Draft legislation would have removed self-defence as a grounds for owning a gun. If only the police and army have the right to have guns, society would not be safer, but more vulnerable.
Attending the destruction of several thousand firearms, police minister Bheki Cele suggested that the country needed to work towards the elimination of private firearm ownership. ‘It would be better if one day we don’t have private citizens having guns at all. It’s a tall order going forward but it would be better if one day, only the armed forces namely police and soldiers have [access to] guns,’ he said.
He was courting controversy – as a blizzard of criticism on social media proved. South Africa’s gun politics speaks to immediate concerns about crime and personal safety. But no less than that, it acts as a template for debates about citizenship, freedom, and the appropriate role and responsibility of the state. It is a subject that fuels enormous passions among those engaged in it. Less properly understood is that all of this is profoundly important for the country as a whole – and for those who have no particular interest in firearms.
Fundamentally, the entire substantive debate turns on one overarching question: under what circumstances should firearm ownership be allowed? Draft legislation that surfaced last year and that would have removed self-defence as a grounds for owning a gun was probably the most graphic recent illustration of this. But perhaps another slow-burning issue is more important.
At issue, on the surface, is the question of the status of expired licences. In terms of the Firearms Control Act (FCA) of 2000, licences were issued for defined periods, and needed to be renewed as they expired. As the law was rolled out, a growing number of gun owners neglected to renew licences, placing them on the wrong side of the law.
In early 2016, then acting police commissioner Khomotso Phahlane issued a directive stating: ‘In the case where a person wants to renew or apply for a licence but the validity of the licence has already expired the person must be informed that he or she is not anymore in lawful possession of the firearm and the firearm must be surrendered to the nearest police station.’
Essentially, this directive meant that anyone who had failed to submit an application to relicense a firearm before the expiry of the previous one was to forfeit possession of it. They were now in illegal possession of arms and ammunition (a serious offence in itself, carrying the possibility of a 15-year sentence), with no recourse but to surrender them to the police.
Curiously, though, this directive made no provision for any other course of action, no appeal or late application. This was despite such provisions arguably being provided for in the Act, and even specifically catered for on the prescribed application forms (SAPS 518 a).
Gun-owners’ groups initially held off on a direct challenge to this, awaiting clarity from the courts as to the constitutionality of the FCA’s licencing procedures, through a challenge driven by the South African Hunters and Game Conservation Association (SAHGCA). This was ultimately unsuccessful, in that the Constitutional Court ruled that the licensing regime was constitutional. Equally importantly – and in the spirit of negotiating an amicable solution – they attempted to engage with the police on this issue. The possibility of an amnesty, or of extending the validity of existing licences, was explored.
No response was forthcoming, and when the media carried a comment from the police that neither an amnesty nor an extension of validity was in the offing, lobby group Gun Owners of South Africa (GOSA) turned to the courts.
GOSA was successful in obtaining interim relief, with presiding Judge Bill Prinsloo forbidding the implementation of the directive.
To understand why this would echo beyond people holding lapsed licences, and those engaged in policy debates around gun ownership, it’s instructive to look at some of what Judge Prinsloo said in his judgment in July 2018.
In broad brushstrokes, he found that there appeared to be no grounds to refuse to consider late applications, as even the police documentation assumed this to be a valid part of the licensing regime. It was also noted that a ‘flurry of activity’ had taken place following the ruling in the case brought by SAHGCA. This, Judge Prinsloo said, entailed ‘various police officers in various capacities and with various ranks starting to apply pressure on firearm owners whose licences had expired in terms of the provisions and the Act … to immediately surrender their weapons for destruction, failing which they will be prosecuted, arrested and dealt with’.
Judge Prinsloo also referred to the limitations to what the police could realistically accomplish. With an estimated 450 000 licences affected, as well as anything up to 60 million rounds of ammunition, attempting to enforce the directive would stretch to breaking point the police’s logistical capacity. There is nothing to suggest that it would be able to handle the task of receiving, cataloguing, testing, storing, transporting and destroying arms on anything like this scale.
As GOSA pointed out in its papers, the dearth of capacity was such that it was not uncommon for firearm licence applicants to wait months or even years for their licences to be adjudicated; managing a mass gun reclamation would be a rather more taxing endeavour.
Besides this, whole elements intrinsic to the operation of the FCA are absent or dysfunctional. Notably, the electronic system to communicate between dealers and the Central Firearms Registry, and to manage the licensing system has yet to be brought online.
This is compounded by simple, venal corruption, the manipulation of the system, and the passing of firearms on to criminals. Judge Prinsloo dwelt on this in his judgment, remarking: ‘I am satisfied that on the weight of the evidence it is clear that dishonest and untoward behaviour in certain ranks of the police at certain locations when it comes to the guarding and handling of firearms has become the order of the day and is a matter of public knowledge.’
Indeed it is. In 2014, an arms cache found in Norwood, Johannesburg, was heavy with weapons turned in to the police, duly signed off for destruction. In 2016, Col Chris Prinsloo was convicted of steering guns earmarked for destruction to gangsters. Thousands of them. (And it is a severe rebuke, incidentally, to the course of action to which Minister Cele pointed.)
Perhaps with some irony, Gun Free South Africa summed this up best – for once, capturing the sentiments of gun owners, too. Referring to the Norwood case, a spokesman for the organisation commented: ‘When gun owners handed their guns to the police during the 2009 national firearms amnesty, they trusted the police to destroy these guns. The public played their part. They handed their guns in to the police for destruction. That some of these guns have been found in an illegal arms cache makes a mockery of South Africa’s public commitment to safety and security by destroying stockpiles of weapons.’
This does not excuse firearm owners from their duty to comply with the law – but to refuse to give those who may have valid reasons for not doing so the latitude that the law affords them cannot be described as anything other than abusive.
In December last year, the court heard an appeal by the police against Judge Prinsloo’s order. In effect, the court upheld the earlier ruling. Those holding weapons with lapsed licences could not be penalised, and guns could not be confiscated. Given the background, this is positive.
What all of this denotes is egregious overreach. It is the arbitrary extension of state power, and policy making by stealth. It extends without legal justification the boundaries of what existing legislation allows, entrusted to a system whose capacity and integrity to carry it off is doubtful to say the least.
It is about the quality of the relationship that South Africa’s people enjoy with its state, and whether that is one rooted in freedom or coercion. Whatever one’s stance on gun ownership, the manner in which the state authorities have approached this matter in the past should be a cause for concern for all who value civic freedom and just administration.
Terence Corrigan is a project manager at the Institute of Race Relations.
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