Unravelling s 103 of the Firearms Control Act

July 1st, 2017
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By Sherika Maharaj

Section 103 of the Firearms Control Act 60 of 2000 (the Act) deals with the declaration of unfitness of a convicted person to possess a firearm. In practice it is extremely important for legal practitioners practicing criminal law to be aware of these provisions and what the consequences would be for their clients. This provision only comes into play if the accused is convicted of certain criminal offences.

Section 103(1) of the Act

This section states that: ‘Unless the court determines otherwise’ a person becomes unfit to possess a firearm if convicted of an offence, which is listed in that subsection. Therefore, a person is ex lege (by operation of the law) automatically declared unfit to possess a firearm. The court – when making a finding – will in practice state that ‘no order is made’.

It is very important to know which offences fall within this subsection. The offences listed in subs 1 are as follows –

‘(a) 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) any 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 defined in section 1 of the Domestic Violence 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 … 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 [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 conspiracty, incitement or attempt to commit an offence referred to above.’

Section 103(2) of the Act

This section applies to cases where the convicted person does not fall into the categories listed in subs 1, but falls into categories listed in sch 2 of the Act. This subsection gives the court a discretion to decide whether to declare a person unfit to possess a firearm.

Schedule 2 refers to the offences of: High treason; sedition; malicious damage to property; entering premises with the intent to commit an offence under either the common law or a statutory provision; culpable homicide; and extortion.

When is the inquiry done?

In practice it is usually done after a conviction and the previous convictions of the accused has been proved.

Procedure for the inquiry

The accused can present his or her case by testifying and calling witnesses. The state will then have the same opportunity. Both parties will be given the opportunity to address the court and the court can deliver judgment.

From personal experience, however, legal practitioners merely address the court from the Bar without leading evidence in this regard. The court, after hearing the address by both defence and the state, then makes a finding in terms of s 103(1) or (2).

Three decided cases and the court’s perspective

In S v Lukwe 2005 (2) SACR 578 (W), a matter that was sent on automatic review as the accused appeared in person. Borchers J dealt with the court a quo’s findings in declaring the accused unfit to possess a firearm in terms of the provisions of s 103(2)(a) of the Act. The accused was convicted of theft and received a wholly suspended sentence without the option of a fine. The court a quo explained to the undefended accused that he was entitled to state reasons why he should not be declared unfit to possess a firearm. The accused responded that he one day wanted to become a policeman or security officer.

The review court held as follows:

‘[T]hat the wholly suspended sentence imposed upon the accused fell within the ambit of s 103(1)(g) of the Act, which stated that, unless the court determined otherwise, a person became unfit to possess a firearm if convicted of “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”.’

The court held that the inquiry had to have been conducted in terms of s 103(1) of the Act and the court, therefore, erred by not explaining to the accused that he was entitled to place before the court the fact that he was fit to possess a firearm, which might satisfy the court. Absent to such an explanation, the accused placed before the court facts, which related to his prospective ‘need’ to possess a firearm and not to his ‘fitness’ to possess a firearm. The court held that ‘fitness’ and ‘need’ were two different concepts. The matter was referred back to the magistrate for an inquiry to be held in terms of s 103(1) of the Act.

S v Smith 2006 (1) SACR 307 (W) dealt with the provisions of a declaration of unfitness to possess a firearm in terms of s 103(2)(a) of the Act. This provision requires a court, which convicts a person of a crime mentioned in sch 2 to the Act, and which was not a crime mentioned in s 103(1), to inquire and determine whether that person was unfit to possess a firearm. The accused pleaded guilty to a charge of theft and after sentence was passed, he was declared unfit to possess a firearm in terms of s 103(2)(a). The High Court held in casu that there were no facts on record on which the accused could realistically be declared unfit to possess a firearm. It held that the inquiry (an act of seeking information) had not occurred, and it was peremptory that such an inquiry be held. The matter was remitted to the court a quo, so that the necessary inquiry could be conducted. In this case the magistrate merely asked the accused to advance reasons why he should or should not be entitled to possess a firearm and the accused replied that he did not need a firearm. The court stated that what is required by the judicial officer is for him to ask relevant questions to establish whether the conduct of the accused and/or circumstances surrounding the commission of the offence merits taking away the accused rights to possess a firearm. This is especially so where the offence committed bears little or no relation to the use of firearms.

In S v Mkhonza 2010 (1) SACR 602 (KZP) it was held that when the Legislature vested in the courts the jurisdiction to determine that the statutory unfitness to possess a firearm imposed under s 103(1) of the Act should not apply, it did not intend the courts to adopt a supine approach. These matters, are dependent entirely on whether the accused has the knowledge, means and resources to place a proper case before it, that the disqualification should not apply to them, and in all other cases for the disqualification to apply as a matter of rote. Therefore, the court makes it clear that there is an obligation on the trial court to consider – having regard to all relevant factors – whether the case is one where the statutory disqualification from possessing a firearm should remain in place, or whether it should determine otherwise. The court should have regard to any factor that bears on the issue and, if there is reason to believe that all material facts bearing on that decision are not before it, to cause those facts to be discovered and placed before it.

The court offers a legal practitioner guidance on what factors may be considered relevant. Although not comprehensive they are, inter alia:

  • The accused’s age and personal circumstances.
  • The nature of any previous convictions or the absence thereof.
  • The nature and seriousness of the crime for which he or she has been found guilty and the connection that the crime has with the use of a firearm.
  • Whether there is any background that suggests that the accused may make use of his or her licensed firearm for the purpose of committing offences.
  • Whether it is in the interest of the community that the accused be declared unfit to possess a firearm because of the fact that he or she poses a potential danger to the community.
  • The period during which the accused possessed a licensed firearm and whether there is any indication of previous irresponsibility in regard to that possession and use.

The onus of satisfying the court that it should determine otherwise, rests on the accused. The burden is on a balance of probabilities.

What happens after the court has made a determination that the person is unfit to possess a firearm in terms of subs 1 or a declaration in terms of subs 2?

It must notify the Registrar in writing of that conviction, determination or declaration. Such notice must be accompanied by a court order for the immediate search for and seizure of –

  • all competency certificates, licences, authorisations and permits issued to the relevant person in terms of this Act; [and]
  • all firearms [and ammunition] in his or her possession.

Any item seized must be kept by the South African Police Service or by the National Defence Force until an appeal against conviction or sentence has been finalised or the time frame for an appeal has lapsed.

Is the decision of the court in terms of s 103 appealable?

Yes. In the Mkhonza matter the High Court dealt with an application for leave to appeal solely against the refusal to declare otherwise in terms of s 103(1) of the Act. The accused was grossly negligent in the loss of his firearm but the Supreme Court of Appeal considered that for ten years he was in responsible possession. The High Court set aside the court a quo decision and replaced it with a decision that meant that the accused remained fit to possess a firearm.

Proof of declaration of unfitness

Section 105 provides that: ‘A certificate purporting to have been signed by the Registrar or by the registrar of a High Court, the clerk of a magistrates’ court or the clerk of a military court, stating that the person mentioned in the certificate has become or has been declared unfit to possess a firearm, or has been convicted of a specific offence or crime, is upon production thereof by any person, prima facie evidence of the facts stated in that certificate.’

Duration of the disqualification

In terms of s 9(4) of the Act, the disqualification contemplated in s 103 ends on the expiry of a period of five years calculated from the date on which the person became or was declared unfit, or the expiry of the period for which the declaration is valid, whichever event occurs first.

Conclusion

It is therefore, very important for a practitioner to take full and proper instructions from the client regarding this provision due to consequences that flow therefrom.

Sherika Maharaj LLB (Unisa) is an attorney at the East London Justice Centre.

This article was first published in De Rebus in 2017 (July) DR 20.

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