In the article below, Johan Martin Director / Owner at Martin & De Beer Incorporated, provides a comprehensive overview of SAPS National Instruction 8 of 2017: Property and exhibit management, more specifically the investigation and declaration of unfitness to possess a firearm.
This article serves as the second part to a previous article by Johan where he explains what happens to my firearm after it is confiscated by the police following a shooting incident, which falls under the same National Instruction 8 of 2017.
12. Declaration of person unfit to possess firearms and ammunition by the police, in terms of section 102
Only a commissioned officer, with the rank of Captain or higher, designated as the presiding officer by virtue of section 141 of the Firearms Control Act, 60 of 2000 (the FCA), may conduct a formal hearing in terms of section 102 of the FCA. Section 102 of the FCA states that a person may be declared 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);
(b) a final protection order has been issued against such person in terms of the Protection from Harassment Act, 2011 (Act No. 17 of 2011);
(c) the person has expressed the intention to injure or kill himself or herself or any other person by means of a firearm or any other dangerous weapon;
(d) because of that person’s mental condition, inclination to violence or dependence on any substance which has an intoxicating or narcotic effect,
(e) the person has failed to take the prescribed steps for the safe keeping of any firearm; or
(f) the person has provided information required in terms of the Firearms Control Act, which is false or misleading.
13. Fundamental Principles that guide section 102 inquiries
In terms of section 33(1) of our Constitution, everyone has the right to administrative action that is lawful, reasonable and procedurally fair. This right is further promoted through the provisions of the Promotion of Administrative Justice Act, 2000 (Act No 3 of 2000)(of PAJA).
Just administrative action, thus, requires a public administration which is accountable and responsible and has both procedural and substantive fairness elements.
Procedural just administrative action requires compliance with the rules of procedural fairness, whereas, substantive just administrative action requires compliance with the requirements of reasonableness, proportionality and rationality.
13.1 Procedural just administrative action-
The broad principles regarding fair procedure in terms of section 3(2)(b) of PAJA prescribes a process which, should at least have the following elements:
- Adequate notice of the nature and purpose of the proposed administrative action;
- A reasonable opportunity to make representations;
- A clear statement of the administrative action;
- Adequate notice of any right of review or internal appeal, where applicable, and,
- Adequate notice of the right to request reasons for the decision.
13.2 Substantive just administrative action-
In this regard the Act contains in section 102 further requirements, namely:
- The Presiding Officer must duly consider the matter;
- The Presiding Officer must be satisfied that the person is unfit to possess a firearm, and,
- The Presiding Officer does not solely rely on the same facts relating to a conviction in respect of which a court has made a determination, in terms of section 103(1) or (2) of the Act, that the person is not unfit to possess a firearm.
14. Declaration of person as unfit to possess firearms and ammunition by a court in terms of section 103
(a) Section 103 of the FCA applies to a declaration of unfitness by the court.
(b) A person becomes automatically unfit to possess a firearm in the following two
instances, unless the court determine otherwise, if a person is convicted―
(i) of a contravention of a provision of the Act relating to the unlawful possession of a firearm without the required licence, permit or authorisation; or
(ii) of an offence mentioned in section 103(1)(a) – (o) of the Act.
(c) Such person must within 24 hours surrender all firearms, ammunition, competency certificates, authorizations or licences to possess firearms to the nearest police station.
(d) If the firearm was an exhibit and the court has forfeited it to the State, the destruction process can be initiated.
14.1 Section 103(1)(a)-(o) of the Act, person is unfit if convicted by a court of-
(a) the unlawful possession of a firearm or ammunition;
(b) any crime or offence involving the unlawful use or handling of a firearm,
whether the firearm was used or handled by that person or by another participant
in that offence;
(c) an offence regarding the failure to store firearms or ammunition in accordance
with the requirements of this Act;
(d) an offence involving the negligent handling or loss of a firearm while the firearm
was in his or her possession or under his or her direct control;
(e) an offence involving the handling of a firearm while under the influence of any
substance which has an intoxicating or narcotic effect;
(f) any other crime or offence in the commission of which a firearm was used,
whether the firearm was used or handled by that person or by another participant
in the offence;
(g) any offence involving violence, sexual abuse or dishonesty, for which the
accused is sentenced to a period of imprisonment without the option of a fine;
(h) any other offence under or in terms of this Act in respect of which the accused
Is sentenced to a period of imprisonment without the option of a fine;
(i) any offence involving physical or sexual abuse occurring in a domestic
relationship as defined in section 1 of the Domestic Violence Act, 1998 (Act 116
of 1998);
(j) any offence involving the abuse of alcohol or drugs;
(k) any offence involving dealing in drugs;
(l) any offence in terms of the Domestic Violence Act, 1998 (Act 116 of 1998) in
respect of which the accused is sentenced to a period of imprisonment without
the option of a fine;
(m) any offence in terms of the Explosives Act, 1956 (Act 26 of 1956), in respect of
Which the accused is sentenced to a period of imprisonment without the option
of a fine;
(n) any offence involving sabotage, terrorism, public violence, arson, intimidation,
rape, kidnapping, or child stealing; or
(o) any conspiracy, incitement or attempt to commit an offence referred to above.
14.2 Schedule 2 of the Act offences, unfitness to be determined by magistrate
Section 103(2)(a) of the Act places a duty upon the court to make a declaration if the court determines that a person is unfit to possess a firearm.
Some scheduled 2 offences are:
high treason, sedition, malicious dame to property, culpable homicide, etc.
The court may make such an order even where the offence was committed without the use of a firearm.
(15) Effect of a declaration of a person unfit to possess a firearm
(a) Once a person is declared unfit to possess a firearm that person must dispose of the firearm.
(b) Section 104(3)(b) of the Act provides that if the firearm and ammunition are not disposed of within 60 days, it must be forfeited to the State and destroyed or disposed of as prescribed.
(c) Where the firearm is no longer required for any court proceedings or any other investigation purpose, it must be sent for destruction.
(d) If the firearm is not disposed through a dealer within sixty (60) days as stipulated in section 104(2) of the Act, the firearm must be forfeited to the State in terms of section 104(3)(b) of the Act.
(16) Right of appeal
Every person who has been declared unfit to possess a firearm in terms of section 102 of the FCA has a right of appeal in terms of section 133 of the FCA. An appeal notice must clearly indicate the decision taken, the date of the decision, the ground of appeal and all written submissions in support of the appeal must be attached to the appeal notice.
The respondent or his/her legal representative must submit the Notice of Appeal to the Chairperson of the Appeal Board by registered post at the following address:
Compiled by Johan Martin: Director / Owner at Martin & De Beer Incorporated, Bloemfontein
E-mail:johan@mdbinc.co.za
The Firearms Guardian policy is administered by Firearms Guardian (Pty) Ltd (FSP47115), an authorised Financial Services Provider and underwritten by GENRIC Insurance Company Limited (FSP43638), an authorised Financial Services Provider and licensed non-life Insurer.