Introduction:
With firearms being a large part of many South African households, it often happens that a firearm is left as inheritance when the owner passes away. This can be a complicated and lengthy process, but Firearms Guardian’s lawyers have compiled a guide on exactly what steps to follow if you chose to keep this firearm or decide to dispose of it.
While this may be of utmost emotional value to, for example, a son to inherit his father’s favourite hunting rifle, which the latter in turn inherited from his father or grandfather, it may also leave that son in a potentially dangerous legal position if he does not know how to handle the legal issues around the transfer of ownership of the firearm and how to become the legal owner of it.
There are specific statutory requirements that need to be complied within respect of a firearm in a deceased estate before the heir can take possession of said firearm. He must make sure that the correct procedure is followed otherwise he could find himself at the wrong end of the law.
What should my first priority be when I inherit a firearm?
It is important to start the process as soon as you can:
The Firearms Control Act, no 60 of 2000 (the Act) stipulates certain immediate procedures that must be followed regarding a firearm that forms part of a deceased estate and imposes specific requirements and responsibilities on an heir and the person who acts as executor where the deceased was the owner of a firearm. These procedures must be completed before an heir can take ownership and possession of an inherited firearm.
Safe storage of firearms prior to the appointment of an executor:
Immediate action after the death of the deceased is vitally important. The Act allows for the deceased’s firearms to be temporarily possessed by another person. Regulation 103 (1) of the Act stipulates that prior to the appointment of an executor, the nominated executor in the will, and in the absence of such nominated executor, an heir, next of kin or close relative of the deceased, who has proper storage facilities for firearms, may, under authority of a permit issued in terms of section 21 of the Act, possess the firearm(s) of a deceased.
The individual who is going to temporarily possess the firearm must complete an application for a Temporary Authorization to Possess a Firearm. The application must be submitted to the relevant designated Firearms Officer in the area where the applicant resides. The temporary permit must be valid at least until an appointment of executor notification has been issued.
The executor must be given full particulars of the person who has the deceased’s firearms and ammunition in safekeeping with a copy of the permit if such a permit was issued.
What is the proper and legal way to store my inherited firearm?
Sub regulation 103 (2) stipulates that after his appointment, the executor of the estate of a person who possesses a firearm or ammunition, must take steps to ensure the safe custody of the firearm and ammunition and store the firearm and ammunition in a storage facility as prescribed by regulation 86 of the Act. The executor may, under authority of a permit issued in terms of section 21 of the Act, hold the firearm in safe keeping.
The heir may also provide safe storage. Provided that if an heir of a deceased estate is a holder of a licence, authorisation or permit issued under the Act, that heir may provide for the safe custody of the firearm and ammunition on condition that:
(a) the executor does not have the required storage facilities; and
(b) the executor issues a letter of consent to the heir for the safe custody of the firearm, stating:
· The licence particulars of the deceased;
· And make, type and calibre of the firearm; as well as
· Every manufacturer’s serial number or additional identification mark that is reflected on the firearm.
A copy of the letter of consent must be filed with the Designated Firearms Officer for the area where the heir resides. The letter must be accompanied by a request that the Officer must visit the heir who has been given permission to keep the inherited firearm in safe storage, to ensure that all the requirements are being complied with. The letter of consent must specify:
·The reason for safekeeping.
· The period that the heir may hold the firearm in safe storage
·The name, identity number and physical address of the deceased licence holder.
·The name, identity number and physical address of the heir for whom permission has been given to hold the firearm in safe storage.
· Adequate particulars to enable identification of the licence, permit or authorization for temporary possession and the firearm.
The purpose of the permission given by the executor if for storage only. The stored firearm may not be used by anybody until the appropriate licences have been obtained.
Missing Firearms and ammunition:
If the deceased’s firearms are missing and the executor, next of kin or heirs cannot find them, the procedure for stolen or lost firearms must be followed.
Inventory:
On appointment, the executor must obtain full particulars of the deceased’s firearms and ammunition so that an inventory can be drawn up in accordance with regulation 103(3)(a) of the Act. This must be an inventory of all the firearms, ammunition and firearm parts that the deceased possessed and must clearly indicate the following:
- The make, type and calibre of a firearm;
- The manufacturer’s serial number or additional identification marks reflected on the firearm;
- The quantity, calibre and make of any ammunition; and
- All details of the firearm parts.
What information should I provide the Registrar of Firearms?
Within 14 days after appointment, the executor must deliver a letter to the Registrar, furnishing the following particulars;
· The name and address of the holder of the licence;
· The address where the firearm or ammunition is stored;
· a copy of the inventory;
· a copy of letter of appointment and if the holder of the licence is deceased, a copy of the death notice;
· the names, addresses and identity numbers of all beneficiaries; and
· documentary proof of appointment as executor of the estate concerned.
The Registrar must acknowledge receipt of the particulars to the executor and then record them in the Central Firearms Register.
Progress report by the executor:
The executor must, at least every three months, inform the Registrar in writing of the progress that has been made and steps which have been taken in respect of the transfer of the inherited firearm and ammunition together with the details of the heir to whom the firearm or ammunition must be transferred.
The Registrar may at any time by written notice direct the executor of the estate to inform him or her within the period mentioned in the notice of the progress that has been made and steps that have been taken in respect of any such transfer.
When can the executor finalise the administration of the Estate?
The Act determines that an executor cannot finally wind up the deceased’s estate before the Central Firearms Registry has confirmed with him that all firearms that were in the name of the deceased have been transferred to the heirs.
Different options to follow by the heir;
There are four options that a person, who has inherited a firearm, can choose between. According to the Act, he can do one of the following:
The heir chooses to keep the firearm
1. If a person inherits a firearm and he chooses to keep the firearm, he needs to apply for a new licence to possess a firearm. In terms of the Act, inheriting a firearm is not enough motivation to obtain a firearm licence, but it may be mentioned in the licence application that the firearm is a family heirloom. The person who inherits the firearm may only take possession of the firearm when he or she has obtained a licence for that particular firearm.
It is essential that the heir commence the firearm licence application process immediately. This can be a long and protracted exercise. As soon as the solvency and liquidity of the estate has been established, the heir is given possession of all the documentation from the executor for transfer of the firearm. This documentation includes a properly completed SAPS 271 form, a copy of the executor’s letter and permission for the transfer of the firearm. A copy of the permission must be sent to the Central Firearms Registry.
2. The heir will have to write the relevant test with the SAPS, obtain a competency certificate to own and handle that specific firearm, and will only be able to take possession of the inherited firearm once he or she obtained the relevant licence.
3. The heir must make sure that all the documentation associated with the firearm is correct and complete to avoid being charged for illegal possession of the firearm.
4. If the firearm is of high sentimental value, the heir may apply for it to be deactivated. Deactivation simply means to render the firearm inoperable by a Gunsmith of his choice. As soon as the firearm is deactivated, the Gunsmith will hand the firearm back to the heir with a certificate confirming the deactivation in terms of the regulation of the Act. The firearm will only be allowed to be displayed and such firearm cannot be used or carried by any person.
What if I am unable to or do not wish to keep the firearm?
The deactivation process:
· An application by the holder of a licence, authorisation or permit to deactivate a firearm must be made on the applicable form. The application and the firearm must be submitted to the Designated Firearms Officer, together with the licence, authorisation or permit to possess the firearm. On receipt of the application, licence, authorisation or permit and the firearm, the Designated Firearms Officer must issue an acknowledgment of receipt.
· The Designated Firearms Officer must forward the firearm for ballistic testing.
· The Designated Firearms Officer must forward the application and ballistic report to the Registrar for necessary consideration.
· The Registrar must, after consideration, provide the Designated Firearms Officer with a notice of approval or refusal to deactivate the firearm.
· After approval has been obtained from the Registrar, the Designated Firearms Officer must, against a written acknowledgment of receipt, hand the firearm to the gunsmith appointed by the holder of the licence, authorisation or permit to deactivate the firearm.
· The gunsmith must update the “Firearms Repair Register” by indicating that the authority to deactivate the firearm has been received.
· The gunsmith must deactivate the firearm in accordance with the Act. The deactivated firearm and a certificate issued by the gunsmith wherein it is confirmed that the deactivation in accordance with those prescripts have been completed must be handed to the Designated Firearms Officer.
· On receipt of the deactivation certificate and after the inspection of the firearm by the Designated Firearms Officer, the Registrar must cause the licence, authorisation or permit to be cancelled and destroyed. The Registrar must forward a notice of the cancellation to the holder of the licence.
· No person may deactivate a firearm without the prior permission by the Registrar having been obtained in writing. The Registrar shall only consent to the deactivation of a firearm with due regard and compliance with the provisions of the National Heritage Resources Act, 1999 (Act No. 25 of 1999) as imposed by the South African Heritage Resources Authority or their nominated agents.
If the heir chooses not to keep or use the firearm
If the heir chooses not to keep the inherited firearm, or fails to obtain the appropriate licence, the Registrar may issue a temporary authorization to allow him a reasonable time to dispose of the firearm. The firearm can be disposed of in the firearm in the following ways:
1. Apply for deactivation with SAPS
If the person prefers to keep, but does not want to use the inherited firearm, he or she can apply for the firearm to be deactivated by a gunsmith as set out above. Important to remember is that deactivation of the firearm can only be done upon approval by the Registrar.
2. Surrender the firearm to SAPS for destruction
The heir may surrender the firearm to the relevant Designated Firearms Officer for destruction in terms of regulation. The owner of a firearm remains the owner until the firearm is destroyed in terms of the Act. The firearm will then be assessed by the state whether they are destructible or to be forfeited to the state. The heir may apply for compensation if the firearm is forfeited to the state.
No person including the State may destroy a firearm without the prior written permission of the Registrar. The Registrar shall only consent to the destruction of a firearm with due regard and compliance with the provisions of the National Heritage Resources Act, 1999 (Act No. 25 of 1999) as imposed by the South African Heritage Resources Authority or their nominated agents.
3. Hand or sell the firearm to a dealer
The heir may sell the inherited firearm to a registered firearms’ dealer of his choice.
4. Donate the firearm to another person
If the heir is not interested in taking ownership of the inherited firearm, he may offer the firearm to any other person, whether family or not, as long as that person complies with the law. The nominated person must then apply for a licence to possess that firearm.
Conclusion
The South African Police Service have warned the public several times against being illegally in possession of a firearm inherited from a deceased person’s estate.
An heir can only take possession of an inherited firearm once a licence for the firearm has been issued to him.
If a person has inherited a firearm and is not sure what to do, it would be best to approach the Designated Firearm Officer at the nearest police station for advice. It is also recommended that an heir approaches a legal practitioner conversant with the Act to assist in this process.
