South Africa

OP-ED: Concourt’s Firearms Control Act ruling gives a clear direction on gun licensing

A recent Constitutional Court ruling notes that a system of regular gun licence renewal brings South Africa’s gun control regime within an international legal and political gun control framework.

On June 7, 2018 the Constitutional Court unanimously ruled that sections 24 and 28 of the Firearms Control Act (2000), under which gun owners must renew their firearm licences or forfeit guns for which licences have expired to the state, are constitutional.

Significantly the ConCourt noted that gun ownership is not a fundamental right under South Africa’s Bill of Rights, rather it is a privilege regulated by the Firearms Control Act (FCA). Under the Act:

No person may possess a gun without a valid licence;

A firearm licence is valid for a limited period of time; and

Unless a gun owner has renewed his gun licence before expiry, he has committed a criminal offence and is subject to penalties.

The ConCourt went on to rule that sections 24 and 28 of the Act are not vague and irrational, do not breach the right of equality and do not violate the protection of property rights as was argued by the SA Hunters and Game Conservation Association.

The court also noted that the system of regular gun licence renewal brings South Africa’s gun control regime within an international legal and political gun control framework where countries worldwide require licensees to renew their licences on a regular basis. Moreover, the Act recognises government’s responsibility for public safety by instituting a system of checks and balances through regular licence renewal to ensure that a gun owner remains “fit and proper” to own a gun, thereby helping prevent gun-related crime.

At the heart of the Constitutional Court ruling is the principle of implementation: For any law to achieve its objectives, it needs to be enforced; the two bookends of effective implementation are enforcement by authorities on one hand and compliance by citizens on the other.

Given that sections 24 and 28 of the FCA mark a dramatic break from the apartheid era Arms and Ammunition Act of 1969 – under which gun licences lasted for life – there has been significant resistance to the principle of regular licence renewal; and non-compliance has been facilitated by non-enforcement by the authorities.

This implementation “vacuum” is illustrated with two examples. In the first, as many as 1 million gun owners with “green licences” (so-called as they are contained in the green ID document) issued under the Arms and Ammunition Act have still not been licensed under the stricter provisions of the Firearms Control Act (2000).

The exclusion of gun owners with “green licences” from the FCA dates to 2009, when a motion was filed in the North Gauteng High Court against the Minister of Police in the matter of licence renewals, alleging poor implementation of the renewal system. On 26 June 2009, the Court ordered that all firearm licences issued under the Arms and Ammunition Act “shall be deemed to be lawful and valid” pending the final outcome of the application to have certain sections of the FCA declared unconstitutional. Nine years later the interim order has still not been set down for a hearing because the Minister of Police has not filed an answering affidavit, thereby preventing full implementation of the Act.

In the second example, 33 percent of gun owners licensed under the FCA failed to renew their licences in 2015/16: police data shows that of the 191,488 firearm licences up for renewal in this period, 128,419 applications were received. The power of enforcement to spur compliance by some and incite resistance by others is tellingly illustrated in this example, which relates directly to the recent ConCourt ruling.

The origins of the application considered by the ConCourt date to February 2016, when Acting National Police Commissioner, Lieutenant General Khomotso Phahlane issued a directive within SAPS to standardise the firearm licence renewal process, which had been unevenly enforced and complied with around the country. The impact of SAPS closing the implementation “vacuum” relating to gun licence renewals by enforcing Sections 24 and 28 of the FCA was immediate: as soon as the law was enforced, compliance levels increased.

Figures for gun licence renewal applications between 2011/12 and 2016/17 show that gun licence renewal applications increased significantly in 2015/16 and 2016/17 (when an average of 126,613 gun licence renewal applications were submitted annually) compared to the previous four years (when an average of 40,000 applications were submitted); it is in 2015/16 that SAPS seems to have taken steps to uniformly enforce S24 and S28 of the FCA nationally.

Moreover, it appears that the legal challenge to SAPS’ 2016 directive did not impact on renewal applications, with licence renewal applications remaining high in 2016/17.

Between 2000, when South Africa’s new gun law passed, and 2010, the coutry’s gun death rate almost halved – proof that a strong gun law can save lives. However, since 2010 there’s been a steady erosion in the effectiveness of the Act. In a void of strong and effective police leadership, the SAPS has consistently failed to enforce the law, either through deliberate fraud and corruption or a dereliction of duty; while many gun owners have sought and exploited loopholes in the law to bypass controls and accumulate guns. As gun availability has increased so have the number of people who are shot and killed; to illustrate the severity of our gun violence epidemic – people are now paralysed by gunshots than by car accidents in the Western Cape.

The ConCourt ruling has the potential to kick-start the enforcement of the FCA. It gives a clear directive to SAPS to properly enforce the law and to gun owners to comply with the law. As soon as one of these parties acts, the other will be forced to respond, helping close the implementation “vacuum” feeding gun violence in South Africa. DM

Ronald Menoe is chairperson of Gun Free South Africa and Claire Taylor is a specialist researcher at the organisation.

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