The Firearms Control Act on losing a firearm due to failure to lock away your firearm in a safe when it is not under your direct control.
Losing a firearm in South Africa can have draconian consequences for a lawful firearm owner. In most circumstances, you are the victim of a crime yourself, but instead you become the criminal.
Contravening section 120(8)(a) of the Firearms Control Act, Act 60 of 2000, (“the act”) is a criminal offence and could lead to criminal prosecution. Furthermore, a transgression of this sort could also lead to an administrative hearing in terms of section 102 of the act to declare you unfit to possess a firearm.
But what does this all mean? Let’s have a look at what legislation say:
- Section 120(8)(a) of the Firearms Control Act reads as follows:
(8) A person is guilty of an offence if he or she—
(a) fails to lock away his or her firearm or a firearm in his or her possession in a prescribed safe, strong-room or device for the safe-keeping when such firearm is not carried on his or her person or is not under his or her direct control; or”
- Regulation 86(1) reads as follows:
“86. Safes and safe custody.—(1) When a firearm or muzzle loading firearm is not under the direct personal and physical control of a holder of a licence, authorisation or permit to possess the firearm or muzzle loading firearm, the firearm or muzzle loading firearm and its ammunition must be stored in a safe or strongroom that conforms to the prescripts of SABS Standard 953-1 and 953-2, unless otherwise specifically provided in these regulations.”
The specific elements that the National Prosecuting Authority must proof for a conviction is:
- Not locking away your firearm; (120(8)(a))
- in a prescribed safe when; (Regulation 86(1))
- the firearm is not under your direct control.
The prosecution will have to present evidence regarding the possession of the firearm, the prescribed safe and if you had direct control over the firearm or not. The burden of proof is beyond reasonable doubt and lies on the prosecution.
The legislature, when the act was enacted, failed to define what is meant by the words “direct control”. This oversight is therefore open to interpretation according to the facts of each case.
According to the Oxford Dictionary the word “direct” means inter alia “something done without involving other people” whilst the word “control” connotes inter alia “the power to make decisions about something, the management of a situation or to have power over a certain thing.”
Let’s have a look at an example:
You are a businessman that spends a lot of time on the road, at night, and usually have sensitive, private, and confidential documents with you. You are a legal firearm owner, and always ensure that you have your handgun with you when traveling. One of your clients to visit, is the local bank in town. As a bank is a gun free zone, you are not allowed to take your handgun with you into the bank, and therefore hide it under your seat, lock the doors of the car, and then activate the alarm system. After your meeting, you return to your car only to find that you are a victim of a car break in, and that your handgun has been stolen.
Applying the above principles, to this example, one can argue that:
- Having regard to the immediately aforesaid, there is much leeway to assert that, at all relevant times, you never relinquished direct control over the firearm.
- At all relevant times, you were the only one that had control and access to the car;
- Therefore, you were not required to lock the firearm in a safe.
There is also various case law supporting above arguments.
The test to be applied by the court.
“If the reasonable person would in the same circumstances as those of the accused have acted in the same way, the accused cannot be said to have been negligent.”
The test for unlawfulness is objective and is based on negligence.
Should the court be of the opinion, that the reasonable person would have acted differently, the court will find you guilty of the offence in terms of section 120(8)(a). If convicted, section 103(1) of the act has the effect of an automatic declaration of unfitness to posses a firearm, unless the court direct otherwise. Your attorney specializing in Firearm Law will address the court on this issue.
Therefore, in summary, always ensure that you take the required precautions to prevent your firearms being stolen. Accidents does happen, therefore the reason for the leeway created by the legislator.
For expert Firearm Law advice, send an email to firstname.lastname@example.org
Written by Heinrich Gonzales, Director of HFG Attorneys Inc, SAGA Trustee and Legal Advisor at Firearms.co.za
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.