This research was commissioned by Gun Free South Africa as part of its strategy of ensuring the effective implementation of the Firearms Control Act.

The Open Society Foundation provided funding for the research.

Assault GBH Assault with the intent to commit grievous bodily harm

CIAC Crime Information Analysis Centre

CFR Central Firearms Register

CRC Criminal Record Centre

DHA Department of Home Affairs

DFO Designated Firearms Officer

DPO Designated Police Officer

FAMSA Family and Marriage Society of South Africa

FRC Firearms Registration Centre

ID Identity Document

NISAA An Arabic word for women

NPA National Prosecuting Authority

POWA People Opposing Women Abuse

SAPS South African Police Service

US United States of America

There were 3 654 434 firearm licences held by individuals in South Africa as at October 2002. This project seeks to explore the way in which individuals are granted firearm licences and the process in which those deemed by legislation to be unfit to possess a firearm are excluded from legal firearm ownership.

Research included 92 separate interviews or focus group sessions with police, prosecutors, magistrates and women’s organisations, in four provinces covering both urban and rural areas. The four provinces (Gauteng, the Western Cape, KwaZulu-Natal and the Eastern Cape) accounted for 72% of all firearm licence applications received in 2002. Researchers also observed two court cases in progress and analysed 376 SAPS 69 forms at the Criminal Records Centre (CRC), a sample of 250 firearm licence applications and other national and provincial data at the Central Firearms Register (CFR).

The study found that, in respect of court declarations of unfitness, automatic declarations required in the legislation were seldom overturned by magistrates where a person was convicted of a matter involving the use of a firearm. However, because such a declaration is automatic, magistrates tended not to record the ruling, and if they did so, recorded it with the phrase "no order is made". This has lead to confusion, since people have interpreted the phrase to mean that the court did not declare the person unfit. In the statistical analysis of SAP 69 forms, only in 6% of cases did magistrates explicitly state whether an accused had been declared unfit or not.

While the law gives the court discretion to declare a person unfit in other instances (not involving a firearm), prosecutors said that they tended to use these provisions in most cases involving violence. However, in some instances both prosecutors and magistrates said the issue of unfitness was not raised in court, since a firearm was not involved in the matter.

Women’s organisations commented that police and security personnel were often the abusive partners of women who sought help with their organisations, but they sometimes succeeded in not being declared unfit as they argued that they needed to use a firearm for work.

The law also enables the police to declare an existing firearm licence holder unfit to possess a firearm. The police are required to hold a hearing to look into such a matter when there is evidence that the licence holder may be a danger to him or herself or to someone else. The project found that only in the Western Cape was significant use being made of this procedure. This province accounted for 49% of all 541 such declarations from January to October 2002, while Gauteng accounted for 26%.

The study found that police tended to leave the decision not to grant a firearm licence to the Central Firearms Register. There were also differences among the provinces in the application requirements. Police found judging such things as the tendency to violence and emotional state of an applicant, difficult and burdensome. Police did not consistently consult the Domestic Violence Register prior to submitting applications.

Recommendations arising from this study revolve around standardisation of procedures among the provinces and better communication among the various role players in the criminal justice system.

• The South African Police Service (SAPS) grants firearm licences;
• The SAPS uses its power to declare persons unfit;
• Prosecutors ask the court for declarations of unfitness;
• The courts exclude unfit persons from firearm ownership, and
• The organisational structure of the Central Firearms Register (CFR) and Criminal Record Centre (CRC) see to it that such persons are recorded and are excluded from future legal firearm ownership.

This report is structured as follows. The methodology of the project is described. The applicable legal framework is then outlined. The results follow thereafter.

First, the exclusion of unfit persons by the courts is considered, by outlining the results of the interviews with magistrates and prosecutors, followed by observations on court cases in progress. The report then provides a statistical analysis of SAP 69 forms, which record convictions and sentences, held by the CRC.

Second, the study looks at police practices in granting firearm licences and declaring firearm licence holders unfit. We include the comments of women’s organisations in this regard. This is followed by a statistical analysis of applications processed by the CRC and CFR.

Finally, conclusions and recommendations are presented.

1. Methodology

Permission to undertake the study was requested from and granted by the SAPS, the Department of Justice through the Directorate: Strategic Management, the National Prosecuting Authority, and the Regional Court Presidents.

The project required scrutinising the practices of courts and police officers, using both qualitative and quantitative research techniques. Research included interviews with police persons, prosecutors and magistrates, observation of court proceedings, and statistical analysis of data from the CFR and CRC.

Interview schedules were drawn up for the Designated Firearm Officers (DFOs, also sometimes referred to as Designated Police Officers), and regional and district court magistrates and prosecutors respectively. These schedules were piloted in Gauteng and the Western Cape and were administered in a series of face-to-face interviews.

After consultation with Commissioner Moorcroft, Head: SAPS Strategic Management Services, the provinces selected for the main study were:

• Gauteng
• Eastern Cape
• KwaZulu-Natal
• Western Cape

These provinces were not only the most prominent with respect to crimes committed with a firearm, but also according to the police had a high rate of violent crime. Both urban and rural areas, or centres serving rural areas, were selected within each of these provinces. Within urban areas, a representative selection of police station areas was selected. The regional or district courts serving the chosen urban and rural areas were also targeted. The breakdown of urban and rural areas selected in each of the provinces is as follows:

• Gauteng

• Eastern Cape

• KwaZulu-Natal

• Western Cape

Since South Africa is in a transition phase between the old Arms and Ammunition Act and the new Firearms Control Act, the project team decided to conduct an initial scoping exercise in the Western Cape and Gauteng to establish the current state of affairs regarding the implementation of s11 and s12 of the Arms and Ammunition Act. In addition, the following tasks were undertaken:

• A meeting with members of the CFR to find out:

• A meeting with the Crime Information Analysis Centre (CIAC) in Pretoria to determine what kind of information may be obtained from them that may be pertinent to the project;
• Discussions with a few investigating officers to determine how they register a court declaration of unfitness on the system, and
• An interview with Ms Sheena Duncan (chair person of the Ministerial Task Team appointed to investigate the CFR);

After the initial scoping exercise, the project team had a better idea of what information was available and how it would fit in with the original proposal drafted by Gun Free South Africa. This proposal identified three levels at which the research would take place, specifically:

• The police
• The courts, and
• Organisational structures.

The process followed at each level will be discussed below.

The amended research design involved exploring police practices and involved:

(b) An analysis of firearm applications lodged with the above;

(e) Interviews with members of the Appeals Board;

The amended research design also involved exploring court practices by:

(e) Undertaking a systemic analysis of the procedures and legislation applied, and

(f) Observing cases in progress.

In all, 36 separate interviews or focus group sessions were held with police persons, 21 with magistrates, and 27 with prosecutors, while two court cases in progress were observed. Whether a focus group or individual interview was held depended on the availability of the persons concerned.

The original proposal envisaged an analysis of the system the ‘CFR would use to implement the FCA’ (GFSA proposal). Furthermore, the system would be analysed to determine if it ‘adequately excludes unfit people from firearm ownership, whether it waters the FCA down, and whether it can be implemented’ (GFSA proposal). This however, was not possible given the transitional phase within which the SAPS are currently working. The study looked instead at the current practices of recording declarations at the CRC and of assessing firearm licences at the CFR.

Accordingly, the researchers perused SAP 69 forms at the CRC in Pretoria to determine whether magistrates are routinely recording declarations in respect of s12 (1) and (2) of the Arms and Ammunitions Act and whether such declarations are linked to convictions for certain types of crimes. In all, 376 SAP 69 folders were examined.

In order to determine the basis on which firearm applications are approved or rejected the project team requested permission from the CFR to examine actual firearm applications. A total of 250 firearm applications from all the provinces were perused.

National data was requested in respect of firearm applications and s11 enquiries from the Information and Systems Management Department of the Firearms Register System at the CFR. The available data received from the CFR was analysed and plotted using Mapinfo Geographical Information Systems (GIS) software, in order to determine provincial trends.

Finally, women’s organisations were interviewed to examine their experiences with the criminal justice system regarding declarations of unfitness. Interviews were conducted with members of the following organisations: NISAA, POWA, FAMSA, Rape Crisis (Cape Town), the Sarah Baartman Shelter for Abused Women (Cape Town) and the Kabega Community Care Centre (Port Elizabeth).

A brief review of international literature relating to the issue was also done.

1. The legal framework

At the time of reporting the new Firearms Control Act had still not been promulgated in its entirety and only certain provisions were in force. These related to:

• The definition of a firearm;
• The purpose of the Act;
• The taking of finger and palm prints;
• Penalties for failure to comply with the Act, and
• The establishment of firearm-free zones.

As a result, most of the research focused on declarations made according to the provisions of the Arms and Ammunition Act (Act 75 of 1969), and all references to sections of an act in the report refer to the Arms and Ammunition Act, unless otherwise stated.

The Arms and Ammunition Act prescribes that no person may possess a firearm without a licence (s2). The Commissioner of the SAPS is empowered to grant licences in his discretion to any person over the age of 16 who pays the prescribed fee and complies with the required regulations (s3). Such a licence may only be issued to a person in possession of or with access to a prescribed strongroom or safe for the safekeeping of the firearm (s3). The applicant must have his fingerprints taken if the Commissioner of Police deems it necessary (s41A). There is no limit on the number of such licences that may be granted, and the Act does not require that they be renewed. The Commissioner of Police must keep a register of all matters relating to the Act (s42).

It is important to note that police procedures around licencing are currently being updated to meet the stricter requirements of the Firearms Control Act in preparation for its full implementation in the near future. The new Act allows the firearm licence holder to possess only one handgun or shotgun for the purpose of self-defence. It allows amateur hunters or sports-shooters up to four licenced firearms, but only one handgun. It does not limit the number of firearm licences that can be issued to professional hunters or sportsmen or registered collectors.

The new Act requires that applicants obtain "competency certificates" before they can apply for a firearm licence. These must be regularly renewed, in line with the firearm licences. The CFR will issue competency certificates after looking into the background of the applicant. The document will certify that the applicant is:

• 21 years of age;
• "Fit" to possess a firearm;
• Of stable mental condition, not inclined to violence or involved in domestic violence;
• Not dependent on alcohol or drugs;
• Without a criminal record;
• Knowledgeable of the law relating to firearms, and
• Trained the in effective and efficient use of a firearm.

The term "competency certificate" may be somewhat confusing, because at present it refers to a document issued by a firearm dealer or other person who gives firearm training – stating that the applicant knows how to use the firearm in respect of which he or she is applying for a licence.

The SAPS may declare a person unfit to possess a firearm in terms on s11 of the Act without that person necessarily being convicted of any offence. This may be done in terms of s11 of the Act, if the police - on the grounds of a statement made by a witness under oath - have reason to believe that:

• A person has threatened or expressed the intention to kill or injure him- or herself or any other person;
• A person’s possession of a firearm is not in his or her interests as a result of his or her mental condition, inclination to violence, or dependence on alcohol or drugs, or
• A person has failed to take reasonable steps for the safekeeping of the firearm.

Then that person can be called to a hearing to give reasons why he or she should not be declared unfit to possess a firearm. The police officer conducting the hearing may declare the person unfit if he or she is satisfied that the original reasonable belief on which the hearing was based is supported by the evidence (s11 (4)).

In terms of s12 (1), any person convicted of:

• Possessing a firearm without a licence (s2)
• Pointing a firearm at another person (s39 (1)(i))
• Failing to lock away a firearm when it is not in his possession or under his direct control (s39 (1)(j))
• Negligent loss of a firearm, including as a result of theft arising from the failure to lock away or take reasonable steps to safeguard the firearm (s39 (1)(k))
• Unlawful discharge of a firearm thereby injuring or endangering another person or his property, or negligent handling of a firearm (s39 (1)(m))
• Any offence in which a firearm was used to commit the offence (unless the conviction follows payment of admission of guilt fine)

is deemed to be declared unfit, unless the court determines otherwise. In other words the convicted person is AUTOMATICALLY considered by the law to be unfit to possess a firearm on conviction of any of these offences, unless the court decides to the contrary. This will be referred to as "s12 (1) automatic deeming" in this report.

In terms of s12 (2), the court has discretion to declare any person unfit to own a firearm who has been convicted of an offence contained in Schedule 2 of the Act, unless the conviction follows on an admission of guilt fine. Section 2 offences include:

• High treason
• Sedition
• Terrorism
• Subversion
• Sabotage
• Public violence
• Intimidation
• Murder
• Malicious injury to property
• Rape
• Assault
• Robbery
• Theft of game
• Breaking or entering any premises, whether under the common law or a statutory provision, with the intent to commit an offence.
• Kidnapping
• Childstealing
• Culpable homicide
• Any conspiracy, incitement or attempt to commit any offence referred to in that Schedule.

The court may make such an order even where the offence was committed without the use of a firearm. In these instances, the person is not automatically deemed to be unfit to possess a firearm, but the court may make an order to that effect. This will be referred to as "s12 (2) discretionary unfitness" for the remainder of this report.

In terms of s12 (3), with both s12 (1) automatic deeming and s12 (2) discretionary unfitness, the court must bring the provisions of these subsections to the attention of the convicted person and give him or her an opportunity to advance reasons and give evidence as to why he or she should not be declared unfit to possess a firearm.

In terms of s15, any licence held by the accused ceases to be valid after either a s11 or s12 declaration of unfitness, and in terms of s16, all his or her firearms licences, firearms and ammunition must be surrendered to the SAPS. All these must be handed over to the police within a period fixed by the Minister (currently seven days from the date of notification of a declaration of unfitness having been made).

The disqualified person must within the fixed period arrange for the handing over (either by sale or gifting of ownership) of the confiscated firearm to another person holding the correct licence. Failure to do so leads to the police auctioning the firearm and handing over the proceeds of the sale to the disqualified person (s16 (2)(a-b)).

If for any reason connected to the nature of the arm or ammunition concerned it is deemed not in the public interest to sell the firearm or ammunition, they can be declared forfeited to the State (s16 (4)). If a declaration is set aside on appeal before the expiration of the fixed period, the firearm and all licences in question must be handed back to the appellant (s16 (3)).

The courts have interpreted this legislation (and prior similar legislation) to some degree. Case law is important because legislation is only the bare bones of the law; case law fleshes out exactly what legislation means. A short summary of some relevant case law appears below; an exhaustive discussion of case law was not intended.

The case of R v Lombard 1951(3) SA 842 (E) considered the provisions of the Arms and Ammunition Act 28 of 1937 (repealed by the current Act) in respect of court declarations of unfitness (s12). This case decided that an order of a magistrate with respect to unfitness to posses a firearm is not appealable but may be reviewed.

In other words, the procedure for challenging such an order is by way of review and not by way of appeal. This is important because different legal conventions apply to reviews as opposed to appeals.

The differences between appeal and review are, inter alia, that an appeal is tantamount to a re-trial on the basis of the court record, while in a review, new facts can be brought to the notice of the court by means of an affidavit to prove any irregularity. There is also no limitation on when a review may be requested.

The case also decided that the fact that a magistrate failed to note on the record that the requirements of the Act in respect of a declaration of unfitness have been met, or that a magistrate failed to note his or her reasons for the decision, are not grounds for review. This is important, as will be seen later, as magistrates do often fail to note on the record anything in respect of unfitness.

The case of S v Robson; S v Hattingh 1991 (3) SA 322 (W) considered negligent loss of a firearm under s39 (1)(j) and (k). The court looked at the standard of negligence to be proved in order to secure a conviction, for both s39 (1)(j) and (k). This case is important as it provides the courts’ interpretation of negligence in respect of firearm ownership.

The court said it must use the objective test of the "bonus paterfamilias," and it should be stated thus: how would the notional reasonable lawful possessor of a firearm have behaved in relation to that firearm? This question must furthermore be answered by taking into account the current everyday realities of life in South Africa.

On this basis, Robson, an electrician who kept his firearm at work in his unlocked toolbox in full view of his co-workers and who did not guard it when he went to the toilet, must be convicted. However, Hattingh, who kept his firearm secretly in his locked briefcase in his office and who had it stolen during a two-hour absence from the office, should not be convicted.

The court here also warned against excessively severe sentences in respect of such offences. The court said that not only had the accused suffered patrimonial loss of having his firearm stolen, but also in addition it is likely that he or she will be declared unfit to possess a firearm in future, in terms of s12 (1) automatic deeming.

Ordinarily, "a victim of theft enjoys the assistance of the criminal law, but here he ends up in the dock". Sentences should therefore not offend the sense of justice of the community; this may be counter-productive by discouraging victims of firearm thefts from reporting their loss to the police.

The case of Minister of Safety & Security v Van Duivenboden establishes the principle that the police can be held liable in terms of the law of delict for damage resulting from their failure to remove a firearm from a person where there were grounds for doing so.

This is a significant because courts are generally reluctant to impose liability for omissions. "In this case we are only concerned with whether police officers who, in the exercise of their duties on behalf of the state, are in possession of information that reflects upon the fitness of a person to possess firearms are under an actionable duty to members of the public to take reasonable steps to act on that information in order to avoid harm occurring." The court found that: "The negligent conduct of police officers under those circumstances is thus actionable and the state is vicariously liable for the consequences of any such negligence."

For such an action to succeed in a particular case, it must be established that the police officers concerned were indeed negligent, and that their negligence was the cause of the harm that occurred.

The majority judgment in this case relied on the constitution in finding that this duty was actionable. The concurring judgment of Marais JA, however, found the duty actionable without reference to the constitution. This is important because in the case of Hamilton, which is soon to be heard on appeal, the police have argued that prior to the enactment of the 1994 and 1996 constitutions, they were under no obligation to conduct effective background checks before issuing a firearm licence and may in fact have been acting beyond their powers had they done so. In this case a psychotic woman was issued a firearm licence.

Both these cases are important as in the chapters that follow, it appears that the police are not making effective use of s11 and also find assessing the emotional and mental stability of firearm licence applicants difficult.

1. Magistrates

Magistrates are the presiding officers for all matters held in the Regional and District Courts of South Africa, which hear the majority of criminal cases tried in our courts. It is their duty to apply the law, in particular the provisions of the Arms and Ammunition Act, notably cases where s12 (1) and s12 (2) of the Act would apply.

District magistrates will generally hear s39 cases, unless the s39 matter is an alternative charge to a more serious matter normally heard in the Regional Court. Crimes not involving a firearm are also generally heard in the District Court. Crimes involving a firearm are generally heard in the Regional Court.

The questions posed to magistrates were designed to uncover both their understanding of the applicable law and their application of that law in court.

All the magistrates interviewed agreed that a contravention in respect of s39 (1) (I), (j), (k), (l) or (m) resulted in an automatic declaration of unfitness of the accused. The provisions of s39 (1) include the pointing of a firearm, failure to keep the firearm safe, negligent discharge of a firearm and the handling of a firearm whilst under the influence of alcohol or drugs. In addition, a contravention of s2, that is, the possession of an unlicensed firearm, also attracts an automatic declaration of unfitness.

The magistrates stated that it was their duty to inform an accused as is required by law (s12 (3)) that he or she was automatically deemed unfit to possess a firearm. Moreover, they said that they gave the accused an opportunity to provide the court with reasons as to why he or she should not be declared unfit. The accused is normally made aware of the declaration immediately after sentencing. According to the magistrates, the accused normally advances reasons in argument against the declaration. The most common reasons, according to magistrates, given by accused are:

Magistrates expressed the opinion that most of the accused before them have committed crimes with unlicensed weapons. The accused are able to access illegal weapons quite easily hence their lack of concern about the declaration of unfitness, which would only block their access to legal firearm ownership.

A few magistrates said that in their experience the accused are ‘still in shock of the sentence’ so they do not challenge the automatic declaration. Only one magistrate in Queenstown had an accused challenge the declaration of unfitness, which was ultimately dismissed.

Magistrates said the following factors are considered when making a decision whether or not to overturn an automatic declaration of unfitness:

• The facts of the case;
• The circumstances of the crime;
• The personal circumstances of the accused;
• The degree of violence used;
• Whether a firearm was used;
• The criminal record of the accused;
• Whether or not the accused has a history of violence or a tendency towards violence,
• Whether the accused is a member of the police or a security guard.

Magistrates said they very rarely overturned the automatic declaration.

Some magistrates said that the declaration in terms of s12 (1) is recorded as ‘no order is made’. This is usually done on the SAP 69 form, which records the conviction and sentence made against the accused. The more recent SAP 69 forms have made provision for such notification.

However, during the interviews with magistrates in the four provinces it was found that there was a great deal of inconsistency amongst them. Some of the magistrates do specify that ‘no order is made,’ whilst others neglect to write anything at all.

The confusion results from the fact that s12 (1) provides for an automatic declaration of unfitness. Many of the magistrates are of the opinion that if an accused is convicted of a crime specified in s12 (1), there is no need for them to record the order. This, however, results in a great deal of confusion amongst police (investigating officers and CFR and CRC staff) and prosecutors.

If nothing is written down, some investigating officers assume that the accused has not been declared unfit. This reflects a serious gap in their knowledge about the law. They seem not to be clear on the relevant legislation and are unaware of the crime categories covered by the automatic declaration.

Furthermore, if nothing is written on the SAP 69 form, it is possible that the CRC staff who capture the information might neglect to refer to the legislation and fail to enter this information to their records at the CRC. However, our investigations suggested that the personnel at the CFR are aware of the automatic declarations and do seem to verify if such a declaration has been made.

Another source of confusion is the phrase, itself: ‘no order is made’. Where magistrates have indeed written ‘no order is made’, some investigating officers who read the SAP 69 form and the docket once the court returns it do not always understand the meaning of the phrase. If they read ‘no order is made,’ they are under the impression that the accused has not been declared unfit.

In addition, it seems that CRC staff who capture information on the CRC system also seem to understand the phrase ‘no order is made’ as meaning that the accused has not been declared unfit.

According to a trainer at Justice College, the magistrates have been taught to use the phrase ‘no order is made’ and should write it down on the SAP 69 form. Where the accused is not declared unfit, the magistrates should note the following; ‘the accused is not deemed to be unfit to possess an arm’ - a rather opaque but legally correct way of saying the accused is fit to possess a firearm. It is important to note here that the new Firearms Control Act also contains an automatic deeming provision.

It is important to note that the declaration is part of the court record and is recorded on the SAP 69, the docket and the charge sheet. However, there was a difference of opinion amongst the various magistrates as to who was responsible for informing the investigating officers about the declaration of unfitness.

Most of them said that it was the duty of the prosecutor to record this on the docket. Unsurprisingly, magistrates were generally of the opinion that it was not their duty to inform the investigating officers that the accused had been declared unfit. Magistrates said that the prosecutors write on the cover of the docket thereby making the investigating officers aware of the order. It appears as if the responsibility lies with investigating officers to read the docket and the SAP 69. The CFR in Pretoria records the information on its systems.

Magistrates were generally of the opinion that the police were solely responsible for the removal of the firearm and licence from the accused once he or she has been declared unfit. One said that magistrates ‘do not have this kind of infrastructure, neither do the clerks who work for us’. However, he went on to say that it ‘would not be a bad idea if the clerk of the court notified the police station’ that the accused had been declared unfit. This would be similar to the situation for special bail applications, in which the clerks of the court inform the relevant police station.

Section 12(2) of the Act gives the court discretionary powers to declare people unfit to possess a firearm if convicted of a wide range of crimes (see pp. 15 and 16 above). The vast majority of magistrates interviewed said that they would make a declaration of unfitness in respect of any crime involving violence. The crimes mentioned by them tally with those listed in Schedule 2 and include murder with a knife, robbery, culpable homicide, assault GBH, high treason, house-breaking, public violence, domestic violence and any other violent crime.

Four magistrates found it difficult to make the declaration where a firearm was not used:

One magistrate said where a prosecutor does not alert the magistrate to the possibility of declaring an accused unfit, an order will not be made.

The factors taken into account by magistrates when considering a declaration in terms of s12 (2) were the same as those mentioned above in determining whether an automatic declaration should be overturned, that is, the nature and seriousness of the crime, the personal circumstances of the accused, and so on.

There are not only problems with regard to the recording of declarations of unfitness and their implementation, but also with the setting aside (‘upliftment’) of such orders. In addition, if the courts omit to declare a person unfit, the police have the responsibility of ensuring that they initiate and hold s11 hearings. This adds to the existing workload of the police in respect of s11 hearings.

All the magistrates interviewed expressed concern about whether or not the orders with respect to s12 are implemented. Some asked:

This clearly indicates the gap between the functionaries of the Departments of Justice and Safety and Security. There needs to be greater co-operation between the two departments.

More importantly, in terms of s14 (2) of the Arms and Ammunition Act the order may be set aside after a period of two years. The person against whom the order was made can appeal in writing to the Chairperson of the Appeal Board and request a discharge. According to the Chairperson of the Appeal Board, the lifting of such an order ‘depends on the seriousness of the contravention originally perpetrated’.

If the person was automatically deemed unfit, the Appeal Board looks at the conviction and the criminal record. In addition, the merits of each case are considered. However, there are no guidelines or regulations in place that the Appeal Board can consult. The Appeal Board uses its discretion in such cases. The Chairperson of the Appeal Board remarked that there were ‘plenty of upliftments being done, about 20 per month’.

The fact that those declared unfit can appeal to have the order uplifted after two years is problematic. Magistrates make orders for specific periods such as 99 years or 3 years, after full consideration of all the facts of the case as well as the record of the accused. In terms of the new Act, a person can apply after five years for the declaration to be uplifted. This undermines the authority of a magistrate’s carefully considered decision.

In this regard, a few magistrates also complained that the High Court appeared consistently to be undermining strict sentences for illegal possession of firearms by applying more lenient sentences when such cases were brought to the High Court under appeal. This has lead to some prosecutors choosing to have such matters heard in the District Court, where appeal is to the Regional Court, rather than in the Regional Court where appeal is to the High Court, and asking for the maximum sentence in the District Court (two years) rather than risk the matter going to appeal in the High Court.

Magistrates interviewed for the study maintained that 99% of the cases heard at the Regional Court consist of serious violent crimes, and the accused in these cases are more often than not unlicensed firearm holders. If they are declared unfit, this has little impact on the accused. Principally, this is because such persons are able to obtain illegal weapons very easily. Consequently, magistrates view unlicensed firearm holders as more problematic than licensed firearm owners.

1. Prosecutors

Prosecutors are an important part of the criminal justice process. Prosecutors present the evidence amassed by detectives and argue principles of law before the court. Prosecutors serve as a conduit between the police and the court, which has certain powers to see to it that an accused is declared unfit. As a result their role is inextricably linked to that of detectives and the court and cannot be seen in isolation.

With respect to declarations of unfitness, prosecutors can have an impact on both section 12 (1) automatic declarations and s 12 (2) discretionary declarations.

District prosecutors are generally responsible for s39 cases, unless the s39 matter is an alternative charge to a more serious matter normally heard in the Regional Court. As noted above, crimes not involving a firearm are also generally heard in the District Court. Crimes involving a firearm are generally heard in the Regional Court.

Dockets

Most prosecutors said that dockets they receive from the SAPS do not reflect an endorsement regarding the fitness or unfitness of the accused to possess a firearm. It is the exception rather than the rule that such an endorsement appears:

"I have never seen one."

"Only in high-profile cases"

"Only the more experienced detectives do so"

In the Western Cape, detectives have been instructed to affix a letter to the docket in appropriate cases requesting a prosecutor to ask for a declaration of unfitness. None of the Western Cape prosecutors interviewed said they had received such a letter. In the Eastern Cape and Gauteng, DFOs in certain areas have also only recently been instructed to attach such endorsement letters but it is unclear whether this instruction has been passed on to detectives in these two provinces.

Crimes involving the use of a firearm

With crimes involving the use of a firearm, most prosecutors said they did not as a matter of course alert the magistrate regarding a possible declaration of unfitness, as generally speaking it was a magistrate’s duty to consider the issue during sentencing, and magistrates were generally aware of that duty.

"SAPS do not take pro-active steps to ask us to request a declaration. It is the magistrates’ job"

"My magistrate does this on his own"

"A magistrate is normally ahead of a prosecutor on the issue"

With crimes involving the use of a firearm the declaration of unfitness is automatic. In such instances the court is obliged to consider the issue and give both the prosecution and the accused or his or her legal representative an opportunity to address the court on the issue.

According to prosecutors, the unfitness issue is always addressed in matters involving a firearm, as the firearm is a very obvious and pertinent part of the case before the court. Therefore, both the magistrate and the prosecutor are very aware of the need for the issue of unfitness to be considered.

Crimes not involving the use of a firearm

With crimes not involving the use of a firearm, however, the situation is different. As discussed above, the court has a discretionary power to declare anyone unfit who has been convicted of a Schedule 2 crime. A high proportion of prosecutors said they would consider asking for a declaration if the degree of violence in the case warranted it, or if the crime involved the use of a weapon, for example, assault with intent to commit grievous bodily harm or robbery in which some type of weapon was used (for example, a knife).

"Cases of robbery with a knife, robbery with a blunt object, rape of a minor"

In other words, the degree of violence and propensity to using any kind of weapon would bring such a declaration to mind, and in such cases the prosecutor would consider asking for a declaration of unfitness.

However, it is unclear whether prosecutors who said they would consider asking for a declaration with such crimes were simply listing their knowledge of the legal fact that in such cases they may ask for declaration, or whether they regularly made such requests.

Other prosecutors were very candid in their opinion that s12 (2) is very seldom used.

"It would very seldom come up because of lack of knowledge of both prosecutors and magistrates"

"Normally only in cases of severe violence, but this is often not done"

"The s12 (2) provision is never invoked. One of my prosecutors did not even know it existed. It is probably never used anywhere in RSA. Only s12 (1) is ever used"

"Where there has been no use of a firearm, it does not occur to a prosecutor to ask to declare someone unfit"

Furthermore, a few prosecutors said they would not address the issue to the court unless the detective in the matter asked the prosecution to do so, or the court raised the issue of its own accord.

A few magistrates in turn said the issue would not come to mind unless the state brought it to their attention. In other words, each person in the criminal justice ‘chain’ would wait for it to be raised by someone else.

"Only where the prosecutor has been provided with the knowledge by the detective that the accused has a firearm will he ask for a declaration."

"If no firearm has been involved in the matter, the issue of unfitness will almost certainly not come up, neither the prosecutor nor magistrate would think of it."

Some said the issue was ignored because of the awareness that the SAPS were likely to conduct their own s11 inquiry subsequent to the finalisation of the case.

"Some ignore it because SAPS will do an inquiry."

Indeed, some SAPS members complained that much work was left for them to do in terms of s11 when it would have been far easier for a court to consider and dispose of the issue during sentencing in court.

"With s12, dockets come back from court a lot. Detectives are supposed to ask for s12, but both detectives and prosecutors refer back to the police for s11, or they withdraw the case then police have to do s11. There is too much reliance on police to do s11 inquiries"

Firearms-related offences in terms of s39

With respect to prosecutions in terms of s39 (which may also result in automatic unfitness), most prosecutors said these cases were seldom withdrawn – which is contrary to what is reported by the police.

"I would say most of them - 80 – 90% - proceed to court. A firearms-related charge is seen to be very serious, and unless there is a definite reason, we do not withdraw such a charge"

"I have not seen a case of illegal possession of a firearm in being withdrawn – they all proceed."

"All go to court"

However, this may be as a result of most prosecutors receiving their cases only after the Senior State Prosecutor or Control Prosecutor has already screened them. In other words, they are not exposed to the cases that are withdrawn due to screening, and although an individual prosecutor does proceed with most cases that make it into his or her hands, he or she may not be aware of the cases that did not survive screening.

"The Senior State Prosecutor and Control Prosecutor screen all cases."

"It is difficult for me to say (how many s39’s are withdrawn) since I don’t screen dockets. I only get ones that are ready for trial, and I prosecute. We have a system here of three prosecutors screening dockets for processing and going to trial."

This would, in some instances, explain the apparent contradiction between the police perception that many s39 matters are withdrawn by the prosecution and the prosecutors’ assertion that they proceed with the majority of s39 matters they receive.

Some prosecutors, particularly those in the Western Cape, mentioned certain legal problems which had arisen with certain s39 prosecutions. Very often the evidence in such matters, in particular s39 (1)(k) matters (negligent loss of a firearm), consists solely of the report by the accused to the police of his loss of a firearm.

"In the past there was a problem, that a complainant’s statement under oath – usually the only evidence against him - could not be used in court against him as no warning statement was first taken from him by the police. Now the police know to take the warning statement, so far more s39s are able to proceed than in the past, when many were withdrawn due to lack of admissible evidence."

"Many old presumptions that used to assist the prosecution on s39 have fallen away as they have been deemed unconstitutional."

"Most s39s proceed. The problem is, most often the only evidence is the statement of the accused. Most instances this is not admissible, as the person was not taken to a magistrate when the statement was taken and not warned."

Other practical problems in relation to s39 matters were also mentioned, in particular the need for a ballistic report to prove that the weapon is a firearm.

"Often police don’t file a ballistic report."

"The biggest problem with getting cases through is the backlog at ballistics. Cases get struck off for unreasonable delay."

Other reasons for withdrawals of section 39 matters mentioned included witnesses unwilling or failing to appear, complainants withdrawing, and lack of clarity, for example, where there are multiple accused persons and only one firearm.

Procedure

With respect to the procedure of the declaration, prosecutors said that magistrates informed the convicted person of the relevant provision of the law, after conviction of the accused and while sentencing was being considered. This means the magistrate would then also have the convicted person’s criminal record before him or her when making a decision on unfitness.

The accused is usually given an opportunity to give reasons why he or she should not be declared unfit to possess a firearm. This was generally so except where the issue of declaration had already been decided in a plea-bargain arrangement.

In many instances, prosecutors said the accused had nothing to say, particularly if he or she was not a licensed firearm owner. An accused was more likely to advance reasons if he or she was already a licensed firearm owner, according to prosecutors.

The reasons given most often revolve around the employment of the accused: police officers, security guards, taxi-drivers, and small business owners who need to pay wages, all argue that they need to have a firearm in order to carry on their work. Other reasons cited included the need for self-protection while living in dangerous areas or that the offence was small or a first-time offence.

By far the majority of prosecutors said they are given an opportunity for rebuttal of the reasons given by the accused and that they make use of that opportunity.

However, a few felt that magistrates had already formed an opinion based on their attitude to firearms – some lenient, some strict – and the facts of the case, and as a result, what prosecutors had to say would have little impact.

"I often find that no matter what I say about section 12 in my address to the magistrate, they say to me: ’Do you really think we should withdraw this man’s firearm license and take away his gun?’ They have already made up their minds about section 12 to not make an order to declare the accused unfit."

"The accused do not usually oppose it when it comes up during sentencing. When they do object, this is strongly rebutted by the prosecution. In such a case, the magistrate only makes an order if there is very good cause to make the accused unfit."

"It is rare that a declaration of unfitness is not made."

A few also said the correct procedure was not followed or that prosecutors, attorneys or magistrates were not properly aware of the law.

"… I have only seen two magistrates who followed the proper enquiry procedure. Normally, the court decides on the evidence already presented to declare the accused unfit, so it is not often that the accused will present evidence for such a declaration not to be made."

"Often the attorney says the court can make such an order as they are not sure what section 12 is all about. Even the prosecutors, especially those who are inexperienced, also don’t know about it."

Almost unanimously, prosecutors felt they had no role to play in the removal of the licence or the firearm in terms of s15 or s16, as this was by law the duty of the police.

 

Record keeping

Prosecutors said their role in informing the investigators or the CFR is limited to noting the order on the charge sheet or docket.

"It is part of the sentence. We write on the docket, and a form called the SAP 69 is filled in for the investigating officer. The magistrate signs it."

"The CFR is notified through the SAP 69. The SAP 69 goes to the clerk of the court. The prosecutor writes on the docket. The investigating officer has it taken to the local CRC."

"The issue is considered at sentencing and becomes part of the court record. It is up to the police to notify whoever needs to be notified…No one is informed; it is merely part of the court record."

"I don’t really know about the procedure after a magistrate has made a ruling. I presume the clerk of the court should fill it in and must be instructed to inform the investigating officer or CFR about decisions made."

However, at the same time, many identified poor record keeping as a significant breakdown in the system.

"What worries me is that I don’t know what happens to the court record. The charge sheet is a public document, and we write on it the sentence and the declaration order. We don’t know what then happens to the order. The clerk is supposed to record it. There is also a place on the SAP 69 for this but it is not our responsibility to follow up on this, which goes to CRC. I won’t know what happens when the accused, after serving say his 7 year sentence comes out of jail and then uses an illegal firearm. Is he charged with a separate crime for breaching the court order?"

"Overall checking and scrutiny is not being done as it was in the past. In the past a senior magistrate would check each charge sheet before being filed. This has now fallen away."

"We write on the face of the docket – the sentence and that the accused was found unfit. It is also recorded on SAP 69 by the court orderly. The investigating officer must follow up; if he is not doing his job, it will normally not be picked up."

Another point to be made is that in respect of s12 (1) automatic deeming, what is actually noted on the court record with respect to unfitness is that "no order is made" – in other words, the automatic declaration stands. This terminology may be confusing and unclear for inexperienced clerks and detectives to understand and follow.

Furthermore, sometimes when no order is made, even that it is not noted. It is assumed that it is understood that if no order is made in a crime that falls under s12 (1), then it is understood that the accused is unfit.

"It is made a point of court record only when the order is made. Usually no order is made (with automatic deeming)."

Some prosecutors also worry about the lack of follow-up on cases they were unable to prosecute:

"Many firearm-related cases are simply not being investigated, and there is no follow-up on unresolved issues. Where, for example, a murder case is withdrawn, let’s say because the witnesses disappear, the firearm is simply given back to the accused, even though it is clear the firearm was used in the murder. The problem is the witnesses have disappeared, so there is no charge or conviction against the accused, so the issue of unfitness never actually comes up at all. The biggest loophole seems to lie with these withdrawn cases."

 

2. Observation of cases in progress

One of the components of the study was to observe whether or not regional court magistrates make declarations of unfitness during sentencing of the accused. This observation of actual court practice was done in order to place in context the comments made by magistrates and prosecutors in the interviews.

The project team in Johannesburg consulted the Senior Public Prosecutor and a list of cases was given where sentence was likely to be passed.

However, in only two of the cases was sentence actually passed. These involved theft of a firearm, armed robbery (x2) and illegal possession of a firearm. The rest were postponed for various reasons. Due to the time-consuming nature of this aspect of the research, only these two cases were observed and will be described briefly here.

The accused, a 22-year-old male, was charged with theft of a weapon. He was employed as a security guard, and his employer gave the weapon to him. The accused sold the weapon without his employer’s permission to a taxi driver for R1 000. According to the accused, he sold the weapon in order to buy drugs.

The magistrate said he would consider several factors when passing sentence, namely;

• The interests of justice;
• The interest of society, and
• The offence.

The magistrate was of the opinion that society would view the offence in a serious light. One of the aggravating circumstances was that the accused ‘sold a potentially dangerous firearm that ended up in the wrong hands’. He added that the buyer had ‘illegal intentions’ because if he had ‘legal intentions he would have acquired a firearm by other means’.

Moreover, he said the firearm belonged to the accused’s employer, and by selling it he had ‘betrayed that trust’. As a consequence, the employer had suffered a loss. Although the accused averred that he had pointed out the buyer to the investigating officer, this was not mentioned in the docket.

The magistrate said that he needed to ‘send an appropriate message to society’. In addition, society would ‘ask for a term of imprisonment’. He urged the accused to avail himself of the options presented in prison with regard to counselling. The magistrate postponed sentencing for a day in order to determine if a drug rehabilitation centre had room for the accused.

The defence argued that the accused was a young man who could be rehabilitated if he was given the necessary assistance. In addition, it argued that the accused had been in custody since his arrest and had not wasted the courts time since a guilty plea was entered. The defence suggested that the accused be given a suspended sentence as recommended by the probation officer. Furthermore, that the accused should be sent to a drug rehabilitation centre.

In passing sentence the magistrate was mindful of:

• The crime for which the accused was charged;
• The interests of the community, and
• The personal circumstances of the accused.

The magistrate regarded the crime as serious because he said it was too ghastly to contemplate what the buyer would do with the weapon. According to him, this is the reason why the ‘District Court felt that it could not pass sentence and referred the matter to a higher court’.

The magistrate continued by saying that the accused, through his actions, ‘caused that an illegal weapon landed in the wrong hands’. Therefore, neither a rehabilitation centre nor a suspended sentence was appropriate.

The sentence handed down to the accused was five years imprisonment of which two years were suspended for three years. The two years were suspended for five years on condition that the accused was not found guilty of theft, attempted theft or contravention of s36 and s37.

The accused was declared unfit to possess a firearm in terms of s12 (2) of the Arms and Ammunition Act. The magistrate did not give the accused or his defence attorney an opportunity to address the court as to why the declaration should not be made. Moreover, the defence attorney did not challenge the declaration.

Three accused were charged with robbery, attempted robbery, illegal possession of a firearm, and illegal possession of ammunition.

With respect to conviction, accused one and three were not found guilty on the first count; only accused two was found guilty, not of robbery but of being in possession of stolen goods, alternatively theft. All three of them were found guilty of count two, which was attempted robbery with aggravating circumstances. All three of them were found guilty of count three, illegal possession of firearm. Accused one and two were acquitted of count four, illegal possession of ammunition. Accused three was the only one found guilty of illegal possession of five rounds of ammunition.

With regard to previous convictions, accused one and two had no previous convictions. Accused three was on 15 September 1998 found guilty of illegal possession of firearm and ammunition and was sentenced to two years imprisonment, which was suspended for five years.

Argument in mitigation of sentence was as follows: Accused one had no previous convictions; he was 20 years old and was supported by his grandmother. He had already been in custody for sixteen months. Accused two had no previous convictions. He was 20 years old. He was single, had no dependants, and relied on his mother for support. His parents were divorced, and he left school in Standard 7 after a long illness. Accused three had a previous conviction; he was 20 years old and had no dependants. His parents were never married, and he was the eldest child. He failed Matric. He was a minor in 1998 when he was found guilty, and the circumstances of the case were not known. Therefore, he should be given another chance, and the submission was made that his sentence should be of a rehabilitative nature.

The prosecutor requested the court to sentence them to 15 years imprisonment. He argued that if a witness had not been present, they would also have committed vehicle theft. They committed the crimes next to a school, and they were armed. Furthermore, count one and count two happened very close to each other, which shows that accused two was irresponsible.

For count three, the prosecutor submitted that the sentence given to accused three in 1998 was too lenient and was surprised that he was not declared unfit to possess a firearm at that time. The sentence had not been a deterrent, as fewer than five years had passed before he committed exactly the same offence. Accused three may have been young at the time, but he knew what he was doing.

The prosecutor further submitted that the community is tired of people who use firearms illegally. Therefore, for count three and four they should be sentenced to 15 years each, which should not run concurrently.

The magistrate said that in passing sentence, he would look at the personal circumstances of each of the accused, at the community and at the case. The magistrate said their personal circumstances were similar in that all of them were single, unemployed, and had been in custody for 16 months. However, accused one and two were first offenders, while accused three had a previous conviction, in that he was found guilty of a similar offence four years previously (Illegal possession of arms and ammunition) and was sentenced to two years imprisonment suspended for five years. He would also take into account that accused three was a juvenile at the time, but he did not respect the law.

The magistrate further noted that the crimes committed were very serious. Although there is no minimum sentence for attempted robbery, what they did was similar to robbery and therefore should be taken very seriously. According to the magistrate, the law requires heavy sentences where previous convictions have not been a deterrent. The cost to society cannot be calculated; crime causes economic damages. However, the magistrate stated that since they had already been deprived of freedom for 16 months, the court would be lenient because no one was injured - the incident could have been a blood bath if they had shot back at the witness.

The magistrate also stated that the possession of firearm is a very serious offence because many violent crimes are committed with illegal weapons. They are mostly linked to armed robberies. It is now impossible to rob a vehicle without a firearm. Normally lawyers ask that the sentences should run concurrently, but he (the magistrate) did not agree with that because it leads to criminals committing as many crimes as they can in one day because they know that sentences run concurrently. Accordingly, the magistrate felt that accused three should be punished severely because of the previous conviction. In addition, the firearm they had was loaded.

The sentences passed in respect of these accused were as follows:

In conclusion, the magistrate then said in respect of fitness: "no order is made". In other words, all three were automatically deemed to be unfit to possess a firearm.

6. Criminal Records centre: Statistical Analysis

The comments of prosecutors and magistrates regarding record-keeping in respect of s12 declarations, highlight the importance of the record of the outcome of a criminal case (known as the form SAP 69) and the role of the CFR and CRC of the SAPS.

For the purposes of this research, a total of 376 SAP 69 files were perused at the CRC, and of these, 158 closely examined which involved crimes ranging from murder to negligent loss of a firearm. These were examined in terms of crime type, sentencing, and record-keeping in respect of declarations of unfitness.

 

Crime Types

The most prevalent crime (49.3%) in the sample was assault with the intent to commit grievous bodily harm (assault GBH). Rape constituted 8.23% of the sample, whilst robbery and murder accounted for 6.96% respectively. Culpable homicide made up 4.43%, attempted murder 2.53%, and domestic violence 1.27%. Possession of arms and ammunition (3.16%) and negligent discharge of a weapon (3.16%) were some of the other crimes included in the sample.

Sentencing

The sentences, particularly those pertaining to a term of imprisonment, were examined in order to determine whether or not the offence attracted an automatic declaration or a declaration in terms of s12 (2) of the Act.

Most of the accused persons, who had committed assault GBH, were given a fine or the option of imprisonment. However, some were sent to prison for between six months and a year. Of the perpetrators, 46.1% of those who had been found guilty of rape were sentenced to prison for between six to ten years imprisonment. Those sentenced for murder received sentences of between six months and 25 years imprisonment. In one of the two cases of domestic violence examined, the accused was sentenced to between six and twelve months imprisonment.

Unfitness

In the vast majority (87.9%) of cases, the magistrates did not specifically state on the SAP 69 whether or not the accused had been declared unfit to possess a firearm. That section of the SAP 69 was simply left blank. In only 6.3% of the cases in the sample did the magistrates expressly state that the accused had been declared unfit.

 

7. Women’s Organisations

Several women's organisations were interviewed, with the view of finding out if they have ever initiated the removal of firearms, especially in cases of domestic violence. The response of the criminal justice system to these attempts was sought. It was also intended to collect any relevant information they might have at their disposal, such as case studies and statistics.

The organisations interviewed were NISAA (Arabic word for woman) in Gauteng, the Advice Desk for the Abused in Kwa Zulu-Natal, the Sarah Baartman Shelter for Abused Women in the Western Cape, Rape Crisis in the Western Cape, FAMSA in the Eastern Cape, the Kabega Community Care Centre in the Eastern Cape, and the Centre for the Study of Violence and Reconciliation in Gauteng.

The organisations interviewed were of two types. Some were advice centres that facilitate the obtaining of interim protection orders, protection orders and court orders against abusive partners. The others, in addition to providing such services, also give shelter to abused women.

The majority of the organisations interviewed do not keep statistics of relevance to this project. One organisation was, however, able to say that since its inception in 1998, about fifty domestic violence cases have led to firearm confiscations.

The organisations running shelters for women said that they generally ask women who come to the centres whether or not the abuser has access to a firearm or a knife. This is done in order to assess the security threat to the centre as a whole posed by the woman's residence there.

The advice centres also ask all the women who came to them if their abuser has access to such weapons. Generally women complain that their abusers are in possession of firearms. Most of them have either been pistol-whipped or have had a firearm pointed at them. In many of the cases, they go to these centres after the abuse has been going on for some time.

The organisations mentioned that they have in many instances contacted the police when a firearm was used in specific cases. In many cases the reaction of the police would be to remove the firearm immediately from the possession of the owner. However, within days, the women go back to the centres again to complain that the firearm is back at home with the perpetrator. They do not know how the weapon was returned because the police did not consult them.

In the Western Cape, one organisation felt that the police were good in ensuring the removal of firearms. This was thought to be because the cases were channelled through specific people who are sympathetic and organised in respect of such cases

Some organisations were also concerned that it seems as if the police do not consult the Domestic Violence Register when processing firearm applications. The greatest concern was that spouses of applicants are not interviewed prior to the awarding of a firearm licence. They felt strongly that the spouses should be part of the decision on whether their household needs a firearm or not.

The women's greatest concern was that when these men apply for firearm licences, they state their reasons as ‘self defence’ and ‘protecting my family’ whereas the firearm is very often used to intimidate the same families. One organisation said despite partners providing such reasons for acquiring a firearm, women complained that their partners only take their firearms out of the safe when they intimidate them.

Another factor, which is of great concern, is that even if women lay charges with the police, their cases are often either withdrawn in court because of lack of evidence or the abuser is acquitted. In cases where the abuser is convicted, these organisations said it was very rare that he or she is deemed or declared unfit to posses a firearm.

Another concern was that there are a large number of partners of police and security personnel who come to the centres for assistance. In such cases, it is very rare for courts to remove the firearms or declare the abusers unfit to posses the firearm as it is argued that they need it for work purposes. This is problematic because the perpetrators' employment appears to be valued more highly than the danger posed to their partners.

Information could not be obtained from the Centre for Study of Violence and Reconciliation because they are currently busy with a similar study.

8. Police

The police have important powers to exclude people who are unfit to possess firearms, first in their control over the issuing of firearm licences and second, in their capacity to declare a person unfit to possess a firearm. he project explored at length police practices in both of these areas.

Interviews with selected DFOs, firearm registration clerks, station commissioners, provincial heads and area heads for firearm registrations were undertaken in Gauteng, KwaZulu-Natal, the Eastern Cape and the Western Cape. A set interview schedule was used which had 35 questions.

The questions dealt firstly with the procedures and processes followed in receiving and dealing with a firearm licence application, how the application is evaluated (for example, the applicant’s motivations for owning a firearm), and the consultation of Domestic Violence Registers. The questions then asked about s11 hearings and police perceptions of s12 declarations made by the courts.

Additional information and documentation in terms of application forms, inspection reports, endorsement forms on dockets, provincial standing orders and procedure manuals were also collected.

In the recent past, firearms-related police work did not enjoy a high priority. For example, from 1994 onwards, training on s11 hearings at the Pretoria West Police College was cut out of the curriculum, and at all management levels, as it was not considered an important part of everyday policing.

Furthermore, station commissioners and DFOs generally said that in the recent past they did not always have the time to hold s11 hearings, whereby the police, themselves, can declare a firearm licence holder unfit to possess a firearm. This was because there were no DFOs, and other officers were reluctant to take responsibility for such hearings. The responsibility often devolved back to the station commissioner who in turn found that the amount of paperwork involved impinged on his or her other administrative duties. As a result, fewer and fewer s11 hearings have been held in recent years.

SAP 13 evidence lockers were also not cleared of confiscated firearms, and in some provinces large backlogs have occurred. The situation was worsened by the fact that only officers of rank superintendent or higher could hold s11 hearings.

In the manual for DFOs developed in the Western Cape in 2001, the compiler pertinently stated that:

However, since the beginning of 2002, a distinct increase in the number of s11 hearings has been evident, in particular in the Western Cape where this manual was compiled.

The passing the Firearms Control Act No. 60 of 2000 in October 2000 has raised the importance of firearms-related police work, and a start has been made in setting up the new firearms control structures, even while the old Arms and Ammunition Act is still currently in place. Most DFOs have been appointed in the provinces, and the new firearm structures envisaged by the new act are in the process of being implemented.

The period under review in this research therefore represents a transitional one for the SAPS. The regulations for the new Act are also still being finalised. These were only released for public comment at the end of September 2002 with the envisaged date for implementation being the end of April 2003.

This meant that at the time of reporting, the appointment of DFOs had been uneven in the various provinces, and the provinces were at various stages of development and implementation of new structures for firearms registrations. There had also been uneven installation of ancillary facilities such as computers, faxes, and scanners linked to central databases. The setting up of the required structures was going faster in the main urban centres than in the smaller towns and rural areas.

While the relevant sections of the Arms and Ammunition Act were still being used and referred to, the DFOs had one eye on the new Firearm Control Act’s requirements with the view to implementing those expanded processes and procedures.

The sections of the Arms and Ammunition Act of specific relevance for police in terms of applications for firearm licences and their approval or rejection, are s3 (1) and (6), s7 and s10.

These provisions and the related regulations broadly deal with issues such as the

:

• Age of the applicant;
• Payment of a licence fee;
• Denying the applications of disqualified persons;
• Possession of or access to a prescribed safe, strongroom, device, apparatus or instrument for the safe-keeping of a firearm;
• Need for a manufacturer’s serial number on the firearm; and
• Issuing of copies of a firearm licence to a licence holder.

All these provisions are of crucial importance in assessing whether an applicant meets the legal criteria for possessing a firearm.

Other sections of relevance are s10 requiring the applicant to furnish his or her permanent address on the application form, as well as particulars of the firearm being presented for licensing, and s33 (2), which deals with prohibited and restricted firearms and ammunition.

A further provision of relevance is contained in s3 (2), which allows a person to appeal if his or her application has been denied. This must be done within a period of 60 days after the date he or she was notified of refusal. This appeal must be done directly to the Appeal Board (s14).

S11 of the Arms and Ammunitions Act empowers the police to declare a firearm licence holder "unfit to possess a firearm" without taking the matter to a criminal court.

As noted above, s11 allows the police to investigate whether a licensed firearm holder should be declared unfit if they have reason to believe, on the grounds of a statement made by a witness under oath, that:

• A person has threatened or expressed the intention to kill or injure himself or any other person:
• A person’s possession of a firearm is not in his/her interests or the interests of any other person as a result of his or her mental condition, inclination to violence (whether a firearm was used in violence or not), or his or her dependence on alcohol or narcotics, and/or
• A person has failed to take reasonable steps to ensure the safekeeping of the firearm.

The investigation is undertaken through a s11 hearing.

All that is required to declare the person unfit, is for the police officer to satisfy him or herself that evidence given during the hearing supports the reasonable belief that the person is unfit to possess a firearm.

The main purpose of the hearing is to give the person an opportunity to advance reasons why he or she should not be declared unfit to possess a firearm. The person must receive written notice of the hearing. An attorney may represent him or her at that hearing, and he or she may call witnesses and cross-examine the person who made the sworn statement (s11 (3)).

The presiding officer, who is a SAPS officer of the rank of Superintendent or higher and is representing the Commissioner of Police, may use any reasons or submissions or evidence made under oath in making his or her decision (s11 (4)(a-b)). Any declaration resulting from such a hearing may apply for a period of no less than two years, and it may also be suspended for two years. The person may appeal within 60 days.

The hearing can proceed whether or not the person attends the hearing. If it is suspected that the person has any firearm in his or her possession, a warrant for the search and seizure of such firearms must be issued and executed with immediate effect (s11 (2)(a)). The person must also be furnished in writing with the reasons why the declaration was made (s 11 (6)).

The person may lodge an appeal in writing with the Appeal Board within 60 days from the date notified of the declaration. The Appeal Board may confirm, vary or set aside the declaration concerned (s14 (1)).

After the expiration of a period of two years, irrespective of the declared period of unfitness, the person may appeal in writing to the Appeal Board to have the declaration lifted or discharged. (Similarly, a person declared unfit by a court can apply to the Appeal Board to have the declaration reviewed after two years from the time that the ruling was made).

It is important to note that in terms of the new Firearms Control Act, the police may also declare a person unfit to possess a firearm on the grounds that they are the subject of a final protection order issued in terms of the Domestic Violence Act of 1998.

This section describes the procedure to be followed by a DFO on receipt of a firearm licence application. The following section considers the results of the research as to what occurs in practise across the country in respect of this process.

1. Upon receipt of an application a DFO should check that the application form (SAPS 271) has been correctly filled in.

However, this initial evaluation of any application form is heavily dependent upon what the applicant fills in. This information, particularly the need for it to be correct and fairly detailed, is relevant for a number of issues that a DFO has to consider, namely the:

• Type, action, make and calibre of the firearm for which the licence is being requested;
• Manufacturer’s serial number of the firearm;
• Particulars of the previous owner of the firearm;
• Applicant’s particulars (where employed and occupation; type of residence; telephone numbers, ID number; residential address);
• Marital status and ID number of spouse;
• Purpose for which the firearm is required (of particular importance here is whether an applicant has added information concerning any other purpose and the separate, detailed motivations for the stated use of the firearm in question; an applicant can also attach testimonials regarding his/her character and certificates of having undergone a course in the handling of a firearm in support of these motivations);
• Any previous convictions (and the full particulars of each offence whether firearm-related or not, including date and place);
• Any previous loss of firearms formerly in the applicant’s possession;
• Whether the applicant has ever been declared unfit to possess a firearm (by the courts or police, when, where and for what reason);
• Whether any firearm in the applicant’s possession has ever been confiscated (when, where and for what reasons);
• Whether the applicant ever been refused a licence;
• At which police station was the last firearm application handed in and whether there are any licences pending;
• Whether the applicant possesses any firearms under licences or other authority (type, calibre, serial number and purpose for which being used);
• Whether the applicant possesses a prescribed safe, strongroom, device, apparatus or appliance as required by law;
• Whether the applicant is receiving any medical treatment for nervous or mental deviation or taking any prescribed medication or any other medication;
• Whether the applicant has taken any series of sedative, tranquilizing or narcotic drugs or medication for other reasons during the last five years, and
• Whether there any circumstances with regard to applicant’s health, which could influence the application.

Having checked all the above information in the application form, the DFO can then proceed to:

1. Take a set of fingerprints from the applicant.
2. Make a copy of the applicant’s ID book.
3. Hold a face-to-face interview with the applicant in order to check and establish some of the implied information required (e.g. mental and emotionally stability, whether the applicant has ever been involved in domestic violence or been the subject of a protection order, etc.).

The next step in the process would be to:

4. Arrange for an inspection of the residence or premises where the safe has been installed.

6. Check on the CFR database to determine whether:

• There are any previous firearm licences listed under the applicant’s name
• The serial number of the firearm is on the system.
• Any firearm/s in the applicant’s possession have ever been reported as stolen or lost;
• Any s11 hearings have ever been held for the applicant;
• There are any previous convictions or declarations of unfit to possess a firearm orders recorded against the applicant.

This can be done by a DFO if the Firearms Registration Centre or workstation is electronically linked to the Central Criminal Records (CRC). Alternatively, this check can be done at the area’s local CRC or left to the CFR to do when they receive the application. These checks are done by means of the fingerprints submitted with the application and verified on the electronic fingerprinting database kept at the CRC. These can be scanned in at those workstations and Firearms Registration Centres (FRC) having the necessary equipment. Alternatively, this function is left up to the CFR to do. An additional check is done on the ID number and name supplied in the application form.

It is important to note that the current application form requires that all applicants sign and declare: "the information furnished in this form is true and correct." An additional caveat has been added to this declaration namely that:

Typically, such false information might include the applicant:

• Omitting information about prior convictions or declarations of unfitness;
• Providing a false residential address;
• Providing a false ID number;
• Lying about having a gun safe;
• Omitting information about a previous loss of a firearm, or
• Failing to mention protection orders or domestic violence incidents recorded.

False or incorrect information or omissions of fact can lead to a s11 hearing being held.

In the case of the Western Cape, the above declaration has been taken further. Another form is attached to the application which fully outlines s39 (1)(i-m) and requires the applicant to read and take note of s39 (1)(i-m) and sign the form to that effect.

The form also emphasises that if the applicant is guilty of breaching any of these requirements or perpetrates any of the offences listed in this section, they will be prosecuted. The Western Cape s39 (1) form also adds other information that the applicant has to take note of namely, that if the applicant:

If a DFO has any doubts - or what is termed by some officers a ‘gut feeling’ - about an applicant in the face-to-face interview or after the residence and safe inspection has been carried out, the DFO can arrange to have interviews with family members, spouses or partners, neighbours and even employers. In addition, checks on the Domestic Violence and Protection Order Registers and Occurrence Book at the police station where the application has been handed in can also be carried out, particularly to check whether any incidents of domestic violence have been recorded against the applicant.

Once all these steps have been taken, the DFO makes a recommendation and passes the application on to the station commissioner for his or her recommendation. Both recommendations (which can differ) must be recorded on the application form. The application form is then sent off to the CFR for final approval or refusal.

The assessment of firearms applications procedures, s11 hearings and declarations of unfitness to possess a firearm by the SAPS in Gauteng, KwaZulu-Natal, the Eastern Cape and the Western Cape appears below.

The legislation makes provision for an application form to be submitted to a police station in either the area where the applicant lives (at a fixed address) or works. Applicants are encouraged to hand in applications to the station nearest to their place of residence. This facilitates the inspection of the applicant’s premises to determine its safety and whether a gun safe has been properly installed.

Submitting an application to an applicant’s nearest police station is also premised on the assumption that the local police are in a better position to know whether the applicant is a responsible member of the community or not. They are more likely to be aware of any negative things about the person’s behaviour, personality, and emotional or mental state. Any offences related to an applicant’s drinking and narcotic drug taking habits or incidents of domestic violence may also be in the knowledge of the local police station.

One drawback of the system of Firearms Registration Centres (FRCs) – which process firearm licence applications for a cluster of police stations - is that this local knowledge can be lost. It is hoped that in this system, police members of the local station will be sent out to do background checks on people who or work live in their police station area.

Applications received from persons living or working outside of a police station area are supposed to be redirected to the relevant police station serving that applicant. However, in some of the centres serving rural areas, applications are received and processed at a police station a larger town in the area and not at the small rural police station in whose area the applicant lives.

Applicants in rural areas have in the past experienced the process as occurring more quickly at the larger station. Smaller rural police stations handled few applications and did not have DFOs, so applications were allowed to pile up until they were processed and sent on through to the CFR. As a result, applicants, usually farmers, went to a larger centre nearby to apply there.

As a general rule, the process from receiving the application, sending it off to the CFR and receiving a licence, if approved, takes on average between six and eight weeks. The length of this period may, however, be dependent on the circumstances of each case. Much quicker turnaround times do occur.

The mere provision of a receipt for the purchase of a safe or a quote (i.e. intention to buy on receipt of a firearm licence) for the purchase of such a safe from a gun dealer is currently not sufficient evidence of having adequate safekeeping facilities.

Safekeeping facilities are only confirmed after an inspection is made of the applicant’s residence and the installed safe. Typically this inspection is to check whether a suitable gun safe has been correctly installed. In some provinces an inspection report or firearm safekeeping certificate is filled in after such inspection visits. In other provinces DFOs would typically attest to the fact that an inspection visit had been undertaken and adequate safekeeping facilities existed (or did not exist) in the motivations for their recommendation on the application form.

The specifications of such a gun safe or strongroom (e.g. size of safe, thickness of the steel used, type of lock or size of bolts etc.) were set in Government Gazette No. 15652, of April 1994 (See Annexure 1). However, these specifications do not appear to be widely known, with the exception of DFOs in the Western Cape. In some provinces DFOs even said that no such national criteria exist and that they had developed their own criteria for gun safes.

Furthermore, it would appear that most inspecting officers look at only whether a safe has been bolted to the wall or floor and is big enough to accommodate the type of firearm for which the licence is being applied, without testing for all the other specifications (thickness of door and sides, type of bolt used, lock on safe, door hinges etc.).

However, some inspecting officers do insist that the bolts used must be steel and of a sturdy nature. Instances of screws inside a plastic wall plug have been found. This has led to the disqualification of the application unless these are replaced with proper wall Rawl bolts.

An inspecting officer should also check on the general safety measures of the home as a whole (e.g. burglar bars, alarms, proper locks on entry doors and whether fencing or walls separates properties etc.). Gauteng has developed a ‘Firearm Safekeeping Certificate’, which contains a checklist of inspection activities that must be filled in and attached to the application form (See Annexure 9). This checklist deals inter alia with the following, the:

• Type of dwelling (house, flat or informal structure, made of bricks and cement; clay; grass/reeds; corrugated iron, etc.);
• Way in which the safekeeping device is secured in home (burglar proofing; security fence or wall; alarm system; dogs on property and whether fixed to wall or floor);
• Room in which the safe is kept;
• Type and make of the safe and the size and thickness of door and sides;
• Lock of the safe;
• Door hinges of the safe on the inside or outside, and
• Rawl bolt size and the number of bolts used to fix to wall or floor.

The inspecting officer may make comments about the inspection on the form over and above certifying that:

If the facilities inspected do not correspond to the regulations, the inspecting officer has to provide an affidavit to that effect together with the Firearm Safekeeping Certificate.

This certificate also has to be signed by the applicant who is asked to attest:

The Firearm Safekeeping Certificate developed in the Pretoria area does not include a section referring to any interviews undertaken. The Western Cape form (see Annexure 6) does, however, have a section dealing with interviews (with neighbours and a telephonic enquiry to employer, but no mention is made of any interviewing of family members, spouses, or partners).

Most DFOs said that it is standard to conduct a face-to-face interview with the applicant at the time an application is submitted; however, undertaking additional interviews with partners, other family members, or neighbours usually depends upon whether the DFO requires additional information to conclude the background check.

Such additional interviews are undertaken if some doubts have arisen in the face-to-face interview or in the other background checks (Domestic Violence Register, previous convictions, other listed licences, firearms lost etc.). Undertaking additional background information checks also involves contacting an applicant’s employer. However, DFOs stated that if this is done, it is usually by means of a telephone call.

Simply stated, some DFOs said that they don’t always have time or the manpower to undertake additional interviews or even to inspect the residence for security measures or to check the securing and correct installation of a safe. However, DFOs at two police stations in the Eastern Cape mentioned that, where they were unable to make such inspection visits or undertake additional interviews themselves, they made use of members of the Crime Prevention Units or Client Service Centres to do this.

Most police officers interviewed in this study felt the requirement to assess the applicant’s mental or emotional fitness, or propensity to violence, was problematic. They said they were not trained or competent to assess the emotional and mental stability of any applicant. Some also felt they should not be required to make judgements on either health or physical fitness, other than where physical disabilities or visible diseases were obvious in an interview.

They felt such decisions should be left to professionals such as medical doctors, psychologists or psychiatrists. Some suggested that a doctor’s certificate of a physical and medical examination should be attached to the application. If there were doubts about the applicant’s mental stability, then a psychologist or psychiatrist’s report might also be required.

In terms of mental and emotional stability, from the DFO’s point of view, this can only really be gleaned either from statements made in the application form, the face-to-face interview or from actual interviews with family members, spouses, partners and neighbours, employers and colleagues. This emphasises the importance of police officers actually undertaking a full range of interviews.

Not all DFOs interviewed made use of or checked the Domestic Violence Register for any previous record of domestic violence recorded against an applicant. Some did, however, report that they checked the station’s Domestic Violence Register, the Protection Order Register, as well as the Occurrence Book.

This was done also to check whether any incidents (both domestic violence or a transgression of s39 offences) or other criminal offences might have occurred, for which a s11 hearing should be held.

Those who said they consulted the Domestic Violence Register said this was usually done on a daily basis by him- or herself or by the officer in charge of the Domestic Violence Register. In the latter case, the officer informed them of cases of potential s11 hearings. Unfortunately, there were a few cases of DFOs who said they did not consult the Domestic Violence Register at all.

One of the problems encountered in consulting the Domestic Violence Register was that a domestic violence incident might have been recorded months or years before. Furthermore, such domestic violence incidents might have happened in a different police station precinct or area. Accordingly, the DFO might have difficulty in tracing any such linkages and manual backtracking for any such linkages is time consuming.

Courts also do not always timeously send through protection orders; these may sometimes be registered at another police station. Not all police stations had a formal Protection Order Register, or the resident DFO did not know whether it existed.

However, some provincial and area heads for firearms have undertaken specific efforts to get their DFOs to sensitise other police members to report to the DFO any incidents (inclusive of domestic violence) of persons threatening violence (with or without a firearm), so that the firearm could be confiscated and a s11 hearing could be held.

In terms of any evident abuse of alcohol or narcotic drugs, this can again only be determined either from a statement made by the applicant in the application form admitting to this abuse, in the face-to-face interview, from interviews with other parties, or from the Domestic Violence and Protection Order registers and the Occurrence Book at a police station.

Substance abuse can also sometimes be picked up from previous convictions if the crimes perpetrated were either crimes of violence where alcohol or drugs were present or convictions for the use or possession of narcotic drugs.

Similarly, for establishing a prior propensity towards violence, police inspecting officers can make use of all the above instances and sources of information. But it is extremely difficult for any police officer to make a definitive character, mental and emotional judgement on any applicant.

Accordingly, DFOs tend to use other criteria to refuse an application. Among the factors which DFOs used to ‘not recommend’ an application were the following:

• The absence or incorrect installation of a safe;
• The fact that a house or residence itself did not appear to be secure in terms of walls or fences;
• The absence of strong locks on entry doors to the residence;
• The absence of other security measures such as burglar proofing and alarms;
• The provision of false information (e.g. a fictitious address or making use of another person’s address);
• Previous conviction(s), and
• A prior declaration of unfitness.

The motivation for the applicant requesting a licence was also important. A standard requirement when evaluating an application form is a full motivation for the purpose of the firearm. DFOs consistently stated that it was not sufficient to merely tick the box on the application form for the stated purpose of the licence. Fuller and more detailed motivations are required.

Being ‘unemployed’ or a pensioner did not impact on either recommending or not recommending such an application by the local DFO or station commissioner.

In the past, the CFR was solely responsible for checking fingerprints and previous criminal records on the CRC database and checking South African ID numbers. The fingerprint check is obviously accompanied by the applicant’s ID number and name, which enables crosschecks to be made. Cases of different identities linked to the submitted set of fingerprints or incorrect ID numbers and incorrect spelling of the applicant’s name have been encountered.

However, FRCs or police stations with scanning facilities and linkages with the CRC electronic fingerprint database system (AFIS) can now do this work, themselves, using either the local CRC or the national CRC in Pretoria. The same applies to the checking for any previous criminal convictions. This can be done directly by any DFO where the computer linkages have been installed.

These linkages are in the process of being implemented in all four provinces, but provinces are at different stages of implementation (notably with regard to computer and scanning equipment). FRCs and DFOs that do not yet have the necessary equipment or electronic linkages to databases still have to take the fingerprints on paper and send these off to the CFR for checking or hand deliver them to the local CRC.

While those local FRCs and DFO workstations which are electronically linked are able to check an applicant’s fingerprints and ID number with the CRC databases (which include fingerprints and criminal records of previous convictions), they are not able to check the Department of Home Affairs databases (e.g. for fingerprints, ID numbers, other information such as refusal of a passport or irregularities, and falsification or fraudulent ID numbers).

The CFR can access the Department of Home Affairs (DHA) ID registration database, but this can only tell whether the ID number and name given in the application form match, not whether it might be a false ID. Cases of incorrect IDs, false names, or fingerprints linked to other identity numbers or names, have been found on the CRC criminal records database when checking the fingerprints supplied.

Although the CFR has a link to the DHA fingerprint and ID databases, the fingerprints and ID number submitted with the application form are not always cross-checked in both DHA and CRC databases. Improvements to these cross linkages will only occur when the DHA ID and fingerprint databases are fully electronic and themselves linked to each other.

Electronic linkages to other criminal justice databases such as court records, docket tracking systems, domestic violence and protection orders registers, and release of convicted criminals on parole, are still not fully computerised, and neither are they integrated and linked among all the criminal justice cluster departments. All these information shortcomings do impact on any background checking that is done on any firearm licence applicant.

A quicker and more efficient system is being envisaged for the future when all FRC and firearms workstations at police stations are up and running and computer-linked to all the various national information databases such as DHA, Justice and Correctional Services systems.

DFOs, as a matter of course, check for any other firearm licenses that might be listed in the name of the applicant on the CFR database, as well as any that are listed on the application form. This includes a check on the serial numbers given for the licensed firearms listed.

However, DFOS said they did not check whether such licensed firearms are still in the physical possession of an applicant. There have been cases where an accused has been convicted of unlawful possession of a firearm, and it is found that the lawful owner of the firearm concerned did not report that it had either been lost or stolen.

In cases of firearm confiscation after a declaration of unfitness, all licences as well as other firearms in the possession of the person declared unfit are withdrawn and confiscated.

It should be mentioned that the new Firearms Control Act requires the renewal of a licence at regular intervals, depending on the kind of licence involved. However, there is no requirement that the actual firearm be produced for inspection at the time of the renewal. This is a potential loophole for abuse.

It is not a requirement for a ‘competency certificate’ to be attached to the application form. Most DFOs interviewed stated that they do, however, check for ‘firearm handling certificates’ (sometimes also referred to as competency certificates) that are issued by certain gun dealers. These attest to the fact that the applicant has undergone a course in either firearm handling or shooting and assist the DFO in assessing an applicant’s ‘knowledge of firearms’ (a requirement in the application form).

In addition, in the face-to-face interviews DFOs usually ask about the applicant’s knowledge of the firearm concerned. In some cases the applicant is asked to handle a firearm in order for the DFO to form some opinion about the person’s firearm skills. The requirement in the new Act for ‘competency certificates’ will require more stringent testing of an applicant’s knowledge of firearms. This will include a prescribed test on knowledge of the Act and prescribed training and practical tests regarding the safe and efficient handling of a firearm.

Although the information requirements in the application form are detailed, and while the information supplied can assist the DFO in evaluating each application, it seems clear that the additional background checking, inter alia interviews and the Domestic Violence Register, are crucial in assisting a DFO to make an appropriate recommendation. DFOs generally remain uncertain about what is implied by ‘an extensive background check’; how to define ‘fit and proper’ in terms of physical, mental and emotional stability, and determining the extent of a ‘propensity to violence’ in any applicant.

Nevertheless, the whole process described does go some way in screening out persons considered not fit to possess a firearm. This process, together with declarations of unfitness by the police and the courts, are important tools in the overall system of firearms control and encouraging responsible firearm ownership.

The responsibility for implementing s11 hearings, confiscations and s16 surrender orders has in recent months increasingly devolved to the appointed DFOs. Previously, these functions resided largely on the shoulders of the investigating officer in each case. While the responsible investigating officer might still undertake the investigations, the DFO now sees to it that these firearms-related processes are implemented.

For a s11 hearing, when a case is reported to the DFO a file is opened. (A similar procedure to a case docket is being followed at some police stations). Such a file is then booked out to a police member for further investigation. In other words, it becomes an official investigation, similar to a criminal docket. In the Eastern Cape, which in July 2002 instituted a requirement for monthly s11 hearing statistics, some police stations have created a s11 Hearings Register.

When all the evidence has been collected to the satisfaction of either the DFO or the station commissioner, a presiding officer is appointed to hold the hearing. The DFO then sees to it that all the necessary notices to the accused are filled in and properly served.

If the DFO is not of superintendent or higher rank, and therefore not the presiding officer for the s11 hearing, the DFO ends up taking the minutes. The Eastern Cape has developed a standard form for the minutes and results of the s11 hearing. The recording of a declaration is the DFO’s responsibility. The DFO must also follow up on implementation (s16 surrenders) and send off the order for recording at the CFR and CRC.

The notification of the result of a s11 hearing, is done on a SAP 21 form. This form also informs the person declared unfit of their right to appeal in writing within 60 days to the Firearm Appeal Board.

The details of a person declared unfit, together with the information regarding the declaration (date, place, declared by whom, period of unfitness, and full reasons) are also filled in on form SAP 304 which is sent off to the CFR for recording.

The SAPS have a clear role in instituting s11 hearings. This is specifically so when any of the s39 (1) offences have been perpetrated; when false declarations have been made on the Firearm Licence Application Form; and even when the courts fail to make an order for an offence in Schedule 2 of the Arms and Ammunition Act. This can happen when a person is not declared unfit but is still convicted of an offence, or when the case does not result in a conviction (for whatever reasons, including withdrawal of the case). The investigating officer is then well within his or her rights to request the DFO or the station commissioner to arrange for a s11 hearing.

This is particularly so if some of the evidence in the case clearly supports a declaration of unfitness, for example, the threat or use of violence without a firearm or the perceived negligent handling of a firearm. The police might also be in possession of additional supporting information that might not have been presented in court. Furthermore, since the implementation of the Domestic Violence Act, the police also have a responsibility to see to it that s11 hearings and confiscations of firearms occur even in those cases that do not go to court.

Some of the provinces have developed an endorsement form to place on the outside of the docket sent to the local public prosecutor’s office. This form (see annexures 2 and 3) in its provincial variations, informs the prosecutor that:

1. The accused (full name) of (residential address) with ID No. (number) has been charged with (offence) in (station name) CAS No (number).
2. If the accused is convicted of an offence referred to in section 12(1) or (2) of the Arms and Ammunition Act, Act 75 of 1969 (as per annexure), you are requested to bring the provisions of this section to the attention of the magistrate to determine the fitness of the accused to possess a firearm.

This form also provides for the prosecutor to initial and date the form (i.e. that he or she has read and taken note of this endorsement).

This endorsement procedure is a relatively new development in all the provinces, and the majority of prosecutors interviewed stated that they had never come across such an endorsement (see section on prosecutors).

A perception consistently revealed in the interviews with police was that the courts (magistrates) were seldom, in their opinion, applying s12 enquiries.

As noted earlier, one of the confusions that has arisen is that where magistrates write "no order made" (in the case of s12 (1), the automatic deeming provision) police sometimes interpret this as "no declaration of unfitness". Therefore, they complain that the magistrates are not doing their jobs, and they (the police) now have to hold s11 hearings so that they can declare the accused as being unfit to possess a firearm.

Yet, this is in fact not necessary, as the convicted accused is already automatically unfit in terms of the law. In other words, police sometimes carry out unnecessary s11 hearings as a result of this misunderstanding of terminology.

In all s12 (1) "no order made" cases, as well as for the s 12 (2) cases where such orders are clearly stated to have been made, there are therefore various responsibilities for the role players involved. Magistrates must write in a clear manner on the charge sheet or SAP 69; the clerk of the court must see to it that this is written into the court records; the prosecutor must make a note on the docket and alert the investigating officer of such an order; and finally the investigating officer must ensure that if any confiscations and licence withdrawals are to be made, that these are in fact implemented. DFOs must also see that SAP 69s are sent to the CRC for recording.

Where a firearm has not yet been confiscated or seized by the police, the investigating officer in the specific case is responsible for seeing to it that the provisions of s16 are implemented. In the past, the implementation of s16 was the responsibility of the investigating officer in the specific case when the clerk of the court returned the docket to him or her. However, as noted earlier, this function is now being increasingly taken over by DFOs in those stations where such DFOs have been appointed and the requisite infrastructure is in place.

Policies and legislation concerning the exclusion of certain persons from owning a firearm vary from country to country. They may also be absent from, inadequate or lack detail in the laws and regulations of certain countries. Generally, most countries have certain criteria or conditions, which have to be fulfilled before a firearm licence will be issued to an applicant. There are also other criteria for declaring a licence holder or potential owner as being unfit to legally own a firearm.

Some countries have quite easy conditions for or lax controls over firearm ownership. The United States of America does not have a formal nation-wide licensing system in place for firearm ownership. Instead, the US authorities rely on other control measures for excluding persons from ownership. For example, the handgun sales record keeping requirements of the Gun Control Act of 1968 require a buyer to attest to certain facts and provide certain personal information and, since the so-called Brady Background Check amendment in 1994, pass a criminal background check as well.

All these constitute preconditions that must be satisfied before a person can buy a handgun from a federally licensed dealer (the background check was only extended to long gun purchases in 1998).

While these are federal restrictions, some US states have imposed their own additional requirements. These may include providing local law enforcement agencies with fingerprints, other proof of identity or residency or a demonstration of relevant knowledge and skills about firearms. While the Federal US legislation excludes inter alia anyone with a record of violent crime, there are no requirements in respect of a non-criminal history of violence.

The major shortcoming of US federal law is that it requires background checks only for purchases from federally licensed dealers, but not from unlicensed sellers. Yet anyone is allowed to sell a firearm. Unlicensed sellers are not required to confirm that the buyer does not, for example, have a criminal record. This loophole is also applicable to ‘gun shows’ where prohibited purchasers can easily gain access to handguns from unlicensed sellers.

US Federal law has nine categories for persons prohibited from gaining access to a handgun. These categories identify people whose past or whose characteristics at the time of purchase raise concern that they might misuse a handgun in the future. These prohibited categories are the following:

• Anyone under a felony indictment or with a felony conviction
• Fugitives from justice
• People who illegally use or are addicted to any controlled substance
• Anyone who has been adjudicated a "mental defective" or committed to a mental institution
• Illegal aliens (immigrants)
• Anyone with a dishonourable discharge from the military
• Anyone who has renounced US citizenship
• Anyone who is subjected to a domestic violence restraining order
• Anyone convicted of a misdemeanour crime of domestic violence.

These are the main ‘unfitness’ exclusions in US law to the possession and ownership of a firearm. Federal and state authorities have difficulty in applying them effectively. This is largely due to the fact that information on the various categories is not always available on a national integrated database.

Identifying some of these categories would require additional labour intensive screening techniques – which is not being applied in the US. For instance the criminal background check is limited to felony convictions and may exclude other violent or firearm-related misdemeanour convictions.

In addition, US law only excludes those who have records indicating substance abuse problems and not alcohol abuse. Some mental health institutions in America, citing concerns about privacy and confidentiality, also routinely fail to submit records of disqualifying mental health histories.

US federal law requires federally licensed gun dealers to perform a background check by submitting the identifying information about the person wanting to purchase a firearm to the National Instant Criminal Background Check System (NICS). This system compares that information with a series of databases containing criminal histories, mental health records, immigration data and information about military service.

However, while the existing systems can usually identify people in the prohibited categories such as convicted felons, fugitives, people with domestic violence misdemeanour convictions, the NICS has difficulty in identifying other categories dealing with mental health histories, users of controlled substances, and domestic violence where no conviction has resulted.

Moreover, there are two main flaws in this system. Firstly, no fingerprints for identification are required. This allows for a false or surrogate identity to be used. Secondly, the databases scrutinised are not always up-to-date, nor do they have all the necessary information, or the information on a state database is not included in NICS.

Although a number of states have recently switched to a system that includes checking state databases, this does not cover other state databases that might not be linked to NICS. The biggest flaw in the background check system of the US is the fact that unlicensed sellers are not required to perform background checks on a buyer (only two states, Maryland and California, have imposed such check requirements on some or all private sales).

Until a national licensing system is implemented it is extremely difficult to enforce such requirements. As a result, huge numbers of uncontrolled firearms purchases occur every year with firearms ending in the hands of persons falling within most of the prohibited categories for exclusion.

In most countries, exclusions concentrate largely on the applicant having a criminal record for felony (serious) crimes, a mental disorder or physical disability. Some countries follow the US prohibited categories model, but not all have exclusions based on domestic violence convictions or even mental illness.

In Australia, besides a criminal record exclusion and exclusion for a conviction for domestic violence, any applicant also under conditions of a restraining order or under charge for domestic violence is subjected to a five-year waiting period. In France, a history of mental illness is not an automatic exclusion since an individual with a history of mental illness can acquire a firearm if authorised by a health authority.

Internationally, prohibitions and exclusions would appear to be largely limited to total bans on the ownership of automatic and assault weapons, with no reference to exclusions for such things as domestic violence, violence not leading to a criminal conviction and firearm-related crimes such as negligently handling, and firing or loss of a firearm. Japan is an exception. Japan has a total ban on private ownership of firearms with the exception of sport shooting and certain hunting categories.

There are only limited exceptions to this general approach to exclusions, such as Mexico. The Mexican exclusions are close to those of South Africa namely, that an applicant should:

• Have no physical or mental incapacity to handle firearms
• Not have been convicted of any offence involving the use of firearms
• Not consume drugs, stimulants or psychotropic substances
• Motivate the need to carry a firearm, nature of occupation or employment, circumstances of place of residence
• Not make improper use of a firearm.

Similarly to South Africa, New Zealand exclusions require a background check (for criminal record and domestic violence convictions), training certification, as well as character references (these latter two are currently optional for a South African applicant). Other exclusions in the New Zealand legislation refer to a history of psychiatric disorder, inadequate safe storage and a record of assault or other violence.

These kinds of detailed exclusions would appear not to be consistently inserted in firearms legislation internationally. Most countries have chosen to merely stick to the standard unfitness limitation of not having a criminal record, mental unfitness or illness. An increasing number of countries are also making a domestic violence conviction an exclusionary factor for ownership of a firearm.

In Finland, however, there are serious concerns about the firearms homicide rate. From 1985 to 1999, the number of firearms related deaths averaged 340 per year, which accounts for about 8% of all accidental or violent deaths in Finland. Accordingly, firearm license applicants who have been:

The Australasian Police Ministers’ Council Special Firearms meeting in Canberra on the 10 May 1996 made a number of resolutions pertaining to firearm ownership. The resolutions appear to be an attempt to regulate the ownership and possession of firearms.

Furthermore, it classified grounds for refusing a firearm licence into two broad areas namely, general and specific. However, it specifically mentioned domestic violence as one of the crimes that would result in an application being refused.

The Council resolved that:

1. ‘Personal protection not be regarded as a genuine reason for owning, possessing or using a firearm’.
2. Genuine reason was classified as

• Sporting shooters with valid membership of an approved club;
• Recreational shooters/hunters who produce proof of permission from a landowner;
• Persons with an occupational requirement, e.g. primary producers, other rural purposes, security employees and professional shooters for nominated purposes;
• Bona fide collectors of lawful firearms; and
• Persons having other limited purposes authorised by legislation or Ministerial approval in writing (for example, firearms used in film production).

The Council further proposed that certain minimum standards be put in place namely;

• ‘General reasons – not of good character; conviction for an offence involving violence within the past five years; contravention of firearm law; unsafe storage; no longer genuine reason; not in the public interest due to (defined) circumstances; failure to notify of change of address; licence obtained by deception
• Specific reasons – where applicant/licence holder has been the subject of an Apprehended Violence Order, Domestic Violence Order, restraining order or conviction for assault with a weapon/aggravated assault within the past five years
• Mental or physical fitness – reliable evidence of a mental or physical condition which would render the applicant unsuitable for owning, possessing or using a firearm’.

A Bill recently approved by the Belgium Council of Ministers may soon give Belgium very tough gun-control laws. The measure would require all firearms in Belgium to be registered, regardless of whether they are manufactured locally or abroad. In addition, the Bill would prohibit the sale of all firearms except where specifically authorised.

Furthermore, private citizens would have to register guns and indicate what they intend to do with the weapon. Permission must be received from all those living in the same household as the gun applicant before authorisation is given.

A comprehensive overview of African legislation on firearms is contained in the report 'Domestic Gun Control in Ten SADC Countries’ by Katharine McKenzie, September 1999 (A report commissioned by Gun Free South Africa) and its contents is therefore not discussed in detail here.

The law pertaining to firearms in South Africa is in a state of flux. However, a number of findings of this project will remain pertinent once the new provisions are in force.

Prosecutors tend not to take the initiative with respect to declarations of unfitness. They rely on the police or magistrate to raise the issue. There also appears to be a lack of knowledge or experience amongst some prosecutors.

Magistrates tend only to consider declarations of unfitness where a firearm is involved in the matter. They tend not to do so in other instances of violence, although there are of course exceptions.

The phrase "no order is made" appears to cause confusion in respect of automatic declarations of unfitness. This problem is unlikely to go away with the implementation of the new Act, since it also contains an automatic deeming provision, covering a wider range of offences.

There is a significant problem with respect to accurate record keeping. Despite court declarations of unfitness being made, these do not seem to be recorded properly.

Magistrates’ contention that they routinely declare people unfit was not supported by the CRC statistical analysis. Only in 6% of SAP 69s perused did magistrates even tick ‘yes’ or ‘no’ in the appropriate block regarding unfitness.

Local police appear to have updated their background checks before recommending or not recommending the granting of a firearm licence. However, there are differences among provinces, and even within provinces there is variation in the exact content of the checks carried out. In particular, checks on domestic violence seem to vary greatly.

The checks carried out by local police are in theory as thorough as is possible given the resources and other constraints. However, local police do not feel equipped to make the ‘judgement calls’ they are required to make on certain issues. Furthermore, they are loath generally to ‘not recommend’ an applicant, because of the stringent supporting documentation required. This is left to the CFR.

The CFR appears to be quite strict and turns down a significant proportion of applications. The largest proportion of applications refused is in respect of applicants with prior convictions (35%), with inadequate safekeeping facilities (20%), or with prior ownership of a firearm for the purpose stated in the application (10%).

Police are proceeding with far more s11 declarations of unfitness than in the past. Police are starting routinely to peruse the Occurrence Book in this regard. However, some s11 enquires being carried out are unnecessary (in instances of confusion in respect of automatic unfitness).

The Firearms Appeal Board appears to be uplifting declarations of unfitness quite routinely, even where long periods of unfitness have been imposed.

Retraining in respect of the automatic deeming provisions is necessary. It is suggested that magistrates be required to note as a matter of course in every case whether the accused is by law now fit or unfit to possess a firearm, rather than focusing on the order made, to avoid opaque or clumsy phrasing such as ‘no order is made’ or ‘the accused is not deemed to be unfit to possess a firearm’.

There must be an attempt at standardisation of manuals, procedures and forms through out the SAPS. There is little uniformity at present.

Awareness among SAPS members of the provisions of the Domestic Violence Act as it pertains to declarations of unfitness should be raised. Communication between the DFO and police members dealing with the Domestic Violence Register should be encouraged.

Court and police systems need to be linked in respect of information pertaining to the granting of protection orders.

Prosecutors should be encouraged to give clear instructions on the docket to the investigating officer with respect to the removal of the weapon and confiscation of the licence.

At minimum, police must endeavour to interview the spouse or partner of the applicant in every application. Crime Prevention and Client Service Centre personnel could be utilised to undertake safe inspections or visit partners, where a DFO is experiencing capacity constraints.

Notice No: 787, Regulation Gazette No: 5305

22 April 1994

Safes

28. (1) The requirements with which a safe for the safekeeping of an arm shall comply for the purposes of sections 3(6) and 39(1) (j), (k) and (I) of the Act and these Regulations, are the following:

1. Material: the construction of the safe shall be of mild steel of commercial (or higher) quality;
2. side thickness: the thickness of the floor, roof and sides shall be at least 2 mm and the wall thickness of the door shall be at least 3 mm.

(2) Specific requirements in respect of the design and construction of the doors of a safe referred to in this regulation, shall be the following:

1. Openings: When the door is closed, there shall not be an opening of more than 1 mm between the door and the door-frame.
2. Door-frame: If the hinges are concealed, the door-frame shall have a bended and welded construction with a reinforced rebate on three sides of the frame and in the case of hinges with a normal construction, the door-frame shall have a bended and welded construction with a reinforced rebate on all four sides of the frame. There shall be a protection guard (for instance a deflecting plate) to protect the lockpin.
3. Bolts: When the door is closed and locked, it shall not noticeably move if force is exerted by hand or with the handle, and the intervening space between any bolt and the rebate shall not exceed 1 mm. Doors of safes which are higher than 500 mm shall be equipped with at least three bolts.
4. Hinges: Doors shall have an upper and a lower hinge which shall be so constructed that the door may open through at least an angle of 100 degrees and that the distance between the hinges does not exceed 350 mm.
5. Locks: The safe door shall be equipped with one lever lock which shall have not less than ten levers of which not less than three shall be provided with false notches or a combination lock of the type which has three gears or an electronic lock which complies with the requirements approved of by the South Africa Bureau of Standards:

(3) The safe shall to the satisfaction of the Commissioner-

1. be affixed flush to a floor, wall or other immovable structure or part thereof of the house, flat, residence or other dwelling place of an applicant concerned; or
2. where the safe is installed in a vehicle of the applicant concerned, be affixed non-conspicuously to the body of the vehicle, and the applicant shall submit a certificate of the installer wherein the following particulars are specified:

1. date of installation;
2. name and address of installer;
3. registration number, machine and chassis number and make of vehicle; and
4. that the vehicle is equipped with an immobiliser.

Strong-rooms

29. The requirements with which strong-rooms shall comply for purposes mentioned in regulation 28, shall be the following:

1. the walls, roof and floor shall be of reinforced concrete of not less than 300 mm;
2. the reinforcing of the concrete shall consist of bars of a diameter of 10 mm on a square grid, face to face, of which the horizontal and vertical bars are not more than 125 mm apart;
3. the strength of the concrete shall not be less than 30 mega pascal after 28 days;
4. the covering screen over the reinforcing on the walls and slab shall not be less than 40 mm;
5. the thickness of the door shall not be less than 6 mm and the door shall be equipped with at least three bolts;
6. the safe door shall be equipped with one lever lock which shall have not less than ten levers of which not less than three shall be provided with false notches or a combination lock of the type which has three gears or an electronic lock which complies with the requirements approved of by the South African Bureau of Standards; and
7. a switch shall be installed on the inside of the strong-room connected to an external warning device such as a flashing light or an alarm.

Apparatuses, devices and instruments

30. The requirements with which apparatuses, devices and instruments shall comply with for the purposes mentioned in regulation 28, shall be the following-

The apparatus, device or instrument shall to the satisfaction of the Commissioner-

1. be manufactured from steel of at least 2 mm thick;
2. be capable of enclosing or covering the arm concerned wholly;
3. have an effective integral locking mechanism;
4. have a hinge mechanism for the cover or lid thereof which shall ensure that if the locking pin thereof is removed, the cover or lid shall not be capable of being opened or removed;
5. have another mechanism which shall ensure that if the hinge mechanism is removed, the cover or lid shall nevertheless not be capable of being opened or removed; and
6. have a facility with the aid or use of which the device, apparatus or instrument may be affixed to another structure such as a wall or a floor, or the body of a vehicle.

Date : ………………………

The Prosecutor

Magistrates Office

(Place) ………………………..

1. The accused, ……………………………………… of …………………………….

(full name) (residential address)

……………………………………………. With ID No …………………………….

has been charged with ………………………………………………………………

(mention the offence)

………………………………………………………………………………………….

in (Station) CAS …………./…………../…………….

2. If the accused is convicted of an offence referred to in section 12 (1) or (2) of the Arms and Ammunition Act, Act 75 of 1969 (as per Annexure), your are requested to bring the provisions of this section to the attention of the magistrate to determine the fitness of the accused to possess a firearm.

________________________________________ (Rank) ………………

STATION COMMISSIONER/BRANCH/UNIT COMMANDER (Place) …………………

INITIAL AND DATE: …………………………..

PROSECUTOR

SECTION 12 DECLARATION: INVESTIGATING OFFICER

ID No : _______________ Residential address _______________________

____________________________________________Tel no : __________

employed as a Police Official at SAPS Pretoria Central tel no ____________

state under Oath in English that

(1)

I am the Investigating Officer of CAS ___________________ charge _______

_____________________________________

(2)

I hereby request that the court should look into the accused fitness to possess a firearm in terms of Section 12 of the Arms and Ammunition Act 1969/ Act 75/1969, should the accused be found guilty of the charge(s).

(3)

Should the accused be declared unfit to possess a firearm, it should be done in writing on the front page of the docket and the period of unfitness stated.

(4)

I know and understand the contents of this declaration.

I have no objection in taking the prescribed oath.

I consider the prescribed oath to be binding on my conscience.

Signature: __________________________

I certify that the deponent has acknowledged that he/she knows and understand the contents of this declaration which was sworn to before me and the deponent’s signature was placed thereon in my presence on

_____________________________ at (time) ________________________

at (place) ____________________

SIGNATURE: ________________________

PERSAL NO: ________________________

RANK: ______________________________

NAME & SURNAME: ______________________________________

Privaatsak/Private Bag

Posbus/ Post Office Box

……………………………………………….

……………………………………………….

……………………………………………….

……………………………………………….

STATION : ……………………………………REFERENCE NUMBER : ……………….

1. Whereas an investigation in terms of Section 11 (1) ……………………………of the Arms and Ammunition Act, 1969 (Act No 75 of 1969) has been held and whereas in terns of Section 11 (4) of the said Act you were found to be unfit to possess an arm for a period of ……………… (specify period) it is considered that as from the date of service of this notice on you, you are declared to be a person unfit to possess an arm.
2. In terms of Section 16 of the Act you are requested to surrender:

1. all certificates of competence, licences, authorisations and permits to possess arm and ammunition issued to you.
2. All arms for which these certificates of competence, licences, authorisations or permits were issued;
3. All ammunition in your possession which belongs to you, as soon as possible but not later than ……………………….. (seven (7) days) to the Station Commissioner, South African Police Service, …………………………………..

 

3. In terms of Section 14 (1) of the Act you may appeal in writing within sixty (60) days of your conviction to the Minister of Safety and Security or to the Firearms Appeal Board, Private Bag X811, Pretoria, 0001, who can uphold, the declaration of unfitness, alter or set it aside.

…………………………………………………………..

STATION COMMISSIONER / UNIT COMMANDER

I certify that the original of this notice was served to the abovementioned person at (address) ………………………………………………………………………………………

On (date) …………………………………… At (time) ……………………………………

PLACE : ………………………………………………..

DATE : ………………………………………… …………………………………

INITIALS AND SURNAME : __________________________

RESIDENTIAL ADDRESS : __________________________

__________________________

WORK ADDRESS : __________________________

INITIALS AND SURNAME : 1. _____________________

TEL. NO. : _____________________

INITIALS AND SURNAME : 2. _____________________

TEL. NO. : _____________________

___________________________________________________________________

_______________________________________ DATE : _____________________

COMMENT : _________________________________________________________

Briefly describe : ______________________________________________________

___________________________________________________________________

3. Type of safe : __________________________________________________
4. Personal impression of the applicant’s residence : _____________________

___________________________________________________________________

___________________________________________________________________

___________________________________________________________________

PLACE : ___________________ __________________________

DATE : ___________________

TIME : ___________________ __________________________

Name in print

___________________________________ Rank

Designated Police Officer: Force no.

(Name in print)

Comments :

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

4. Comments and recommendations by member who did the investigation:

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

PLACE: ___________________________ ______________________

DATE: ____________________________ ______________________

NAME IN BLOCK LETTERS

DESIGNATED POLICE OFFICER:

NAME: RANK: POLICE STATION:

HEREBY CERTIFIES THAT THE SAFE OF ID NO _____________________

MR/MRS/DR/MISS _____________________ LOCATED AT _____________

___________________________________IS PROPERLY INSTALLED/NOT

PROPERLY INSTALLED AS REQUIRED.

COMMENTS : __________________________________________________

______________________________________________________________

______________________________________________________________

______________________________________________________________

PORT ELIZABETH

DATE : ___________________

_________________________

SIGNATURE

ANNEXURE 9: Pretoria Central: Safe inspection report

I the undersigned:

Identity number :

Address : ___________________________________________________

___________________________________________________

* Hereby declare that I am in possession of a :

(Mark with a "X")

* Details of other devices must be specified thoroughly:

______________________________________________________________

which complies with the requirements as specified in Regulation 28 and 29 pf Section 3 (6) of the Arms and Ammunition Act which to safeguard a firearm.

I further declare that the firearm will at all times be stored in the safe when not carried on my person.

Description of the premises of which the safe keeping facilities is accommodated.

* If other, please specify :

___________________________________________________________________

The safekeeping device is secured as follows :

(* When mounted in floor, it must be ascertained that the surface and thickness of the concrete will make the removal of the safe very difficult.)

* If other, please specify :

TYPE AND MAKE OF SAFE: ___________________________________

Sizes: a) Height: ___________________________ mm

b) Width: ___________________________ mm

c) Depth: ___________________________ mm

d) Door thickness ___________________________ mm

e) Thickness of sides: ___________________________ mm

Safe locks: a) Clover type: _________________________ Clovers

b) Combination: ___________________________

Keyholder of Safe : __________________________________________

Are the Door Hinges on the in/outside : ___________________________

In which room is the safe: ________________________________

Is the safe standing open: ________________________________

Is the safe in a cupboard: _________________________________

1. Rawbolt size: _____________________________ Type: _______________
2. How many fixed to the wall/walls: ___________________________________
3. How many fixed to the floor: _______________________________________

Does safekeeping meet the required demands: ___________________

I understand that should I lose a firearm due to negligence, I expose myself to criminal prosecution, and could be declared unfit to possess a firearm.

Place: _____________________

Date: _____/_____/______ ______________

SIGNATURE

I hereby certify that I have visited the applicant’s residential address and found that the available safekeeping facilities correspond/don’t correspond with those that are described and in * accordance with the Regulations.

Persal Number: ______________________ Date : _____________

Rank: _____________________

Name: _____________________ ______________________

SIGNATURE OF OFFICIAL

* Should facilities not to correspond, provide affidavit on reverse side.

INFORMATION PERTAINING TO PREVIOUS CONVICTIONS (QUESTION D1 OF SAP 271)

TO ELIMINATE ANY MISCONCEPTIONS, THE FOLLOWING QUESTIONS MUST BE ANSWERED BY ALL APPLICANTS AND BE COUNTERSIGNED.

Have you ever been convicted of any offence/offences relating to a firearm?

(Answer Yes or No)

_______________

Have you ever been convicted of any offence (s) as a result of which your fingerprints were taken? NB. The offence referred to in question 2 above, includes any offence irrespective whether a firearm was involved or not.

(Answer Yes or No)

________________

ANY FALSE INFORMATION FURNISHED REGARDING THE ABOVEMENTIONED QUESTIONS MAY LEAD TO CRIMINAL PROSECUTION.

____________________________ ______________________

SIGNATURE OF THE APPLICANT DATE

I hereby certify that the contents of the abovementioned questions and the possible consequences thereof have been explained to the applicant and that he/she has acknowledged the understanding of the contents thereof.

____________________________ _____________________

DESIGNATED POLICE OFFICER DATE

I, __________________________________ the undersigned, hereby certify that I have taken note of the following:

ARTICLE 39 (1) I J K L & M OF THE FIREARMS & AMMUNITION ACT OF 1969 (75) IS HEREBY BROUGHT TO YOUR ATTENTION:

1. wilfully points any arm, air rifle or air revolver at any other person; or

10. fails to safeguard or to take reasonable steps to safeguard an arm in his lawful possession when such arm is not carried on his person or is not under his direct control; or
11. while in lawful possession of an arm, loses such arm through negligence; or
12. discharges an arm and thereby negligently injures, endangers the life or limb or another person or damages property of any other person or who handles an arm in any negligent manner, whether that arm discharges or not; or
13. handles an arm while he is under the influence or liquor or a drug which has a narcotic effect or supplies an arm to a person whom he knows or should reasonable suspect to be under the influence of liquor or a drug which has a narcotic effect;

is guilty of an offence, and further take note that;

if he loses a firearm through negligence, he could be liable to criminal prosecution and he could be declared unfit to possess a firearm; and

owing to the fact that a large number of firearms are stolen cut of and together with motor vehicles, motor vehicles may in the general sense of the word not be regarded a safe place.

PLACE : _____________________

APPLICANT : _________________

DATE : ______________________

WITNESS : __________________