In 2000, Parliament passed the Firearms Control Act (FCA) in order to enhance the capacity of the police and courts to deal with the rapid growth in firearm-related violence. This is essential, given that since 1994, gun-related crime has increased dramatically: today over 10 000 people are shot dead in South Africa each year, and firearms are now used in half of South Africa’s murders.

In preparation for the implementation of the FCA, Gun Free South Africa commissioned a report by the Institute for Human Rights and Criminal Justice Studies (Technikon SA) on how the courts and police implement the existing law – the Arms and Ammunition Act – to identify possible challenges and to recommend key interventions that could be made to strengthen the system.

South Africa's firearms law gives the courts and the police important tools to ensure that legal firearms do not fall into the wrong hands.

Section 12 (1) of the current Act requires the court to declare people unfit to possess a firearm when they have been convicted of crimes involving firearms ("automatic declarations"). Section 12 (2) gives the court the discretion to declare people unfit to possess firearms who have been convicted of any of a wider set of crimes, ranging from treason to murder, rape and robbery, even when a firearm was not involved ("discretionary declarations").

Section 2 of the Act requires the police to withhold firearm licences from people who not "fit" to possess a firearm. Section 11 allows the police to declare people "unfit" to possess a firearm who have handled their legal firearms negligently or whose ownership of a firearm poses a threat to themselves or others. 

How effectively are these tools being used? The study found that the courts and the police experience significant, but not insurmountable, problems in applying the law.

In terms of "automatic declarations", courts seem to understand and use the law, but administrative issues and miscommunication between the courts and the police undermine its effective application.

Courts are required to declare persons unfit to possess a firearm when they have been convicted of:

The law gives judges and magistrates some discretion not to declare such persons unfit. However, the accused rarely challenge the ruling, and, in these cases, ‘unfit’ rulings are almost a matter of course.

Problems arise, however, in the recording and communication of the ruling.

Because the declaration of unfitness is automatic, many magistrates believe that there is no need to record the declaration. After studying 376 SAP 69 folders (which report court rulings), researchers found that, in the vast majority (87.9%) of cases, magistrates did not indicate 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 did the magistrates state that the accused had been declared unfit to possess a firearm.

The study found that, where nothing has been written down, police investigating officers can assume that the accused has not been declared unfit. This would reflect a serious gap in their knowledge about the law and in particular about the various categories of convictions covered by automatic declarations.

A further confusing factor is that, where the ruling is recorded, courts use the term "no order is made". This can be misinterpreted by police investigating officers and staff at the Criminal Record Centre to mean that the court did not declare the person unfit to possess a firearm. This is significant because the SAP 69 form is the clearest line of communication between the courts and the police regarding sentencing,

In some provinces, the police have begun attaching a form to the SAP 69 folder: asking directly whether the accused has been declared unfit to possess a firearm. The study found, however, that few prosecutors had seen these forms.

The study suggested that the courts do not take full advantage of "discretionary declarations." Section 12(2) of the Arms and Ammunition Act gives the court the discretion to declare a person unfit to possess a firearm if convicted of any of a broad range of crimes, even where no firearm was used.

Many prosecutors said that they would use these provisions where dangerous weapons, like knives, were used in a crime, or in cases involving particularly heinous crimes, like child rape. Other prosecutors, however, candidly admitted that these provisions were rarely used: "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."

Finally, court officials and the police were concerned about gaps in the system. Police were concerned that so few of their section 39 cases involving the negligent or unlawful use of a firearm were ever heard in court. It is unclear why this is so; although it is possible that the courts drop many cases because of problems with the evidence: e.g. where prosecution depends solely on a statement by the accused, who was not given proper warning before making the statement, making it inadmissible in court.

Prosecutors also expressed concern about cases that are withdrawn. As one prosecutor put it:

Section 11 of the Act empowers the police to conduct their own hearings into whether a person with a firearm licence is unfit to possess a firearm, where there are grounds to believe that:

Where a "section 11 hearing" finds that a firearm licence holder is unfit, the police are required to dispose of the firearm(s) and remove the firearm licence(s) and any ammunition.

The police have not given this provision priority. From 1994 onwards, training on section 11 hearings was cut out of the curriculum at the Pretoria West Police College. It was not considered part of everyday policing. Moreover, station commissioners said that they did not have the time to undertake section 11 hearings. As a result, the number of section 11 hearings dwindled to the point where, according to one police document, "Sections 11, 12 and 39 of the Arms and Ammunition Act…. are not being applied effectively and in certain precincts [in the Western Cape], the application thereof is non-existent."

The passage of the Firearms Control Act in 2000 is shifting the situation to some extent. In particular, the appointment of designated firearm officers (DFOs) in each police station has provided new resources for firearm-related work. The Western Cape, in particular, has attempted to turn the situation around, and in 2002 accounted for over half of the country’s section 11 declarations of unfitness (see Map below).

Firearm licensing is perhaps the most powerful tool the police have for ensuring that legal guns, at least, do not fall into the wrong hands.

The licensing system is currently in transition. The new Firearm Control Act will impose stronger controls on licensing (including formal competency testing, regular licence renewal and limits on the number of firearms a person can own – e.g. only one handgun or shotgun for self-defence). It also requires far more sophisticated systems for information sharing and record keeping.

The Department is preparing to implement the new Act by appointing DFOs in police stations across the country and installing computer workstations in selected police stations nation-wide, to link local stations with provincial and national databases. The infrastructure is still being rolled-out, however, and is happening faster in urban centres than in smaller towns and rural areas.

Firearm licence applications are handed in to local police stations, which do the initial processing and recommendations. The DFO at the local station is required to check the forms, interview the applicants and physically inspect firearm safes or strongrooms. If a DFO has doubts about an applicant, he or she can conduct additional interviews with the applicant’s family, spouse or partner and neighbours, and even with the applicant’s employer. Some check the Occurrence Book and the Domestic Violence Register at the station. Both DFOs and their station commissioners are required to record their recommendations, which are then forwarded to the Central Firearms Register for a final decision.

Once a docket is forwarded to the Central Firearms Register, additional checks are made: for example, with the CFR’s own database, the Criminal Record Centre and Home Affairs.

Police reported a number of problems in processing application forms. Some said they did not have time to inspect gun safes or conduct additional interviews. Others did not consult the Domestic Violence Register to check whether an applicant was the subject of a protection order. Significantly, most police officers interviewed did not feel trained or competent to assess the emotional or mental stability of an applicant and tended to use other criteria to refuse licence applications. These range from the inability of the applicant to show that the firearm will be secure, to a previous conviction or prior declaration of unfitness.

Researchers concluded that local police stations hesitate to deny firearm licence applications, preferring instead to give applicants the benefit of the doubt. The responsibility for denying applications "is abrogated and passed upwards to the CFR." And thus, while local police stations recommended the approval of about two-thirds of the applications in the sample studied, the Central Firearms Register approved only 51%.

The report concluded that the Central Firearms Register has begun to apply quite strict criteria for approving firearm licence applications. In the sample studied, the Central Firearms Register denied applications on the following grounds:

• 35% were denied because of previous convictions,
• A further 20% were declined because ‘safeguarding facilities did not conform to the required standard’
• 10% were declined because the applicant already ‘had guns for the purpose’.
• A smaller number were denied for technical reasons: e.g. ‘The applicant did not provide proof of club membership’.

The report recommended that:

• Court officials should be retrained about automatic declarations of unfitness.
• Court officials should record on the SAP69 form whether or not a declaration of unfitness has been made.
• Confusing language practice should be clarified.
• Prosecutors should be encouraged to give clear instructions on dockets, instructing the police to remove weapons and licences in accordance with the court ruling.
• SAPS manuals, procedures and forms should be standardised.
• SAPS members should be made aware of the provisions of the Domestic Violence Act as it pertains to declarations of unfitness. Moreover, communication between the DFO and police members dealing with the Domestic Violence Register should be encouraged.
• Court and police systems should be linked in respect of information pertaining to the granting of protection orders.
• Police should be required to interview the spouse or partner of the applicant in every application.
• Where a DFO is experiencing capacity constraints, Crime Prevention and Client Service Centre personnel could be used to inspect safes and visit partners.

From January to October 2002, the Central Firearm Register received 117 864 applications for firearm licences.

In the sample used by researchers, most applications (36%) were submitted by young adults in the 26 to 35 year old category; next came 36 to 45 year olds (24%) and then the age group 18 to 25 (20%).

The vast majority of applicants were men (92%). While most (70%) of the applicants were employed, several applicants were not, and some unemployed people tried to obtain licences as a key to employment. Statistically, it should be noted, whether or not a person was employed did not seem to impact on whether or not an application would be approved.

In addition, most applications were submitted by people living in formal houses.

Overwhelmingly, the greatest number of applications in the sample was for pistols.

Overwhelmingly, most applications in the sample sought a firearm for self-defence.

There were important differences between the approval rate of applications from different provinces, with applications from the Free State far more likely to be approved then, for example, applications from the Western Cape or Gauteng.

Finally, of the applicants whose applications were declined by the CFR, 22 (17%) appealed. Only two (9%) of these applicants appealed successfully against the CFR’s decision