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You and Your Rights

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You and Your Rights

Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.

Firearms

Your right to possess handguns and rifles

You are not allowed to own a firearm without a licence issued by the Commissioner of the South African Police Service.

Even if you do apply for one, it is worth remembering that applications are not automatically granted and that existing licences can be withdrawn at any time for a number of reasons.

For instance, the Commissioner of Police may, in terms of the Arms and Ammunition Act, 1969, declare any person unfit to possess a firearm if information is supplied under oath that the person in possession of the firearm: 

  • Has threatened or has expressed the intention to kill or injure himself or herself, or another person by means of a firearm; 
  • Has a mental condition, an inclination to violence (whether a firearm was used in the violence or not), or a dependence on intoxicating liquor or a drug that has a narcotic effect which makes it not in his or her interest, or anyone else's interest to possess a firearm; 
  • Has through negligence lost or failed to take all reasonable steps to ensure the proper safekeeping of a firearm.

Warning - Lending or borrowing a firearm

You may not possess a firearm that is not licensed in your name unless you have the written permission of its lawful owner. This permission must be dated and signed and must state how long you may keep the gun. If the period is for longer than 14 days, the permission must be endorsed by the police. No permission is required if a gun has been lent to you for protecting the property of its owner. In 1996, this provision was under review because of criminal abuse.

Firearms and the police 

A police officer can ask the holder of a firearm licence to produce the gun and licence; likewise, a person found in possession of a firearm or ammunition can be asked by the police to show the licence.

Note, also, that the police do not need a warrant to search any premises, including a private home, if they are investigating an offence involving a firearm, although in terms of South Africa's bill of rights it is possible that police powers in this respect might be circumscribed to some extent. If a firearm is found on the premises, it will be presumed until the contrary can be proved that the occupier of the premises, or whoever is on the premises at the time, is in possession of the article.

A person found with ammunition not used in the firearm in his or her lawful possession can be prosecuted if unable to produce a collector's permit.

Failure to report a person who is in possession of an armament or explosive or incendiary device is also an offence.

Warning - The definition of an 'arm'

In terms of South African law an 'arm' (for which a licence is required) is defined as any firearm other than a cannon, machine gun or machine rifle. Included in this definition are: A gas rifle of .22 of an inch or lower calibre, or a gas pistol or revolver; An air rifle of .22 of an inch or lower calibre, or an air pistol other than a toy; An alarm pistol or revolver; A gas rifle or an air rifle of .177 of an inch or lower calibre; Any barrel of a gun. The Arms and Ammunitions Acts Amendment Act, 1992, prohibits the general public from possessing any make of cannon, recoilless gun or mortar, rocket launcher, machine gun or machine rifle, or any explosive or incendiary device.

Warning - Lost, stolen or damaged firearms

If you discover that your gun has been lost or stolen, you must report it to the police within 24 hours. Similarly, if your firearm is damaged beyond repair (in other words, if it can never be fired again), you must also report the fact within 48 hours. Note, too, that no firearm can be destroyed without the written consent of the Commissioner of Police. If you take possession of an abandoned firearm, you must immediately hand it in at a police station.

Special types of weapons 

AUTOMATIC WEAPON A private citizen may no longer own an automatic weapon. If you already own one and have a permit issued by the Minister of Safety and Security, you may keep it. 

'SAWN-OFF' SHOTGUNS Although this type of firearm is prohibited in some countries, it is legal in South Africa because regulations here do not prescribe a minimum barrel or stock length. .22 

CALIBRE RIFLE Although South African firearms legislation does not prescribe who may own such a weapon, .22 rifle licences are likely to be granted only to farmers for vermin control and to rifle club members for target-shooting purposes. The reason for this unofficial prohibition is that the .22 is a convenient poacher's weapon because of its low noise level and high striking power. However, it is illegal to hunt game (as distinct from vermin) with a .22 rimfire cartridge. 

SILENCERS Noise suppressers (to give them their proper name) are legal on .22 calibre rifles and handguns and do not require a special licence.

Penalties 

It is an offence to be in a public place with a pistol or revolver that is not completely covered in your pocket, in a proper holster or in a handbag, attachè case, rucksack or similar holder. It is also illegal to knowingly and unlawfully point a firearm or air gun at any other person.

The Arms and Ammunition Act makes provision for various penalties for contravention of firearms legislation. These include: 

  • Imprisonment for up to 25 years (in some cases with a minimum of five years) for the illegal importation of certain firearms and ammunition; 
  • A fine of up to R2000 and/or imprisonment for up to six months for carrying in public a firearm that is not properly concealed from view; 
  • A fine of up to R4000 or up to one year's imprisonment, or both, for failing to produce a licence, permit or the firearm itself when requested to do so by a police officer, or for failing to report the loss, theft or destruction of a firearm to the police; 
  • A fine of up to R12000 or up to three years' imprisonment for possessing an unlicensed firearm; 
  • Up to 10 years' imprisonment for being in possession of more than one unlicensed firearm.

The Act also provides for the imposition of penalties in certain cases where a person is in possession of more than 100 rounds of ammunition. All ammunition in your possession must be for use in the firearm which is licensed in your name.

Other dangerous weapons 

In terms of the Dangerous Weapons Act, 1968, any person found in possession of a dangerous weapon or any object that resembles a firearm is guilty of an offence and on conviction can be fined, or jailed for up to two years, or both.

The deciding factor will be the intention of the person caught with the weapon: the onus, as the Act stands at present, is on the accused to prove to the court that he or she had no intention of using the weapon or object for any unlawful purpose.

However, in terms of the presumption of innocence contained in the bill of rights, it is probable that this shifting of the onus will be found to be invalid. Remember, it is not a crime to possess a replica of a weapon, as long as it is not used for, say, robbing a bank.

Warning - When shooting an attacker is justified

The question of when you may use a firearm on an intruder is an extremely hazy one that even lawyers approach with caution. Generally, a firearm may not be fired in a municipal area although its use in self-defence is sometimes considered justifiable.

Note, however, that you would not necessarily be justified in shooting someone who enters your house illegally, even if you believe that the intruder is a thief who may harm you. The fact that a suspected thief or burglar runs away and refuses to heed your command to stop is not sufficient reason for you to shoot at him or her.

The courts decide each case according to the circumstances and might therefore call on you to convince them that your action was justified. It is generally accepted that you may fire if you genuinely believe your life is in danger. However, it is unlikely that the courts would consider the shooting of a small, unarmed intruder that you could easily have overpowered physically as justifiable.

Warning - Keeping a gun safely out of reach of children or intruders

The law states specifically that your licensed firearm must either be kept in a safe place or carried with you - and it is worth noting that a motorcar or its boot, attachè case or toolbox, whether locked or not, may not, depending on the circumstances, be considered a safe place.

Failure to ensure the weapon's safe-keeping may result in a tragedy if it falls into the hands of a child or intruder. If a gun has been stolen from you, the police may refuse to grant you another firearm licence and, indeed, may even charge you for not having taken reasonable steps to safeguard your gun, or for being negligent.

Keeping a gun high in a cupboard or on a wardrobe may put it out of the reach of children, but police will tell you that it is here, or in a bedside cupboard or under the mattress (a dangerous place to store a firearm) that a gun thief will look first.

If you own several guns, keep them in a gun safe that has been bolted to the wall or floor for added security. Firearms and ammunition do not have to be stored separately, nor is it obligatory to remove a component such as a rifle bolt or render a weapon inoperative. Although a rifle without its bolt will be of little use to a thief, its value if you need to defend yourself is severely reduced.

If a firearm is kept ready to be fired, ensure that the safety catch is on if it has one. Some authorities will advise owners who do not have one to compensate for this by leaving empty the chamber that will align with the hammer when the trigger is pulled.

Remember, though, that this is not a substitute for a safety catch and that, in fact, it poses a possible danger of its own: some makes of revolvers can go off if dropped with a round lined up.

The best approach is to keep the gun out of the reach of anyone who might accidentally fire a shot with it. If you have recently become an owner of a gun, it is an excellent idea to enrol for one of the training courses offered by various gun shops and gun clubs.

Never leave firearms in an unoccupied home when you go away. If a police station cannot look after them, ask a responsible friend to do so.

Firearms which do not require a licence 

You do not need a licence for a firearm that cannot be fired and which is classed as a trophy, ornament, antique or curio. Remember, however, that because even an ancient muzzle-loader can be made to fire, it is advisable to ask the police whether you need to apply for a licence for a particular weapon.

Inheriting a firearm 

No permission is required to possess a firearm that is part of a deceased or insolvent estate and is being held in safekeeping by the official executors, administrators or liquidators of the estate.

If, while acting as an executor or administrator of an estate, you do not have a safe place to store firearms that have been entrusted to you, ask a bank manager or a gunsmith to lock them in a safe or strongroom. Although they will usually agree under these circumstances to look after firearms temporarily, they will not accept responsibility for any possible deterioration in the condition of the firearms while they are in their safekeeping.

If you decide to keep arms or ammunition that have been bequeathed to you, you will have to apply to the police for the necessary licences.

Juveniles and firearms 

A person under the age of 16 may possess arms or ammunition only if he or she is under the proper supervision of either the owner of the arms and ammunition in question, or an adult who is a lawful possessor (such as the overseer of a shooting club or school cadet rifle range).

Anyone who has control over a minor aged 16 or under will be guilty of an offence if the child is found in possession of a firearm unless the person can prove that he or she was unable to prevent the minor from obtaining it.

Disclaimer :: You and Your Rights
Although we have gone to great lengths to ensure the accuracy of the information contained in this database, it is important to remember that laws, government departments, interest and taxation rates are constantly changing. If you have a particularly difficult problem you are advised to consult a qualified legal authority. The publishers, editors and their representatives cannot accept responsibility for any act or omission arising from consulting the information contained herein.
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General Disclaimer: The content of Legal City does not constitute legal, tax or financial advice, nor does it necessarily reflect the views of our management, staff, shareholders, associates, contributors, authors or suppliers. Even though every endeavour has been made to ensure the accuracy of this information we cannot be held responsible for any errors and/or omissions. By using this web site you agree to accept and abide by our terms and conditions.
This web site and all its content is copyright © 2000-2014, Legal City CC • Web site managed with qPortal Content Management v 4.0.0 • This page loaded on October 26, 2014 at 5:36:19 am, SA Standard Time.