Legal firearms

A basic principle in the law is: “register the firearm and licence the owner.”  The law requires that each firearm has a unique identification number, and each must be registered in the name of its legal owner with the Central Firearms Register.

The law also demands that private individuals have a licence to possess each and every firearm they own, and that police officers or soldiers (who use state-owned firearms) have permits to use their guns. Even foreign visitors have to obtain authorisations before they can bring firearms into the country. 

The FCA requires that civilians go through a two-step process to get a firearm licence:  first, they must obtain competency certificates and then they must apply for the licence.

Competency certificates

The competency certificate is an innovative tool intended to screen out people who are unfit to possess a firearm. To get a competency certificate, a person must –

• Be a South African citizen or permanent resident who is at least 21 years old (although under certain circumstances the applicant can be 18);
• Be a fit and proper person, who is mentally stable, not inclined to violence, and not dependent on alcohol or narcotics;
• Have no convictions in the previous five years for crimes involving violence, sexual abuse or domestic violence, fraud, drug or alcohol abuse, or negligent or illegal use of a gun.
• Be trained and tested on his or her knowledge of the law and the safe and efficient handling of a firearm.

Accredited, private institutions do the training and testing, while designated firearms officers (DFOs) at local police stations do background checks on each applicant to make sure they meet the other criteria.

Licences

Like firearm legislation elsewhere in the world, the FCA defines the legitimate purposes for owning firearms. It sets these out in the different categories of firearm licences. These are:

• For self-defence, one firearm – either a handgun or a shotgun – is allowed (Two or more people living in the same household can be licenced to use these firearms).
• For occasional hunting or sports-shooting, up to four guns are allowed – three if the applicant has a licence to possess a firearm for self-defence.
• Dedicated hunters or sport-shooters are allowed to get licences for an unspecified number of firearms, but the applicant must be a registered member of an accredited hunting or sports- shooting association.
• For private or public collectors an unspecified number of firearms are allowed.
• For business purposes, for example hunting outfitters, game farmers and security companies, an unspecified number of firearms are allowed. 

Finally, the law also provides for the licensing of gun dealers, gun manufacturers, gunsmiths and individuals or companies that transport, import or export firearms.

Renewals

Another key principle in the law is licence renewals, which keep firearm owners accountable and responsible for their firearms and which enable the government to keep accurate and up-to-date records of legal firearms in the country.

Each firearm licence must be regularly renewed:

• restricted firearms and firearms used for business purposes (other than hunting) – every two years
• firearms for self-defence and for hunting businesses – every five years
• all other categories of firearm licences – every ten years.

There is a five year transitional period – beginning 1 July 2004 - during which existing firearm owners must renew their firearm licences.

Under the current Firearms Control Amendment Bill, the time period for renewals is being reviewed.

Criminal offences and declarations of unfitness

The FCA defines what is an offence, or an illegal act, and suggests heavy penalties for people who break the law.  Major offences (for which maximum prison sentences of between 15 and 25 years are prescribed) include:

• Owning a gun without a valid licence, permit or authorisation for that particular firearm
• Buying or selling a firearm(s) without a dealer’s licences - although private individuals may  sell his or her legal firearm to another person if this is done through the local designated firearms officer at the police station 
• Making firearm without a manufacturer’s licence.

The law also prohibits dangerous or negligent uses of firearms (for which maximum prison sentences of between three and ten years are prescribed). Thus, it is illegal: 

• to point a firearm or airgun – whether or not it is loaded – at any other person without good reason
• to discharge or handle a firearm in a way that is likely to injure or endanger the safety or property of another person
• to handle a firearm after drinking or taking narcotics; to fail to lock the firearm away in a safe, strong-room or safe-keeping device when not carrying it
• to lose or otherwise be dispossessed of that firearm because it has not been properly stored.

The police and the courts can also declare a person “unfit to possess a firearm.” Police declarations are particularly strong tools for communities, because they take place at local police stations and are therefore more accessible. Senior police officials hold hearings and may declare the person unfit if they establish that he or she -

• is the subject of a final protection order under the Domestic Violence Act
• has declared the intention to kill or injure himself or any other person using a gun or another dangerous weapon–
• is mentally unstable, inclined to violence or dependent on alcohol or narcotics and that his ownership of a firearm is not in the interest of himself or any other person and/or
• has failed to store a firearm as required by law.

The courts can declare people unfit to possess firearms if they are convicted of any of a wide range or crimes, including illegal possession of a firearm or participating in a crime where a gun is used, negligent handling or storage of a firearm, any crime involving violence or sexual abuse (but the accused must be given a prison sentence without the option of a fine) or the abuse of drugs or alcohol, amongst others.

Where a person is declared unfit, all guns are removed, all firearm licences revoked and the police must refuse any firearm applications submitted by that person for five years.  

New powers to deal with illegal guns

The law gives the police and the courts new powers to deal with illegal guns. It makes it a criminal offence to know that an illegal gun is in the house and not report this to the police.

Given the very violent nature of gun-related crime, the law suspends certain legal rights to enhance the capacity of the police to investigate gun-related crimes. It gives the police the power to search and seize or to take body prints or bodily samples without warrants in extra-ordinary and well defined circumstances.

Moreover, the Act contains “presumptions” that limit the ability of witnesses or suspects to remain silent, by requiring them to raise reasonable doubts about their involvement in a particular crime – again under extra-ordinary and well defined circumstances. These include cases where illegal guns are found on particular premises or in vehicles and cases of drive-by shootings– where the refusal of witnesses to provide information seriously impedes investigations.

The Act also contains severe maximum sentences, ranging from two years for failing to store an antique gun properly to 25 years for trading illegally in firearms. People found guilty of crimes with a maximum sentence of five years or less can pay administrative fines.  

Promoting safer environments

The Act requires that when a firearm is not under the direct control of its owner, it must be stored in an approved, SABS standard safe, storeroom or device. If this is at home, the owner must have exclusive access to that storage facility, and hunting and sports shooting firearms must be stored unloaded.

The Act also creates the opportunity of declaring premises Firearm Free Zones (FFZs), where it becomes a criminal offence to bring, store, or allow another person to bring a gun into a FFZ premise.

Finally, it allows the Minister to declare amnesties, during which time people can turn in firearms to the police without fear of being prosecuted, thus removing guns from communities.

All of these measures are designed to create safer environments.

Overview

The availability and abuse of firearms has contributed significantly to the high level of crime in South Africa. The Firearms Control Act, then, is an important crime combating tool. It raises the standards for licensing legal guns in order to break the link between legal and illegal guns. It strengthens the powers of the police and the courts, in order to enhance their capacity to act against the misuse of legal guns and the use and possession of illegal guns. 

Yet, as Mluleki George said in Parliament on the day the Act was passed: “We must accept, from the very outset, that there are no easy solutions and quick fixes [for ending violent crime in South Africa]. No one piece of legislation will solve the problems of crime in this country.” (1) The Act is just one part of wider strategies to reduce the flow of guns into South African communities, to reduce violent crime, to promote development, and to enhance the quality of life of all South Africans.

1 Chairperson of the Portfolio Committee on Safety and Security in 2000 and currently Deputy Minister of Defence. Hansard, No 18, Col 6768