WHAT PROCEDURE TO FOLLOW WHEN YOU'VE LOST YOUR FIREARM
If the owner of a firearm should realise that he or she has lost his gun, the person should immediately act in accordance with the Firearms Control Act, 2000 (Act No 60 of 2000) and the relevant regulations.
According to section 120(11) of the act, every person in possession or control of a firearm when it is lost, stolen or destroyed must report the loss, theft or destruction to the nearest police station within 24 hours.
Infractions of section 120(11) may result in criminal charges and up to ten years in jail.
Section 35 of the South African Constitution gives you the freedom to choose an attorney to assist you in this process. A court may use everything you say against you, even your right to remain silent. You have the right not to be incriminated and are not required to produce an affidavit incriminating yourself. Considering all of these laws and requirements, it is critical to hire the best attorney to assist you.
We have compiled this online guide on what procedure to follow when you’ve lost your firearm.
Steps to follow
Upon realising that you lost your firearm, you should immediately call your criminal law attorney who specialises in firearm related concerns. This is quite important. Always remember that you have a 24-hour window to report a lost or stolen handgun.
Briefly explain the facts of the case to your attorney. This might be done over the phone. Be truthful with your counsel. He’s your best pal! Your attorney will contact you as soon as possible to set up a meeting. Subject to a 24-hour time limit. If the 24-hour period is about to expire, your attorney must move swiftly and assist you with the appropriate steps, even if it is beyond business hours!
Your attorney will have a detailed consultation with you regarding the case and will draught a police statement on your behalf based on your directions. This affidavit will only include the averments required to report the handgun as stolen. Remember that you are not required to assist the authorities in their investigation and that you have the right to remain silent.
Then you and your attorney must report the firearm as stolen to the nearest police station. Please keep in mind that this must be done within 24 hours of determining that the firearm has been lost or stolen.
The police officer will start a docket and file your statement, which was drafted by your attorney, at the police station. If the police officer begins to interrogate you about the facts and circumstances surrounding the incident, your attorney will advise him that you have already filed your affidavit and have nothing else to say. Police personnel may “fish” for additional facts to incriminate you.
After reporting the stolen firearm, the South African Police Service would most likely open a criminal docket against you and begin the process of investigating the incident and perhaps charging you with a criminal offence under section 120(8) of the act.
According to Section 120(8), a person is guilty of an offence if he or she loses a firearm or is otherwise deprived of a firearm as a result of that person’s failure to-
- Lock the firearm away in a designated safe, strong-room, or gadget for firearm storage;
- Take reasonable precautions to prevent the firearm’s loss or theft while it was on his or her person or in his or her immediate control;
- Keep the keys to such a safe, strong-room, or device in a secure location.
Following the opening of the police docket, the police will designate an investigating officer to investigate the matter, following which they will refer the docket to the control prosecutor for a judgement. Your attorney will create and file a representation on the merits of the case, including relevant legislation and/or case law, in order to persuade the control prosecutor not to prosecute. If the control prosecutor believes they have a prima facie case against you, you will be charged and prosecuted for negligent loss of a firearm. If the prosecutor believes there is a reasonable doubt that you will be successfully prosecuted, the charges will be dropped.
It is critical that you contact an attorney as soon as you discover that your firearm has been lost or stolen. Don’t go to the police station by yourself to report a lost or stolen firearm, and don’t depose your own affidavit on the subject. You are very likely to state something in the “self-drafted” affidavit that will be used against you in the criminal prosecution. Make sure you always have your criminal law attorney’s cell phone number on hand in case of an after-hours emergency.
If you are found guilty of an offence under section 120(8) of the act, you could face direct imprisonment for up to 5 years under schedule 4 of the act.
Written by Heinrich Gonzales, Director of HFG Attorneys Inc.
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.