firearm by          that person is not in the interests of that person or of any other person;

d) that person has failed to take the prescribed steps for the safe-keeping of any firearm; or

e) that person has provided information required in terms of this Act which is false or misleading.

 

When you receive the notice, it is advisable to contact an attorney who specialises in Firearm Law to support you in the process. 

  1. How does the process work?

Section 102(2) of the Act requires the notice to be served on you by hand. This notice will call on you to appear at your local SAPS station at a specific time and place to produce reasons and arguments as to why the presiding officer of the hearing should not find you unfit to possess a firearm. At the hearing, there will always be a charging police officer who acts as a “prosecutor”, and a presiding hearing officer who must hold the rank of captain in the SAPS, or higher. The Act requires that you receive reasonable opportunity to prepare your case and reasons in advance, where after the presiding officer must duly consider the matter before making his decision.

Each police station has its own set of rules on how to conduct the hearing. Normally, the charging police officer will read the charge(s) against you; thereafter, the SAPS will call their witness(es) to testify against you and thus present its case. Fortunately, in terms of Section 102(3) you have the right to be represented by your attorney at this hearing. The attorney will then cross-examine the state witness(es) in an effort to discredit their evidence. After the state closes their evidence, your attorney will present your case with evidence such as affidavits and/or oral evidence. The SAPS also enjoys the right to cross-examine your witness(es). After this is concluded, your attorney and the charging police officer will make closing arguments to the presiding officer at the hearing, based on legislation and case law, before the presiding officer makes his/her decision.

Section 102 proceedings differ from the normal criminal proceedings in the following ways:

  • A Section 102 proceeding is a more informal process than the criminal prosecution process;
  • Criminal matters are prosecuted in a court by a state prosecutor in the service of the National Prosecuting Authority, while the Section 102 proceedings are conducted at the local police station by police officers;
  • A Section 102 proceeding is an administrative process against you, while criminal proceedings are material and procedural criminal law; and
  • The burden of proof in Section 102 proceedings rests on you to convince the presiding officer on a balance of probabilities that you are fit to possess a firearm (50% + 1), while in criminal matters the burden of proof is on the state to proof your guilt above reasonable doubt (75% + 1).

 

  1. The test

In terms of the facts above, the charging officer will most probably charge you in terms of Subsection 102(1) (d): You failed to take the prescribed steps to safeguard your firearm. The test that must be applied in matters like these is entrenched within our case law in various judgements.

In terms of case law, the objective test of the bonus pater familias must be applied in matters like this. This means that presiding officers must ask themselves how the notional reasonable lawful possessor of the firearm would have acted if he/she was in your shoes. The second part of this test is to establish if the conduct of the notional reasonable person would be similar to your own conduct in the specific situation. If you did not act as a notional reasonable person, your actions are negligent and may convince the presiding officer to declare you unfit to possess a firearm.

Unfortunately, one cannot brand a particular manner of safeguarding a firearm as reasonable or unreasonable without regards to the place, time and personal circumstances. The duty of care should thus not be unreasonable, unrealistic or impractical.

 

  1. Conclusion

It is of paramount importance to ensure that you always take the prescribed steps to safeguard your firearm, and to act in accordance with legislation and case law. If not, you may be declared unfit to possess a firearm and lose your firearm(s). The consequences of the declaration of unfitness will be discussed in part 3.

For any firearm-related enquiries and specialist advice, send an email to paarl@legallyarmed.co.za  (our offices are based in the Western Cape) or johan@legallyarmed.co.za (in the Free State).

 

HFG ATTORNEYS INC.

LEGALLY ARMED PAARL

Heinrich Gonzales

hein@hfglaw.co.za

paarl@legallyarmed.co.za

www.hfglaw.co.za

 

In association with:

 

MARTIN & DE BEER INC.

BLOEMFONTEIN

Johan Martin

johan@mdbinc.co.za

johanmartin@legallyarmed.co.za

 

(This article is an information piece and not a formal legal opinion. HFG Attorneys accepts no liability for damages caused by errors and omissions.)

 

About HFG

HFG Attorneys Inc. was established in March 2018 after opening the doors in the winelands valley of Paarl, Western Cape. The company’s head office is based in Paarl, but assists its clients anywhere in South Africa when needed.

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HF Gonzales Attorneys Inc. t/a HFG Attorneys (Registration number: 2018/540437/21)