Pointing of a firearm, antique firearm, or air gun.

The Firearms Control Act 60 of 2000 came into operation on 1 July 2004 and subsequently replaced the Arms and Ammunition Act 75 of 1969. The act introduced new gun control and administration era, allegedly aligned with international best practices.

The act contains several prohibitions, which, if read with section 120 of the act, creates various criminal offences punishable in our law. A firearm should not be pointed at someone without a legally justifiable reason. Failure to govern yourself within the parameters of the act could lead to criminal prosecution and declaration of being unfit to possess a firearm.

From the reading of the act, it is quite clear that a licenced firearm can only be used for a lawful purpose and where it is safe to use. If you own a firearm, you can only use the weapon to defend your life against an unlawful attack. To point a firearm at someone or discharging in public can lead to criminal prosecution and the perpetrator can lose his or her licence.

The sanction for a successful conviction is a 10-year prison sentence.

Read the guidelines on self-defence.

Definitions

Section 120(6)(a) and (b) of the Firearms Control Act, 60 of 2000 creates a criminal offence if you:

Point any firearm, an antique firearm or an air gun, whether it is loaded or capable of being discharged, at any person without good reason.

Or anything likely to lead a person to believe that it is a firearm, an antique firearm or air gun at any other person, without good reason to do so.

“Firearm” in terms of section 1 of the act means any:

“(a) device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant, at a muzzle energy exceeding 8 joules (6 ft-lbs);

(b) device manufactured or designed to discharge rim-fire, centre-fire or pin-fire ammunition;

(c) device which is not at the time capable of discharging any bullet or projectile, but which can be readily altered to be a firearm within the meaning of paragraph (a);

(d) device manufactured to discharge a bullet or any other projectile of .22 calibre or higher at a muzzle energy of more than 8 joules (6 ft-lbs) by means of compressed gas and not by means of burning propellant; or

(e) barrel, frame or receiver of a device referred to in paragraphs (a), (b), (c) and (d).”

“Antique firearm” in terms of section 1 of the act means:

“Any muzzle loading firearm manufactured before 1 January 1900, or any replica of such a firearm.”

“Air gun” in terms of section 1 of the act means:

“Any device manufactured to discharge a bullet or any other projectile of a calibre of less than 5,6 mm (.22 calibre), by means of compressed gas and not by means of burning propellant.”

Specific element the state must prove:

Pointing: The unlawful act of pointing a firearm at a person, which is aimed in the direction of a natural person.
Firearm / antique firearm/air gun: The state will have to proof that there was a firearm, antiques firearm or air gun, or anything likely to lead a person to believe that it is a firearm, an antique firearm or air gun at any other person, without good reason to do so.

For example, if a toy pistol leads a person to believe that it is a firearm, you will be guilty of an offence.

Person: A person in this context refers to a natural person and not a juristic person or a company.

The prosecution must present the following evidence in court for a successful conviction:

The complainant in the matter, alternatively witnesses, will have to testify about the facts surrounding the unlawful pointing of a firearm by the accused, as set out in the case of S v Hans(E), by testifying to:
the positions of the parties concerned.
direction in which the firearm was pointed.
the manner in which the firearm has been handled.
the underlying circumstances establishing the surrounding facts and circumstances of each case.

There must also be sufficient description of the alleged object being a firearm, antique firearm, or air gun to establish that it is a real firearm.

The motive the accused expressed by himself towards the complainant, both verbal and physical.

The court must apply the objective test, i.e., the reasonable person test, in cases where the person was led to believe that one of the abovementioned weapons was being pointed at them.

The state must prove that the object was a firearm, antique firearm, or air gun and will require the state to call expert witnesses.

The prosecution does not need to prove that the weapon was in working order, as the crime is the pointing of the firearm, not the discharging of a firearm, and the crux of the crime is the inducing of the belief that the weapon is capable of being used.

Possible defences that can be raised in such cases:

That your action of pointing of a firearm was with good cause, i.e., you acted in self-defence:
If an accused can prove that the object that was pointed was not a firearm nor resembles one, the state will be unsuccessful in obtaining a conviction. The test here is an objective one.

As firearm owners, we have the rights, and the responsibilities to act reasonably to protect human life.
If you ever find yourself accused of pointing a firearm, it is advisable to contact your attorneys immediately to assist you with the correct advice.
Remember, if you are arrested, you have the right not to say or do anything without the presence of your attorney.

Written by Heinrich Gonzales, Director of HFG Attorneys Inc.

Disclaimer

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.

HFG Attorneys in Paarl, Western Cape, specialises in four main areas, including family law, general litigation, criminal defence and firearm law.