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Special report compiled by Johan Martin: Specialist Attorney. Director at Martin & De Beer Incorporated, Bloemfontein, & consultant for the Legally Armed Franchise Group
TODAY WE ARE DISCUSSING THE LONG-AWAITED STANDARD OPERATING PROCEDURE IMPLEMENTATION PLAN THAT WAS ISSUED BY SAPS AFTER THE FIDELITY JUDGEMENT BY THE CONSTUTIONAL COURT ON 27 MAY 2022.
Paragraph 4 of the SAPS letter dated 1 July 2022 is the crux of the judgement in that any person who is in possession of a firearm with an expired license, (“the owner”)(our emphasis), would be allowed to apply for a new license in respect of that firearm and that this is not limited to a license in terms of section 20 of the Act (license for business purposes). That the applicant may produce the firearm at the police station for inspection and do not have to surrender it in terms of paragraph 3.1.1 of annexure A to the letter. The letter and its annexures A & B are included for your perusal, (“the SOP”) (our emphasis).
We would like to deal with some concerns / questions that might arise from the contents of this letter, more specifically the contents of annexure B, such as:
May I sell or donate such a firearm without licensing it first / again?
The authors of the SOP did not consider it, accepting the fact that an applicant may do so after his/her application has been refused. See the second paragraph of the declaration at the bottom of annexure B.
Remarks:
We are of the opinion that the owner would be able to sell or donate same as one is not prohibited to sell a car which licence fee are in arrears because you are the owner of the property.
SAPS, in our opinion also “opened the door” for interpreting it the way we do by stating that the owner may do so if his / her license application is not successful.
May the owner appeal the refusal when his/her application for a new license has been refused?
The authors of the SOP are of the opinion that it is not possible to do so and we refer you to the second paragraph of the annexure B in that, apart from one can only dispose of the firearm within 60 days after receipt of the refusal letter otherwise it should be forfeited to the State after surrendering the firearm.
Remarks:
We are of the opinion that the refusal of the license is an administrative decision by the Registrar and that the owner must have the right to appeal.
Thus, we suggest that the owner, when applying, should insist to add the following wording in writing initialing same, “I do not agree to dispose of my firearm if the Registrar refuse to issue its new license without having the option to my right to appeal in terms of section 133 of the Firearm Control Act, 60 of 2000”.
We are of the opinion that such an undertaking to dispose of the firearm by the owner when the license application is refused, would be wrong if he/she do not have the right to appeal, which is the owner’s constitutional right.
Please contact the author at johan@mdbinc.co.za or Bernu van den Heever at
bernu@legallyarmed.co.za
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