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South African courts are not exactly overcrowded with prosecutions of persons who allegedly ‘lost a firearm negligently’ and are in contravention of s 120(8) of the Firearms Control Act 60 of 2000 (the Act). Accordingly, the aim of this article is an attempt to highlight some of the challenges, which a court may have to ponder on and to seriously consider the question as to whether the state has succeeded in presenting admissible evidence in its aspiration to prove a contravention of the section.

Often these prosecutions arise from and are solely reliant on the written statement made by the accused when they report the loss of their firearm to the South African Police Service (SAPS). The question may well be posed – is that very statement admissible against the accused in the adjudication of the case proffered against them?

The infringement of certain rights pertaining to the accused is relevant in such circumstances. This involves, inter alia, the right to remain silent, the right to be presumed innocent and the right against self-incrimination (ss 35(3)(h) and 35(3)(j) of the Constitution).

An article by PR Msaule ‘The duty to produce one’s firearm for inspection in terms of the Firearms Control Act: The right to silence under siege?’ (2018) 21 PER states that an important question to be answered is whether the phrase ‘any right in the Bill of Rights’ extends the rights in subss (1), (2) and (3) of s 35 of the Constitution to suspects. Sight must never be lost of the fact that an accused was not a suspect neither a detainee nor person accused of anything at the stage when they deposed to their affidavit. They were simply a person reporting the loss of their firearm, which they are compelled to do in term of s 120(11) of the Act. Hence they did not enjoy the protection of the rights afforded in s 35(3) of the Constitution.

A comparatively strong argument may be formulated around speculation that an accused might have attained the status of a suspect the moment when they reported the loss. In reflecting on whether suspects can rely on the trial rights tabulated in s 35(3) of the Constitution one must carefully consider the following judgments:

• S v Sebejan and Others 1997 (1) SACR 626 (W) at 635: This matter dealt with the admissibility (or not) of a statement to the police for purposes of cross-examination. The statement, in the form of an affidavit was not properly commissioned. The court held that such statement, despite the fact that it was not a properly sworn statement, was admissible in this instance. It was nonetheless emphasised that no statement by an accused could be admitted in evidence unless the prosecution proved beyond reasonable doubt that it was made freely and voluntarily.
• S v Orrie and Another 2005 (1) SACR 63 (C): During the investigation of the case, a statement was taken from the accused while his right to remain silent was not explained to him. Nonetheless, the fact that it might have been an exculpatory statement was held to be prejudicial to the accused and should be treated with the understanding that the accused had recruited to give evidence against himself. Resultantly the court said the statement was held to be inadmissible against the accused. Moreover it was determined that the police, in taking the statement undoubtedly conveyed to the accused that he was a suspect.
• S v Mthethwa 2004 (1) SACR 449 (E): Magid J, with whom Nicholson J concurred, held that the right to remain silent was not applicable (in 1997 when the interim Constitution was still in place) to any person who had not yet been arrested or detained.
• S v Langa and Others 1998 (1) SACR 21 (T): MacArthur J and Mynhardt J dealt with the issue of whether a person is entitled to be informed of their rights prior to the stage when they are arrested. The court highlighted the fact that the accused had not been arrested or detained by the police at the time she made an incriminating statement to them. Consequently the court found that the requirements of s 25(2) of the Interim Constitution were not applicable.
• S v Ndlovu 1997 (12) BCLR 1785 (N): The court found that the right to remain silent in terms of s 35(1) of the Constitution was not to the avail of a suspect in a criminal case. Be that as it may, after an evaluation of the facts, the court established on the facts that the statement made by the accused had to be excluded on the foundation that the Judges Rules were disobeyed and consequently the trial would be rendered unfair if it was admitted.

Equally one should be acquainted with the ruling in S v Van Der Merwe 1998 (1) SACR 194 (O) where the court determined a statement to be admissible against the accused based on the spontaneity thereof and because the accused was not a suspect at the time when he made the statement, it is doubtful whether a person can be said to be spontaneous when he performs an action required by law.

Furthermore, due consideration should be given to the Constitutional Court (CC) decision in S v Zuma and Others 1995 (2) SA 642 (CC) at para 14 where it was held that legislation must be interpreted ‘in a manner that promotes the spirit, purport and objects of the Bill of Rights’ (Msaule (op cit)). Such an approach may well require that s 35(3) be interpreted to include that suspects are entitled to the protection afforded by s 35(3) of the Constitution.

The corollary of such a conclusion will demand further scrutiny in determining whether the state is entitled to present the contents of the accused’s statement as evidence against them in a subsequent trial. This would probably necessitate a two-fold inquiry, namely –

• whether the impugned legislation is reasonable and justifiable in an open and democratic society thereby falling within the ambit of the limitation clause of s 36 of the Constitution; and
• if it is not, whether the unconstitutionally obtained evidence is nevertheless admissible in terms of s 35(5) of the Constitution.

Care should be exercised not to ignore the fact that fundamental rights are also limited. No right in the Bill of Rights (Chapter 2 of the Constitution) is absolute (see s 7 of the Constitution, as well as S v Manamela and Another (Director-General of Justice Intervening) 2000 (1) SACR 414 (CC) at para 27).

The following dictum by the CC in the Manamela judgment may be of assistance:

‘Thus, regulatory statutes dealing with licensed activity in the public domain, the handling of hazardous products, or the supervision of dangerous activities, frequently impose duties on responsible persons, and then require them to prove that they have fulfilled their responsibilities. The objective of such laws is to put pressure on the persons responsible to take pre-emptive action to prevent harm to the public’ (my italics).

It was held in South African Hunters and Game Conservation Association v Minister of Safety and Security 2017 (2) SACR 288 (GP) that firearms are hazardous and that possession and ownership must be strictly controlled. In addition, it was held that a licence holder’s failure to comply with the Act exposes the public to potential harm.

The legislature foresaw that it would be impossible for the authorities to check on a daily basis whether each licensee is still in possession of their licensed firearm. The only approach to monitor this is to impose a duty on the owner to report the loss of the firearm. This proactive approach limits the chances of the licensed firearm being used in the commission of crime. Everyone must ensure that legal firearms are utilised responsibly and do not fall into the hands of criminals. The burden placed on the gun owner to report loss, theft or destruction of the firearm seems to be justifiable, even in the Constitutional era where the burden of proof is taken off the shoulders of an accused.

The fact that s 120(11) of the Act places a duty on the holder of a firearm licence to report the loss, theft or destruction of said firearm within 24 hours, does not per se render the use of the statement as evidence against the accused unfair. I qualify this declaration having the following in mind:

• The holder of a licence to possess a firearm is on a different footing before the law (in relation to firearms) as opposed to an ‘ordinary’ person, because the licence holder has passed a competency test when, among others, they were educated on what the law required of a responsible firearm owner (see s 9(2)(q) of the Act).
• Licensees are aware that in preparation for the competency test that should their firearm be lost, destroyed or stolen, the law requires of them to report such event to the police, thereby limiting their right to silence and self-incrimination as envisaged in s 35(3) of the Constitution.
• Holders of a licence to acquire a firearm are aware of the responsibilities pertaining to the licensed firearm and are, therefore, not lay people for purposes of the law pertaining to firearms.
• The licence holder’s decision to enter into this ‘agreement’ is, therefore, an informed one and the individual cannot rely on the right to remain silent (and thus not incriminate themselves).
• The CC has upheld limitation of fair trial rights, which are far more invasive than the provisions of s 120(11) of the Act.

If one does not conclude that the violation of the rights are in accordance with the limitation clause and one decides that the infringement is not justified by s 36 of the Constitution, one must still consider whether the contents of the statement (that was unconstitutionally obtained) may nevertheless be admissible in terms of s 35(5) of the Constitution. What must be borne in mind is that unconstitutionally obtained evidence is only inadmissible if it renders the trial unfair or is otherwise detrimental to the administration of justice.

The CC has held that an accused’s right to a fair trial requires fairness to the accused, as well as the public, as represented by the state. It has to instil confidence in the criminal justice system with the public (see S v Jaipal 2005 (1) SACR 215 (CC) at para 29).

The issue of whether the rights, as stipulated, were violated will have to be determined in a trial-within-a-trial. It is common cause that when parties are ad idem that the rights were violated, there will be no need for a trial-within-a-trial and the court may decide on the issue after hearing argument.

The burden of proving that the accused had a right and that the right was violated seems to be on the accused (see S v Naidoo and Another 1998 (1) SACR 479 (N) and the Sebejan case).

In deciding whether the admission of the unconstitutionally obtained evidence will be detrimental to the administration of justice, the following factors should be considered –

• the seriousness of the offence;
• the public interest;
• inevitable discovery;
• spontaneous statement;
• the reliability of the evidence, and
• any other relevant factor.

The court must be aware of the different offences created by s 120(8)(a) and (b) of the Act. The former is applicable if the perpetrator was not in direct control of the firearm, whereas the latter applies to circumstances where they were in direct control of it.

In the absence of any reported case implying the contrary it must be accepted that the term ‘direct control’ does not solicit any other interpretation than the dictionary portrayal of what ‘direct control’ is. It may be established with a measure of certainty that a person who placed a firearm under their pillow was not in direct control of it and thus s 120(8)(a) of the Act would be applicable instead of s 120(8)(b) of the Act.

In the scenario where a policeman has no other evidential material than the self-incriminating statement by the accused as mentioned above, such a police officer may of course resort to s 106(1)(c) of the Act and request the suspect to produce the firearm in question, the failure on which the suspect may be charged under that section. Such action by the police would, however, amount to a gross injustice, because the suspect can certainly not produce something, which the police officer knows beforehand was lost by the very same person and cannot be produced.

The SAPS can of course also settle their quandary by relying on the presumptions created in s 118(1) of the Act. It is doubtful whether this section will pass the test of constitutionality, because of the requirement that the onus is on the state to prove its case. The other feature regarding any presumption is that it should be referred to in the charge sheet, and the implications should be explained to an accused by the court before they are required to plead.

The court must be alive to the fact that the contents of the statement could be false and that they lost the firearm in a fashion, which they have chosen not to disclose, for example at a place where alcohol was served and while they were in a state of intoxication. In such an event, the contents of the statement must be presented to prove that they were not truthful and if that was the only evidence against the accused they would have to be acquitted despite the fact that they had very clearly lost a firearm negligently.

Experience has revealed that police sometimes obtain a statement from the spouse of the accused in order to corroborate the arguably inadmissible statement deposed to by the accused. In this regard the court should be receptive to the fact that the spouse of an accused cannot be compelled to testify for the state against the accused.

I submit that prosecutors should be discouraged from disposing of these matters by way of alternative dispute resolution. Due consideration should be given to the seriousness of the offence and the serious potential consequences in the event of a negligently lost firearm landing in the wrong hands.

Louis Radyn BIuris Dip Iuris (Unisa) is a retired Senior Magistrate and Assessor at the KwaZulu-Natal Division of the High Court in Pietermaritzburg.

This article was first published in De Rebus in 2020 (Dec) DR 20.