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In 1994, under the then Deputy-Minister for Safety & Security, a firearm licensing policy was formulated. This included brief but usable guidelines for the licensing of firearms - in particular regarding self-loading firearms for collectors, as well as for sportsmen and hunters. The licensing process then worked with fewer and relatively shorter delays - to the relative satisfaction of most of us.

Then, late in 1997, the draft Firearms Control Bills were circulated and debated at some length. The final Act, accepted by Parliament in 2000, varied substantively from the various versions of the Bills but could not be promulgated until the Regulations were formulated and published for discussion. Eventually, on 26 March 2004, the long and complex Regulations were published - which, with the multiplicity of Official Forms, required four Government Gazettes.

Shortly after the Firearms Control Act was passed by Parliament in 2000 but before it came into effect on 1 July 2004, there was a massive increase in licence refusals. In a letter to the Black Gun Owners Association, the then Minister reported that 73% of all firearm licence applications submitted in 2002/2003 were refused. This, a massive increase in licence refusals, leads us to conclude that the SAPS were jumping the gun (pun intended) by applying some of the more restrictive provisions of the new Act before it became law. And without acknowledging that they were doing so.

Such a departure from existing policy does not just appear out of the morning mist. A policy decision must have been taken and instructions regarding its implementation communicated down the line to those charged with processing our applications.

Section 195 of our Constitution stipulates that the public (especially 'interested & affected parties') are entitled to participate in the policy-making process. Indeed we should be encouraged to do so - hence fairly frequent and expensive advertising campaigns, most of which have a somewhat self-congratulatory tone. It appears that when it comes to firearms matters, such Constitutional inconveniences are, as Shakespeare put it, more honoured in the breach than in the observance. As regular readers will know, I have frequently written to the Central Firearms Register and to the Minister requesting details of their policies concerning firearm matters.

In a normal, rational, world you would expect the SAPS/CFR to be happy and even anxious to disclose such information because public knowledge of their policy requirements should make their job easier. When questioned on broadcast discussion programmes, the Registrar almost invariably denies the existence of a serious backlog and then attributes lengthy delays in processing 'some' applications to the 'fact' that the forms are often 'incomplete' or are otherwise not in compliance with their (secret?) requirements.

Sadly my requests elicited no response until recently - when I was told, in writing, that there aren't any policy documents/guidelines and that CFR officials use only the Act and the Regulations to guide them when weighing applications for approval/refusal. Although this so beggars the imagination that I find it impossible to believe, the lack of clear policies would help account for the chaos reigning in the Registry.

Soon after receiving such a casual disclosure, I had to do a double-take when Government Gazette No. 32350 dated 3 July 2009 was brought to my attention. Surprise, surprise... There, published in terms of Section 15 (1) of the Promotion of Access to Information Act, was a listing of SAPS documentation available for the elucidation of us, the great unwashed public. In the Central Firearm Control Register section, in the Visible Policing Division, only two items are listed: 1) Consideration Policy 1994; and 2) Firearm related policies.

Sadly, these "records may be inspected at the office of the Head: Central Firearm Control Register on request in writing." This must surely mean that policy documents do exist and that the letter denying that fact was, let's keep it polite, a little less than the whole truth. Am I being optimistic or pessimistic when I say that the CFR is likely to make it a little difficult for anyone (especially for me) to get his eyes on these documents let alone make copies? Watch this space.

A fairly recent legal development that could have serious, and probably unintended, consequences for firearm owners and others is the Supreme Court of Appeal's interpretation of the Criminal Law Amendment Act 105 of 1997 in the matter of Thembalethu Sam vs The State.

Briefly, the 'tough talking' Criminal Law Amendment Act 105 of 1997, popularly known as the Minimum Sentencing Act (MSA), takes away judicial discretion when sentencing those convicted for certain crimes. When the MSA was still in its debating stages, the focus was on hot topics like the removal of judicial discretion; the expanded definitions of certain crimes, such as rape; the provisions for minors, the lack of clarity on what comprises "substantial and compelling circumstances", and so on. This Act so concerned the judiciary and human rights organizations that it was given a shelf-life of two years, whereafter it had to be reviewed and, if deemed still necessary, Parliament could extend it by a further two years at a time.

The Criminal Procedure Act, of which the MSA is but a small part, needs only two straightforward schedules to categorize crimes. When juggling with the lists of crimes (six of which were required) for the MSA, I believe the legislature slipped up. Although wanting to single out 'assault rifles' and 'AK47s' and their ilk for special attention and heavier sentences, the wording that went through, apparently without anyone understanding the full implications thereof, was simply "automatic and semi-automatic firearms" - illegal possession of which carried a minimum sentence of 15 years.

The Arms & Ammunition Act however did not distinguish between semi-automatic firearms and any other type of firearm and certain High Court decisions ruled that minimum sentencing was neither applicable nor appropriate. One judgement put it this way: "...indeed the evidence in the present case demonstrated the absurdity of imposing a sentence of 15 years' imprisonment for possession of a .22 pistol whereas a person in possession of [a .357] Magnum revolver or a pump-action shotgun will receive a maximum of three years."

In the Thembalethu Sam case however, the Supreme Court of Appeal overruled such previous decisions. In paragraph 6 of the Thembalethu Sam Supreme Court of Appeal judgement, the judge wrote: "...[a court] is obliged to impose a sentence of 15 years' imprisonment unless such court finds that substantial and compelling circumstances justifying the imposition of a lesser sentence..." and "The phrase 'Notwithstanding any other law... clearly indicates that the provisions supercede all other laws on sentence and apply to all offences listed in Part II of Schedule 2. That list includes an offence referred to as of the possession of 'a semi-automatic firearm'. The section's wording is couched in unambiguous and peremptory terms ('shall'), and the offences to which it applies are stipulated."

To me this is an extremely disturbing development because the courts have not yet put forward any indication of what "substantial and compelling reasons" are and this judgement indicates that the courts intend subjecting all those caught in 'illegal' possession in the same manner - without distinguishing between those who have criminal intent and those merely trying to do 'the right thing'. And treating someone in illegal possession of an AK47 with a full magazine the same as someone caught with an empty .25 Baby Browning.

Let's say a hunting client travels the 500km to your ranch carrying his (legal) personal protection in his shoulder holster. On his safe arrival he asks you to keep his .45 1911 in your safe until he departs for home. For providing such a sensible and practical service, you could face 15 very uncomfortable years - and the cancellation of all your licences. I am sure you can imagine a number of other similar scenarios.

Such are what I believe could be the unintended consequences of the Minimum Sentencing Act in general and the Thembalethu Sam judgement in particular. I would hope that, in the above scenario in which it is clear there is no criminal intent and it would be absurd to hand down a 15-year sentence, the case would never get to Court. Alternatively, if it did, the judge would find the circumstances to be sufficiently "substantial and compelling" to discharge you with a mild warning and give the prosecutor a blast for wasting the Court's expensive time. But be warned, I can offer no guarantees.

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The very welcome news for this issue is the interim interdict granted by the North Gauteng High Court, Pretoria, in favour of the SA Hunters & Game Conservation Association (SA Hunters) declaring that - pending a constitutional challenge to certain aspects of the transitional provisions (Schedule 1) of the Firearms Control Act of 2000 (FCA) - all licences, permits and authorizations issued under the previous Act (Arms & Ammunition Act of 1969) remain valid indefinitely. This last minute 'reprieve' was granted less than a week before the FCA's 'doomsday' (30 June 2009).

Strange as this may seem, I believe that a great number of policemen are thankful that the application of SA Hunters prevailed. The court order not only helps gun owners, it perversely also gives the police some breathing space during which they can perhaps clear some of their backlog and generally try to sort out the mess that they have wilfully landed themselves in. After all, who in the SAPS/CFR would have had the brass to plead that the court grant them such an order - because they couldn't cope with the workload, and did not have the legal authority to amend the Act without going through the parliamentary process? What a career-wrecking embarrassment.

However, despite police efforts to gild the lily (to put it politely), it was only a matter of time before the shambles in the Central Firearms Registry (CFR) became a matter of public record. As the SAPS and the Ministry are headquartered in Pretoria, it is this court that hears most of the challenges to firearms control administration. This concentration of cases probably worked in favour of SA Hunters' application. It makes it more likely that this court's judges had previous evidence about the state of the CFR and were thus less likely to undiscerningly accept the veracity of SAPS 'evidence'.

One of the reasons SA Hunters put forward to justify the urgency and importance of the application was the failure of the SA Police Services to clearly communicate what was required of the firearm-owning public. In reply SAPS put up an inadequate and unconvincing explanation of how they have been keeping the public informed over the past five years.

As 30 June approached SAGA was so concerned about the lack of information regarding citizens' rights that we spent over R100 000 to place notices in the Sunday Times, City Press and Rapport on Sunday 7 June (with a combined readership of millions) in an attempt to redress the situation. I doubt that this 'little' campaign would have been read by more than, say, 20% of licensed firearm owners. However, it resulted in thousands of hits on our website and a multitude of telephonic and e-mailqueries seeking clarity on what firearm owners could/should/must do to, as our adverts said, "Avoid Arrest!!" We can justifiably claim that a few thousand more benefitted from and/or acted upon the information we presented without their having to contact us for furthers and betters.

Back to the High Court. In his replying deposition, the CFR's Director Bothma had to use the word "approximately" so often that it was soon clear that he could not give unequivocal answers/rebuttals to SA Hunters' statements about compliance or non-compliance with the Act. Significantly he conceded that some 900 000 people had not yet complied with the transitional provisions and would thus be in breach of the law from 1 July onwards and that the SAPS had no option but to enforce the law by charging and prosecuting them. The court accepted that this would not be a desirable state of affairs, and should therefore be interdicted.

This High Court order grants us all 'interim relief'; so where to now?

SA Hunters' main application raises issues relating to the constitutionality of various of the 'transitional provisions' of the Act. The North Gauteng High Court is expected to hear the matter fairly soon but whatever it decides is unlikely to be the final word on the matter. Either party has the right to apply for permission to appeal and the issues involved are of such a nature that I expect that the Constitutional Court (the highest court in the land) will be required to clarify/define what firearm ownership rights we have and whether any limitation on them is reasonable and justifiable.

In the meantime if you have not applied to re-license your firearm, your old licence remains valid and you may continue as before. However the SA Police Service has been instructed not to accept 'late' applications to renew licences. (See the latest SAPS directive on page 16.) Their basis for doing so is that the Government Gazette that deals with re-licensing periods states that the final cut-off date to apply to renew that licence was 31 March 2009. (If you could provide convincing reasons for not applying in time, you could be given grace until 30 June 2009. Both of these dates have passed.)

I cannot imagine a more short-sighted, impractical approach. It must surely be faster, more cost-effective, and less strain on all branches of the criminal justice system (SAPS, Courts, Prisons) to process licence renewal applications than to charge and prosecute tens of thousands of 'offenders'. Particularly when would-be renewers are queuing up, more or less willingly, at police stations with the exorbitant fees in cash in their pockets.

Clearly distressed at their failure to obtain the response they desired from citizens (aka 'control' those citizens) and thus to implement the Act within the time they themselves specified, the SAPS seem determined to "teach the tardy a lesson". As 'six of the best' (with a cane) has been outlawed - as cruel, unusual and inhuman - the SAPS's attitude seems to be "throw them in jail". Into cells that are generally reputed to be very much more cruel, unclean and inhuman. Such an attitude must be condemned. Whichever way the High Court or Constitutional Court case goes, that Court will surely make an order that sets out further 'transitional provisions' to give time enough for everyone to comply with the Act. And, we trust, instruct the SAPS to spread the word far and wide.

One of the negative effects of various news reports and broadcasts concerning the court's interim ruling is that the public became, if possible, even more uncertain about where they stand, and what rights they have, in respect of firearms possessed on 'old' (but now still valid) licences.

As the 31 March deadline approached and went past and the implications of 30 June began to ring warning bells in the minds of gun owners, the number of queries SAGA (and others) received increased exponentially - along with the levels of confusion and uncertainty. This situation was confirmed (and exacerbated) by the flurry of 'plaster-over-the-cracks' directives emanating from the Central Firearms Registry. These directives had the effect, inter alia, of creating law where it did not exist and some were in conflict with the provisions of the Act.

Many issues are at stake, and many outstanding problems need resolution either by way of remedial legislative action, clear and public policy directives, or court orders.

Are the many people who were constructively compelled to hand firearms to a dealer (while hoping they could later either re-license or sell them) entitled to compensation? I would think so, or better still, in the light of the court order, why should they not have their licences reinstated and retake possession of those firearms? I trust that the SAPS have contingency plans in place either to reinstate licences or to deal with a torrent of damages claims.

Likewise, what about people who handed their firearms in for destruction in the belief (fostered by SAPS) that they were obliged to? Interestingly the Central Firearms Registry has directed (see page 16) that no more of these firearms may be destroyed; but that they may not be returned to their owners. Such matters are now in abeyance pending the outcome of SA Hunters' main court application. You cannot unilaterally destroy firearms and related property without compensation and without complying with the provisions of the Firearms Control Act. This directive clearly seeks to circumvent the Act and the Constitution.

This new 'do-not-destroy' policy may be chalked up as a small victory for SAGA because, on 8 June, Director Bothma and Divisional Commissioner Lamoer were placed on terms not to proceed with the destruction of firearms claimed to be "forfeited to the State" in the manner indicated in their March, April and May 2009 directives. They were threatened with an interdict application by SAGA to stop them and the sound grounds that those instructions are in conflict with the provisions of the Firearms Control Act and the Constitution.

This latest directive allows us to put our plans to apply for an interdict on hold - for the time being. Should the destruction start again in accordance with such directives, SAGA will not hesitate to go to court to have it declared ultra vires.

It goes without saying that every pro-firearm organization should give their full support (including financial support) to this noble effort by SA Hunters. We could also demonstrate our solidarity with those already in the court case by joining in the application and bring the court's attention to the specific problems our collective members have with the Firearms Control Act. We all have rights to proper administrative law and justice and are free to challenge the unconstitutional nature of the SAPS's implementation of parts of the Act.

It is unforgivable and I believe unlawful to make a person wait three or four years while his firearm licence (or competency certificate) application is "being processed".

It is unlawful for the police to operate without the constraints of a clearly defined and properly approved policy. If the game doesn't have a proper rule book, then the police can set whatever parameters they choose - even from day to day, or province to province - and, last but not least, party politics and politicians will soon have an inconsistent finger in every pie.

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In last month's Magnum I commented on two directives sent out by the SAPS about the transitional period, 1 April to 30 June 2009. (These directives, 16 March & 6 April, were published on page 62/3 of that issue and are also on SAGA's website.) In those comments, I mentioned that SAGA, other associations, and the United Firearms Forum, very concerned about the anticipated problems that June 30th would bring, again proposed various possible solutions.

Because all 'old' licences will become invalid on 30 June, and because the issuing of new licences is very far from instantaneous, in the case of sales 'in progress', many a seller's 'old' licence will expire before the purchaser's is approved - leaving the firearm unlicensed and the seller in breach of the law.

It was proposed that the neatest solution to this particular problem would be to grant such sellers a Section 21 Temporary Authorization - permitting him to legally possess (but not use) the firearm until the buyer had his licence.

Although the SAPS were not immediately taken with the idea, we are happy to report that, in a new directive (28 May) - see page 16 - they have reconsidered and have now given the service instructions on how to go about this, what ranks may consider such applications, and the conditions that would apply to such Temporary Authorizations. We applaud this pragmatism and trust that by now every station well understands the revised position.

Unfortunately, that is not the only '30 June' problem that needs solving and we trust that, by the time you read this, further practical arrangements/concessions will have been announced. 'Announced' is an optimistic word; thus far the SAPS hasn't been forthcoming about publicizing these directives/arrangements, but this one (28 May) includes the following: "7. It is important that your respective offices conclude a massive communication drive within your province in order to ensure that firearm owners are well informed regarding their responsibilities in terms of the Firearms Control legislation as well as the places where they may surrender their firearms and ammunition within the province." Talk about leaving it to the last moment?!

I don't want to appear ungrateful about this, we should welcome this endeavour to enlighten the public. (SAGA has just spent a considerable sum to do exactly that.) But... Why must this campaign be so focussed on informing firearm owners of their responsibilities and telling us where to 'surrender' our firearms? Why not inform us of our rights and tell us how to go about keeping our firearms legal? And, how about publicizing the fact that we are entitled to claim compensation for 'surrendered' firearms and help claimants to do so? Given past experience, these are not unfair questions.

The most blatant display of injustice ('police brutality'?) incorporated in these directives is the repeated instruction that, where a buyer's application for a licence is refused, the seller's firearm/s must be forfeited to the State for destruction. This is so clearly unjust that, unless this instruction is withdrawn, SAGA will probably have to challenge it in court - in the public interest. (It's a little too early to say whether or not the recent Concourt 'Biowatch' ruling - making the State liable for Appellants' legal costs in certain/specific circumstances - will dampen the SAPS's appetite for intimidating appellants by aggressively contesting unwinnable cases.)

I recently participated in 'Fokus with Freek' (Robinson) on TV2; Director Jaco Bothma, Head of the Central Firearms Register (CFR), being the other party. Director Bothma had the lion's share of our rather short segment, but Mr Robinson however did manage to push him into giving a 'kind of' answer to one of my important points about how the CFR was managing. Despite denying, a week earlier, that there was a backlog, and without actually acknowledging the existence of one, Director Bothma eventually 'admitted' that the Register would be up-to-date only by the end of 2010. I challenged him on this and asked Freek to invite us both to a report-back session.

Director Bothma appeared distinctly uncomfortable when pressed about the failures of the Firearms Control Act and was angered when told that it is a dismal failure. Among other things, I regard having to wait two years or longer for licences and competency certificates, as a failure of the Act.

If you know someone who plans to 'surrender' firearms for destruction during these last few days of June, please tell them to apply for compensation. Form (SAPS 520 (d)) is available on the SAGA website. The police at station level must accept these claims for due consideration by a suitably senior officer. If someone tries to turn you away, please let SAGA have sufficient detail for us to try to follow-up on your behalf: name of officer who refused to accept the forms, station, when, and for what reason.

SAGA's website also has contact details for the collectors' associations whose members will try to help you to lawfully dispose of firearms that may have some collector value or should be preserved because they are part of South African heritage.
The National Heritage Resources Act stipulates that it is illegal to destroy anything that falls within the parameters of the National Heritage Act. The parameters are also long and complex, but firearms are specifically mentioned - including those that may have been used in historical events or wars and particularly prior to 1900.

The destruction of firearms is regulated by Section 149 as read with Regulation 104 of the Firearms Control Act. What is significant is that Section 149(2)(b) states unequivocally that the firearm "...remains the property of the owner thereof until its destruction." This must mean that what the State destroys is somebody else's property and that compensation must be payable.

So claim compensation and if possible have your firearms valued before you surrender them for destruction. If we can't keep our firearms then the State must at least be forced to pay for them.

Those of you who don't know about the Justice Alliance of SA's (JASA) court case regarding the State's liability to pay compensation for firearms, can visit the website <www.jasa.org.za>.

We must not accept SAPS directives without question. Regulation 111 specifies the information that official receipts must contain when issued by the SAPS. This makes it clear that when handing in your Application to Renew, the receipt you are given must, inter alia, specify the details of the firearm. The SAPS have either deliberately or unwittingly ignored this requirement - another testament to the fact that SAPS don't know or understand and clearly don't care about the proper application of the Act.

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As negotiations are ongoing and Magnum's deadlines comparatively long, we hope that much of what follows will have been 'fixed' by the time you read this. Do not hold your breath. Keep in touch with developments through your association and/or SAGA's website.

Long-time readers of Magnum know that SAGA has, from well before the Firearms Control Bill became an Act, warned the police and authorities about administrative and constitutional 'difficulties' we could foresee with the proposed provisions of the Act.

In June 2004, SAGA (with other organizations) confident that the SAPS did not have the capacity to properly implement the Act and Regulations, approached the court as a matter of urgency to ask that the government be stopped from putting the Firearms Control Act (FCA) into operation on the announced date -1 July 2004. The SAPS responded to the effect that the necessary resources were in place and that they were in fact able to implement the Act. As we were unable to disprove their claim to the court's satisfaction, our application was rejected. If we had had a time machine to enable the Pretoria High Court to see what would/has happened and the ensuing chaos and injustices, the judgement would surely have been very different. Ah well...

 When I watched Director Jaco Bothma - on two different television shows just before 31 March this year - telling his interviewers and the audience how tough the SAPS would be on delinquents, I couldn't help but think of PW Botha and his wagging finger... The more people began to reject those apartheid laws, the more he wagged his finger, and the more totalitarian the state machinery became, and the firmer the resistance. Although such comparisons are said to be odious, the kragdadigheid displaced was eerily similar. Very few firearm owners can say that they are satisfied with the processes that they've had to go through - including unwarranted delays and the SAPS changing the rules to suit themselves. Despite this, Director Bothma flatly denied that the SAPS had any problem with managing the process.

Our laws are designed (or are supposedly designed) to regulate relationships between individuals and between individuals and the state. General non-compliance with a law is indicative of fundamental and underlying problems with that law. If you have to threaten people to comply, then it is high time you asked yourself a few pertinent questions. Do the people know that law exists? If so, do they understand it? Do those who have to implement that law understand and support it? A clear comparison can be drawn between the old apartheid laws in whatever form they may have been and the FCA and its levels of non-compliance.

Last year, on behalf of SAGA, I wrote to the police seeking answers to various questions about just what would happen after midnight on 30 June 2009 when 'old' licences, permits, etc, technically 'expire'. And about applications, made in good time but still 'in progress', for firearms about to become ex-licence? The SAPS can take three years (or more) to process new applications - which makes it virtually impossible for buyers to license these firearms in a reasonable time. (The seller, of course, is not permitted to hand over the gun until the buyer has the licence.)

It is no coincidence that on 16 March 2009 a directive was issued by the SAPS telling the police what must happen as of 30 June 2009. (The text of this directive, and another one issued on 6 April 2009, appear on pages 62-63 of this edition.) The directives make it clear that large numbers of firearm owners who are 'legal' on 30 June will, by default, awake on 1 July as 'criminals' in the view of the SAPS. Despite the seriousness of the implications, the SAPS did not deem it necessary (or expedient) to make this directive (or an explanatory summary thereof) public. Amazing. Are they relishing the idea of rushing out and 'making examples' of as many citizens as possible on 1 July?

SAGA members and Magnum readers are probably aware that 30 June is an important date, but have the SAPS made serious efforts to communicate this fact to firearm owners in general? Not that I am aware of. Does this mean the SAPS have some ulterior motive or hidden agenda? I sincerely hope not.
I'll use a graphic example to illustrate the injustice of strictly applying a 'law' that has not been properly thought through.

Let's say you have an 'excess' firearm on an 'old' licence. In, say, October 2008 you negotiate to sell it to Joe Burger. Joe applies for a licence and a competency certificate on 1 November. As required by the law, you hold onto the firearm until Joe comes along with his licence which authorizes you to give him possession. That would all be very fine and well ...if Joe gets his licence and gets it pretty quickly.

Let's fantasize a little. By some miraculous happening, Joe gets his licence on 5 March, you give him the gun, and promptly go along and have your licence cancelled. Great. Everyone is happy.

Let's get back to reality. When June 30 arrives Joe doesn't yet have his licence. On1 July you awake. In your safe is a firearm for which you no longer have a valid licence. Shock, horror. Go directly to gaol. While you are cooling your heels in police cells over the weekend - your overburdened attorney has 515 similar cases and hasn't yet been able to arrange bail - Joe, who lives 250km away collects his brand new licence on his way home from work. At 7.30am the next morning there is a knocking on Joe's front door. There stands a large policeman with a serious expression and a serious computer print-out in his hand. Ever so politely, he asks to see Joe's licence. Joe plucks it from his pocket with a flourish and a smile... which vanishes when the large policeman, somewhat less politely, asks to see the firearm... 

You and Joe are now both, cellphone-less, in police cells 250km apart. The firearm for which Joe has a valid licence is in a police store. Fortunately for him, the Station Commissioner recognizes Joe and sets him free. He phones your home; to be told by your distraught daughter that you are in gaol, your wife is prostrate with shock, and the firearm is in police custody. Joe fills up with petrol, rushes (being a totally law-abiding citizen, he takes due cognisance of every traffic sign and speed limit) to free his new acquisition from the untender clutches of the police. He arrives at your station in a sweat, displays his licence in trembling hands and waits, and waits... until someone comes and says they can't locate that firearm in the SAPS 13 store. Would Joe please come back next week?

Joe overnights with his brother-in-law and heads for home early the next morning. At the halfway filling station he stops for petrol and a leg stretch. As he alights from his car, Joe realizes something is wrong. Very wrong. A cash heist is in progress. But wait... here come the white knights in blue uniforms... A shoot-out ensues. Just three metres from Joe's left-rear wheel lies a bad guy, shot in the thigh, screaming in pain while his co-heisters disappear with screaming tyres. When Joe stops hyperventilating, he glances down at the wounded bandit and sees a pistol at his feet. A familiar, distinctive pistol... As Joe, reflexively, goes to pick up 'his' pistol a heavy hand grasps his shoulder and heavy voice says, "You had better come along quietly, or else... "

A fanciful scenario? Well, yes and no. Yes, it is a bit unlikely that all those disasters would have happened as promptly and sequentially as described - but each one is all too horribly realistic. And no, the only fanciful one is where Joe gets his licence on 5 March - that really needs a stretch of the imagination. The 'cash heist' scene, while not very common is also not very uncommon.

The consequences arising from Joe not getting his licence before 30 June flow quite naturally and rationally from defects in the process. Read, or reread, those directives with the above likelihoods in mind. You will find that the SAPS have instructions, if not to arrest, certainly to open a docket against all those 'caught' directly because the SAPS are unable to process licence ap-plications within a reasonable time.

So, what should you have done if your 'Joe' wasn't likely to get his application processed by 30 June 2009? According to those directives, if Joe has applied to license your firearm in his name, you must commit that firearm to the tender mercies of safekeeping in an SAP 13 store. Don't forget to get a detailed, stamped, signed receipt. Keep that receipt safe. Do not have your (now invalid) licence cancelled. When Joe gets his licence, confirm that the station still has the firearm, then take Joe along, arrange the exchange, and have your licence cancelled. A fairytale with a happy ending?

I foresee problems with SAP 13 stores. The first is that these safekeeping facilities do not come close to the SABS safekeeping specifications imposed upon ordinary citizens. They don't have to, you do have to. They are exempt, you are guilty. The SAPS will suddenly become responsible for thousands of firearms and will not be able to control them. Some of these will "go missing". Some already have and have been used in violent crimes.

Secondly, the police don't have the time, interest or staff qualified to oil and clean and ensure firearms are maintained properly. Because licences can take three or four years for issue, valuable firearms will almost certainly be damaged, possibly beyond repair, or deteriorate in value. Will the SAPS compensate you or Joe? Not willingly, if you are determined enough, and wealthy enough, you could take them to court, a high court. It's a safe bet that it will be cheaper for the SAPS to compensate and pay the legal costs of the few brave hearts than to honestly and uprightly compensate the many without hesitation or rancour. Is that Justice?

If you do not want to hand the firearm to the SAPS for safekeeping, there is an alternative. You may hand it to a licensed firearm dealer -IF you can find one who has the capacity and the willingness to look after this firearm until Joe gets his licence. (Be prepared to pay a reasonable fee for this service.) But, there is always a 'but'...

If Joe has already applied to license your firearm in his name, no dealer may have it in safekeeping after your licence expires (30 June 2009). He may not 'safe-keep' an unlicensed firearm whereas you need him to keep it because your licence has expired. Catch-22. I understand that the SAPS's system cannot handle having one firearm in three 'places' - in your name (although the licence may have expired, it is still registered in your name so they can come and arrest you); the dealer's name; and as a pending application in Joe's name.

So, if you insist on working through a dealer, he (with your consent) will have to cancel your licence, Joe's licence application must be withdrawn, and the dealer must register the firearm as being part of his stock-in-trade. Ownership has now passed to the dealer. Everyone starts all over again. If Joe doesn't get his licence, the gun belongs to the dealer. So, this option isn't really an option, we are back facing the prospect of the dreaded SAP 13, an option few are comfortable about.

SAGA, other associations and the United Firearms Forum as a whole, have raised these issues with the police and have proposed a few solutions. The most practical, in our view, would be for the SAPS to issue SAP 21 permits to effectively extend the life of an old (expired) licence pending the lawful disposition or transfer of the firearm to a new owner. This will require a major mind-shift on the part of the police who seem to have an unwritten policy in this regard - do your utmost to avoid issuing such permits. 

This policy needs to be relaxed and arrangements made for permits to be considered and granted at local (or provincial) level - subject to reasonable conditions.

The police must urgently reconsider the instruction that, if Joe's licence - applied for well before the cut-off date of 30 June - is turned down, the firearm must be destroyed. In other words if you have sold, or endeavoured to sell, your R100 000 shotgun, rifle, rare Colt or whatever and the would-be purchaser's application is refused, you have no further opportunity to sell that firearm to anyone else, or export it for auction, or... Big Brother has spoken. What he says "must be", I say must be unconstitutional. 

A second directive (6 April 2009) compels the station to open a docket against everybody who tries to apply to renew an old licence after the 31 March 2009 deadline - whatever his reason for being late. So determined are HQ about this that they unequivocally state that if an official fails to do this that official will be disciplined.

It seems clear that, as 30 June approaches, the SAPS are 'creating' opportunities to prosecute firearm owners instead of trying to find solutions to the problems arising from convoluted and impractical processes designed by the SAPS. Probably because the SAPS told Parliament and the High Court that they had everything in hand, they are now extremely reluctant to honestly admit that they have not been able properly to administer the FCA. They are also very reluctant to honour the Promotion of Administrative Justice Act (PAJA) when called upon for information. (I am informed that in England, police attend training to help them to avoid complying with their Freedom of Information Act. Do we have a similar school?)

The SAPS dodge their Constitutional obligation (Sect 195) to consult with firearm owners before issuing these policy directives. They act unilaterally and then threaten their own members with disciplinary action for failure to comply.

I believe there is something sinister about the way the SAPS, throughout Gauteng for example, encouraged firearm owners to lodge 'late' renewal applications without warning them that doing so would open them to prosecution. The overt motivation was admirable - to keep citizens 'legal'. The covert motivation - to encourage citizens to 'commit an administrative offence' was much less worthy. I'd say sinister and worthy only of an abhorrent 'police state'.

There is great confusion about what constitutes good reason for being 'late' in applying to renew a licence. I have an example where a police officer at a firearm registration centre wrote out an affidavit on behalf of an applicant, 'invented' the reasons, got the applicant to sign the affidavit, and told the applicant that condonation had been granted.

Some senior police officers, endeavouring to encourage compliance with the FCA told me (and others) that it is always 'better late than never'. We accepted this in good faith and told the tardy that they should go along and make their excuses for being late. Where do those 'late' applicants now stand? It appears that, unless we can convince the SAPS to change its attitude, these unfortunates will be charged and may have the hassle and expense of 'making their excuses' to a court.

Some recent decisions by the SAPS and the Appeal Board make it clear that they either have an extremely restrictive view of the Act, or don't even want to understand it. (By ruling against the SAPS and Board on several occasions, sometimes embarrassingly harshly, the Pretoria and the Bloemfontein High Courts seem to agree with our contentions.) Is it possible that we are living Orwell's Animal Farm where some people are more equal than others?

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I have once again sacrificed my Trail Talk space (and some overflow) to a guest writer - Martin Hood. Once again I have exercised my editorial rights and toned down some of Martin's very blunt, but scathing, comments. Over to Mr Hood:

Wouldn't it be lovely if the following proposals had been given effect?

1. The periodic renewal of firearm licences will be replaced by the periodic (five-yearly) obtaining of a competency certificate and the auditing of the firearms belonging to a legal firearms owner. Instead of applying for individual firearms, it will only be necessary to apply for a competency certificate every five years.

2. The limitation on the number of firearms which may be possessed under the new Act in respect of defined categories will apply only to new applications in terms of the Act. The restriction on numbers will therefore not be applicable to firearms licensed under the repealed Act and of which the licences have been renewed.

3. The definition of 'occasional' hunter/sportspersons has been amended to allow such persons to also belong to accredited organizations.

4. Any licence, other than a licence contemplated in item 2, which was issued in terms of the previous Act and which was valid immediately before the date of commencement of this Amendment Act, remains valid unless such licence ceases to be valid, is terminated, cancelled or surrendered in terms of this Act

Now that we are in 2009, some of the tenses may sound a little strange but they were right at the time. The first three items are quoted (cherry-picked!) directly from the SA Police Service's official Annual Report for 2005/2006. (1 April to 31 March.) They are among the proposed amendments to the Act which were gazetted "for general information and comment" on 26 February 2006 in the draft 'Firearm Control Amendment Bill, 2006'.

Item four is also from that gazette and is the proposed rewrite of Schedule 1 (Transitional Provisions) - the main change being the deletion of the words "for a period of five years from the date on which this Act comes into operation,". In other words, instead of 'expiring' on 30 June 2009, your 'old' licences were valid for life ... unless you gave the Registrar reason to terminate them.

So, what's happened and why am I chewing on old bones? By the time the Bill had gone through the Portfolio Committee (November 2006) those provisions had disappeared. And, despite all the time and money (and space in Magnum) spent in the 'negotiating' and the drafting of the mass of regulations needed to put those provisions into effect, the Bill/Act has also disappeared from view. The draft regulations were published, for comment, in Government Gazette 30401 dated 26 October 2007 but obviously have not come into operation.

Three years ago now, in writing 'On Rights & Liberties' for the May 2006 (30th Birthday) issue when the draft amendment bill (2006) was first gazetted, John Welch said, "One questions the rationale behind many of the proposed amendments, since there do not seem to be any logical explanations for it, at least not that were officially explained during the consultative meetings. A proposal that could be welcome is the abandonment of the relicensing system and its replacement by an improved competency certification`and an audit of the firearms licensed under the Arms & Ammunition Act, 1969. [And here comes the crunch - MH.] Does this indicate an acknowledgement that the government is simply unable to implement the impractical (and unnecessary) relicensing provisions of the Act?"

It really is a pity they didn't streamline the process back then. Apart from anything else that may have saved me a hefty dollop of 'cringe factor' when I watched Director Bothma (on Focus and Carte Blanche on Sunday 29 March) tell the nation that the CFR does not have a backlog. My handy Concise Oxford defines backlog as 'Arrears of uncompleted work'. According to my clients and informants (including readers who write and phone Magnum and/or SAGA), there are lengthy delays and bottlenecks in Pretoria as well as Firearms Registration Centres all over the country. And they have been there for a very long time - well before this year's last minute rush or last year's for that matter.

We had plenty of fresh 'evidence' of backlogs soon after the SAPS's - "detailed directive regarding the processes and procedures that need to be adhered to... after 31 March 2009" became public knowledge. Inter alia, this directive advised DFOs and just about everyone that SAPS form 523 "would suffice" as proof that you have applied for renewal within the relevant period.

Concerned firearm owners, who had been given an Expenditure Receipt but not an SAPS523, called to enquire about their position - would they be 'legal' after 30 June, or would they be arrested? On the basis that it was better to be safe than sorry, we (SAGA, Magnum and I) suggested they go along to their DFO and ask for (demand?) that 'essential' document. Some called back to report that their DFO had sent them on their way without the document but with the assurance that all was well. The simple reason for that is that it takes time, time the registration centres do not have, to complete those pesky 'essential' documents.

This infers that it is OK for the SAPS to break their own rules (aka the law) but not for would-be law-abiding citizens. On the same TV show that he said there was 'no backlog' Director Bothma confirmed very clearly that those who have applied to renew their licences should have evidence in the form of a 523 adding, much less clearly, something like "or satisfactory evidence".

If you cannot produce a 523 when questioned by a policeman, will he believe you or arrest you on the strength of that directive? Or on the strength of Regulation 111. Alternatively does the Director or any police officer have the authority to amend/suspend/waive gazetted Regulations? Regulation 111 informs us that "A receipt issued in terms of this Act must bear the following particulars-" and lists ten requirements - items a) to j). Although that regulation doesn't mention the 523 - that form provides for all ten requirements of an "Acknowledgement of receipt of firearm documentation". I'm pretty sure there is a heavy backlog on 523s.

It's not very pleasant to see and hear various police spokesmen, superintendents, commissioners, directors, etc look down their noses at late renewal applicants and make "tough on crime" noises as though the latecomers (or not-yet-woken-up comers) are dangerous criminals who fully deserve everything that can be thrown at them. Particularly unpleasant when it comes from those who sanctimoniously bend the rules (aka break the law) to suit themselves and who are rather less than forthcoming when it comes to disclosing the true facts, issuing statistics, responding to queries about policy, and sundry other issues.

If the SAPS cannot give licensed gunowners a fair shake by treating them with respect why should we have to accept poor service as well as 'irregular' documentation and practices? I believe the SAPS have the moral obligation to give firearm owners good time to sell 'surplus' firearms in a market artificially depressed by ownership restrictions and undue delays (aka backlogs?) in processing applications, Surely, what's sauce for the goose is sauce for the gander.

Should every policeman who handled an application for a licence (or renewal of a licence) for a firearm for 'occasional' hunting or sport, in which the applicant mentioned that he was a member of an association which happened to be accredited, be arrested and charged with contravening the Firearms Control Act? Should all licences that were issued in defiance of the "not a member of an accredited association" limitation be cancelled forthwith, the guns confiscated and destroyed, and the licence-holders arrested?

Of course not, the limitation in the definition of 'occasional' was almost certainly an unintended consequence (or something) and should have been removed as provided for in Item 3 in my opening paragraphs. There are plenty of other areas where the strict application of the Act and/or Regulations has been ignored, bent or varied - mainly for practical reasons. I have neither the space nor the enthusiasm to go into detail, but there are basic things like an absence of Unit Standards, the validity of competency certificates, unresolved issues about cap and ball revolvers, and that's without even thinking about the problems of dealers, gunsmiths, importers, security service providers, visiting hunters/sportsmen, the question of compensation, liaison with the heritage council, etc.

Very few people, and here I include many of the policemen charged with implementing the Act, actually understand it and its convoluted implications. It is hard to make practical sense out of legislation that is essentially impractical and unnecessarily complex. The whole thing should be taken back to the drawing-board by a couple (not a committee room full) of hard-nosed, street-wise people with enough understanding of the realities faced by the police service and by the law-abiding public, a sound knowledge of systems and a great deal of healthy common sense.

Maybe the product of such labours would be an Act more easily implemented (and far less costly) and one, being fair and just, more readily accepted and understood by the public in general, firearm owners in particular, and the SAPS.

As they say in the classics, Aluta continua.

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This month I am going to talk about the most important component in the whole lengthy process of becoming a licensed firearm owner - the all-important Competency Certificate - without it your application is dead in the water.

Section 9 of the Firearms Control Act (the Act) and Section 14 of the Regulations go into a great deal of detail about who you must be, what you must do, and what you must not have done, in order to satisfy the requirements to qualify to be considered for a Competency Certificate. I use two capital 'C's not only to denote the importance of the document, but also to draw your attention to the fact that in the case of this certificate the meaning of the word 'competence' far exceeds its everyday English meaning.

Before I get down to the nitty-gritty, there is a side issue I must talk about. The fact that persons who are not South African citizens cannot obtain a Competency Certificate (CC) is beyond comprehension. Section 9(2)(b) says that these certificates may be issued only to SA citizens (or permanent residents). The SAPS have long known that this presents a problem (they have been told often enough) but seem unwilling to make the necessary (small) changes to the Act.

The only legal way that a foreigner can obtain a right to possess a firearm is by getting a Section 21 permit (a temporary authorisation) - the requirements for which (in theory at least) are less onerous than facing a citizen who requires a CC. Section 21 permits work well enough for sportsmen and hunters who are here for only a week or three, but they don't work very well at all for the many 'foreigners' who have practically settled (or retired) here, or who own property (including game farms) or other businesses. Furthermore, it is irrational that a South African citizen has to comply with a higher standard than a foreigner in order to obtain legal possession of a firearm.

Now I have let off steam on that score, let's get on with CCs. You cannot blame the student who, having "successfully completed the prescribed training and practical tests regarding the safe and efficient handling of a firearm" (Section 9(2)(r)), then wrongly regards him or herself to be 'competent'. However, as noted above, for the purposes of the Act, the word 'competency' has unusually broad implications. It would be better for everyone if Firearm Training Instructors ensured that their students well understand the differences between FCA 'competency' and the know-ledge and ability (proficiency?) acquired from their Section 9(2)(q & r) training. CCs are issued by SAPS and are valid (with various provisos) for a period of five years.

At this point let me warn you that there can be problems with the training certificates issued even by accredited instructors. You knew you had to check that your instructor is properly accredited didn't you? (By the way, you are also expected to check that your security service provider is registered/accredited.) The SAPS has lists and we try to keep SAGA's website up-to-date in this regard. But accreditation isn't the problem I want to deal with, for that we must go back to the Regulations.

The Regulations demand that Section 9 training and tests must comply with the requirements of the SA Qualifications Authority Act (read in conjunction with the Skills Development Act) which provides for Unit Standards. Now, Unit Standards are changed from time to time and may also have an expiry date. The first set of Unit Standards that our firearms training had to comply with were Security Industry Unit Standards - US 11705 (for knowledge of the Act) is still valid; US 10748 (handgun), US 10750 (rifle), US 10754 (shotgun) and US 10756 (hand machine carbine) all four of which have expired.

Since the beginning of 2008, new Unit Standards have been introduced and you should ensure that you are trained to these standards and that your training certificate/s specify them. The applicable Unit Standards are: US 11705 (unchanged, knowledge of Act); US 119649 (handgun); US 119650 (self-loading rifle or carbine); US 119651 (rifle) and US 119652 (shotgun).

A clear distinction is now being made between the required training standards for civilians and those for security industry personnel.

There is some discomfort about the acceptability of certificates obtained before 1 January 2008 for persons involved in the security industry and the applicability of certification for persons who wish to obtain 'private' or 'civilian' licences for the purposes of the Firearms Control Act.

This difficulty is compounded by the fact that many persons who complete the applicable Unit Standard may apply for the firearm licence quite some time thereafter - perhaps even after a new Unit Standard has been introduced. This may be further compounded by the length of time it takes the SAPS to process an application.

The best thing you can do to clarify your position is to speak to your (accredited!) training provider who should know which Unit Standards to teach or to visit the website of the International Training Academy, www.itafirearmtraining.com which is generally the most up-to-date available.

Again, let me get on with the 'competency' provisions, firstly a short version of those provided in Section 9 of the Act: You have to be 21 years or older; You have to be a citizen or a permanent resident; You have to be a fit and proper person; (I will return to this specific requirement) You must be of a stable mental condition, not inclined to violence, and not dependent on any substance which has an intoxicating or narcotic effect; Furthermore, you must also not have been convicted of a range of specified offences which, in essence, involve drugs, alcohol, firearms, explosives, sexual abuse, violence (including domestic violence), terrorism, etc.

If you have been sentenced to a period of imprisonment without the option of a fine for a Section 9 offence, you will not be considered for a CC - unless you complete the sentence more than five years before seeking a CC.

This means, for example, if you are sentenced for drinking and driving, you can apply for a competency certificate five years after serving your sentence - providing that the court that sentenced you did not declare you unfit to possess a firearm. If you were declared unfit, your disqualification ends five years after the date of the declaration - which will be far sooner than had you not been declared unfit. There is clearly an inconsistency here.

Note however, the fact that you are permitted to apply for a CC, does not mean that one will be issued to you - SAPS will decide whether or not you should get one.

Regulation 14 provides, "The Registrar may, apart from any other relevant aspect, consider the existence of any of the following circumstances, when applicable to an applicant that applies for a competency certificate, as key indicators in order to launch an investigation or enquiry as contemplated in Section 124(3) of the Act to determine whether the applicant for the competency certificate is a fit and proper person as contemplated in Section 9(2)(c) of the Act ...."

Unfortunately however, Section 9 does not define what a "fit and proper person" is and here the SAPS may exercise discretion. Strangely for the Firearms Control Act, which generally is vague and lacking in specificity, Section 9 and Regulation 14 comprise a 'shopping list' of competency requirements. This means (or should mean) that if you comply with all of the requirements of Section 9 and if you are not guilty of any of the 'sins' listed in Regulation 14, then you must be issued with a Competency Certificate.

If you fall foul of any of the negative factors contained in Regulation 14 you still have the right to make representations to convince SAPS that you are a "fit and proper" person.

I have gone into some detail about 'competency' because being refused a Competency Certificate has the same effect as being declared unfit to possess a firearm.

I have a fundamental difficulty with this because I believe that no one but a Court should have the right (and the power) to change a person's status by declaring him or her "unfit to possess". Yes, we all know that Section 102 provides for the Registrar to declare persons unfit - subject to a number of provisos.

I am very uneasy about the police refusing Competency Certificates. We have a Constitution which regulates the interface between citizen and State. Section 33 of that Constitution provides that we have the right to proper administrative action, which provision was given effect by the Promotion of Administrative Justice Act of 2000 (PAJA) which now specifies the manner in which a person must be treated when subjected to administrative action. PAJA clearly provides a process for decision-making that is intended to balance the rights of the state and the individual and to provide for transparent, objective decision-making and all affected parties are allowed time to properly state their case.

The refusal of a CC by the SAPS is what I term a unilateral administrative action, i.e. the decision is made without the applicant being told that his/her application is in some way defective, and without the applicant being afforded an opportunity to argue their case for being granted that vital certificate.

Because the SAPS do not provide any guidance or assistance (and not many applic-ants can afford to consult a lawyer) would-be firearm owners have little option but to prepare their applications in ignorance of SAPS requirements. A police official then punishes them for their ignorance by refusing to issue the Competency Certificate. I am of the view that the SA Police Service should deliver on the 'service' part of its name by assisting applicants. Make the policy requirements known to all, tell an applicant what 'deficiencies' in his application render it likely to be refused and allow him to fix the problem - perhaps by appearing in person (with or without legal representation) to promote his case.

I deal with many appeals relating to the refusal of Competency Certificates and I am perturbed by the 'reasons' provided for refusals. How about this one: "You are not deemed to be a person suitable to be issued with a competency certificate by virtue of your criminal conviction for... " By reason of its incompleteness alone, this is not a valid 'reason'. Although I have often asked the SAPS to explain how and why certain convictions affect a person's 'competency to possess', I have yet to receive an official response.

Perhaps that is because the police do not fully understand - or don't want us to understand - that numerous offences have absolutely no bearing on the FCA, and that convictions for those that do have 'expiry dates'. For example, you are not disqualified from obtaining a CC if you have paid an admission of guilt fine in terms of Section 57 of the Criminal Procedure Act. (Last month I discussed the Makolane case.)

Notwithstanding this, SAPS will refuse you a Competency Certificate if you have almost any recent criminal conviction, even if you have not been declared unfit by a court.

I am waiting for a suitable opportunity to have the High Court rule on whether a person's status can be changed by anyone other than a Court. I would like SAPS to defend their position by explaining to the court why they are in a better position than a court - that has heard the evidence of an accused and the witnesses and has seen the demeanour of the accused - to determine whether a person's offence makes him an unsuitable candidate for a Competency Certificate.

The Criminal Procedure Act provides for example, that if a conviction is older than 10 years, it is irrelevant for the purposes of sentencing a person subsequently convicted of the same or a similar offence. This statutory approach takes cognisance of the fact that people do learn from their mistakes and can reform and become very good citizens indeed. For the SAPS to hold decades-old convictions against an applicant smacks of over-zealousness in their desire to find 'reasons' not to issue firearm licences.

I can accept that our constitution and judicial system do not give anyone the 'right' to a Competency Certificate and thus a firearm licence.

I also accept that some offences should permanently disqualify the offender. I cannot accept high-handed bureaucracy that seeks to deny citizens due process of law and lacks respect for the public's rights to administrative justice.

Happily, the Appeal Board upholds the majority of the appeals I lodge for clients who have been refused CCs - so it seems that it agrees with the legal (and moral?) principles outlined above. Despite this, unwarranted refusals continue apace. Which is a waste of valuable police time, the applicant's time and money, and does nothing to endear the Service to firearm owners.

If the SAPS were properly trained in administrative procedures and were to fully respect their obligation to deliver administrative justice, they could divert a lot more time and resources to fighting 'real crime'.

The refusal of Competency Certificates may be termed 'police abuse' because such acts deny us our right to administrative justice.

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Media interest in firearm matters has increased tremendously of late. This may be partly because, in the run-up to the elections, all the political parties make noises about crime, but mainly because we are nearing the end of the 4-year long relicensing process and the expiry of the transitional provisions designed to facilitate the implementation of the Firearms Control Act (No 60 of 2000).

SAGA has been invited to represent the interests of firearm owners on a number of radio and television shows as well as in some of the print media. If we were a political party we would probably have to say that SAGA received 'fair coverage'. Let me just say that when it comes to 'phone-in' shows, SAGA members (and other gun owners) have responded admirably and where 'votes' have been tallied our side generally comes out on top. Which is a great service to our cause. And this is despite sundry attempts by State broadcasters to 'ambush' us - by contacting SAGA at short notice, by 'loading' the questions, by changing the topic as the interview commences, etc.

When you are 'on display' while trying to represent the broad spectrum of firearm owners, and the show's host, or the interviewer, or your opponents, are doing their best to make life difficult for you and/or mislead the listeners, it is important to know what you are talking about. Although I hope I am progressively improving my knowledge, modesty doesn't forbid me to say that I am miles ahead of most police and anti-gun spokesmen. Of course it helps that our arguments have a sounder logical and moral foundation than those of the bureaucratic regulators and over-emotional anti-gun brigade. That I often have to correct SAPS spokesmen, gives me little if any satisfaction - such deviations from the core debate actually hinder progress.

On a recent radio phone-in, a senior police spokesman stated that the Firearms Control Act specified a time period for the renewal of licences. When asked by the interviewer what this time was, he said it was 15 months for the renewal of a licence. I told him that this was not in the Act, he hopped from one leg to the other and stated that the reason for all the delays (numerous callers, mostly black males, had complained about this poor police service delivery) was that firearm owners had not applied to relicense their firearms. I pointed out the illogicality of this by saying that if all firearm owners had applied to relicense their firearms the situation would be ten times worse than it is. So there you have it. We are to blame for the bottlenecks (and everything else) because we have not applied to renew our licences. (The fact that there was no incentive to apply early is pertinent, but not something for this month's column.)

I found the reader's letter 'New Hunting Laws' about Cape Nature's new regulations concerning the hunting of problem animals in last month's Magnum very interesting. All legislation, but particularly subordinate legislation (i.e. any law that is not an Act of our National Parliament) is subject to passing constitutional muster. Among the questions we must ask to determine the constitutionality of legislation are: Is it reasonable and rational in an open and democratic society? Does the legislation give effect to its rationale, i.e. what purpose does the legislation seek to achieve and can it and does it do so?

On these grounds I would argue that Cape Nature's new regulations - as 'interpreted' by the letter writer - are irrational and cannot achieve the stated objective. It would seem that these regulations seriously infringe the rights of farmers to protect their livestock. I hope that the hunting and game ranching associations are challenging this, because this is the tip of the iceberg. If we accept restrictions like this that are irrational and unreasonable, it is a slippery slope into the eradication of lawful hunting in short order.

In the reported case of State v Makelane, a criminal appeal case involving an admission of guilt fine on a charge of theft, a full bench of the Pretoria High Court had to determine the intent of Section 103(2) of the Firearms Control Act (FCA). This case highlights the sometimes convoluted and difficult-to-understand terminology of the Firearms Control Act and was the second interpretation of the problematic Section 103.

By way of background, Section 103(1) begins: "Unless the court determines otherwise, a person becomes unfit to possess a firearm if convicted of -". A lengthy list of mainly firearm and violence offences follows. This section thus provides for an automatic declaration of unfitness, unless a court determines otherwise.

Schedule 2 of the FCA lists the crimes and offences that require the court to "enquire and determine whether [the convicted] is unfit to possess a firearm" as required by FCA Section 103(2). Note however that Article 7(a) of this schedule reads: "Any crime or offence in terms of this Act or the previous Act, in respect of which an accused was not sentenced to a period of imprisonment without the option of a fine."

Section 57(a) of the Criminal Procedure Act (CPA) allows - in respect of certain offences - a prosecutor to determine an 'Admission of Guilt' fine a person may pay to avoid going to trial. (The amount of the fine is what a magistrate would likely impose on someone who pleads guilty as charged.)

If a person thus 'admits guilt' for an FCA Section 103(2) offence, then it follows, using the wording of Section 103(2) as read with Article 7 of Schedule 2 that the court must conduct an enquiry into a person's fitness to possess a firearm.

The difficulty that the High Court had however was the interpretation of that Schedule 2, Article 7(a) phrase " in respect of which an accused was not sentenced to a period of imprisonment without the option of a fine."

When debating the meaning of this with Senior Council, we have concluded that this phrase is meaningless. The High Court came to the same conclusion. However, the court still had to determine the legislators' (parliament) intent and apply that to the case in hand.

They concluded the phrase was to be interpreted as meaning that an enquiry should only take place where a sentence was handed down for imprisonment with the alternative of a fine. For example two years imprisonment or a fine of R10 000 would result in an enquiry but if you paid an admission of guilt fine in terms of section 57 (CPA), there would be no enquiry.

The effect of this interpretation as legalistic and difficult as it may be is quite simply that should you pay an admission of guilt fine for a minor offence in terms of CPA Section 57(a), you will not be subject to an unfitness enquiry by a court and you will not be declared unfit to possess a firearm. It follows that, if as a first offender, you are charged with a petty offence (theft, assault, malicious damage to property, etc), always request the prosecutor to consider an admission of guilt fine.

Note however that I believe that certain of the planned FCA amendments (gazetted in September 2006 but not yet put into effect) give the Registrar the power to conduct an enquiry into the fitness of a person who pays an admission of guilt fine. It is surely no coincidence that the amendment bill was published so soon after the Makelane case was reported.

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Magnum is often used by the SA Police Services as a source of information when they wish to gauge the attitudes and thoughts of firearm owners. Magnum has also been quoted during Parliament's portfolio committee processes. I have had senior police officers phone me to discuss Magnum articles and commentary and some of these have been circulated amongst police departments.

I make this point because I am about to write something specifically for the SAPS to read - so that they should not be able to get away with saying "If only we had known what gun owners were asking..."

I have written quite extensively about why official policy is important from a constitutional as well as a practical point of view. In terms of the social contract between government and society, government must fulfil its constitutional mandate to effect service delivery, combat crime, provide education, justice, health services, housing... and all the other good things that the constitution dictates (and politicians promise). And it must provide them in terms of government policy on each issue.

The worst examples of misgovernment and mismanagement provide the best examples of why official policies are necessary. By all accounts, the Department of Home Affairs has no proper official policy on the issuing of refugee permits. According to persons within Home Affairs, the policy (inasmuch as it exists) is driven by corruption - if you are prepared to pay enough to the right party, you will get what you require. This situation is exacerbated by a lack of governance, a lack of leadership, and ultimately a lack of a proper policy and the firm application thereof.

Under the headline "Judge slams Road Accident Fund boss", KwaZulu-Natal's Mercury (5 December 2008) reported that Judge Anton van Zyl had "issued an unusual order ...giving Modise [the head of the RAF] until early January to explain the fund's recent conduct and to say why he, or the person responsible, should not be compelled to pay costs personally and on a punitive scale." The conduct in question relates to the tactics apparently employed by the fund to avoid payment and/or to make it difficult and expensive to obtain just settlement. The Mercury's report continued: "The judge called on Modise to explain this conduct and whether it had emanated from a 'general policy directive'. He also called on Modise to justify the directive." The article concludes with a comment from the treasurer of KZN's Personal Injury Lawyers Association: "More than half the cases on the roll are RAF matters, which are then settled on the day of the trial. These clog up the court rolls and the judges are getting angry."

The question that arose out of this newspaper article was, could we put the police in a similar position? The answer is a qualified 'yes'. It has always been my view that neither police, nor politicians are prepared to consult/negotiate with firearm owners in a meaningful manner in order to achieve equitable implementation of the Firearms Control Act. Because of the political issues that surround firearm ownership, it seems the only way forward - and have the police make better use of their seemingly limitless legal budget - is through the courts. We need judges to make vigorous pronouncements on what is acceptable and what is not - which will give decent guidelines for the further interpretation of the Act in the process. This applies particularly against the police who are responsible for the day to day implementation.

At this point a simple example to demonstrate what is meant by a policy decision. Section 21 of the Act allows the issue of a temporary permit and the regulations stipulate the conditions can be relative to the issue of the permit. The old Arms & Ammunition Act had a similar provision and it was basically designed for circumstances where either a licence would not be appropriate (such as a short term need for a firearm) or where a person cannot be granted a licence (a foreigner who is not a permanent resident or citizen cannot obtain the necessary competency certificate to apply for a licence). A proper reading of the Act and the Regulations clearly demonstrate that Section 21 is intended for this purpose. However, the SAPS refuse licence renewals for people who have previously been granted permits for firearms because they are not capable of obtaining a competency certificate. Besides the fact that this takes away a prior right it is clear that a Section 21 permit would be appropriate for, amongst others, foreigners who have large investments in businesses and/or game farms and who need firearms for personal protection or hunting.

The police are taking an unnecessarily strict approach and simply refuse the renewal application. A second example is even more pertinent. The police will not issue a Section 21 permit for a firearm that is in the possession of a dealer. No reason has been advanced for this decision and the Act and Regulations certainly contain no such prohibition. Someone, somewhere within the machinations of the SAPS, has decided that this is the applicable 'policy'.

However, what these unknown persons do not appreciate is that policy cannot be made behind closed doors. It must be made in consultation with the persons whom are affected by it and it must be derived in an objective fashion to achieve objectives that are in keeping with the purpose of the supporting legislation. An official cannot simply issue a decree saying 'no more Section 21 permits for dealers' unless a rationale exists for such a decision and the 'policy' passes other legal tests such as reasonableness and constitutionality.

Here is another example of (unjustifiable) police policy. Many a person is refused a competency certificate on the 'grounds' of his/her having been convicted of a crime - five or more years earlier and thus outside the parameters of Section 9 of the FCA. The police simply state that "...because of your criminal conviction, you are not deemed to be fit to be granted a competency certificate." The police have never in my experience answered a request for reasons to support such a refusal and merely leave the matter to the Appeal Board - if the applicant has the courage, money and patience to take the matter further. The vast majority of such totally 'irregular' competency certificate refusals are eventually overturned by the Board simply because the provisions of Section 9 place limitations on the effect of many criminal convictions.

The police have to have guidelines as to how they assess licence applications. If there are no proper guidelines, all decisions must then be arbitrary. You cannot grant a licence on gut feel or on a numerical basis - there must be criteria against which an application can be measured. SAGA has asked the director in charge of the Central Firearms Registry for the policy 'framework' used to govern firearm matters. Should no such policy framework be forthcoming then we will have to ask the High Court for a declaration that the actions of the police are unlawful and to order the police to establish, and make publically accessible, a clear and rational policy.

This would be in addition to our efforts to obtain satisfaction by using the Promotion of Access to Information Act. 2009 promises to be an interesting year for firearm owners. With the ending of the transitional provisions I predict that many unanticipated problems will arise and these will force the police and Government to reassess their hard attitude on firearm owners. If you come up against these 'unanticipated problems' or policy issues please send the details to SAGA's office and thus furnish us with some more ammunition for the forthcoming battles.

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During October 2008, six high court applications - against the Central Firearms Registry's and the Appeal Board's failure to make their decisions within a reasonable time - were lodged. And, I am pleased to say they were all 'successful'. I put 'successful' within quotes as - if the authorities were delivering the service they are well paid to do - the hassle and expense of going to court would have been quite unnecessary. Of the six, three cases merit some discussion right now.

In the first case, a designated firearm officer (DFO) in Gauteng declared a person unfit without even holding a hearing. The complaint addressed to his commanding officer elicited no response. An appeal was then lodged against the declaration, but the Appeal Board also remained silent. A year after the appeal was lodged, a review application was served. This time it met with a swift response - from the State Attorney and SAPS Legal Services. The declaration of unfitness was set aside.

The second and third reviews both involved firearm licence refusals and the Appeal Board's failure to respond within a reasonable time. Again it was the State Attorney and SAPS Legal Services that quickly stepped in and rectified matters.

What was encouraging was that I was 'unofficially' advised that applications for judicial reviews - based upon the Promotion of Administrative Justice Act, (PAJA) - were procedurally correct and that the conduct of the CFR was deserving of censure because they were obviously not acting reasonably.

The cynic in me says that these matters were promptly settled not simply because the authorities had no defence, but also (and more importantly) because settling out of court avoids the danger (to the CFR) of setting precedents. And, given the scathing comments of judges in some matters, the CFR certainly doesn't need more judges being exposed to the problems and arrogant attitudes that exist in certain quarters of the CFR and the Appeal Board.

The process of going to the High Court invariably requires the services of an attorney and advocate and quite a lot of the aggrieved citizen's valuable time. We must all be thankful that there are still brave souls who will not accept that their rights be trampled upon by high-handed officials. Although I am now speaking of firearm matters, unreasonable treatment and autocratic behaviour is a problem common to all kinds of matters - from a traffic ticket to a multi-million Rand land use development. So, every citizen has something to gain each time one man (or woman) takes the risk of standing up instead of sitting back in defeat.

One hopes that there will be an ongoing realisation within SAPS Legal Services and the offices of the State Attorney - as well as the private practitioners they employ - that the unreasonable administrative delays in the CFR are not only unlawful and unacceptable, but must be remedied. Under the old Act, firearm licences could be issued within three weeks - including safe inspections. I see no justifiable reason why it takes so long to issue a competency certificate and then a licence. I suggest that the new Minister and Commissioner set targets - say, an interim target of six months for the whole procedure (including replacing 'lost' files) with the intention to reduce this on an ongoing basis.

Sometimes the biggest delays arise at station level where applications are not logged into the system and safe inspections are not conducted. We all know that the police do not have (and probably never will have) adequate staff and other resources so we should all try to do our bit to assist. I tell everyone who asks how to speed up an application that the first requirement is to obtain an acknowledgement of receipt of the application - with the SAP86 number on it. This all-important number shows that your application has been logged onto the SAPS computer system and, once there, somebody is held responsible for processing same. If you have no SAP86 number, for practical purposes, your application doesn't exist and your pleas for help can be conveniently ignored.

Secondly, help the police by offering to drive them to your house to conduct the safe inspection. It is also useful to have your wife and other interviewees available at this point to be interviewed or to take them to the police station when you are submitting documentation. This should eliminate most of the regular 'reasons' for delays.

We have had reports of 'more than usual' difficulty in obtaining a licence for an 'occasional' handgun, and this is made even more difficult if you already have a licence for a 'self-defence' handgun. Some stations seem to accept and handle applications in the normal way, while others refuse to even accept an 'occasional sport-shooting' handgun application - especially from persons who already have a 'self-defence' handgun.

So, let's have a closer look at the Act. It terms of section 13 (Licences for self-defence purposes), the Registrar may issue a person a licence for only one 'self-defence' handgun.

Section 15 (Licences to be issued for occasional hunting or sports-shooting) restricts the firearms licensed in terms of this section to (a) any handgun which is not fully automatic and (b) any rifle or shotgun which is not fully or semi-automatic.

Section 15(3)(a) says no person may hold more than four licences under this section and subsection (b) reduces this to three licences if you have a section 13 (self-defence) licence - which may be a handgun, shotgun or rifle.

And now comes the problem... Section 15(3)(c) "A person may not hold more than one licence in respect of a handgun contemplated in subsection (1)(a)."

I was in parliament during the discussions on the Bill (which became the Act) and it was made utterly clear that the intention of the legislators was to allow the possession of one handgun under each of these two sections i.e. a self-defence handgun and an occasional sport shooting handgun.

The actions of the police services in (most?) Gauteng and Western Cape stations and the CFR seem to support this interpretation. But not the Free State where (some?) stations interpret it to mean you may have only one handgun 'period'. This anomaly(?) is probably the result of an incorrect 'opinion' written in March 2007 by an officer in the Free State SAPS Legal Services Department.

If you, from whichever province, are having this problem with your 'occasional sports-shooting' handgun licence application, please send written details to SAGA's office (see page 80) so we can establish if there is a pattern that we can do something about. (SAGA's office will be closed from mid-December to mid-January, but letters, faxes and emails will be attended to as soon as possible after reopening.)

Let me now touch on two further issues that SAGA is working on on behalf of firearm owners. The first concerns 'ballistic testing'. It appears to be a matter of routine for the SAPS to take - for 'ballistic testing' - any or all firearms allegedly used in every alleged crime they respond to. The owner is then deprived of the possession and use of his firearm for a substantial and unreasonable time.

This appears to be an immutable rule, and it is wrong. Two simple examples should make this clear - even to those unwilling to think and act reasonably. If you point a firearm in self-defence but do not discharge it, and a charge is laid against you for pointing a firearm, no ballistic test on earth will prove anything. If you point a firearm in self-defence, and freely admit to so doing, there is no need to take the firearm away from you.

Now let's say that you 'produce' a firearm to protect yourself from a vicious dog. The dog's owner then (wrongly) accuses you of discharging a firearm. The gun has not been discharged in 22 years. All the ballistic testing will prove is that the gun was not fired.

Once the police have taken your gun, however, they seem to try hard not to return it - I have had to go to magistrates' courts to force the police to return such firearms. But, why go to all this trouble to test so many 'uninvolved' guns? If my suspicions are correct, it is quite simple - the SAPS are probably trying to build up a ballistic 'finger-print' of all legal guns.

The Firearms Control Act does not provide for such action or unreasonable deprivation of property. SAGA has written to the Minister and Director Bothma to get clarity on the policy being followed, but we are unlikely to get an answer anytime soon.

The issue of cap-and-ball revolvers has again risen its head. Notwithstanding the fact that the SAPS initially deregulated these revolvers and allowed them to be imported and transported without a permit, I know of two persons who have recently been investigated and face charges relating to their possession and transportation of muzzle-loader or cap-and-ball revolvers. It appears that the charges were initiated by the CFR - I can only assume this is to 'test' whether, under the current wording of the Act, cap-and-ball revolvers are firearms that have to be licensed. In terms of the definition in the Amendment Bill (that has been awaiting promulgation for some time) cap-and-ball revolvers become ordinary firearms but provision still has to be made to cater for all those 'innocently possessed' 'illegally-held' firearms.

The charges against these two 'laboratory animals' are an out and out abuse of the law and completely contradicts the SAPS's initial efforts to simplify and hasten the horrendous task of 'cleaning up' the data on the firearm register... which I understand is sinking further and further into the quagmire.

SAGA will do everything it can to help ensure fair treatment for these two 'victims'.

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If your birthday was in October, November or December, it is time to apply to renew those licences issued to you in terms of the 'old' Act and, as you may be in for some surprises, I am going to 'expose' you to some of the so-called 'reasons' given by SAPS when rejecting firearms licence applications. The purpose of the exercise is to show that, if the Central Firearms Registry (CFR) does have some kind of official policy to guide the officers who consider your applications, then it is not consistently applied.

Correction! What is consistently used however is the list of standard, tick-the-box 'reasons' for refusing to grant you a licence. Included in the documents sent to me for a court case last year was a list of approximately sixteen reasons the SAPS use for refusing a licence - two of these had been ticked and it was these two which appeared on a 'refusal' letter. This was no coincidence because these reasons consistently appear on licence refusals.

Now let's look at the reasons for refusing Mr X of the Eastern Cape a license for occasional hunting purposes under Section 15 of the Firearms Control Act (FCA). Please bear in mind that there is no guidance in the Act or the Regulations as to what information should be provided when making an application for a licence. The application form (SAPS 271) provides only five shallow lines for your motivation and nowhere on the 12 page form are you invited/requested/ordered to provide additional information or documentation. So, why is it reasonable to reject Mr X's application because: "You failed to supply any supplementary documentation in support of your motivation". As no guidelines are given as to what supplementary documentation should be provided, this 'reason' is merely a 'convenient excuse' to refuse an application whenever the CFR wants to. It appears that the SAPS expects applicants to be clairvoyant and 'foresee' what supplementary documentation should be provided. This is clearly unfair and thus in contravention of the constitution.

To refresh your memories, Chapter 10, Section 195 of our constitution is subheaded "Basic values and principles governing public administration".

Subsection 195(1)(d) states "Services must be provided impartially, fairly, equitably and without bias."
Subsection 195(1)(e) states "People's needs must be responded to, and the public must be encouraged to participate in policy-making."
Section 195(1)(f) continues the theme with "Public administration must be accountable."

Even a lay person can see that the SAPS is not complying with these principles. The 'policy' (if any) is known only to the SAPS, who by not explaining their decisions as they are constitutionally obliged to do, clearly do not regard themselves as accountable to law-abiding citizens. We were certainly not allowed, let alone "encouraged to participate in policy-making."

I recently came across a very interesting booklet titled "The Promotion of Administrative Justice Act, The Administrator's Guide". This was written by the Justice College and the GTZ German Technical Co-operation Committee, and edited by Greg Moran. This booklet has proved to be a wonderful source of assistance in dealing with the State.

This guide goes into some detail about the Batho Pele ('people first' in Sesotho) principles and states, inter alia, that from 1 October 1997, the South African Public Services has been guided by a new service procedure and framework - the Batho Pele white paper, the main message of which is that the purpose of the public service is to serve all people of South Africa. The basic principles of Batho Pele are:- 
1. Regular consultations;
2. The setting of service standards;
3. The increasing of access to services;
4. Better levels of courtesy;
5. Provision of more and better information about services;
6. Increase openness and transparency; and
7. The remedying of failures and mistakes.

Can anyone tell me which of these objectives the SA Police Service and Central Firearms Registry are striving to achieve? In my experience it is simply not happening.

Back to the Eastern Cape and Mr X. The second 'reason' the CFR presented for the licence refusal was "You did not convince the Registrar of the circumstances or reasons that necessitate the possession of this firearm." In Section 13 of the FCA it is stated that "The Registrar may issue a licence under this section to any natural person who needs [my emphasis] a firearm for self-defence; ...". But Section 13, self-defence firearms, is the only Chapter 6 (Licence to Possess Firearm) section that mentions the word 'need'. (Note also that no definition of 'need' is provided.) Mr X was applying under Section 15 - Occasional hunting and sport-shooting. The SAPS however, consistently demand that applicants prove a 'need' for non self-defence firearms.

The next 'reason' given was "You failed to provide any detail, information or supporting documentation that you from time to time take part in hunting activities". On the face of it this does not appear to be unreasonable, i.e. if you hunt please tell us where, when and what you hunt. But it does pose some problems for would-be hunters who have no history and can only state their present intent.

Please bear in mind that neither the Act nor SAPS' systems allows the licensing of a firearm for more than one purpose. This means that, if you have one firearm that you may use for, say, clay target shooting and hunting, you have to decide on its likely main use. This is very inflexible and is problematic because people often state that they want to use the firearm for more than one purpose and this either generates a query or, much worse, a refusal because the police can't decide what purpose should be put on the licence.

If you need to licence a firearm for business purposes the entity that will own the firearm has to be accredited for one of the purposes specified in Section 20 of the FCA. Other than for security companies, where the purpose is very precisely defined, there are again no guidelines. It is difficult to 'fit' a variety of firearm uses into one heading. Game farming is defined in the Regulations as "Breeding and running game on a game farm for the purposes of game being hunted or harvested for their meat, carcass, skins or as a trophy against payment of a fee." This is quite a precise definition and sets out some exact requirements. It follows however, that if you want to farm game as a business and you need to make firearms available to 'foreign' hunters then you should license those firearms for game farming purposes. Obvious? Not to the CFR - one reason given for refusing a business licence for game farming is "You failed to prove that the firearm is required for breeding and running game on a game farm."

If anyone, in non-crude terms, can explain to me how a firearm can be used for breeding and running game, please direct your advice care of Magnum.

To substantiate the point about the overuse of 'standard' reasons, our game farmer was also given the following:

"You failed to provide any substantive and/or adequate reasons in order to proof [sic] that a need exist to possess this particular firearm;

"You did not convince the Registrar that circumstances exist or reasons that necessitate the possession of a firearm for game farming; and

"Did not provide relevant comprehensive motivation to substantiate or supplementary documentation in support thereof."

I think it is fair to conclude that should you wish to license a firearm, the following minimum information should be provided - despite the unreasonableness inherent in the process.

Firstly, the purpose for which you want the firearm. Hunting or sport shooting will not prove sufficient. State where, when and what you want to hunt with it and demonstrate the appropriateness of the firearm for that purpose. Likewise for sport shooting.

Your motivation should be supported by comprehensive details about who you are, what you are, your position in your community, etc. Attach testimonials to confirm your employment, your involvement in social activities, church activities, hunting or sport shooting activities as the case may be.

Provide as much biographical information concerning yourself as you possibly can. Once again using a hunting rifle application as an example, say whether your father or other relatives are hunters and if you have hunted with them and how hunting is part of your 'cultural activities'. Include photographs of your activities, of your house, of your safekeeping facilities...

You can never supply too much information, more is likely to be more successful than less.

Only when we have a practical set of 'official guidelines' or the mysterious 'policy document' will it be possible for SAGA to offer members more concise advice that should work - provided the SAPS "consistently play by the same set of rules". This would save all of us, and every policeman involved in the process, an enormous amount of time, trouble and money.

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Last month I briefly touched upon the issue of what will happen on 1 July next year when all Arms & Ammunition Act firearm licences are scheduled to expire in terms of the transitional provisions of the Firearms Control Act.

Hundreds, if not thousands, of people have not (yet?) applied to renew their firearms licences for a variety of reasons - from blissful ignorance to the principled stand that firearm licences are valid for life unless the holder becomes disqualified for one reason or another.

I have also discussed the implementation of the legislation with the SA Police Services and the National Prosecuting Authority who are tasked with enforcing the legislation. The latest research once again shows that only a small percentage of the case dockets opened are fully investigated, even fewer go to court, and few of those result in convictions. As a general rule, investigators and prosecutors give higher priority to the more serious offences - such as murder, rape and armed robbery - than statutory, but victimless, offences such as the many created in terms of the Firearms Control Act. When announcing the review of our criminal justice system, the Deputy Minister of Justice, the Honourable Johnny de Lange, told the nation something that most of us already knew - all divisions of our justice system are already hopelessly overburdened and thus incapable of delivering speedy justice.

Now, on 1 July 2009, tens of thousands of ordinary citizens who pose no danger to society, will wake up as unwitting criminals. 'Introducing' all these citizens to the criminal justice system will overburden the system even more. Unofficially, many experienced and pragmatic prosecutors do not regard these statutory offences as a priority. For example, in a recent, well-reported, criminal case in the Western Cape, a person was found to be in illegal possession of several firearms, ammunition and explosives. However, the court also found him to be a person 'fit to possess' firearms. He was therefore given an extremely lenient sentence. The magistrate's reasoning was quite straightforward - he drew a distinction between a 'real criminal' who harms other people and somebody who merely contravenes a statute but who ultimately intended to comply with the requirements of the statute. Where appropriate, minimum sentences have also been applied to some of the firearm owners I have represented in court.

The purpose of all the aforegoing is to make a case for an amnesty as is contemplated in Section 139 of the Firearms Control Act. The possibility (and benefits) of an amnesty is under discussion in police circles and I would like the debate to be broadened and pressure to be placed upon the police and the new Minister to announce such an amnesty. We probably all know someone who, in all innocence, did not know that he/she had to apply to re-license his/her firearms. I have been told that the police (or some of them) would favour an amnesty which offers a sanction-free opportunity to hand in unwanted firearms or apply to re-license them. As it happens, I am now beginning to see licence refusals coming in for people who handed in firearms in terms of the last amnesty and who took up the then Minister's invitation to apply for licences.

Although amendments to the Firearms Control Act were completed in October 2006, we are still awaiting the publication of regulations. When you read this it will already be October 2008 and my guess is that the regulations will not yet have been published. There are a number of reasons for this, some legitimate, others more sinister. Sources within the police tell me that the persons who were tasked with drafting the regulations have been 'recalled' and the task reallocated to somebody else. One hopes that the police will take advantage of this delay to consider renewal and other pertinent issues raised in the comments of the various organizations, particularly those in respect of cap and ball or black powder revolvers. It appears that cap and ball revolvers are the biggest problem because the police want to force people to license these, but they cannot do it through the regulations because the empowering legislation does not provide for this. This I might add, is a move that we must resist - if necessary by recourse to the Courts.

In 2004 the regulations were published over Christmas with a very short commentary period when most people were out of their offices and homes and were therefore not in a position to consider the regulations. If this tactic is repeated this December, we will join the 'club' and demand an extension to the time periods. We have already asked the SAPS not to publish the regulations at a time when people will generally not be able to provide constructive comment.

A lengthy legal battle with the SAPS finally came to an end recently. The matter has been reported in the media and the court proceedings can now be accessed by the public. A dealer imported a large shipment of firearms that were classed as 'restricted' in terms of the Arms & Ammunitions Act. As is not particularly unusual, a variety of bona fide logistical problems resulted in the firearms arriving in the country before the import permit was issued. When the SAPS declined to issue the import permit, evidence was presented to the Appeal Board to substantiate the claim that it is common for import permits to be issued retrospectively. The Appeal Board did not agree and the appeal was declined. Application was made to court for a review of this decision in terms of the Arms & Ammunitions Act. The judge turned down the review application. The dealer was not about to give up and applied in terms of the Firearms Control Act for an import permit, which was automatically declined. An appeal was lodged against this refusal, once again in terms of the Firearms Control Act and for reasons best known to itself the Appeal Board declined to make a decision.

The provisions of the Promotion of Administrative Justice Act were invoked and a further review application was set down before the High Court. The court was asked to declare that the Appeal Board's lack of a decision constituted a refusal and court was requested to set aside that refusal. This order was duly granted against the Appeal Board and the SA Police Services. Nevertheless, the Appeal Board still refused to issue the import permit and approached the High Court to set aside the order to grant the import permit. This application was once again turned down by the High Court. The reasons for the decision have not yet been published, and I cannot comment on the Judge's reasons. What is clear however, is that he was not impressed with the Appeal Board's efforts to have the judgement rescinded. This saga took nearly five years from beginning to end with the taxpayer obviously fitting a large part of the legal bill.

What is interesting however, is that notwithstanding the fact that the Appeal Board did not make a decision publically, I was inadvertently provided with a communication from the SA Police Services to the State Attorney indicating that a policy decision had been made not to grant the import permit. We can assume that, because this policy decision was not legally justifiable, it was never raised in the court papers.

DEAT (Dept of Environmental Affairs & Tourism) has published its proposed "norms and standards for management of damage causing animals in South Africa". This is a continuation of the TOPS (Threatened or Protected Species) Regulations and once again has a significant effect on many aspects of hunting and therefore firearm ownership. SAGA has been monitoring the situation and is preparing comment in this respect.

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In his judgement handed down in the High Court (Transvaal Division, Case No: 38397/2005) on 25 July 2008, the presiding judge was extremely critical of how Director Jaco Bothma and the Chairman of the Firearm Appeal Board treated certain licence applications submitted by firearms collector, Mr GJG Black. In what has become known as the 'Black Judgement', the following order was made: "The respondents [the Minister, Director Bothma and the Chairman of the Appeal Board] are ordered to forthwith issue the said four licences... to the applicant."

I hope I am wrong, but I fully expect the SAPS will find reason to appeal against this judgement. If they do, I trust that they will at least take note of the judge's comments and make an effort to modify their usual, somewhat arrogant, attitude towards and disdainful treatment of those who wish to acquire firearms for legitimate purposes.

It should be totally unnecessary for citizens to be forced to 'go to court' in order to force the SAPS (or any government department) to do its job in a fair and just manner. Our Constitution demands that everyone is entitled to fair and proper treatment - not only the few who can find the finance (or obtain the support of a well-funded civil rights organization of some kind) to take on the state in the courts. As we don't live in a perfect world, we should all be grateful that there are people like Mr Black who keep pushing for reasonable implementation and interpretation of the Firearms Control Act.

Back to some selected quotes from that judgement: "The Second Respondent's [Director Bothma, Head of the CFR] conduct in fact made a mockery of the process of registering as a collector and registering specific themes."

In his affidavit, the Chairman of the Appeal Board wrote: "The applicant has laid no basis whatsoever for the contention that the decision of the Second Respondent was wrong." (i.e. CFR/Bothma's refusal).

On the above the Judge stated: "This statement by the chairman is unacceptable. It is clear that the reasons given in the letter by the second respondent [Bothma] to the applicant [Black] are not really applicable to the applicant, a fact which the second respondent and the third respondent [Bothma and the Appeal Board] clearly did not comprehend. There was, in fact, nothing for the applicant to disprove."

The Judge later stated: "...I am, indeed, to put it mildly, distressed to note that none of the members of the third respondent [Appeal Board] could, and did, deal with the appeals of the applicant from the perspective of an expert collector. This is unacceptable. ...This is a serious and material flaw in the process followed by the respondents and this court must interfere."

I have no doubt that the following comment of the Judge will 'confirm the suspicions' of many an unsuccessful appellant: "One gets the unfortunate impression that the third respondent merely rubber stamped the refusals of the applicant's applications by the second respondent."

It is to be hoped that the planned review of the Criminal Justice System recently announced by Minister Johnny de Lange will, inter alia, come up with a way to deal with the dilatory approach of the State in general when it comes to administrative processes and administrative justice. I know from personal discussions with other attorneys, advocates, judges and magistrates that there is an increasing level of frustration with the inability of the State to deliver the services it is obliged to provide in terms of its own legislation and the Constitution.

After the 'Black Judgement' was published, SAGA called upon the Minister for Safety & Security to immediately acknowledge the lack of expertise in his department (as highlighted in this judgement) and thus the need for the urgent formation of the Ministerial Consultative Committee envisaged in Section 132 of the Firearms Control Act. I received a prompt, courteous, and unacceptable, reply - the matter is being dealt with by the State Attorney. I take that to mean that an appeal may be made against the 'Black Judgement', which is a pity.

Because of lengthy administrative delays, particularly in the issuing of competency certificates and licences for business purposes, I have embarked upon a process to compel the SAPS to speed things up. The Promotion of Administrative Justice Act provides that all administrative decisions must take place within a 'reasonable time'. If a decision is not made within a reasonable time, this can be deemed to be a refusal - which the relevant appeal body then has jurisdiction to deal with. There is no definition of 'a reasonable time' but the legislation was put in place to 'encourage' prompt decision-making.

I have now lodged, on behalf of a client, an appeal in terms of Section 6(2)(g) of the Promotion of Administrative Justice Act of 2000 as read with Section 133 of the Firearms Control Act, which provides that the Appeal Board has jurisdiction to deal with any issue relating to the issuing of a competency certificate, licence, permit or authorization. The Appeal Board has to hear appeals - against licence refusals, etc - and disenchanted licence applicants must go to the Appeal Board before approaching the High Court.

I therefore asked the Appeal Board to declare a) the CFR's failure to make a decision to be a refusal; and b) that the Appeal Board now has jurisdiction over the matter. The purpose of this is to ensure proper administrative action. If the Central Firearms Registry cannot do it, the Appeal Board must do it. If the Appeal Board becomes overwhelmed or refuses to deal with these issues, then the High Court will have jurisdiction and may compel the Appeal Board and the CFR to act reasonably and promptly.

On administrative matters; I believe that the re-licensing statistics (released in answer to a parliamentary question) published in last month's Magnum deserve some examination. According to the 1998 'Firearm Facts' by Rob Chetty of the SAPS there were 4.52 million firearms in licensed hands; more recently Director Bothma told me that in his view there were only 1.5 million licensed firearms. So, what happened to the 'missing' 3 million?

The police have apparently destroyed about 500 000 in terms of the amnesty, guns handed in, firearms recovered, etc.

Some firearms that have been reported lost, stolen or destroyed have not yet been removed from the database.

I don't know how many, but airguns and muzzle-loaders are no longer 'firearms' that have to be licensed.

If the above three items total, say, one million, we still have two million to find.

Are the statistics being 'massaged' to put a spin on the re-licensing figures? The 'Magnum' stats record that 601 000 re-licensing applications (including business firearms) were received during the first three of the four re-licensing periods. That's 200 000pa,so unless something really remarkable happens by 31 March next year, the SAPS will have had applications to re-license 800 000firearms. If we use Director Bothma's extremely (suspiciously?) low estimate,700 000 (or 2.7 million, depending on how you choose to look at it) firearms will be waiting to become illegal on 1 July 2009.

Let's say that 200 000 of them will be sold (i.e. have been lawfully disposed of) during the first half of next year. The problem is that those firearms have to remain in the seller's possession (which becomes 'illegal' on 1 July) until the new 'owner' gets (or is refused) a licence 18 months or two years later. The Act doesn't appear to have provided for such conundrums.

It seems as if we are courting chaos, or, as they say in the classics "Something's gonna hav'ta give..." I've done enough speculating for this month, let your imagination roam free...

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Shock! Horror! You've just opened your concealed handgun safe and found that your Colt Government Model is not where you thought it was. A frantic search through your main safe and where ever else you might have stored/hidden it turns up negative. You know that 'losing' a firearm is a very serious offence, so good citizen that you are (or try to be), you take yourself down to the SAPS to confess your sins. Wrong. Especially when in a state of (mild?) panic. Settle down and think before making a sworn statement of any kind. Let me explain.

Section 120 of the Firearms Control Act specifies that it is an offence to lose a firearm or have it stolen from you while it was not on your person, directly under your control, or in a locked safe. To an ordinary SAPS member, this strict (literal) interpretation of the Act means just that - you have committed a serious offence and he will happily accept your 'admission of guilt' which can lead to a criminal conviction and a declaration of unfitness.

However, it isn't necessarily so. There is a broader view and many prosecutors will acknowledge this and withdraw charges if an attorney draws this fact to their attention. The standard approach of the police is incorrect. I've dealt with this previously, but the principle is that a self-incriminating statement cannot be used against you - unless you were warned of your rights before making that statement and you were aware that such a statement could incriminate you. The right against self-incrimination is a constitutionally enshrined right. Unthinking (or undertrained) police officers and some prosecutors however, inadvertently or deliberately, overlook this fact. So, before you report a firearm lost, stolen or destroyed, obtain legal advice on the wording of your statement.

More important is the police and prosecutorial interpretation of Section 120(8). Strict liability or a strict interpretation of legislation - unless specifically provided for in such legislation - has no place in South African law and the following principles apply. The current wording of Section 120(8) is very similar to the old Act, and section 120(8)(b)(2) of the Act itself acknowledges the requirement of reasonableness - this requirement is almost always overlooked or 'forgotten' by the police. The effect of the reasonableness requirement however radically changes a person's potential guilt. Some examples of cases dealt with in terms of the old Act (Arms & Ammunitions Act 75 of 1969) may suffice and here I will use the cases of State vs Robson, State vs Hattingh, and State vs de Klerk.

In the de Klerk case, the firearm was locked in a car. Due to the specific circumstances, the presiding High Court Judge ruled that locking a firearm in a car in such circumstances was not unreasonable and de Klerk was therefore found not guilty of the negligent loss of a firearm. It follows that - although it is not to be encouraged - the practice of locking a firearm in a car may not constitute an offence. So, do not plead guilty to an offence before obtaining proper advice.

The other two cases also provide interesting reading. In one case the accused put his firearm in his briefcase in his own office, put the briefcase into a drawer, and locked his office. The firearm was stolen but he was found not guilty because his steps were found to be reasonable in the circumstances.

In the other case the accused, who worked in an open workshop, in full view of his workmates, placed his firearm into his lunch box and closed it but did not lock it. His firearm was stolen and he was deemed to be negligent and convicted accordingly.

The principle is that you are not automatically guilty if you lose a firearm or if it is stolen or destroyed. Your innocence or guilt must be assessed in terms of the prevailing circumstances and whatever facts the State can prove against you. The same applies if your safe keys are used by an unauthorised person to gain access to a safe and remove firearms. Charges have been withdrawn after representations were made to the prosecution showing that the keys were hidden where no one had a 'reasonable' chance of finding them. The keys were found and firearms were stolen by a trusted member of the household or an employee. The prosecution deemed the actions of the accused to be reasonable - in such circumstances. So please be aware of your right to legal advice and do not plead guilty to an offence in terms of Section 120(8) before you obtain such advice.

A section 102 enquiry is an administrative enquiry set up to determine your fitness to possess firearms. Your rights in such an enquiry are contained in Section 102(3). I have had a number of cases that make me believe the procedure adopted by the SAPS is a deliberate one but it is incorrect. The person subject to such an enquiry has the (very important) right to request the Registrar to call any person who made a statement to appear before the Registrar to be cross-examined to test the evidence he/she may have given in the statement.

However, the police seem to believe that all that is necessary to institute a Section 102 enquiry is a sworn statement to the effect that a person is inclined to violence or abuses drugs or alcohol, or is a danger to himself or a third person, or a final protection order in terms of the Domestic Violence Act has been granted against him, or has failed to take the prescribed steps for the safekeeping of a firearm, or has provided misleading information to the police. If they receive a statement containing any of the above allegations, the police can and generally do institute a Section 102 enquiry and then have a discretion to declare a person 'unfit to possess' which has enormous ramifications for a firearm owner.

Although guidelines are provided in the Act, it has been my experience that the police accept the contents of affidavits - without calling on its maker to confirm the facts - and more seriously, without allowing the 'accused' the fundamental legal right to challenge their accuser and cross-examine him/her. The police then give more weight to such statements than to the oral evidence of the 'accused' who is present at the enquiry and who is subject to the enquiry. This is a complete misunderstanding and misapplication of the law of evidence. We have a principle in our law that the best evidence is oral evidence tested under cross-examination - any other forms of evidence are, generally speaking, regarded as lacking the evidentiary weight of tested oral evidence.

I have had examples of section 102 enquiries where a person was declared unfit when the record was not a certified record and did not accurately reflect the evidence of the witness. 'Evidence' that was not specifically intended for a Section 102 enquiry (typically affidavits given in domestic violence matters) is frequently used by the police despite the fact that the complaint had already been dismissed by the court.

The police are obliged to consider all 'evidence' submitted but must allow a person (the 'accused'?) reasonable opportunity to advance reasons why they should not be declared unfit. The enquiry must give due thought to the matter and must be satisfied that the person is indeed unfit before so deciding. It seems to me however, that the police are too quick to declare a person unfit and simply accept such affidavits without due regard to the rights of the 'accused'. This is extremely problematic because the Appeal Board is not sympathetic to procedural irregularities.

It is extremely difficult to obtain a proper record of proceedings in Section 102 enquiries because the police do not keep a proper record even though the law obliges them to do so. I have a case on hand where a Superintendent indicated that an enquiry was held in the absence of a person (which is not provided for in the current form of the Act) and proceeded to declare the person unfit. There is no record of the proceedings and it is quite clear that an enquiry was not conducted. (You would like to think that the SAPS would do the 'right thing' and dismiss this particular officer for reasons of dishonesty. I am not holding my breath.)

Unfortunately the probability is that persons subjected to a Section 102 enquiry will be declared unfit. In the circumstances prevailing at present, it is critical that you insist that a proper record of proceedings be kept - if possible record such proceedings for yourself. Try to obtain legal representation - an attorney or advocate is more able to insist that the SAPS adhere to proper procedures.

The reality of the situation is that an ordinary member of the SAPS is not equipped to properly exercise the discretion granted him in terms of the Act and is not equipped with the relevant training and understanding to apply the legal principles necessary justly to enforce the provisions of the FCA.

I am also of the view, that Section 102 enquiries may be declared unconstitutional because they allow a legally untrained person to alter the legal status of a person. This power to declare a person unfit and change their status is a power that normally only a High Court has jurisdiction to exercise.

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No, I won't be talking about any formal FET courses, this is about some of life's lessons - courtesy of continuing interaction with the courts, the Central Firearms Registry (CFR), the Firearms Appeal Board and, if space permits, Gauteng's Metro police.

Let's start with the problems of a law-abiding licensed firearm owner I'll call 'Mr Jones' who in all innocence went along to his local DFO (Designated Firearms Officer) to renew the licences for his five firearms - two handguns, one rifle, and two shotguns. Somewhat unusually, the station accepted his applications (and the fees) and forwarded the applications to Pre-toria. I said 'somewhat unusually' because DFOs are not inclined to accept applications for an 'excessive' number of firearms. Most would have said, "You can't have two handguns, get rid of one" or as Mr Jones did not have 'dedicated' status, "You can't have two shotguns, which one do you want to renew?". Or, even "You can apply to renew one handgun, one rifle and one shotgun". Of course, had the DFO tried to block one or two of the applications, Mr Jones would have been well within his rights to insist that the DFO does not have the authority to "refuse to accept".

Anyway, when the renewals reached Pretoria the CFR approved four of the five and refused one. Naturally, they just had to choose the one Mr Jones valued most highly - one of the two shotguns. Being well qualified and in good standing with his association, Mr Jones was quickly granted dedicated status and asked the Appeal Board to review his renewal application as his new status allowed for him to have the second shotgun. The Act allows the Appeal Board the discretion to accept 'new evidence'. The Appeal Board declined the appeal on the basis that Mr Jones did not qualify for a second shotgun licence at the time that he applied and that they could not now remedy his lack of qualification.

We can draw two conclusions from this. The first is that the Appeal Board took an extremely narrow approach. Their reasoning cannot be criticized on legal grounds as it is technically correct. However, given the 'right' attitude, the Appeal Board could quite easily have condoned his late acquisition of status and approved the application. This tells us at least two things. The Appeal Board will not come to the assistance of a deserving Appellant and that it will look for reasons not to allow a licence rather than taking a broader view and applying the principles of the Constitution, particularly those that protect private property and demand administrative justice.

Those readers who have until March 2009 to renew their existing licences must learn from this. As far as is humanly possible, comply with every letter of the law. Do not expect the SAPS to actually help you to renew your licence/s. Some service members probably will, but if you are serious about your guns, you cannot rely on getting sympathetic attention. And, do not wait until the last minute rush, that's when mistakes are so easily made.

In terms of our Constitution, both the SAPS and the Appeal Board are supposed to be guided by publically available policies when making decisions that affect citizens. Such a document would be of great use to all current and potential firearm owners - and smooth the process for all concerned. Despite our best efforts, we have been unable to acquire a copy. Could it be that the SAPS is acting in breach of the Constitution?

In the Johannesburg High Court last year, Acting Justice Horwitz issued a judgment ruling that if you dispute receipt of the summons, the Criminal Procedure Act does not allow you to remain under arrest for a traffic fine. The principle is very simple and came about as a consequence of the Plaintiff summonsing the Metro Police for unlawful arrest. He was successful in his action for damages. Despite this, the Metro police are still arresting motorists picked up by their very sophisticated road block system - a photograph of your number plate is relayed to a central database and a siren automat-ically sounds off if you have outstanding fines. It's just about instant and it's amazing to watch them pick on soft targets. It happened to me - a summons had been 'served' on a domestic worker and hadn't been passed on to me. I brought the judgment to the attention of the officers, I disputed receipt of the summons, and asked if I could please go. To paraphrase their response, they said they don't know about the judgment and they don't care about it. What do you do? Resist arrest and get manhandled or shot? Submit to the arrest, spend the weekend in an over-crowded cell, and hope to get out in condition to sue? (I won't go into the potential hazards of such a weekend.) Credit cards are accepted. This shockingly intimidatory tactic must be roundly condemned. (I cannot prove it, but I am almost certain that those law 'enforcement' officers had knowledge of that judgement and weren't going to let it get in their way.)

The Professional Hunters Association (PHASA) recently held its second Wildlife Heritage Gala Evening to raise funds for the Southern Africa Wildlife College. The college, a non-profit organisation that trains natural resource managers from all over the SADC, has been doing a sterling job for the past 10 years but has a constant battle to fund its activities. Enter PHASA's 'Black Tie' Gala Evening. The event, MCed by the very humorous Peter Ndoro, was a resounding success. Two students, Giyani Mngomezulu and Alistone Mwanza, spoke on the activities that they are involved with in Zambia and it was heartening to see their dedication to wildlife conservation. The more such students the college can produce, the better - for the wildlife, the environment and the future for hunting.
The keynote speech was given by Dr Hectar from National Parks. His message was very simple. Hunting is an integral part of conservation and the two cannot be divorced. He congratulated PHASA and other organisations for their contribution towards conservation and urged us to focus on smaller conservation issues - like the bees and the butterflies as opposed to big four-legged animals (which are now adequately conserved) - and to encourage bio-diversity and bio-conservation by converting more land to its natural state en-vironment and less to building and developing 'Tuscan eco slums'. PHASA must be congratulated for its efforts and ability to interact with government at senior level.

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With the third tranche just completed, a few observations about the latest round of the relicensing process. Feedback that I and the SAGA office have received is that citizens and police officers are generally better informed but the usual last-minute rush was again characterized by long queues and some short tempers arising therefrom. It is clear that the police are not equipped to deal with the number of applicants they expected. That people, the world over, tend to leave everything until the last possible moment (particularly something as unpalatable and cumbersome as this firearm licence renewal procedure) should have come as no surprise. In places people had to queue for up to 12 hours - some gave up in desperation, and some others eventually found that they were in the wrong queue or at the wrong police station. (The atmosphere in the queues was very unlike that evident in a 'voluntary' queue for, say, concert or test match tickets.)

Although few Magnum readers see any real need for the new Firearms Control Act, or like the convoluted regulations and attendant hassles/costs, as law-abiding citizens we have no option but to jump through the hoops that seem custom-made to discourage firearm ownership. In other words, reapply for your licences - and do it in good time.

On this year's cut-off day (31 March), I made the point that this process is a contract between firearm owners and the police. The police require us to re-apply within the specified time, then we can require the police to process our applications promptly and efficiently. Fair is fair. In fact the law, in the shape of the Promotion of Administrative Justice Act, requires (demands?) that the SAPS (and all organs of state) perform their duties expeditiously. Even if one accepts that the relicensing process is necessary (which I don't) we have to ask ourselves what is the point of the police taking in all this mass of paperwork and simply not being able to process it within a reasonable time thereafter? Harassment of firearm owners perhaps? I know of police stations where applications have not moved an inch in over two years. Similar cases are regularly brought to my attention. (A senior member of the service once suggested that it should be a criminal offence for a police officer not to deliver speedy service. Many a true word is spoken in jest... we concluded that there would be very few policemen on the ground if this became law.)

I am now receiving notifications that appeals that I lodged on behalf of clients in 2004 were successful. Such delays are simply intolerable and are just one indicatorthat our public administration is in very poor shape. Ordinary firearm owners with existing licences are comparatively 'lucky' - the very handing in of your renewal application extends the validity of that licence until a decision is made. This 'concession' constitutes an admission by the SAPS that they are in no position to cope with their (self-imposed) workload. Strange how I felt compelled to say 'lucky'. Lucky has become a comparative term; as in 'lucky' the hijacker took 'only' your bakkie and not your life.

Applicants for social grants are not so 'lucky'; they do not get the grant before the decision is made. A mining company cannot open a new mine until permission is given. For just about every 'economic activity' you need at least one permit, licence or other authorization - each stage is an 'opportunity' for bribery and corruption, each delay adds to the cost of doing business, employing staff, investing in assets... Slow administrative action is hugely detrimental to the economic good health of this country. Why then does this waste of time, this hidden cost, this huge factor in our much debated inflation rate not make the headlines more often? I don't think it was touched on in the 'State of the Nation' address; or in a Monetary Policy Committee reasoning for an(other) increase in the interest rate.

Within our ambit, the non-delivery of service to the security and hunting industries is a startling example. During the hearings on the Act, the parliamentary portfolio committee instructed Director Bothma to ensure that business applications were processed promptly so that the security industry was not hindered in the performance of its services. What happened? Security companies are not getting licences. Central Firearms Registry requirements make the obtaining of licences difficult and time-consuming. The straw that breaks the camel's back is that the number of licences a security company may obtain is linked to the number of its employees who have valid competency certificates. Sounds reasonable, doesn't it? The process breaks down because the SAPS can't process the applications for competency certificates quickly enough. I am given to understand that, in order to properly serve their clients, security companies are forced to break the law by issuing firearms to competent staff who are not yet certified. This unacceptable practice cannot be condoned. The police who are supposed to be the upholders of the law, through their administrative procedures, are for-cing business to break the law in order to perform the function of the police in protecting citizens. Ironic isn't it?

The security industry should ask the courts to force the police to process 'business licences' quickly and in accordance with a disclosed set of rational policy guidelines. The SAPS are getting away with murder (so to speak). They are simply ignoring the fact that they are obliged to perform their functions within a reasonable time and in accordance with established guidelines and policies that are accessible to the public. We need to enforce our rights, not only to ensure fair treatment, but to show the courts and government that the processes of the Firearms Control Act do not work and need to be reviewed.

At the same time somebody should budget sufficient time and money to educate our police officers - specifically on the requirements and consequences of the Firearms Control Act. East Coast Radio played a recording of the spokesperson for the Western Cape's designated firearm officer in which he clearly said (threatened/warned?) that if you did not apply to re-licence your firearms, your licences would be cancelled. This statement intimidated many firearm owners into believing that - because they had broken the law - they had to surrender their firearms. I have no idea whether this misstatement and misrepresentation was intentional or a simple display of ignorance, but disciplinary action should be taken against any senior policeman who makes such a wrong and misleading statement. The fact of the matter is that, as the SAPS is the statutory authority charged with enforcing our laws, it should be accountable to any persons who surrendered firearms in the mistaken belief that they had to do so.

This was not an isolated example. In a national radio advert the SAPS stated that people had until 31 March to "renew permits, licences or authorisations". This statement was also incorrect - the time period to renew permits and authorisations had already passed when the advert was aired. The requirements for the renewal of permits and authorisations are different to those for licence renewals. Clearly confusion reigns.

Think carefully about this: renewing a licence is relatively easy compared to obtaining a new firearm licence. There is both a reason and a purpose for this. The reason is that an outright ban on the private ownership of firearms would have been very difficult, if not impossible, to push through parliament in the circumstances prevailing at the time (1997-2000?). The Firearms Control Act could be prompted as 'reasonable and non-draconian'. The purpose is to make legal firearm ownership as difficult as possible for new entrants to the self-defence, sport shooting and hunting markets. As current owners grow weary of the hassle and cost of relicensing and/or emigrate and grow older and move on to the happy hunting grounds, 'they' hope there will be fewer and fewer firearm owners to object to more and more onerous restrictions. We must not be intimidated into accepting the unacceptable. We must encourage people to enter the shooting world and help them to obtain however many licences they need to engage in whatever legitimate shooting activity they choose.

My young son, aged eight, who has accompanied me on many a hunt, came along on his first organized pigeon shoot recently. Towards the end of the shoot, he casually shot two pigeons with a .410 shotgun... surprising me and ratcheting up his interest in becoming a regular 'next generation' wingshooter. (Another thorn in the flesh of the busybodies who keep on trying to impose their wishes on others?) I make this point because we should all be introducing youngsters (our own and as many others as you can manage) to our sports and thus to the discipline and independence they inspire. Without us encouraging the next generation, there will be no next generation of shooters, sportsmen and hunters.

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PART ONE

What's not a 'Dangerous Weapon'?
By Martin Hood

In Government Gazette No. 20717 dated 1 February 2008, the SA Police Services published a "Notice for Public Comments" bringing to our attention their draft proposals for regulations to be implemented in terms of the Dangerous Weapons Act 71 of 1968. Schedule 1 of the proposals is quite a long list of "objects, which are in the opinion of the minister, dangerous weapons." I can do no better than to quote from an article in The Star (27 February) headlined "Sweeping weapons ban will leave women defenceless" which reported "Director Selby Bokaba, spokesperson for SAPS legal services said the prohibitions (my emphasis) in the notice amounted to "basically anything that is not a firearm that could cause some kind of harm". (In terms of the Act "'dangerous weapon' means any object, other than a firearm, which is likely to cause serious bodily injury if it were used to commit an assault.")

Legislation as sweeping and ill-defined such as the proposed regulations are shocking, unconstitutional, virtually impossible to implement, and most importantly, are subject to abuse by police officers who have not been properly trained either in the legislation or in the proper exercise of the discretion granted them under protection of the Act. Proposals such as these are a recipe for disaster in our current context of a lack of training and a surplus of corruption. Given ample room for discretion, we can expect policemen to take a simplistic approach to "anything that can do any kind of harm" and weapons as dangerous as BB guns and walking sticks will be prohibited in public places as well as, in certain circumstances, for manufacture and transfer.

In addition to this the sale of a knife with a blade exceeding 10cm in length is subject to certain restrictions as to the age of the purchaser, where the knife can be purchased and the sale of all such knives will now have to be 'registered'.

We are given to understand that some of the prime motivators behind the Firearms Control Act have been involved in these proposals. A brief analysis of the proposed regulations should be available on SAGA's web site by the time you read this. The full notice and contact details for your objections/suggestions/improvements will also be there. Although the first cut-off date (14 March) will have passed, various parties have applied for the date to be extended and we have been told that, within limits, the SAPS will welcome reasoned representations. As responsible citizens, it is up to all of us to point out the pitfalls and recommend alternatives to ensure that the next draft of these proposals contains realistic regulations which can be efficiently implemented - without impinging on the rights and justifiable expectations of ordinary law-abiding citizens and businessmen. At present it is a little difficult to understand what the proposed regulations are designed to achieve.

As the wording stands, you could be facing a charge with penalties of a fine or up to two year's imprisonment, because you were in possession of a dangerous weapon namely a breadknife, a brick, a bottle... (anything that could be used to harm or threaten another person) in a public place (waiting for a minibus taxi, riding in that taxi, walking towards your car in a parking lot with your newly purchased boning knife, pepper spray, assegai...).

SAGA has joined what is provisionally known as the "Blade, Tool & Sports Goods Forum" which is being made up of a broad cross-section of interest groups to examine the implications, and practical effects, of the proposed regulations and to provide the State with an objective analysis thereof and propose improvements that will make such regulations acceptable to government and citizen alike. Some of the founder members are Cold Steel Inc (a major American knife manufacturer), Ramrod, Cutlery Distribution Group (best known to readers as Sharp Edge), SAGA, Magnum, many of Magnum's current advertisers, as well as parts of the retail industry, particularly hardware and homeware stores.

It is up to us to advise the broader public of these proposals and it is up to us to prevent ill-considered legislation from going any further than the proposal stage. We must however, at this stage be constructive in our criticism which will be logical and reasoned. Unfortunately we do not always enjoy the same treatment at the hands of (over-zealous?) policemen - as the following story illustrates. A German film making company had arranged to make a film in Cape Town that required the use of deactivated and imitation firearms as props. For fairly obvious reasons, 'real' firearms are seldom used in films. I am however, advised that four out of five films made in South Africa require firearm props. The courier company tasked with sending the 'firearm' props to Cape Town decided to send them by air, contrary to the instructions of the company that supplies such items. The props were confiscated at OR Tambo International Airport and an investigation is pending. This is not the first time that this has happened, nor will it be the last.
Notwithstanding intense negotiations, the police are insisting on retaining these props, including rubber copies of guns that do not have a single piece of steel in them. The props were once 'real' guns and are clearly deactivated and certified as deactivated, yet the police will not release them. The estimated cost of making this particular film is said to be about R1 000 000 (one million Rand) per day. A not inconsiderable portion of which should be providing the city and citizens of Cape Town with a most welcome boost. Yet another blot on the face of our international relationships.

And yet another example of why we have to be slow to accept verbal assurances about the letter of the law being applied "with discretion" and that any predictable "unintended consequences" will be of "little consequence" and will not seriously inconvenience anyone. We can take absolutely no comfort from such assurances; we have been given every reason to be on our guard.

PART TWO

Trust Misplaced?
By Martin Hood

In the February issue article I highlighted the fact that the SA Police Services were abusing the good faith of 'accredited' associations. I regularly deal with the everyday problems that association members experience in obtaining firearm licences - notwithstanding the so-called 'agreements' their associations have with the SAPS. One example. Although Director Bothma of the Central Firearms Register (CFR) told (promised?) the hunting associations that it would take three months for their members to obtain licences (or be notified that their applications were refused), in an affidavit in a court case he certified this takes a year. No guessing which period is more likely.

My February article elicited an (surprisingly?) affirmative response from readers who confirmed that their associations were very reluctant to "rock the boat" by pushing for their members' rights and tackling the CFR head on - in court if necessary. It seems that, when the going gets tough, the mere intimation that one's accreditation could be 'reviewed' can be enough to 'settle' a dispute. I'm not sure about you, but I have words for that, words like 'intimidation' or 'blackmail' or 'victimization' ...all of which are unconstitutional. I can understand such an association's dilemma. Its paid-up members have expecta-tions; but the association is facing the big 'accreditation' stick wielded by Big Brother - a bullying policeman. Yes, I know very well that many police service members strive to deliver good service and who actually assist licence applicants and the various accredited associations. The problem however, is that these individual service members can do little to change the overall attitude of the SAPS.

You may recall that SAGA is not an 'accredited association' in terms of the FCA. Our bona fides as an association representing the interests of firearm owners, however, are not in question; we are 'recognized' by various government departments, parliament, the print and electronic media, etc, etc. We did not seek FCA accreditation because we are not the kind of association that can exercise control over its members, and also because we could not in good faith undertake to support the blanket 'non-proliferation' objective of the FCA. This means that we have no vulnerable 'accreditation' that someone can take away (or threaten to take away) at the stroke of a pen. This doesn't mean we are always welcome. For many years now, SAGA has sat on, and made many positive and intelligent contributions to, a technical committee of SA Bureau of Standards. For some reason, early this year we were a week late in responding to a request that we confirm/amend the particulars of our representative - a patently minor oversight. Then, due to other urgent commitments I was unable to attend the first 2008 meeting of that committee. It is not unusual for committee members to miss an occasional meeting. However there was something unusual about this meeting... 

For reasons which became immediately clear, the SA Police Services put in one of their rare appearances at this meeting. They immediately demanded that because SAGA was not represented on that day that we be struck off the committee roll. They also claimed that because we were not accredited with the SAPS we had no right to serve on this committee in the first place. It seemed that the SAPS expected to get away with this poppycock. That was not going to happen. Some other committee members, mainly the representative of the SA Arms & Ammunition Dealers' Association (SAAADA), forcefully pointed out that the SABS is an independent body and that it and the SAPS have no legal relationship with one another; that accred-itation with the SAPS is not a prerequisite to being represented on a Technical Committee of the SABS and that any interested party or entity that has a stake in the objectives of the committee should be represented.

The representative of the SAPS then demanded that Gun Free South Africa be represented. Apart from giving the SAPS a second voice on the committee, it is difficult to imagine what positive contribution or expertise such a representative could bring to the work of the committee.

When it comes to fighting for a fair and just Act and the fair and just implementation of that Act, SAGA's strategy has been to select relatively well-defined issues and challenge them, either in our name or in the name of third parties, at the Appeal Board and if necessary in the High Court. We believe that we have a better chance of 'winning' if we take on narrowly defined single issues, especially those of an administrative nature. The Lazarides decision, although not a 'SAGA' case, is a good (and high profile) example of an unfair administrative action being overturned, but there are plenty of others. Like some other attorneys, I have obtained many favourable court orders for clients whose applications have been poorly dealt with by the SAPS/Appeal Board - either by way of lax administration or less-than-thoughtful decision-making.

One reason for our selecting administrative issues is the 'assistance' provided by the Promotion of Administrative Justice Act (PAJA). Our courts are becoming increasingly frustrated with the State's inability to comply with its obligations to treat citizens fairly and reasonably. If an administrative shortcoming is placed before a judge, the issue has relatively little to do with firearms, but a great deal to do with the (unjust and inefficient) way the State treats its citizens. The single biggest litigant, for example in the Pretoria High Court, is the State. Organs of State are predominantly being taken to court as defendants or respondents and High Court judges are increasingly aware of the inability (or reluctance) of the State to do what it is supposed to do.

Because these administrative-type challenges are not direct attacks on the validity/constitutionality of the Firearms Control Act, they are quicker and less expensive to conclude than multi-faceted matters of principle. However each decision so reached contributes to the build-up of legal precedent which will help us be more certain of what we should expect from the SAPS and in turn tell the SAPS how they should be treating this country's citizens. As we should all know, however, wars are seldom fought on only one front, so SAGA's attention is not focussed entirely on individual, single-issue matters. We regularly survey the field to assess whether taking on other issues (individual, multi-faceted, or class-action) would somehow further our cause (aka your cause) - whether we win or lose in the court of public opinion, the Appeal Board or the Law Courts. Contrary to public perception, judges are very much part of society (quite a few are known to be gun owners, hunters and/or collectors) and each has his/her own set of values. Judges sometimes take 'the easiest [just] way out' simply because a case doesn't warrant an exhaustive examination of all possible 'angles'.

Just before completing this article I had a discussion with a colleague who wanted to take the CFR on review for not processing his competency application in nine months. I sympathized with his frustration (so far mine has taken ten months), but he was astounded to hear that the majority of competency applications take longer than a year. This is unacceptable. The only way to force the CFR/SAPS to provide decent service is to carry on taking those officials responsible for processing our applications to court. A judge recently assured me that you can sue the decision-making (or decision-avoiding) individual - in his/her personal capacity - and recover costs from his own pocket. This is particularly so in the case of 'repeat' or 'habitual' offenders.

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South Africa's much-lauded Constitution makes it very clear that the powers of the State are limited - primarily to ensure that all citizens receive fair, equal, impartial... treatment at the hands of the State and officialdom. To 'guarantee' this basic democratic principle, Section 32 (access to information) and Section 33 (administrative justice) were incorporated into the Constitution and the National Assembly was obliged to enact appropriate legislation to give effect to these Sections.

And so it is that we now have the 'Promotion of Access to Information Act' (PAIA) and the 'Promotion of Administrat-ive Justice Act' (PAJA). The second is by far the more important, not only for firearm owners, but for all ordinary citizens. In a mythical 'ideal world', neither Act would be necessary because all State officials would be willing and even anxious to be held accountable for their actions; they would bend over backwards to be fair and would happily provide whatever information citizens need. In the 'real world', more often than not, officialdom finds such provisions burdensome, and that citizens' requests for reasoned answers and information are a time-consuming 'nuisance'. Such an attitude towards an 'imposed' duty can make it very difficult for citizens to interact with government departments that think they are doing you a favour by even listening to such requests.

The Promotion of Administrative Justice Act is far-reaching in its jurisdiction. It supposedly guarantees citizens 'fair treatment' by the State and, in some circumstances, obliges the State to provide legal assistance to a citizen to enable him to enforce his rights. The principle of PAJA is relatively simple. Any citizen's interaction with the State must be fair, reasonable, objective and transparent. Principles and policy must be consistently applied and everyone will be treated equally - regardless of who we are, our religion, sex, ethnic origin, etc. So much for the high-minded theory - firearm owners are regarded as a class of persons different to everybody else and therefore require 'different' (unequal) treatment.

Chapter 10 of the Constitution deals with Public Administration and contains a number of the constitutional imperat-ives our civil service is required to fulfil. I have selected some which are particularly important for firearm owners at present. Hear this: "efficient, economic and effective use of resources must be promoted"; "services must be provided impartially, fairly, equitably and without bias"; "people's needs must be responded to and the public must be encouraged to participate in policy making". The section goes on to state that public administration must be accountable, transparent and information must be provided in good time. Sounds wonderful doesn't it? No wonder our Constitution is so highly praised, worldwide. Unfortunately however, there is a huge gulf between the spirit and the reality, so much so that I sometimes think that the SA Police Service has either not been told that our Constitution has such provisions, or has been told that they do not apply to the service.

Although I have said this before, it is worth repeating. Someone is teaching policemen that they can/must insist that a person makes a statement if there is some form of incident that necessitates a criminal investigation. This is contrary to the Section 35 provisions that everybody has the right to remain silent, not just somebody who may have, or is suspected of, committing a crime. (In this context, giving a written statement is 'speaking'.) I have related previously where people, who go to report a lost, stolen or destroyed firearm, are bullied into incriminating themselves and are subsequently charged with a criminal offence. Fortunately most courts do not accept this evidence and the end result is that the charges, if they go to trial, are dismissed.

However, there is much more. Litigation against the SAPS and the Minister for Safety & Security arising out of the Firearms Control Act is on the increase. Besides the Lazarides decision, the Minister is being taken to court for simple administrative shortcomings in the licensing process. Reviews for not taking decisions in good time are common and so too are reviews for making incorrect decisions. The Minister and the Appeal Board are then represented by the State attorney and private advocates, often a senior and a junior advocate - seemingly regardless of the costs involved. While I suspect that this is done to intimidate firearm owners and discourage us from trying to insist on our rights, my question now is: Where in the SAPS/Minister/Appeal Board's budget does all this money come from, and who controls this budget? The State has no 'right to remain silent' on this matter, it is accountable to us citizens and taxpayers whose money is so used, and must answer such questions. Who decides that private advocates should be instructed and paid for as opposed to provision being made to pay compensation to people who have to lawfully dispose of their firearms? Who decides which is a priority? Where is the accountability?

My biggest bugbear however is the question of policy. Firstly, there is no disclosed set of policy guidelines which we can access to determine for ourselves whether we qualify to be issued with a firearm licence for a specific purpose. We must not forget that firearm ownership is a right, which is regulated by and prescribed by law. The Firearms Control Act confers upon appropriately qualified persons the right to be granted a firearm licence. What the Act does not specify is the policy that the SA Police Service uses to determine a person's suitability. The policy must be disclosed and it must be reasonable, objective and constitutionally lawful. It is clear that a policy of some kind is being used by SAPS and the Appeal Board and we can (safely?) deduce certain aspects of it from decisions of the police and the Appeal Board. However, I have not been able to obtain any form of 'policy document' from either the Central Firearms Registry or from the Appeal Board.

Some recent examples illustrate this. The first is from an 'old Act' appeal, which was refused because the reason stated for refusing the licence in the first place was simply given as "Not recommended by local profile". Attempts to obtain clarity on what this means were unsuccessful. When the matter was taken on review in the High Court, the decision to refuse the firearm licence was set aside and a punitive cost order was awarded against the Appeal Board. This happened because the authorities would not come to court and explain what "not recommended by local profile" means. If, as is reasonable in the circumstances, we assume that the SAPS had some information which 'justified' the refusal of that licence to that applicant, then from the SAPS's reluctance to provide an explanation, we can only assume that the information was unlawfully obtained or otherwise not capable of withstanding judicial scrutiny. The fact of the matter is however that while the SAPS and the Appeal Board stood by this 'reason' neither could justify relying on it.

Almost everyone who has been refused a licence was given one of two classic 'reasons' - "insufficient motivation" or "not convinced of need". Although these were used while the 'old' Act was in force, they continue to be given as 'reasons' for refusals in terms of the new Act, albeit puffed up with additional verbiage.
I have indicated to the Central Firearms Registry and the Appeal Board that the three lines given in the SAP271 are misleading in that it gives the impression that you have only three lines to motivate your application. Nowhere in the application form does it state that additional information or supporting documentation should/may be provided. I am continuously told by clients that the SAPS do not provide assistance and, if asked, may offer misleading or incorrect advice (such as leaving out supporting documentation). I have asked the director in charge what 'insufficient motivation' means and his answer was "It is self-explanatory" or he has given me a dictionary definition, neither of which is helpful because what is sufficient to me, may not be sufficient to a police officer. This comes back to policy, i.e. there must be an objective standard against which something can be tested. This enables fair, transparent and objective decisions to be made. The SA Police Services' refusal to provide a definition or explanation means they do not have an objective standard, or they are not prepared to disclose it because they know that it is unlawful, or they are afraid to disclose it, because they know that their 'reasoning' would be exposed as unconstitutional, unreasonable and irrational.

The Appeal Board and SAPS are now being obliged to file opposing papers, notwithstanding their frequent reluctance to do so. I have a number of incidences on file where the State attorney has been embarrassed by his client's failure to promptly provide answering papers in review applications. In one matter the presiding Judge threatened the State attorney concerned with a personal cost order against him because of his client's failure to provide court papers. The request for a postponement in those circumstances was granted only after the State attorney provided an affidavit explaining his client's dilatoriness. Such delays are so frequent that it seems to be routine policy. As any delay is expensive for litigants (and taxpayers who fund the defendants), most of whom are not persons of financial means, such attempts to financially exhaust an applicant constitutes an abuse of the court process and is detrimental to the administration of justice. Clearly such a policy/tactic would be both unreasonable and unconstitutional.

In recent court papers, both of which deal with licences for self-defence, there has clearly been a shift in approach to the granting of such licences. Initially, the SAPS refused most self-defence applications, but these refusals were often reversed by the Appeal Board. In one instance a litigant, who resides in a rural area with high levels of crime, wanted a shotgun for self-defence. The high crime levels were confirmed by his neighbours, but the Appeal Board confirmed the SAPS's refusal because, in their minds, there had been no significant increase of crime in the area. The fact that there were frequent murders and armed robberies did not seem to be sufficient reason to justify the existence of a firearm for self-defence. While the provision is in force, applicants have to accept they must 'prove a need' for a self-defence firearm (please note that 'proof of need' applies only to self-defence firearms), yet 'need' remains undefined.

The second example which is currently before court involves a handgun for self-defence. The applicant in my opinion has set forth more than adequate reasons to be granted the licence - extensive travelling, the operation of an informal cash store on weekends, etc. In their wisdom, the Appeal Board decided that he had not demonstrated that he could not adequately protect himself by other means: "insurance, burglar bars, burglar alarms, dogs, armed response and other means of physical security". It appears that the reasoning of the Appeal Board is that if you can afford every possible other means of physical security, you have no right to be granted a licence for a self-defence firearm. This is clearly unlawful and irrational. This ignores the fact that physical security is limited to one location and that it cannot be transported with you when you leave your residence or business, hence it being irrational. This reasoning is certain to be questioned and analysed by the High Court. SAGA is keeping a close eye on this case which is of importance to all firearm owners.

The need and obligation for the SAPS to have - and to make public - a transparent, objective policy on firearm licensing is becoming more and more obvious and important. SAGA will continue, and increase, its pressure to bring this issue to a head.

SAGA has a very broad mandate in what it should do to protect and uphold firearm owners' rights. As a founding member of the World Forum, and thus in contact with similar associations world-wide, SAGA is up-to-date with anti-gun 'happenings' in the United Nations and elsewhere. SAGA is a centre for the collection and further dissemination of relevant information to those who can best use it in the interests firearm ownership rights. SAGA acts as an interface between civil society, government, firearm owners and their organizations. When 'uncomfortable' action is necessary, SAGA is the association most likely to stand up and 'take the flak'. This sometimes makes us rather unpopular in some quarters - despite the fact that we present our arguments in as calm and rational a manner as possible.

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I know that there are 'good news' stories out there on the firearm front. I have been told about DFOs who have gone an extra mile to solve a problem. I have even heard of licence applications being processed far more speedily and efficiently than expected. I have personally been treated fairly (and patiently) by policemen and women who are trying to implement the legislation to the best of their ability.
But, before I go any further, I must tell you that in my experience, the negatives outweigh the positives. This is mainly because by the time most people ask for my help with firearm matters, they are already 'having trouble' - with their DFO (Designated Firearm Officer), the CFR (Central Firearms Registry), the Appeal Board, the provisions of the FCA itself (Firearms Control Act) and/or its Regulations and the SA Police Service's interpretation thereof.

While I try to be objective and dispassionate, this continual immersion in the mire of all these problems has made me somewhat cynical - a condition which makes the wearing of rose-tinted spectacles distinctly impractical. If you feel that, in the comments which follow, I am 'accentuating the negative' and perhaps being unduly harsh, I ask for your understanding and forgiveness.

Because the regulations are still in a state of flux (subject to negotiation/amendment) I will not dwell on them at any great length. In this regard however, I must repeat the axiom that there are "none so deaf as those who do not wish to hear". Lest there be any mistake about it, let me put on record that, despite protestations to the contrary by the CFR, it is a demonstrable fact that, for a specific period, the SAPS treated cap-and-ball revolvers as 'off-licence' items. The SAPS quite happily cancelled licences for them in the full knowledge that the owners were retaining these revolvers for their collections and/or for sport and recreation. The SAPS also stood by and 'allowed' these revolvers to be imported and sold without permit or restriction.

So, when the draft Amendment Act redefined the term 'muzzle-loader' specifically to treat such revolvers as ordinary firearms, we pointed out to the SAPS (and to parliament's portfolio committee) that this would 'criminalize' everyone currently (and legally) in possession of unlicensed cap-and-ball revolvers and that practical provision should be made to regularize their position. The CFR told parliament that, as firearm licences "have always been required" for cap-and-ball revolvers, there was no need to make any such special provisions. As far as the CFR is concerned, anyone with an unlicensed cap-and-ball revolver will be (note, not 'may be') prosecuted. By deliberately(?) and effectively turning a blind eye to the situation and not making practical provisions to correct matters, the CFR has compounded the problems that the public and the SAPS will soon be facing. If the Public Prosecutor agrees with the CFR's interpretation, I await the outcome of the first court cases with great interest. I believe that such action would constitute persecution of the innocent.

'Negotiations' with politicians and the SAPS (and politics within the SAPS) are fraught with peril. We, and other associations, do so in good faith but quite regularly find that faith to be misplaced. Political considerations often outweigh rational ones and bureaucracy takes precedence over pragmatism. When it was first proposed that 'competency' testing should be a requirement and that this be done in terms of the Skills Development Act and thus under the supervision of the SA Qualifications Authority, we and most other associations had serious reservations about the desirability and practicality thereof. It was pushed through but it wasn't long before it became evident that things were not going according to plan despite the various bodies having spent a great deal of time, effort and money to design courses and set standards.

I think it was the hunters' associations who first approached the SAPS with the object of taking the SETAs out of the loop for the 'dedicated' hunter courses and training. (SETAs are the Sector Education & Training Authorities set up in terms of the Skills Development Act to develop the skills of the workforce.) SAGA was in favour of this proposal and of training becoming self-regulatory under the control of the recognized and accredited associations. However, SAGA does not support the proposed regulation that the Registrar be given the power to approve (or reject) the training courses for dedicated hunters and sportsmen. And so it was that negotiations in good faith had the unintended consequence of handing, on a plate, more power to the already too powerful CFR. We have somehow managed to replace a lesser evil with a potentially greater one.

In 'fair exchange' for all the work they have done and the responsibilities they now have loaded onto their shoulders, the associations expected the SAPS to accept their recommendations in good faith. The principles behind this approach are sound: a member of an accredited association discloses (to his association's committee responsible for this function) his reasons for wanting/needing a specific firearm licence and the purpose for it. The committee has direct knowledge of the applicant's activities and character and all the expertise necessary - in all probability, more than the SAPS - to assess the suitability of the firearm for the purpose required. If this committee now endorses the application, there should be no reason for the CFR to question the endorsement. I believe that this approach is in keeping with the principles embodied in the Act. (The CFR still has the duty to ensure that the applicant meets all the other requirements of the Act, it cannot delegate such authority to the associations.)

Now, we know that the SAPS refuses to disclose their licensing criteria. This is almost certainly because, if they do so, it will no longer be quite so easy for them to refuse the licence of an applicant who meets all the criteria. When I wrote to ask the director of the CFR to clarify what is meant by 'sufficient motivation' he replied that it is 'self-explanatory'. Clearly the CFR does not wish to part with any information that may assist an applicant to comply with its requirements.

Back to my 'hunting association' example. Despite the 'gentleman's agreement' that the SAPS would accept the associations' endorsements, the CFR has refused to licence many of the firearms so endorsed. If there were 'only a few' I would be prepared to concede that mistakes can happen and that the applicant can appeal against the refusal, albeit with the associated costs and delays. However the refusals I know of, are not a few isolated examples. There are too many and they come from across the board - hunting firearms, sport shooting firearms, and collectable firearms. For example, one of the reasons given for refusing a shotgun licence was that the applicant already had 'sufficient' shotguns of the same calibre. As you probably know, there are a multiplicity of shotgun types for different disciplines and types of hunting. The applicant fully 'motivated' his need for the specific shotgun, his (accredited) association assessed his needs and endorsed his application.

Why have this extra 'filter' and a gentleman's agreement if it can so easily be disregarded by one party?

It seems clear that the CFR has the (undisclosed) policy of limiting the number of firearms it will license to any individual - which policy is not provided for in terms of the Act. I believe this 'policy' is even more stringently applied to 'sport shooting' firearms - particularly when it comes to applications by dedicated sportsmen for self-loading firearms.

Of all the associations, the collectors have probably done the most to improve the image of collecting amongst politicians and policemen alike. They have succeeded in having the legislation clarify what constitutes a collectable firearm, what characteristics a firearm should have in order to be classified 'collectable' and who qualifies to be declared a collector. The SAPS has thanked them for all the help and expertise they put into this. The collectors' associations also put forward a mechanism (or formula) to facilitate the licensing of collectable firearms and the CFR apparently agreed to this - verbally. Guess what. Despite this 'arrangement', and despite collectors having jumped through all the hoops of certifying their firearms, being categorized, being members in good standing, etc, etc, some of them are also being refused licences.

It seems to me that, after 'negotiating' an arrangement and doing everything you can to honour it, the only thing you will be able to depend on, is that your mutually beneficial arrangement will be dishonoured whenever it suits the SAPS. This is surely enough to turn the most trusting person into a cynic.

SAGA is not immune to this. We also make representations to the SAPS and negotiate (or try to negotiate) improvements to the Act and Regulations. Some of the improvements we have proposed would have actually helped the police implement the legislation - while making life a little easier for our members (and all firearm owners, members or not). We accept the need for legislation and regulation; but we do not accept that we be over-regulated or that firearm owners (or would-be owners) should be treated as untrustworthy subjects instead of worthy citizens. We also cannot accept the attitude that firearms are an 'evil' to be rooted out at all costs.

We do not have to accept bad service, we do not have to accept being treated as second-class citizens, and we certainly do not have to accept that firearm licences or competency certificates should take a year or more to be granted. Our various associations should try to be more 'hard nosed' when dealing with the SAPS. If the SAPS are reluctant to commit an 'arrangement' to paper, we must try harder to keep them to their verbal commitments. And we should not be shy about displaying our anger when they disregard honest recommendations. We should all demand more accountability from the police.

As regular readers will know, SAGA endeavours to facilitate interaction between firearm-related associations as well as to properly represent the interests of our members - law-abiding citizens who own firearms but whose interests are not directly represented by any other association. While trying not to impinge of the 'territory' of any other association, when standing up to be counted on matters of principle, we are fighting on behalf of all firearm owners. I trust that whatever criticisms I have aired here will be considered constructive and that SAGA's cordial relationships with all pro-firearm organisations will not be affected.

At a recent, multi-national conference on small arms and light weapons I attended on behalf of SAGA, the Director of the CFR proudly stood up and made it perfectly clear that there is not enough control over firearms in Southern Africa and that he is striving to achieve greater control. Was Director Bothma just making a 'political' statement geared to win the applause of all the anti-gun organizations at the conference? Somehow I don't think so. He has almost nailed his colours to the mast. I say almost because he did not make it perfectly clear that what he really wants is more control over licensed citizens. After all; his department is not responsible for catching the criminals who use firearms to commit violent robberies, all he can 'control' is us. And, if that's his attitude, there is very little reason to expect much progress to be made with negotiations that involve his department.

However, negotiate we must. We must also explore every possible avenue to protect our rights; we must continue political lobbying. We must always be on our best behaviour when carrying and using firearms - we need the support of the general public and should not give those actively opposed to firearm ownership any ammunition to use against us.

I hope and trust that, depending on when you read this, the holiday break will refresh (or will have refreshed) your spirits and you will be fighting fit to face the challenges that 2008 will present.

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Mr Chairman, my name is Bob Barr and I am here representing the World Forum on the Future of Sport Shooting Activities (WFSA). This is the second year in which the WFSA has been asked to make a presentation to the First Committee. We once again appreciate the invitation and commend the body for the inclusion of NGOs in its deliberations.
The WFSA is an ECOSOC NGO with roster status. The organization and its approximately 40 member associations have appeared at nearly every meeting on small arms the UN has held since 1995. We are veterans of the UN Firearms Protocol, the 2001 Programme of Action, the marking and tracing effort, and the just-completed brokering effort. To paraphrase a noted statesman, we have not come all this way without learning a thing or two.

WFSA associations have a cumulative membership of over 100 million hunters and sport shooters. In addition, our associations represent nearly all the major firearms and ammunition manufacturers in the world. I have spoken favorably of today's NGO participation and I should like to expand on that point with special reference to the WFSA. Mr Chairman, the vast majority of the estimated 875 million small arms in the world, are owned by civilians. These hundreds of millions - and it is hundreds of millions - of law-abiding hunters, sport shooters, collectors and other firearms owners are the people for who the WFSA speaks. My comments today will focus on the proposed Arms Trade Treaty (ATT) process envisioned by Resolution 61/89, and the soon-to-be appointed group of government experts, or GGE, on ammunition under Resolution 61/72. Mr Chairman, I will become more specific as regards both of these issues, but I should initially like to point out that as presently conceived, civilian firearms owners and civilian ammunition manufacturers are more at risk than any of the other groups to be impacted by the results of these effort.

The Arms Trade Treaty
Mr Chairman, the WFSA has had the benefit of reviewing close to one hundred government and NGO submissions and statements submitted under the consultation process envisioned by Resolution 61/89. The ATT has been referred to positively in numerous interventions during this present First Committee session. Notwithstanding this apparent surface support, it would benefit us all to take and retain a realistic view of the ATT process.

The WFSA believes that, apart from shared concerns regarding the wrongful use of small arms (criminal use, oppressive government action, terrorist acts, etc.), the ATT effort remains at this point inappropriately broad, unfocused, nebulous and inconsistent. Numerous parties have made statements to the effect that an eventual ATT would somehow prohibit transfers of arms which would facilitate "bad" acts such as those noted above. The same parties have acknowledged the right of states to manufacture and transfer arms for legitimate purposes. How these two positions are to be reconciled has not been addressed in even a threshold manner. Failure to resolve this contradiction will continue to present an insurmountable problem from the standpoint of the WFSA. It will also militate against any hope for success in curbing wrongful use. A treaty that is no more than an exercise in "gesture politics" would be a wasted opportunity; a result that would be in no one's interests.

In addition, the WFSA finds that many groups (NGOs) with a simplistic, anti-firearms domestic political agenda essentially view "gun control" for its own sake, and take no recognition of the wide range of lawful and legitimate uses to which firearms are put in the civilian context. These groups have adopted the ATT as a vehicle for their political agendas. If the ATT is perceived - as it is already coming to be even at this early stage - as part of a means to further such domestic political agendas, it will present the same fundamental and insurmountable problems as the Programme of Action before it. This would represent a decidedly anti-firearms agenda the WFSA could not accept.

As in the past, of course, the WFSA is committed to engaging in a positive dialog and exercise, to affirm and represent the interests of legitimate civilian users of firearms with arguments that are intellectually robust and based on sound evidence. Mr Chairman, despite assurances and rhetoric to the contrary, civilian firearms are still included within ATT efforts. This is evident from a reading of the documents themselves, as well as from numerous government and NGO statements. Legal civilian firearms should not be with-in the scope of the ATT; and until this exclusion is unequivocally and clearly implanted, we must oppose the current effort.

We are pleased to note, however, the proceedings of the conference entitled, 'An International Arms Trade Treaty: Building Consensus and Making It Work', held at the Royal College of Defense Studies, Seaford House, London, on 5 June 2007. Paragraph 15 of that document provides, in part:
"In certain states the ATT might receive more support if it were presented as an international effort to stop arms from entering the illicit market (rather than a UN-sponsored disarmament initiative), and if it were also to be made clear that the ATT would not be concerned with legitimate domestic ownership of firearms by civilians" (emphasis added).

This widely-accepted formulation represents a realistic and positive step towards productive understanding, and is welcome. To gain support, however, an ATT would not only need to eschew absolutely any concern with domestic laws, regulations and legislation, but also guarantee both the legitimate international commerce in, and movement of, civilian arms and the right of individual private civilian owners of firearms to transport them internationally for legitimate purposes. The WFSA also should call attention to the undesirability of the creation of a new UN bureaucracy. Mr Chairman, we are all aware that a GGE on the proposed ATT will soon begin its work. The WFSA is concerned that the ATT GGE will not be representative of that previously mentioned group which could be most affected by any eventual treaty - the hundreds of millions of law abiding civilian firearms owners. We cannot have confidence that the legitimate rights, interests and views of these many civilians will be properly represented in the process, unless and until there is a formal mechanism for them to register their concerns and ensure their inclusion. Governments and "government experts" will be primarily interested in protecting and promoting the interests of governments (including maximum control of firearms), not of civilian citizens or the industry.
For these and other reasons, the WFSA must register both its objections to the ATT at the present juncture and its resolute intention to protect the interests of the legitimate civilian users of firearms and the industry which supplies their needs.

Conclusion
Mr Chairman, let me conclude by return to something I said originally and that was my favorable comment on NGO participation in this process, and the unique view that the particular organization I represent presents today. Some would consider our views, which we reiterate here today, in some sense negative. This is not so. While WFSA has been critical of the movement for the ATT, we would ask you today, our fellow NGOs and the various policy makers who will consider these questions at length and over time, to view our comments as points positively offered, and as an important part of a very necessary dialog. As I said Mr Chairman, we will continue to defend our rights and our positions. Consistent with that, we will offer our assistance, our expertise; and our good will regarding all of these important matters. We hope others will take a similarly objective and sincere approach. Thank you.

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The South African Gunowners' Association (SAGA) and the World Forum on the Future of Sport Shooting Activities (WFSA) met in Palermo, Italy, on 4 and 5 October 2007, to plan joint or multilateral initiatives designed to protect the future of private firearm ownership and use and to counter the manifold attacks (covert and overt) on such rights as we have. SAGA was a founding member of the World Forum which was formed in 1997 and is an officially recognized United Nations non-governmental organization, or NGO.

SAGA trustee, Bruce Shaw was our representative at this meeting of the World Forum whose 38 member associations include most of the major hunting and sport shooting organizations and the firearms and ammunition manufacturer associations. The WFSA Board meets twice a year.

In two days of meetings the WFSA Executive Committee evaluated the various threats to the international firearms community. These include the United Nations, the European Union, changing environmental regulations, regional groups such as the Organization of American States, dedicated special-interest anti-gun groups, and, in addition, international airlines which are resisting the carrying of hunters' firearms.

The WFSA Executive Secretary for the Americas, Thomas Mason, reviewed for the group the United Nations' extensive future programme on "small arms and light weapons", its term for firearms. The UN will have eight weeks' worth of conferences and meetings on firearms and ammunition during 2008. These include a Group of Government Experts (GGE) on international regulation of ammunition and also a major international conference at the UN headquarters in New York in July.
"The biggest challenge we face internationally is the so-called 'Arms Trade Treaty', or ATT. The UN will have an ATT Group of Government Experts meet for almost four weeks in 2008 to lay the groundwork for a future treaty," said Mason. The actual treaty drafting process will probably start in 2010 and might take up to three years. The WFSA will be present at these 2008 UN meetings. The resolution that started the UN ATT treaty process passed the General Assembly last autumn on a vote of 153 to 1, with the USA being the only 'no' vote."

The WFSA Board was also briefed on the situation in the European Union by WFSA Executive Secretary for Europe, Vito Genco. Genco described the way that Europe has become a breeding ground for the developments of new directives on firearms possession, firearms and ammunition control, environment protection and hunting guidelines. The fact that the 27 States are allowed to regulate these complex matters in their own national legislation does not help the EU effort to adopt uniform criteria. Traditions are different. Security is driven by local conditions. The European Union is nevertheless trying vigorously to bring together the laws of member states, such as we see in the present efforts to amend the very important and recent Directive on Firearms 91/477 to implement the UN Protocol on Illicit Trafficking on Firearms, which in turn supplements the United Nations Convention against Transnational Organized Crime. "Regulation is being laid upon regulation," he said.

Regarding this specific directive, European WFSA members have argued to the EU authorities that the fact the directive will have provisions dealing with civilian firearms possession in the EU internal market is an entirely different matter from the transnational traffic of military products. Genco mentioned that in accordance with the principle of better legislation, the current revision process should be used not only to adapt the directive to the UN protocol, but also to bring to the directive the improvements that are needed. The following topics are part of the current discussion at the trilateral meeting of EU Commission-Council of Ministry and Parliament: this covers categories of firearms, age limits, convertible weapons, the firearms pass, and the marking of firearms.

Genco also described a WFSA workshop on shooting ranges, held just prior to this WFSA meeting, titled: "Lead Reclamation, Backstops and Sound Reduction". WFSA's Environment Sub-Committee is playing a central role as an information clearing house, where top experts from all over the world gather on a regular basis to present and discuss the best management solutions and the most sophisticated developments and science concerning the responsible care of the environment. The advantages of the collaboration between all involved parties worldwide have been acknowledged by a panel of regulators, hunters and sport shooting associations.

Three workshops have been held on different environmental topics, all with great success. This latest workshop was another milestone on the road toward sustainable shooting activity. Dr. Dick Peddicord (USA) said: "It was most informative, and I learned things that I'm already putting to use. I consider it a privilege to have been invited to participate. I hope my contribution was helpful." Major Frank Compton (UK) said: "As ever at such gatherings, I came away with an increased understanding of the environment and safety on and around shooting ranges. Of particular interest was the description of the noise reduction measures."

The WFSA runs global initiatives to drive continuous improvements in health, safety and environmental performance, and to listen to and to talk with its stakeholders. The WFSA cooperates with governments and organizations in the development and implementation of effective regulations and standards, and to meet or go beyond them. The WFSA Board also took the initiative on several other projects. At the request of Safari Club International, the WFSA will begin a major project on the airline transport of firearms. Incidents where hunters and shooters have difficulties transporting their firearms on airlines are on the increase. Recently, American Airlines announced it might not transport firearms to Europe because of the United Nations Firearms Protocol. Both Safari Club and WFSA officials pointed out this is a misapplication of the UN Firearms Protocol. The WFSA Board appointed a working group on the airline matter to be led by the NRA of America.

Other WFSA projects include a future workshop called the "Environmental and Economic Benefits of Hunting". A working group has been established to lay the groundwork for this workshop, possibly to be held as soon as in 2008.

On the more academic side, the Board established a working group to counter claims by the international anti-gun think-tank based in Geneva known as the "Small Arms Survey" (SAS). PROTELL, the Swiss shooting association (named after the Swiss patriot William Tell) and Herman Suter, its representative to the WFSA, will lead this effort. The Board also planned for a WFSA appearance before the UN General Assembly, First Committee, in late October. Every year, as part of its disarmament agenda, the UN General Assembly discusses what it calls "small arms" and we know as firearms. The WFSA is one of a select few NGOs that are allowed to speak before the body. The WFSA Board also made decisions regarding its annual meeting in Nuremberg, Germany at the European equivalent of the SHOT Show known as "IWA" (a German acronym for "Sporting Goods Show"). The meeting will be on 14 March 2008, and this year's theme will be "Hunters and Sport Shooters: Partners in Freedom".

LIST OF ATTENDEES
Mr M Barnes (FAIR Trade Group - USA), Mr B Barr (NRA - USA), Mr Ceccarelli (FITAV - Italy), Mr V Genco (WFSA Executive Secretary - Europe), Mr B Green (SSAA - Australia), Mr HH Keusgen (Forum Waffenrecht - Germany), Mr T Lindskog (AFEMS - EU), Mr T Mason (WFSA Executive Secretary - America), Mr G Mauser (NFA - Canada), Mr R Patterson (SAAMI - USA), Mr D Penn (BSSC - UK), Mr C Peroni (IEACS - Italy), Mr P Pietrafesa (CAB - Italy), Mr T Rowe (WFSA - MAG), Mr B Shaw (SAGA - South Africa), Mr M Silvis (ANPAM - Italy), Mr J Streitberger (Forum Waffenrecht - Germany), Mrs J Versnel Gottlieb (Second Amendment Foundation - USA)

Sidebar
The WFSA includes the following member organizations:
1. Asociacion Armera - Spain
2. Association of European Manufacturers of Sporting Ammunition (AFEMS)
3. Association of Maltese Arms Collectors & Shooters (AMACS)
4. Associazione Nazionale Produttori Armi e Munizioni (ANPAM)
5. British Shooting Sports Council (BSSC)
6. Bund der Militär- und Polizeischützen e.V. (BDMP)
7. Canadian Institute for Legislative Action (CILA)
8. Consorzio Armaioli Bresciani (CAB)
9. COLFO Council of Licensed Firearm Owners New Zealand (COLFO)
10. DSSA Danish Sport Shooters Association (DSSA)
11. European Association of Civil Commerce of Weapons (AECAC)
12. Federaçào Portuguesa de Tiro com Armasde Caça Portugal (FPTAC)
13. Federation Internationale de Tir aux Armes Sportives de Chasse (FITASC)
14. Federation of Associations for Hunting & Conservation of the EU (FACE)
15. Federazione Italiana della Caccia Italy (FIDC)
16. Finnish Arms Trade Association (FATA)
17. Federazione Italiana Tiro a Volo Italy (FITAV)
18. Federazione Italiana Tiro Dinamico Sportivo Italy (FITDS)
19. Firearms Importers Roundtable Trade Group (FAIR)
20. Forum Waffenrecht - Deutschland
21. Hunting and Fishing Association of Turkey (SISAV)
22. Institut Europeen des Armes de Chasse et de Sport (IEACS)
23. Interessengemeinschaft Liberales Waffenrecht in Osterreich (IWO)
24. National Firearms Association Canada (NFA)
25. National Muzzle Loading Rifle Association USA (NMLRA)
26. National Rifle Association USA (NRA)
27. National Rifle Association of Norway (NRAN)
28. NSSF National Shooting Sports Foundation USA (NSSF)
29. Pro Tell - Switzerland
30. Safari Club International (SCI)
31. Second Amendment Foundation USA (SAF)
32. Shooting Sports Association of Ireland (SSAI)
33. Sporting Arms and Ammunition Manu- facturers' Institute USA (SAAMI)
34. South African Gunowners' Association (SAGA)
35. Sporting Arms and Ammunition Manufac- turers' Association of Japan
36. Sporting Shooters Association of Australia (SSAA)
37. Union Nationale de l'Armurerie, de la Chasse et du Tir Belgium (UNACT)
38. Verband der Hersteller von Jagd Sportwaffen und Munition Germany (JSM)

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In October's special "Stop Press" notice (page 87) I promised to discuss the High Court decision in the matter of Lazarides versus the Chairman of the Appeal Board and Others. (The Court ordered that Mr Lazarides be given the licence he had applied for.) First some background information. During 2003, Lazarides (a well-known and respected collector of military firearms) applied to license a 50 calibre Browning barrel made by Musgrave. His application was made before the Arms & Ammunitions Act of 1969 was repealed and replaced by the new Firearms Control Act which came into effect on 1 July 2004. His application was refused as was his subsequent appeal to the Firearms Appeal Board. Lazarides then asked the Pretoria High Court to review the decision of the Firearms Appeal Board. However, Acting Judge Ismail dismissed this review application on the basis that it was not the duty of the courts to overrule discretionary administrative decisions and that only in extreme circumstances can a judge intervene. (This ruling was widely reported and indeed, criticized, in legal journals.) According to Lazarides' legal advisors, Judge Ismail did not take into account the provisions of the constitutionally important Promotion of Administrative Justice Act.

Lazarides then lodged an application for leave to appeal against the decision of Judge Ismail. His application was granted and a full bench of the Pretoria High Court then heard the appeal in August 2007. Note that the decision of a full bench (three judges) is extremely authoritative and single judges are bound by such rulings and must use the guidance so provided when appropriate.) This means that this particular judgement is of interest not only to firearm owners, but to everyone who is subject to administrative decisions. The judgement reaffirmed the principle that, where it deems it necessary, a court can interfere in, review and set aside a decision of a functionary (an administrative official) on the grounds provided for in the Promotion of Administrative Justice Act (PAJA). Indeed, the aims and objectives of PAJA, which was promulgated to give effect to Section 33 of the constitution, are to 'guarantee' that citizens receive due, proper and fair administrative action. The judges made a number of interesting comments about the conduct of, and the decisions of, the Appeal Board, the Minister for Safety & Security, the Commissioner of the SA Police Services and the Commanding Officer of the Central Firearms Registry. Although the licence application was made in terms of the Arms & Ammunitions Act 75 of 1969, the terminology used in the judgement reflects the terminology in the new Firearms Control Act and its regulations. The importance of this to collectors and other firearm owners is that the decision cannot be 'written off' as applying only to old Act applications and appeals. This decision has validity to the current legislation in terms of the processes adopted and the reasons provided for administrative decisions.

Some of the important principles that flow from this judgement are as follows.

Firstly, should the Firearms Appeal Board simply reaffirm a decision of the Central Firearms Registry (acting for the National Commissioner), the Board will be bound by the reasons given by the CFR. It also means that such decisions by the Appeal Board are subject to judicial review - the Board will be required to give proper reasons for its decision to reaffirm that of the CFR. Many appeals are merely dismissed (out of hand?) on the basis that the Board agrees with the CFR's decision without stating why it does so.

In dealing with the Firearms Appeal Board's decision, in paragraph 19 of the judgement, the learned judge writes: "It is also stated in... the answering affidavit that the Appeal Board merely refused the appeal and thus confirmed the decision of the [Commissioner]. If that is correct, and I have grave doubts about that, then it follows logically that the reasons relied upon by the [Commissioner] became the reasons of the Appeal Board on which it based its decision. Consequently I have difficulty in understanding how, in law, the Appeal Board could have based its decision on other grounds than those on which the [Commissioner] had based [his] decision."

Paragraph 26 of the judgement reads: "The respondents [Appeal Board, CFR, Commissioner, etc] do not allege in their papers why the [Commissioner] and the Appeal Board had concluded that the application was not adequately motivated. I venture to suggest that they are unable to do that. It is difficult to think of something more that [Lazarides] could have said to motivate why he would have liked to be issued with a licence for the arm. The picture is clear: one has a collector who has the financial means to purchase such a scarce highly capable and excellently manufactured arm which falls within his peculiar field of interest and which will enhance his collection. What more must he say?"

A number of significant points arise from that paragraph. Firstly, it is insufficient for the CFR/Appeal Board to simply say that an application is 'not adequately motivated' and thus refuse the licence or dismiss an appeal. They must spell out why they believe the application is not sufficiently motivated. In other words, the CFR must inform the applicant in what respect/s his application falls short of whatever standard is used to assess applications.

What is of great interest to collectors is the acknowledgment of the variety of factors which make a firearm 'collectible' - its financial value, scarcity, excellence of manufacture as well as its 'fit' with the collector's field of interest, and how it would enhance a collection. In the next para (27), the judgement continues: "In my view the only inference to be drawn from the aforegoing is that the [Commissioner] and the Appeal Board have failed to apply their minds properly to the facts or had acted capriciously in coming to the above conclusion. In my view they clearly erred."

Noting that the Appeal Board had stated that the firearm did not fit into the appellant's collection, the judgement (in para 28) says: "…[i]t is incomprehensible why the [Commissioner] and the Appeal Board came to the conclusion that the arm does not fit into the appellant's collection. The details of the wide variety of weapons that the appellant has, are also known to the respondents. The [Commissioner] has issued licences for them." And continues (in para 29): "The [Commissioner and the Appeal Board] have not explained in their papers why [they] had come to the conclusion that the arm does not fit into the appellant's collection." It is clear that the CFR/Appeal Board must state why a firearm does not fit into a collection as opposed to simply stating that it does not fit into the collection.

So, on the submission that the arm did not 'fit into the collection', the judgement continues (para 31): "In my view this reason for refusing the application holds no water. In the absence of an explanation therefor one can only conclude that the [Commissioner/Appeal Board] have sucked it out of their thumbs. [They] have evidently not applied their minds to the facts of the matter. There is in my view, no basis for their conclusion." Coming from a judge, these are relatively harsh words and constitute severe criticism of the actions of all the respondents. The Commissioner/Appeal Board had also offered as a reason/justification for refusing this licence that "the firearm is not suitable for commercial use," but (in para 33) the court refuted this by stating: "Once again the [Commissioner/Appeal Board] have not even tried to justify their conclusion in this regard. In the absence of such evidence the inference can be drawn that they are unable to do so." Thus, in the face of a proper fully detailed motivation, the SAPS is expected to fully substantiate any and every reason they proffer for refusing a licence. Part of the legal argument raised by Lazarides' team was that there was an unwritten, unofficial or undisclosed policy in place that prevented this type of firearm being licensed by private individuals. The respondents paradoxically denied that such a policy existed but quoted from this policy!

The response of the judges (para 39) to this was: "The wording of the letters suggest, prima facie, that the policy or 'directive' was applied rigidly as if no exception would be made. Such an approach would in principle, be wrong and would lead, in itself, to the court setting aside the decision not to grant a licence to the appellant. Such an approach would give rise, at least prima facie, to the inference, if not presumption, that the [Commissioner/Appeal Board] sought to achieve, and impose, a ban on this type of arm without it having been banned in terms of section 33(2) of the Act. In such a case [their] decisions would have been motivated by, and founded upon, an ulterior purpose and would be flawed to such an extent that the court will set it aside."

This comment deals with, what I term the 'blanket ban' approach to firearms. If the police refuse to license a certain type of firearm, without considering the specific circumstances of each and every applicant, such an approach would be flawed and would be motivated by an ulterior purpose. It should be set aside on review.

In response to the Appeal Board's assertion that the refusal of a licence for collecting purposes does not constitute any form of prejudice, the judgement noted (para 44) that: "This statement, or allegation, does not merit serious consideration. It is utterly without merit." In other words, if you are refused a firearm licence, particularly for collecting or sport shooting purposes you are prejudiced and this may give rise to grounds for a review.

In dealing with the concept of "judicial deference and the setting aside of the functionary's decision" the judges noted while, in principle, the judiciary is required to defer to a functionary's decision, especially if that functionary has expertise in the particular field, there is an important qualification to that principle. So, in para 49, the judgement says, "Before a court of law defers to the expertise of a functionary and a decision made by him/her it must be clear that the reasoning of the functionary is not flawed but that it is impeccable." This means that the decisions of administrative officials must be made and reasoned in an impeccable fashion. In other words, if it can be shown that a firearm licence application was not properly considered, and a refusal not rationally explained, the courts may review such decision. The effect of this is (should be?) to impose a greater onus on the SA Police Services to provide proper reasons for their administrative decisions.

The full bench therefore ordered as follows:
1. The Lazarides appeal succeeds with costs, including the costs of two counsel.
2. The decision of previous (Pretoria) court is set aside and replaced with the following:
(a) The application succeeds.
(b) The decision of the Firearms Appeal Board to dismiss Lazarides' appeal against the decision of the Commissioner (ie the CFR) not to grant a licence for the .50 Browning calibre Musgrave arm, is set aside.
(c) The Commissioner is directed to forthwith issue the licence that was applied for.
(d) The respondents [Commissioner, Appeal Board, et al] are ordered to, jointly and severally, pay the applicant's costs.

Given the scathing remarks made about the Commissioner/Appeal Board's arguments and actions, one must wonder why the Commissioner/Appeal Board/State employed both senior and junior counsel to contest the matter. A justly determined Mr Lazarides felt so strongly about his treatment that he did the same - this made the whole affair an extremely costly exercise, particularly for taxpayers who have no option but to fund the State's legal expenses. It seems as if the SAPS/CFR now routinely brief senior and junior counsel to oppose such matters. (On behalf of clients, I have now obtained a number of court orders against the Commissioner/Appeal Board/et al.) Such expensive opposition has not been merited and is (in my opinion) a fruitless and unnecessary expenditure of taxpayers' money. Why do they persistently refuse to accept that they make some poor decisions? I believe they have ulterior motives. No matter what costs are involved, they cannot afford to have the courts investigate the issuing/refusal of licences - because they know that the whole process (and their attitude) is fundamentally and constitutionally flawed.

It is only through the actions of a few brave men - those who have the means and the determination to challenge the State - that we are slowly developing a body of court decisions and evidence that exposes the licencing process as unfair, biased and discriminatory. If we continue to successfully challenge the decisions of the SAPS and the Appeal Board, we can expect that the courts will find it necessary to instruct these bodies to 'shape up or ship out' - with very serious cost consequences for those individuals who do not properly and rationally consider licence applications. Unfortunately, and because justice costs money, the time may be coming for a class action.

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Every year a significant number of privately owned firearms are ‘lost, stolen, or destroyed’ (LSD), which is not good news, but why is it that very few licensed owners are convicted for ‘losing’ their firearms? Well, if you lose a firearm because you were negligent, that’s an offence; if you were an innocent victim of circumstance and negligence was not involved, then there is no case against you. As the SAPS generally release only the total number of all ‘lost, stolen or destroyed’ firearms it is difficult to say how many were ‘lost’ and how many of that subcategory were lost because their owners were careless, inebriated or otherwise irresponsible. As can be expected, the media, the anti-gun lobby and a number of police spokesmen would like the general public to believe that all the ‘losses’ occurred because all firearm owners are (criminally?) irresponsible. This attitude may then be reflected in the treatment you receive if and when you have to honour your legal obligation to report the loss, theft or destruction of a firearm (within 24 hours of becoming aware of any such ‘loss’) – this can be an extremely stressful and frustrating process.

 If your well-secured home is forcibly broken into, your gun safe torn from the wall and removed along with sundry other possessions, your report should be fairly straightforward. If you and your family are held at gun point and you follow the stand-ard SAPS advice by handing over the safe keys with minimum eye contact and no resist-ance, your report of the firearm loss, being an almost incidental matter, should also be straightforward. In such cases there is usually enough hard evidence to dispel any suspicion that your ‘negligence’ (or your non-adherence to the many safekeeping provisions of the Firearms Control Act) contributed in some way to the LSD of the firearm/s.

 As an aside. If burglars remove the safe and/or its contents, but not the firearm you keep hidden in your living room for fast retrieval, it is not beyond the realms of possibility that the SAPS would charge you for not having stored that firearm in the safe.

 However, ‘negligence’ or ‘non-compliance’ is sometimes a ‘contributory factor’ in the ‘loss, theft or destruction’ of firearm/s. When reporting such an LSD, the Firearms Control Act (FCA) requires that your statement outlines the circumstances of the LSD of such firearm.

 This creates a legal ‘difficulty’.
 Our human rights are set out in the Bill of Rights written into our Constitution. The most important of these (Sections 34 and 35) deal with access to courts and the rights of arrested, detained and accused persons. Apart from entrenching your rights, these provisions limit the power of the State to ride roughshod over citizens’ rights – such limits (and the independence of the Courts) are cornerstones of any democracy.

 If a State abuses or exceeds any of its many powers, free citizens can approach the appropriate Court in order to obtain relief. If the State, by way of an over-zealous or prejudiced official, withholds or denies an accused his/her rights to remain silent, to be legally represented, to apply for bail, etc, it is contravening the provisions of the Constitution, treating its citizens as ‘subjects’, and generally acting like a ‘police state’.

 One of the fundamental rights that a suspect has, is to remain silent. This is to ‘save you from yourself’ by not compelling you (perhaps while in an emotionally distressed state) to make a statement which could unwittingly incriminate you – either through ignorance or through fear or intimidatory pressure brought to bear by an accuser or an officer.

 An improperly obtained self-incriminating statement is not admissible in court. For any sworn statement to be acceptable as evidence, the deponent must have been warned of his/her rights by a police official, must understand the dangers of making a statement and then, notwithstanding that warning, elect to make a statement which may later prove to be self-incriminating.

 The FCA requires you to report the loss of a firearm and explain the circumstances relating to that loss. Making a statement under oath, when the statement is taken by a police officer as is normally the case, is a serious matter that needs careful consideration. In my experience, persons reporting ‘lost, stolen or destroyed’ firearms are anxious (perhaps over-anxious) to comply with the law. If such a deponent is indeed aware of the fact that he has rights, he seldom fully understands them and is probably blissfully ignorant about the pos-sibility that he could incriminate himself. In such cases, be warned that you should not expect a sympathetic hearing from a police officer whose training and instincts are such that you will likely be regarded as a criminal. Policemen are expected/required to charge as many criminals as possible and the State’s stated objective of ‘reducing the proliferation of firearms’ adds a measure of ‘political’ pressure for him to be tough on firearm owners.

 It is clear to me that, during their lectures on fundamental rights, police cadets are not given much instruction on our Section 35 right not to incriminate ourselves. I say this because the SA Police Services have refused to accept statements made by those who have been warned against incriminating themselves and whose statements thus read something like this: “I [full names and ID number] of [physical address] hereby report that on [date] I became aware that my [description of firearm including serial number] had been lost, stolen or destroyed. Please acknowledge receipt of this report and adjust the appropriate records accordingly.” Note: Do not simply state ‘lost’ or ‘stolen’ or ‘destroyed’ – put in all three terms. Leave it to the State to prove what happened to that firearm. For example, you and your family were involved in a car crash. The firearm you were carrying was the least of your immediate worries – though unlikely, it may have been destroyed in the subsequent fire; it may have been taken into safe custody by an attending paramedic, traffic officer, or good Samaritan; it could also have been stolen, along with any other valuables, by a passing scavenger. It could also be that post-accident shock/stress caused you to forget that you had locked it in a drawer in your host’s safe for the duration of the braai/dinner party.

 Some of my better-informed clients have even been threatened with arrest should they not incriminate themselves. Do not give way under such pressure; insist on your rights. I have debated this issue with senior police officials, including some with legal qualifications, and their standard response has been that until such time as a person becomes an ‘official suspect’ (and is arrested, detained and/or accused), he has no constitutional protection against incriminating himself. They also say that the SAPS can and will use any self-incriminatory statement against the deponent in order to pursue a successful prosecution. The Constitution is our supreme law, no other law can outweigh it. Neither can the SAPS of-ficer who is obliged to accept your statement no matter how desperately Pretoria wants firearm owners to shoot themselves in the foot. This can make reporting a LSD a difficult and frustrating exercise. Do not let the statement-taker intimidate you.

 If you were not at all negligent, what is wrong with making a straightforward LSD statement? In ordinary circumstances, that would be a fair question and, if life was fair, the answer should be “nothing at all”. But ...

 There is almost always a ‘but’ and this one arises from Section 120 of the Firearms Control Act which opens Chapter 16 – “Offences, Penalties & Administrative Fines”. In Section 120(8)(a) it is laid down that a person is guilty of an offence if he or she fails to lock away a firearm in a prescribed safe, strong-room or safekeeping device when such firearm is not carried on his/her person. (Note that this is an offence even if the firearm is not ‘lost, stolen or destroyed’.) Section 120(8)(b) states that failing to take reasonable steps to safeguard a firearm to prevent its loss or theft while on your person or under your direct control is an offence.

 This is where matters become unclear. The police and prosecutors wanting the strict wording of Section 120(8) to apply, almost always assume that if a firearm was not locked away and not on your person when it was stolen, you have automatically committed an offence. This is what is termed ‘strict liability’ i.e. if you do not comply with the legislation, you commit an offence. They do not want any ‘ifs’ and ‘buts’ and prefer not to have the hassle of taking other circumstances into account. Such a ‘strict’ interpretation is rarely valid as ‘strict liability’ has very limited application in South African law and certainly does not apply to the Firearms Control Act. There are only two decided cases dealing with Section 39 of the Arms & Ammunition Act, the current Act’s predecessor where the wording was similar. In these two cases, the High Court ruled that strict liability does not apply to the loss, theft or destruction of a firearm and that furthermore all circumstances must be taken into account to see if the person who had the firearm under their control acted reasonably or not. If the actions of the possessor of the firearm were reasonable and there was no negligence on their part, no criminal offence was committed.

 So, you have a legal obligation to report your firearm lost, stolen or destroyed, and you have the legal right not to incriminate yourself. In circumstances where you have not committed an offence, the SA Police Services will most likely (try to?) interpret the legislation with strict liability and charge you with a criminal offence – even if such charge has no merit. Whatever the outcome, a criminal charge is traumatic and expensive – for the accused. This is why I recommend that, if you suffer the misfortune of a ‘lost, stolen or destroyed’ event, you obtain prompt legal advice. The cost of obtaining such advice – and help with the drafting of the statement – is minimal compared to the costs of being charged with a criminal offence, being declared ‘unfit to possess’ and the long-term loss of your firearms. It may even affect your employment prospects.

 If you are certain that even an unsym-pathetic policeman/prosecutor will acknowledge that you have clearly not been negligent, then you can go ahead and make a full disclosure of the circumstances of your loss. Although the police may charge you (standard procedure and all that), the public prosecutor who is legally trained in all probability will not. If there is any doubt as to whether you have or have not committed an offence, then a different approach is necessary. Always bear in mind that it is up to the State to prove, beyond reasonable doubt, that you have committed an offence. You have the right to remain silent; it is not your duty to do the job of the prosecution. You have to strike a balance between complying with your obligation to report a loss, and not incriminating yourself. This is how you go about it.

 You go to the police station, you advise them that you are the lawful possessor of firearm XYZ, and that you have come to report it lost, stolen or destroyed. You make it clear that you are merely complying with your legal obligation to make the report and that, in terms of Section 35 of the Constitution, you are not obliged to furnish full details of the circumstances pertaining. Be prepared for the police to  criticise your ‘attitude’, to become agitated when you ‘stick to your guns’ (excuse the pun) and even threaten you with arrest or prosecution. If the policeman concerned (and/or his superior) refuses to take your statement, record his name and force number and insist that he make an entry into the station’s Occurrence Book to the effect that on this day you attempted to report the firearm lost, stolen or destroyed.

 As I cannot guarantee that the police will comply with their legal obligation to identify themselves or make that entry in the OB, take a witness with you when you go to make your statement – so that he/she can provide a supporting affidavit should the need arise. It may not be a bad idea to have a cellular telephone/camera so that you can photograph or video your attempt to report a LSD firearm. Going overboard you think? Not in my experience, I go through this process on a regular basis and the response of the police in such situations is generally the same. Although the FCA requires you to report the loss to “the police station nearest to the place where it occurred”, the police are obliged to take a report of this nature at any police station and refer it to the appropriate police station.

 If the police are not prepared to give you an acknowledgment that you have attempted to report your firearm lost, stolen or destroyed, you should immediately send a registered letter to the Director in Charge at the Central Firearms Registry. State that you attempted to report your loss at XYZ police station and give a brief description of the facts. (The Director’s address is Private Bag X811, Pretoria, 0001 or fax 012-353-6211.) Give full details of the firearm/s, keep a copy of the letter and the registration receipt or fax transmission slip.

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What follows is a broad guideline of what constitutes an admission of guilt fine; when one should (and should not) pay one; and what the consequences may be of paying such a fine. (NB This article is based on the current provisions of the Firearms Control Act (FCA) and excludes the changes that are scheduled to come into effect when the Amendment Bill comes into effect. The amendments substantially change the consequences of payment of an admission of guilt fine.)

For firearms owners there are in essence three types of admission of guilt fines (AoG). The most common one faced by citizens in the ordinary course of events is a traffic fine. Here, a peace officer (usually a Metro policeman) hands you a notice specifying - the offence you are to be charged with, the amount of the fine, and when you should appear in court. If you pay the fine on or before the due date, you do not have to appear in Court to answer the specified charges and thus save quite a bit of time and hassle. Such a notice may be posted to the address of the registered owner of the vehicle instead of being handed to the driver.

If you do not react to such a notice you will be served with a summons to appear in Court - this also will generally specify the amount to pay as an admission of guilt fine. Such admission of guilt fines are generally limited to 'minor' traffic offences such as illegal parking or (modestly) exceeding the speed limit - these types of fines have no effect on your 'fitness' to own a firearm. By admitting guilt (by paying the fine) of a more serious traffic offence, such as reckless or negligent driving, driving at 'dangerous' speeds, etc, you land yourself with a permanent criminal record. If in doubt, check with your legal advisor before you pay the fine.

The next category of admission of guilt fines, as specified in the Criminal Proced-ure Act of 1977, is where you are accused of what is generally a minor offence and you are given the option of payment of a fine without the necessity of appearing in Court. Such 'minor' AoG offences can include assault and malicious injury to property... and this category is dangerous for firearm owners (and those who may wish to become firearm owners some time in the future). I will now deal with this and the provisions of the 'administrative fines' section of the FCA (Section 122).

As all law-abiding citizens should know, the Firearms Control Act is weighted heavily against firearm owners. Thus, a simple, or even inadvertent, transgression can lead to a penalty completely disproportionate to the offence. It is for this reason, that you must be very wary of paying an admission of guilt fine for something other than overstaying a parking meter, etc. Obtain legal advice - immediately, if not sooner - and tell the advisor that you are a firearm owner who does not wish to be declared unfit by default and that the provisions of Section 103(1) or (2) of the FCA could place your 'fitness to possess' in serious danger. Not every attorney is actively aware of these 'hidden dangers'.

An example of automatic declaration of unfitness, unless the Court determines otherwise in terms of Section 103, is "any offence involving the abuse of alcohol or drugs". A conviction for drunken driving falls into this category. In terms of sub-section 103(2), an enquiry must take place to determine a person's fitness to possess a firearm in contra-distinction to sub-section (1) where one commits an offence specified in Schedule 2 to the Firearms Control Act. These are more serious offences, but include malicious damage to property, culpable homicide, extortion, or, as per the particularly convoluted section 7 which includes "any crime or offence" - in terms of the FCA, the Domestic Violence Act, the Explosives Act, or, "involving violence, sexual abuse or dishonesty"... "in respect of which an accused was not sentenced to a period of imprisonment without the option of a fine."

The law is extremely complex, is often confusing and thus is subject to differing interpretations. The police have stated that one of the intentions of the proposed amendments is to clarify this situation, but they seem to give greater powers to the Registrar to declare people 'unfit to possess' without referring the matter to any Court. At the cost of being repetitious:- do not pay an admission of guilt fine until you are absolutely sure that you will not automatically be 'deemed unfit', and/or be subjecting yourself to an unfitness enquiry.
In a recent case, a man was convicted of an assault in a Magistrate's Court, he paid an admission of guilt fine, the magistrate made no finding as to his fitness to possess a firearm. As the man had admitted guilt and paid the fine - which is the equivalent of serving out a full sentence - the requirements of civil society had been fully satisfied. Let us note that there is a principle of law that provides that if and when there is an error of law, or the application thereof, the benefit of the doubt should be given to the accused.
The Registrar did not see things this way and summonsed the man to a Section 102 enquiry and promptly declared him to be 'unfit' (without a proper hearing - which is itself another matter). The man then became my client and the matter is now under appeal. The Registrar's summons was in direct conflict with Section 102(2)(e) of the Act, which states that an enquiry cannot take place if such enquiry relies solely on the same facts relating to conviction in respect of which a Court has made a determination in terms of Section 103(1) or (2).
This example serves to illustrate the danger of admitting guilt in a simple situation. All too often the police do not understand the law and the lower Courts are also grappling with its consequences. In the interests of justice, that declaration of unfitnesssimply had to be challenged - even if it becomes necessary to request the High Court to review the validity of this administrative decision - an expensive and time-consuming process. My client has effectively been disarmed and left defenceless in a world consumed by violence and criminality.

The law does not accommodate this situation and I am of the opinion that the matter should have been remitted back to the magistrate in terms of the Maake decision (dealt with in a previous article) for the Court to hear evidence and make a determination as to my client's fitness to possess firearms.

There is a second category of admission of guilt fines, defined as administrative fines, that appears in Section 122 of the Act.
Here the Registrar is given the power to send out what is termed an Infringement Notice that deals with what I term as "less serious infringements of the Act". Once again this section is complicated, but gives the Registrar discretion to levy a fine of between R5000 and R100 000. If you are alleged to have contravened the Act where the penalty for such first contravention does not exceed a period of imprisonment of two years, the Registrar may levy an initial fine of R5000 and any second or subsequent infringement of the same or similar section with the same period of imprisonment, the fine may not exceed R10 000.
If the penalty for infringement of a particular section of the Act does not exceed three year's imprisonment, the first fine may be up to R15 000 and subsequent fines up to R30 000 for the same or similar infringement. And so it goes on until a maximum period of imprisonment for a contravention of the Act is 5 years where the first fine may not exceed R50 000 and subsequent fines may not exceed R100 000.

Although there is some merit in the concept of administrative fines, I have reservations about the powers granted to the Registrar. If, after receiving expert/dispassionate advice, you are absolutely certain that you have contravened a punishable provision of the FCA, you could consider accepting an administrative fine. However, never automatically assume that because the Registrar issues you an Infringement Notice or because you receive a summons from Court, that you are guilty. Just because someone in authority, or someone you think knows best, says that you have committed an offence does not mean that you have indeed committed an offence.
For example, in an interesting article involving firearms in Society News of the Law Society of the Northern Provinces, Dr H Curlewis dealt with the ius praveim principle. It is a somewhat complex and technical article, but the valid legal principle that he postulated implies that "no-one should be convicted of a crime unless his/her conduct was recognised by law as a crime at the time it took place".

The Firearms Control Act has created multiple offences that did not exist in terms of the previous Act (Arms & Ammunitions Act, 1969) and you should always check the dates. If you are charged with what is an offence under the (new) Firearms Control Act or in terms of an administrative Section 102 enquiry, but which took place before 1 July 2004, such may not have been an offence - and all charges should be dropped.

The benefit of paying an administrative fine is contained in Section 122(7), which states that payment of an administrative fine does not constitute a previous conviction as contemplated in Section 27 of the Firearms Control Act. Although the Act does not specifically state this, it seems to imply, that if you pay the administrat-ive fine (i.e. take the "easy" route) you will not have a criminal conviction registered against your name and you cannot be charged in a Court of law with the same offence. Whether an actual record of your 'conviction' will be kept in the criminal record system will only become clear when administrative fines are in greater use and where a person has the payment of an administrative fine used against them for the purposes of sentencing in a subsequent criminal conviction.

The payment of administrative fines is however very much a carrot and stick situation. You pay the fine or you go to Court. If you go to Court you are exposed to the possibility of a criminal conviction. If you fail to comply with the requirements of the Infringement Notice, i.e. respond to it, then the Registrar will take a judgement against you for the amount of the administrative fine as a civil judgement and then levy execution against your assets to recover this amount. My personal preference is to pay an administrative fine in circumstances where a criminal conviction would be inappropriate relative to alleged conduct or where there is no strong legal defence against the allegations.
If there is some doubt as to the guilt of the person, or uncertainty about the applicability of the law, I generally recommend going to Court to sort matters out.

On the issue of cap-and-ball (percussion) revolvers, SAGA has written to ask the Central Firearms Registry for clarity on the policy to be applied and what the regulations will say on the subject. At the same time, on behalf of the United Firearms Forum, we wrote to the Minister requesting a meeting to discuss inter alia the cap-and-ball issue, the policy relating to acceptance or refusal of late applications for renewal, and the inconsistent application of licensing and re-licensing policies. We will report on any progress made.

On a lighter note, it appears that it is not only firearm owners who are penalised and victimised by Government. In the latest newsletter of the Law Society of the Northern Provinces there appears an article by an attorney that dealt with the issue of outstanding permanent residence permit applications.
Instead of dealing with the countless long-outstanding Applications for Permanent Residence, the Department of Home Affairs sent a notice to applicants indicating that their applications were missing some or other document or information and giving them 14 days to produce the information - failing which the application would be withdrawn. The attorney who drew this to the attention of his law society noted "...it appears to have been irrelevant that there was no provision in the Act for withdrawing or cancelling applications in these circumstances." Having posted those notices, the Department promptly withdrew all the applications - without waiting out the14 days and without determining whether the applicants had responded. The backlog 'disappeared' overnight - I wonder whowill receive a rich reward or 'performance bonus' for such dastardly behaviour? Do you feel any better now that you know firearm owners are not the only ones direly affected by autocratic bureaucracy? So much for 'public service'.

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One of the 'hot' topics affecting firearm owners today is the issue of cap-and-ball revolvers. In terms of the current legislation an 'antique firearm' means any muzzle-loading firearm manufactured before 1 January 1900 or "any replica of such firearm". In terms of Section 5(1)(e) of the Firearms Control Act an 'antique firearm' is not deemed to be a firearm, i.e. it requires no licence. Now, despite the hassles involved in getting your hands on some black powder and the more complex loading procedures, the lack of restrictive and expensive licensing hassles made black powder shooting a more popular way of enjoying the firearm sports.

So, it is not surprising that after the Act came into effect, firearm dealers were not the only ones to import increasing numbers of modern replicas of antique firearms. The SA Police Services initially approved the import permits for these 'firearms' but stopped getting involved when it was accepted that these 'antiques' were no longer deemed to be firearms and the SAPS's permission was unnecessary to own, deal or import them. At the same time many previously licensed muzzle-loaders were deregistered and had their licences cancelled. At the time, Cent-ral Firearms Registry (CFR) personnel agreed that cap-and-ball revolvers were covered by the definition for muzzle-loading firearms. Representatives of the explosives unit in Pretoria, who control the supply of black powder, agreed. So far so good...

Until the SAPS suddenly became concerned that these antique muzzle-loading firearms, and specifically cap-and-ball revolvers, were being 'misused' (read popular) and tighter control was necessary. So they rewrote the definition of 'antique firearms' and went to Parliament to have the new definition incorporated into the Act. They 'sold' this action to Parliament by claiming that (a) cap-and-ball revolvers were being abused; and (b) that cap-and-ball revolvers had always been considered as 'ordinary' firearms and had never been exempt from ordinary licensing requirements. These CFR officials 'conveniently' omitted to mention to Parliament that they themselves had acknowledged that - and had acted as if - cap-and-ball revolvers did not need licences. The fact that claims (a) and (b) contradict one another seems to have escaped these eminently qualified people. In any event Parliament accepted the request and a new definition, specifically excluding cap-and-ball revolvers, has been included in an Amendment Bill which is awaiting promulgation.

During the debates on the Amendment Bill in September 2006, SAGA, dealers and collectors requested that mutually acceptable 'provisional arrangements' be put in place to regularize the position of those cap-and-ball shooters whose ownership of such revolvers would make them 'instant criminals' the moment the Amendment Bill became law. We felt that the most prac-tical approach would be that these people be given good time to obtain their competency certificates and to then apply for the licences - and that cap-and-ball revolvers not be counted as firearms when weighed against the numerical limitations contained in the Act. The police's response was 'no' - as the unlicensed ownership of such revolvers has "always been illegal" and those already in possession will have to apply for amnesty in order to escape prosecution for 'illegal' possession of an unlicensed firearm.

Now here is the rub. If an amnesty is declared (and there are no indications at this stage that it will be) I for one, will not apply for amnesty for a number of compelling reasons. Firstly, I have not broken the law and on principle I will not ask for forgiveness when I have not done anything wrong. Secondly, as an officer of the High Court it may well be that, by applying for amnesty for my supposedly criminal behaviour, my Law Society may have to hold that 'crime' against me. This is a situation which I am not prepared to even consider.

So what now? If any of you is about to be prosecuted for the 'offence' of possessing an unlicensed firearm, namely a cap-and-ball revolver, please let us know. We consider any such prosecution to be potentially malicious and unfounded and have collected a body of evidence which we may have to test in court in order to expose this double-dealing by the Central Firearms Registry.

Talking of prosecutions, SAGA has received numerous queries concerning the licence renewal applications made after the annual March deadlines.

Firstly, if they do not intend to relicense them, everybody is entitled to keep their firearms until 30 June 2009. If the licences are not renewed, or the firearms legally disposed of (by sale, donation, destruction, or deactivation) by 30 June 2009, they must then be forfeited to the State - surrendered to the SAPS for destruction. This means that there can surely be no way you can be prosecuted for 'illegal possession' of a licensed firearm until 1/07/2009.

Some police officers believe however, that you can be prosecuted for failing to renew your firearm licence. This may be something of a legal morass. If you did not relicense your firearms on schedule because you intend to dispose to them lawfully prior to 30 June 2009, you cannot have committed an offence. However, an SAPS view is that a failure to comply with any provision in the Act or regulations, which does not contain a specific penal provision constitutes a contravention of Section 11(4) of the Transitional Provisions and is "liable upon conviction" to a fine or imprisonment for up to one year or both.

However, Section 1(1) of the Trans-itional Provisions says your licence remains valid for a period of five years from the date of commencement of the Act (1 July 2004). These two sections therefore are mutually contradictory and in such circumstances any accused person should be given the benefit of the doubt by a court because the legislation is not clear.

Amongst other things, in an April 2006 letter to all provincial commanders, the Cent-ral Firearms Registry instructed as follows:
"5. Any person who is obliged to apply for the renewal of his/her existing firearm licence, permit or authorization during 2005 and fails to do so and who wishes to apply for the renewal during the years 2006 to 2009 is liable to be prosecuted for being in contravention of item [section] 11(4) depending on the circumstances [my emphasis] of the failure to apply for the renewal. The prosecution will be restricted to the contravention of item 11(4) and any prosecution of firearm owners who legally possessed the firearm in terms of the previous Act for the illegal possession of firearms can only be instituted after 1 July 2009, being five (5) years after the commencement of the Act on 1 July 2004."

Thereafter, the directive goes on to state that all late applications for renewals must be accepted and processed in the usual manner but with certain extras. The renewal application and the competency certificate application must be endorsed "Late Receipt"; the applicant must supply the Designated Firearm Officer (DFO) with a detailed written explanation (with supporting documentation) as to the reasons for missing the deadline.

If an application does not fall within the special provisions gazetted for this purpose (No 28039 of 23 September 2005) the Provincial Firearms Renewal Committee must 'guide' the DFO regarding the prosecution of the applicant for the identified contraventions in terms of the Act. The 'special' provisions include absence from SA, incapacity, and "circumstances for which the applicant is not responsible" - and allow you 90 days after the 'condition' ceases, to apply to renew.

If the Provincial Firearms Renewal Committee decides not to institute a prosecution, the applications are rerouted back into the standard system. That the Provincial Committee can decide your fate is a matter of concern in itself as this will lead to inconsistent treatment.

In summary therefore you can apply late, but you run the risk of not satisfying the Provincial Firearms Renewal Committee that there were 'good reasons' for your lateness - there are however no guidelines to tell you whether or not your reasons may be acceptable. This may suit the SAPS, but it removes any incentive for those who may have 'missed the boat' to apply to renew their licences.

We understand that stations in the North-West Province are already preparing to prosecute those whose reasons were not to the satisfaction of the committee. If such prosecutions take place, they may well be unlawful and it would help us if you can inform SAGA as soon as possible. Even if the 'accused' is not a SAGA member we need full details: names, address, ID number, the names of the court and the investigating officer, a copy of the charge sheet and a copy of the reasons you supplied for being late. You can fax these documents to SAGA at 031-562-0530.

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Many of you will recall that the firearm amnesty declared by the Minister for Safety & Security in December 2004 was to have been in force for three months (January to March 2005) but was subsequently extended to six months and came to an end on 30 June 2005.

At the time this amnesty was announced, SAGA publically declared that it would not succeed in its stated purpose - drawing criminal guns from the streets. An amnesty normally has the effect of 'wiping the slate clean' i.e. granting a person immunity from prosecution. However, the firearm amnesty, like the more recent tax amnesty had a sting in its tail. While the 100 000 tax-evading businesses/persons who have now registered as taxpayers will not be charged with offences or have to pay penalties, they will have to pay 'back taxes' so they do not get away scot-free. In the firearm amnesty, a person who handed in an unlicensed firearm which he/she had used for criminal purposes, would not be charged for 'illegal possession' but had to identify himself and all such firearms would be subjected to ballistic testing. If these tests disclosed that the gun had been used in a crime, criminal charges would be laid against the person who handed it in. It is therefore quite clear that if a 'real crim-inal' decided that the tools of his trade were 'too hot' to hold onto, it would be much safer for him to toss them into a convenient dustbin or drain, than to hand them to the SAPS on a platter - together with his name, ID number, address and fingerprints.

So, what happened? Was SAGA correct in its assessment of how criminals would react? Well, despite smug claims that the amnesty was a great success, things are still about as clear as mud. For some unsurprising reason, I haven't yet seen the Minister proclaiming to a TV camera that hundreds (thousands?) of criminals have been arrested after all the expensive and time-consuming ballistic tests had tied amnesty firearms to violent crimes.

So, when the Institute for Security Studies (ISS) published a review of the 2005 firearms amnesty entitled "Simpler, better, faster"compiled by well-known anti-gun activist, Adéle Kirsten, I turned to it for clarification and inspiration. Here is the second paragraph of that 14-page report:
"Contrary to popular belief that most of the guns collected during the six-month amnesty period were licensed weapons surrendered by legal gun holders, most of the firearms removed from circulation were illegal. Of the total of 100 006 firearms that were handed in, by definition 53 435 were illegal weapons. Of these 33 823 were surrendered by people who were in 'unlawful possession' of the weapons, through negligence, such as failing to register the gun, or through having a 'deceased estate' firearm. Some were confiscated firearms that had been recovered at the scene of a crime during day-to-day police activities (17 665) or through special operations such as Seth-unya II (1947). The remaining 46 631 were registered weapons that were surrendered by licensed owners." (Ends quote, but note that a verbatim repeat of its first sentence was highlighted on page one.)

As is typical with much of the gun control debate, some commentators do not know what the law provides, and some of those who do know choose to pretend otherwise. Now, you are perfectly entitled to 'surrender' a legally-held firearm to the SAPS, or 'donate' it to a licensed dealer at any time you choose. You do not need an amnesty to perform a legal act.

Why then are those "remaining 46 631 [firearms]" included in this report as if they are amongst the "successes" of the amnesty?
Why are the 19 612 (17 665 + 1947) firearms recovered by SAPS activities included in a 'review of the amnesty'?
The answer to those 'whys' is that it is a combination of anti-gun propaganda and window dressing to 'con' the public into accepting half-truths and/or downright lies. If my maths is correct, when we exclude these highly questionable items, we are left with 33 763 'amnesty' firearms to report about. As it was established that 33 823 firearms were unregistered through negligence/deceased estates, that surely means that minus 60 came from active criminals. Although there must be some truth in the persistent reports of 'surrendered' firearms getting back into illegal circulation, the numbers cannot be qualified and we must not assume that the SAPS simply donated the 60 firearms to criminals in order to balance the books.

It is abundantly clear however that the amnesty drew few if any firearms away from murderers, criminal gangs, rapists, organized crime, bank robbers, etc. Indeed the answer to that -60 appears in the table on page 9 of the report which reveals that 100 066 firearms were handed in - including 1 654 components (1 422 barrels, 179 frames, and 53 receivers). We don't know how many of the 'complete firearms' were in operational condition.

As a result of criticism of the amnesty by SAGA and others (including police officers), the Minister for Safety & Security was questioned by the media as to why licensed firearm owners were handing in their firearms and why the SAPS were unable to explain the contradiction between the declared objectives of the amnesty and the reality of the amnesty because so many licensed firearms were being surrendered.

The research utilised, amongst other techniques, interviews with police officers at station level and concluded that many of these officers were uncertain as to the real purpose of the amnesty which in turn created unnecessary obstacles and confusion for both the police and the target audience. The paper goes on to argue that the confusion was confirmed by "almost all interviewees from officers in township police stations to criminals and licensed gun owners".

What is of great interest is the perception of "most officers" at station level (as well as some more senior officers) that the conditions attached to the amnesty were major obstacles in taking real unlicensed criminal firearms off the street i.e. guns used for criminal purposes. Some senior police officers drew a distinction between recovering illegal guns used for criminal purposes as opposed to unlawfully possessed firearms (such as an estate firearm which they did not regard as serious as the former). Many police officers did not regard licensed but illegally possessed firearms as a problem because it was unlikely that they were used to commit violent crimes.

It is fair to conclude that the "illegal" total includes confiscations arising out of declarations of unfitness in terms of Section 102 and 103 which are extremely common although no breakdown is given in this respect. It also would include legal firearms seized by the police and subsequently destroyed when the owners did not reclaim them or they were refused return of such guns.

There also appeared to be support for a blanket amnesty. While this could bring in the firearms of some 'retired' criminals and allow still active ones to get rid of evidence against them, such an amnesty would not sit well with victims of firearm violence whose attackers/rapists/murderers could thus escape retribution.

SAGA has urged the Minister for some years now to form the Ministerial Committee as provided for in Section 132 of the Act, (which is now being downgraded to a Consultative Committee in terms of the amendments). SAGA reiterates its willingness to participate in forging such civil society partnerships for the betterment of all gun owners.
So where does that leave us? SAGA was right when we said that criminals would not 'take advantage' of the amnesty. And it is not all that surprising that this would be confirmed by the research of an organisation and researcher that are openly anti-gun. Perhaps if government was prepared to listen (and heed) those organizations that know about firearms, amnesties and firearm issues may well be better and more efficiently dealt with.

On a totally different note, the press recently reported that a firearm licence applicant, who had not disclosed a criminal conviction, was charged and convicted of contravening the Firearms Control Act. Not disclosing a conviction is a common occurrence for a number of reasons. Many non-disclosures are inadvertent and some are intentional. For example many people do not know that paying an 'admission of guilt fine' for certain offences can leave you with a criminal record. Do not be misled by police or prosecutors who have good reason to induce one to pay an admission of guilt fine and save precious (and expensive) court time by paying an admission of guilt fine. With the exception of parking offences and certain categories of speeding, admitting guilt does not expunge the record. It is an offence not to disclose a criminal record when applying for a competency certificate, licence or permit. The nature of the criminal conviction is irrelevant because the failure to disclose it is a separate offence unrelated to the seriousness of the conviction.

If you think you may have a criminal record, go to your local police station and apply for a police clearance before you submit your application. This way you can explain what criminal conviction you have and the reasons for it and you can argue that the conviction falls outside of Section 9 of the FCA and is therefore irrelevant for the purposes of considering your application.
SAGA encourages you to do this because it is the policy of the SAPS that if you have not disclosed a conviction, to not grant you a license or permit and the Appeal Board has supported this policy. This is not a fair approach particularly if such non-disclosure was inadvertent/irrelevant to your case. You should be allowed an opportunity to explain your failure to disclose a conviction and if you have a good reason it should be condoned.
With the exception of that one newspaper article, I am not aware of anyone who has been charged and convicted of an offence of failing to disclose a criminal conviction, notwithstanding many attempts to do so. The refusal of any form of application because of a non-disclosure, particularly if it was an innocent non-disclosure, is tantamount to an unofficial declaration of unfitness to possess a firearm without an applicant being afforded due process. When space and time permit, I will go further into the matter of these 'admissions of guilt'.

It pays to be cautious - investigate your circumstances properly before signing any declaration.

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At a recent meeting (imbizo) organized by Senior-Superintendent Prinsloo, Gauteng's provincial DFO, representatives of firearm related organizations - collectors, hunters, dealers, sport shooters,  instructors and SAGA - discussed relicensing issues in general and specific Gauteng problems in particular. Speaking broadly the problems most mentioned were a lack of consistency in how applications were dealt with and the lack of basic resources such as staplers, punches, pens, etc.

Generally, however, the feedback was that the SAPS had used the experience gained during last year - the first of the four 'tranches' of renewals - to reduce various 'hassle factors' and that the procedure ran much more smoothly. The central complaint of the SAPS was the South African tradition(?) of leaving everything to the last possible minute. This year's 'end of March rush' - while more evident in some registration centres than others - strained SAPS resources to the full and was naturally the source of some irritation for applicants and processing personnel alike.

Superintendent Prinsloo asked the associations to encourage their members to renew throughout the year and so enable the SAPS to offer applicants better service and assistance with the necessary paperwork. For various reasons, his request met a mixed response from the organizations that have to consider their members' best interests. However, licence-holders should note that renewed (or new) licences are valid from the date issued - not from the date that application is made. We were assured that in reality the lifespan of your licence will be much the same whether you renew today or two weeks before the next deadline.

The SAPS have proposed that firearm owners, with the necessary firearm know-ledge, become police reservists so they can alleviate the administrative burden placed by the Firearms Control Act on full-time police officers. These 'specialist' reservists could inspect firearms and where appropriate certify what they are; conduct safe inspections; conduct interviews for competency and renewal purposes, etc. This proposal again got a mixed reception but it at least acknowledges that firearm owners are responsible and have much to contribute - provided their participation is not misconstrued as complete support for the onerous provisions and unwelcome restrictions on our rights to ownership contained in the Act and Regulations. If you wish to explore the possibilities of becoming such a reservist, contact your Provincial Designated Firearm Officer to check if and how it will work in your province.

At the last SA Police Service Hunters Consultative Forum meeting, Director Bothma, head of the Central Firearms Registry, unveiled some surprising figures. He said that approximately 150 000 firearm licence renewal applications were received during the first relicensing period ending in March 2006, and 180 000 during the second period which ended on 31 March this year û which included firearms licensed for 'business purposes'. So, halfway through the relicensing process some 330 000 renewal applications have been received. Director Bothma indicated that on these numbers, he believed that there were no more than one million firearm owners in the country, who possessed 1.5 million firearms. I find this totally unbelievable. In Firearm Use and Distribution in South Africa - edited by Robert Chetty of the National Secretariat for Safety & Security and published by the National Crime Prevention Centre in 2000 - it was stated that, "There are more than 4.5 million registered firearms in South Africa, including almost 2.8 million revolvers and pistols. An average of 192 283 new licences have been granted each year for the past five years, with significant variations by province. Most of the firearms (78.2%) [3.5 million] are registered to private individuals."

So, seven years after this 'firearm facts' booklet was published (from licensing figures obtained from the CFR) there are suddenly two million fewer firearms registered to individuals - despite the huge surge in applications in the 1990s. What happened to them? Or are the much reduced numbers trying to tell us that the Firearms Control Act has succeeded beyond someone's wildest dreams by halving the "proliferation of firearms"? I would guess that it is more likely an attempt to conceal the fact that there has been an abysmal response to the re-licensing process. So much so that it has become expedient to fudge the figures.

Whilst talking about the legislation, in its short existence it has generated more than its fair share of litigation, culminating in a number of reported court decisions. I keep my eye on the law reports to see how the courts are interpreting the Firearms Control Act. One of the more recent decisions involves an interpretation and application of one of the more draconian parts of the legislation, Section 103. Briefly, S103 obliges a court to declare persons convicted of certain classes of offence (involving violence, drugs, alcohol, etc) 'unfit to possess' - unless good reason exists to the contrary. In other words, those convicted of such offences, are automatically deemed to be unfit, unless they can convince the court otherwise.

In reality, magistrates who have a multitude of penal or criminal statutes to apply, are not always aware of the provisions of S103 and do not properly apply the section. In the case of S v Maake, 2006 (Transvaal Provincial Division) a criminal matter was brought on review before two judges. They decided, because the magistrate had not conducted an enquiry as provided for in the Act, the accused (who was convicted of assault and malicious damage to property) was incorrectly declared unfit. The court made some interesting observations. There are two different types of offences in S103(1) and S103(2). Under S103(1) you are automatically deemed to be unfit "unless the court determines otherwise". There is no judicial interpretation of what "unless a court determines otherwise" means. S103(2) however, states that when "the court which convicts a person of a crime or offence referred to in subsection (2) and which is not a crime or offence contemplated in subsection (1) it must enquire and determine whether that person is unfit to possess a firearm". The courts concluded that this is a different approach to subsection (1) in that a formal inquiry must take place. Because no formal inquiry took place, the matter was referred back to the magistrate to conduct such inquiry. The court ruled that in terms of S103(1) no such formal inquiry needs to take place. What is interesting however, is the following statement, which I quote direct from the judgement at paragraph H on page 406. "When the matter falls within the ambit of S103(1) and the accused person is unrepresented the court should draw the accused's attention to the provision of S103(1) and invite him or her, if he or she so chooses, to place facts before the court to enable it to determine that he or she is indeed fit to possess a firearm. The automatic deprivation of the right to possess a firearm may have serious consequences for an accused if the provisions of S103(1) are simply ignored and not brought to his or her attention." Is this a judicial recognition of a "right" to possess a firearm?

In an unreported decision of the same court (S v Swanepoel), two High Court judges, sitting as an Appeal Court from the Magistrates Court, ruled that one is not automatically unfit if one is convicted of the offence of assault. This means that you are not automatically unfit if convicted of an offence involving violence but I would urge anybody in this situation to obtain proper legal representation. The case is going to be argued in the Supreme Court of Appeal, on other grounds, which will not affect the principle established in the first appeal. 

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Hold on to your seats, I am not about to 'eliminate the negative' as the song writer recommended.I don't do this very often but today I do have some positive observations to make about the South African Police Services and its support units.

This is not all that unusual, just as I expect fair treatment, I believe in being fair to others... with praise as well as criticism.
I have dished out lots of advice and assisted quite a few clients over the pastcouple of years and now my day had arrived. It was time for yours truly to submit myself to the dreaded relicensing process... and I must say that things have improved and must rate the experience as 'positive'.I was treated with respect and I was processed quickly and courteously at my Firearm Registration Centre - one that is recognized as one of the better and more efficient centres.

Competency does not arise in isolation however and comes about as a result of good training and leadership.
Had I had just this one single positive experience with SAPS, I would not have written on the subject. However two other 'happenings' prompted me to take this tack.
The first happened at the AIM Show, where Snr Supt Chris Prinsloo addressed gun owners on the Firearms Control Act, its implementation, the problems experienced so far, and possible solutions to these problems. It is a pity the audience wasn't very large because this Gauteng-based officer gave us a refreshingly frank and direct insight into the processes as they are being applied in Gauteng. It appears that Gauteng has the best performance of all the provinces in terms of the relicensing of firearms but the process is not without its difficulties. (This we know.)
He invited firearm owners to submit details of any problems they experience and gave an undertaking that the SAPS would consult with firearm owners to deal with any difficult issues. This progressive attitude must be encouraged.

One ongoing and countrywide problem is that the administrative staff in some Firearm Registration Centres have been refusing to accept the documents proffered by licence-holders in support of their firearm licence renewal applications. Although it may be intimidating to insist on your rights in a face-to-face with SAPS personnel, you should do so, as politely as you can. SAPS members do not have the authority to refuse to accept such supporting documents and such obstructionistic behaviour should be condemned. This of-ficer told us that the SAPS is obliged to accept such documentation and I must add that one telephone call to him after a report of a bad experience remedied one such problem immediately.

Another observation he made, and this was noted by several SAGA members present, was that notwithstanding anything else, your current firearm licence remains valid until June 2009. In other words, even if you are refused a renewed licence, the 'old' licence entitles you to retain such a firearm until June 2009. In some quarters, however, the validity of this interpretation of the legislation is being disputed. We are attempting to obtain clarity in this regard.

Another positive 'happening' and a potentially very, very important one arose out of a decision of the Firearms Appeal Board - an overburdened (or undermanned?) statutory body that has given many an appellant serious headaches because of long and frustrating delays in handling appeals against decisions of the Central Firearms Registry.
I now have a 'positive' decision that is worth writing about. I lodged an appeal on behalf of a client (Mr X) against the refusal of a permit to 'import' personally owned firearms.

There is a particular problem with the Firearms Control Act and Regulations which prevents a citizen or returning resident from obtaining temporary import permits on arrival here from overseas. This problem has been pointed out to the legislators on a number of occasions but, for reasons best known to themselves, nothing has been done about it. This is a technical amendment that does not in any way modify or vary the aims and objectives of the Act and would in fact make the lives of the South African Police Services easier.

Be that as it may, Mr X asked the Central Firearms Registry and his local Firearm Registration Centre what procedures he should follow to legalize his firearms when returning to the Republic after a period of working overseas. Heed this. Mr Xmeticulously recorded the details and the telephone numbers of the persons that he dealt with. His notes subsequently proved invaluable.
He was told that, when he returned, he could bring his firearms to his port of entry into South Africa and obtain a temporary import permit. Thereafter he could apply for a permanent import permit and, subject to him obtaining the relevant competency certificate/s and subject to his motivation being acceptable to the CFR, apply to license the firearms in his name. No problem thus far.

In its lengthy written judgment, the Appeal Board noted that "the Appellant appears to have made strenuous efforts to gain the correct facts concerning the correct procedure". This observation is vitally important because the Appeal Board concluded that, from the actions of the Appellant (Mr X), he had at all times intended, and had indeed made strenuous efforts, to comply with the provisions of the Firearms Control Act.
However the various representatives of the South African Police Services provided the incorrect information and advice. When Mr X arrived at the airport with his firearms and went to apply for the temporary import permit, the permit was refused and his firearms were confiscated. The police officer who refused the import permit confirmed that he had instructions to do so from the Central Firearms Registry.

The Appeal Board noted that Mr X was not told about Section 73 of the Act (the problematic section) which specifies that a person may not import a firearm into the Republic unless he has already been issued with the necessary permit.
The Appeal Board furthermore noted that Mr X was advised of the incorrect procedure and (this is significant) "...it is a small wonder he was not prosecuted although a threat had been made to that effect".

The Appeal Board's decision quoted the case of Union Government vs Union Steel Corporation where the Judge stated, "If a discretion is conferred by statute upon an individual and he fails to appreciate the nature of that discretion through misreading of the Act which confers it, he cannot and does not properly exercise that discretion. In such a case a court of law will correct him and order him to direct his mind to the true question which has been left to his discretion."

The Appeal Board concluded that, "The fact that a wrong procedure was advised to the appellant (Mr X) created a legitimate expectation on the part of the appellant that he could apply atOR Tambo airport and obtain a temporary permit. That expectation was frustrated by the refusal of the temporary permit and that a wrong procedure had been followed" and "Legitimate expectation is part of our law." … "The Advice of wrong procedure also resulted in a denial of administrative justice in terms of Section 33(1) of the Constitution Act 108 of 1996. The appellant has suffered prejudice which the Board can only remedy by varying the decision of the registrar by granting a permanent import permit. The Firearms Appeal Board orders accordingly."

There are a number of significant aspects to this decision.
Firstly, the Appeal Board thought it appropriate to provide a lengthy and well-reasoned summary of the circumstances as well as legal authority to support their decision in favour of the Appellant. This is to be welcomed, because it is through this type of decision that a body of precedent and case law can be established to guide everybody as to how procedures should be interpreted and applied. This is a positive step forward for all persons who are in any way affected by the Firearms Control Act.
Secondly, there is an acknowledgement of the right to administrative justice that is afforded to an applicant for a permit, licence, etc in terms of the Firearms Control Act and this, in my opinion, is a vitally important observation of the Appeal Board.
Third, is the Board's recognition of the concept of a legitimate expectation. This is an objective concept and must be established and proven by fact. In this instance, by keeping meticulous notes, Mr X was able to argue his case both on a factual and legal basis.

Firearm owners should note that the onus is them to properly record their dealings with the SAPS in case they need to prove an infringement of their rights or the improper use of discretionary power. If you can show that you have been unfairly or irregularly treated you should be confident that the Appeal Board will award you appropriate relief.
Although this is only one decision and does not automatically establish any legal precedent, I regard it as a major step forward in the direction of fairness and pragmatism. It is to be hoped that further objective decisions will help guide future procedures and practices so the use of discretionary powers and application of the law will be objective and fair. And that our rights become as clear and certain as our obligations.

By the time you read this, the second relicensing period will be over. If you had problems that were not of your own making and, if you kept copies of documents and detailed notes of your various dealings with officials, let us know about it and we will endeavour to take the issue further - for your sake as well as that of the next batch of relicensees.

The positives recorded in this column have not 'eliminated the negatives' - we are still opposed to the Firearms Control Act in principle and to the multitude of unfair practices and discrimination arising therefrom. Aluta continua.

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By the time you read this, the second of the four annual licence renewal 'anniversaries' will be almost over. I hope, however, that some of the following information will be of some use to those who are trying to renew by 31 March this year and will also help those who have to engage in the process before 31 March next year.

This article was precipitated by a number of remarkable similar complaints and comments that SAGA received about the erratic or irregular manner in which applicants are treated at different firearm registration centres.

No police officer at any Firearm Registration Centre has any authority to refuse to accept an application or to demand that a licence holder hand in for destruction or dispose of firearms. All firearm licences remain valid, per ministerial interpretation of the Act, until 30 June 2009. If you choose not to re-licence a firearm you can legitimately hold onto that firearm until the expiration of that date. It is that simple.

A police officer cannot tell you to surrender surplus (licensed) firearms if you have more than the new numerical limits, nor may he threaten to prosecute you should you not hand in such firearms. SAGA has received numerous reports of police officers who would not accept an application for example for two handguns. This attitude is 'justified' by the police officers claiming that a person is not permitted to process two handguns for self-defence. In three verified examples that I followed up, the applicants had applied for one handgun for self-defence and a second for occasional sport shooting. The police officers concerned (from three different police stations in different provinces) were not aware or did not want to acknowledge that the Act provided for ownership of a second handgun.

Please note furthermore that there are no formal requirements in the Act to be categorised as an occasional sport shooter should you wish to own a second handgun, i.e. no club membership is necessary, no proof of participation in any organised sporting activities, etc.

Because the complaints about the same 'freelance interpretations' of the Act emanate time and time again from different places, it seems as if someone in high places has issued a memo or policy directive that is either subject to regular misinterpretation, is not in accordance with the provisions of the Act, or contains an element of wishful thinking.

If you are told, and are given logical and acceptable reasons for this, that the documentation you take along to your Firearm Registration Centre is not fully compliant with the Act, do not give up and surrender any firearms. Insist that your application/s be accepted, obtain an official receipt for the fees (R70 per firearm) and inform the police officer that you require time to obtain whatever additional documentation is required - such as a declaration (from an accredited association) as dedicated hunter, sportsman or collector - and that you will submit this documentation within a reasonable time.

You can also submit additional motivating information after your renewal applications have been lodged. The police do not send your application forms off to Pretoria until they have completed all of the necessary local procedures such as a safe inspection, interviews with 'referees', fingerprints, etc. I am not going to name them, but I am aware of at least three police stations in Gauteng where these processes took eight months or more to complete after lodging renewal applications.

When it comes to submitting motivating documentation, there are a variety of 'advice lists' available to various associations' members (including SAGA members) giving guidance as to what you should submit.

Please bear in mind that in order to be granted a licence there is a two stage enquiry. The first is to determine whether you are a 'fit and proper person' in terms of Section 9 of the Act (competency) and the second is where you qualify to be granted the licence for the purpose for which you want the firearm.

Although there are no policy guidelines written into the Act, and as far as I am aware there is no openly disclosed licensing policy, certain facets of the policy can be extrapolated from decisions of the South African Police Services. For example if you want to license a hunting rifle, you are required to state where, when and what you want to hunt with that particular rifle and calibre and you must motivate accordingly. Once again the hunting associations provide assistance in categorising, endorsing and motivating calibres for various purposes. The hunting associations have been very successful in establishing a reasonable rapport with the SAPS and membership of an accredited hunting association can be of great benefit to regular hunters.

It may be 'bureaucracy gone mad' but you can never submit too much supporting documentation with your application. Unlike the old Act, the new Act has been brought in line with established legal principles that would be applicable to, for example, a criminal appeal. That is, if you wish to appeal a decision of the South African Police Services to refuse your licence, permit, authorisation etc, such an appeal cannot introduce new information to support your application - you are thus limited to the information submitted in the original application. You cannot go outside of this information unless you obtain the permission of the Appeal Board to submit further information. This permission will only be granted in consultation with the South African Police Services and it will be refused (according to legal principles) if by allowing the submission of additional information the South African Police Services would be prejudiced and this prejudice could not be eliminated by giving them time to respond to the additional information.

This means that you must submit as much documentation as possible with your original application. The first part of this documentation is information about you as the applicant (where you live, what you do, who you are, your philosophy on life, whether you own property or a business, what your educational qualifications are, what your status in the community is, etc.). Many people overlook the fact that although they may have a routine job, part of their job functions, for example being a safety officer and having undergone special training in this respect, must be mentioned. This type of information is important because it illustrates that your employer has delegated responsibility to you as part of a trust-based employment relationship. This should illustrate to the South African Police Services that, as you are in a position of trust, you should be regarded as a responsible person.

Responsibility is the key element in the Firearms Control Act. Many people overlook the fact that roots in their community or involvement in religious or social activities are relevant. If you are a keen fisherman and part of an organised fishing club, tell the police. Fishing and hunting activities are closely related and by telling the police that you are a fisherman you give them more information to assess your suitability to possess firearms for specific purposes. It also illustrates you are willing to associate with like-minded persons in structured activities. These are all components of the new legislation.

When it comes to motivating for specific firearms, provide details of, for example, your hunting history no matter how, in your opinion, immaterial. When did you start shooting? How were you introduced to hunting? Was your father a hunter or any close relative? Provide a portfolio of evidence of your hunting activities. Every hunter, even an occasional hunter, should have hunting licences and permits to transport meat, photographs and invoices as proof of payment for hunting. Keep all of these and when motivating for a licence, give the police copies of these.

On the issue of keeping copies, whenever you hand something to the South African Police Services, ensure that you keep a complete copy thereof and have that copy stamped by the South African Police Services to acknowledge receipt. Somewhere, apart from in outer space, there seems to be a 'black hole' into which great wads of licence application documents mysteriously disappear. It isn't right, it isn't fair, that you are expected to resubmit such documentation, but you will avoid much inconvenience if you have copies and can quickly comply with such a request. (Make sure that you again make copies so that...)

February also saw the conclusion of the comment phase on the Regulations. Once again all of the associations (hunting, collecting, sport shooting, dealers, etc) shared their views on the Regulations and agreed on general legal principles. Thereafter the associations made their individual representations to government. (SAGA's representation is available on its website.) Once again, many of the issues are of such a general nature that it fell upon SAGA's shoulders to deal with them for the benefit of all firearm owners whose interests are not represented by a specialist association.

It was interesting to see increasing levels of frustration being voiced by so many associations and individuals. There is growing realization that the Act is badly worded, confusing and contradictory. The implementation remains questionable (to say the least!) and delays in processing applications are not getting any better.

There have been a number of recent news reports of the South African Police Services and the Minister being taken to court for 'non-delivery' of proper service - unreasonable delays in processing applications, for not responding to reasonable requests for 'furthers and betters' and even for apparently ignoring court orders. They were all successful.

Don't forget your administrative rights and if you feel aggrieved by delays in the process consult your attorney for advice about how to enforce those rights.

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Draft Regulations - The Good and the Bad
By MARTIN HOOD

Firearm owners and their representative associations will face a number of challenges during 2007. The first of these will be to respond to the new draft Regulations that were circulated recently and that can be found via SAGA's web site. I will discuss the proposed regulations after making a point or two about what is happening in the United Kingdom.

In January, my family and I returned to South Africa after spending a very enjoyable three week holiday in the UK. It was pleasant to be able to walk the streets and use public transport at any time of day or night... without much fear for your safety. But I do have reservations about this. Just about everywhere you go in metropolitan areas, you are being watched by closed circuit cameras. There are said to be more than a million of them in operation in the UK. (I have no idea how many people are needed to man the monitoring screens, but it must be quite a few thousand.) This operation is said to be a great crime fighting tool and an effective law-enforcement measure because most intelligent people do not engage in criminal violence when they know they are being photographed and can be traced, charged and appropriately punished. In fact, most intelligent people don't ever engage in violent crime. Unfortunately, however, there are still those who ignore the cameras.

Big Brother (aka the Nanny State) has so cowed UK citizens (subjects?) into believing that they have no right to defend themselves that they simply don't. When confronted by criminals, most British citizens offer absolutely no resistance and rely on the police to come to their aid. While I was there, two such incidents were reported in the few papers I read. Large amounts of cash were taken from businesses after verbal threats of violence were made; weapons were neither needed nor visible. I cannot but compare the United Kingdom situation (where citizens have been disarmed and have been prevented from protecting themselves for many years) to what we face in South Africa. Crime, particularly violent crime, is on the increase in both countries. Disarming citizens and leaving them to rely on the police for protection simply doesn't work.

Back to South Africa. To understand the proposed new Regulations, I had to re-read the existing ones all over and over again. No matter how many times I read them, I remain shocked by the contradictions, omissions and extraordinary powers given by Government to the police to enforce the Firearms Control Act. Regulations are supposed to be made to give effect to the relevant Act of Parliament - not to create or make new laws. The boundaries are sometimes hard to define but Acts are debated in Parliament and are essentially legislative in nature, whereas regulations which enable the execution of an Act are essentially administrative. The separation of the two functions is important, if not essential, if our Constitutional democracy is to succeed.

Our current Government seems obsessed by the idea that strict control and regulation (and more regulation) is the solution to all problems. However, ill-considered regulations often have unintended consequences - including a number of adverse judgments from both the Constitutional Court and the High Court. My perception is that the courts are becoming somewhat frustrated with government attempts to centralize power within the executive and government's inability or unwillingness to comply with the requirements of our constitution.

I recently obtained a court order against the Appeal Board Chairman/Appeal Board/SAPS National Commissioner which essentially instructed the police to issue a firearm licence to a client within a specific number of days. That period of grace has now come and gone, but the licence has not been issued. The Appeal Board Chairman/Appeal Board/SAPS National Commissioner have been advised of the omission and of their failure to comply with the order but no response has been received. Unfortunately, this is but one example of a government department's failure to obey a court order or comply with a law that doesn't suit it.

Also of concern is the degree of non-compliance by the police and the public with some of the existing Regulations. I place the blame for this non-compliance squarely at the doors of the Ministry for Safety & Security and the police who have neither educated the public in the requirements of the Regulations, nor built up their own capacity to comply with and enforce regulations designed by themselves.

Comparatively few of the proposed Regulations affect firearm owners in general. Parts deal with collectors, muzzle-loading firearms and professional hunters. Collectors will be making their own separate submissions as will professional hunters.

The failure to make proper provision and guidance for owners of cap-and-ball revolvers is one of the matters of great concern. No clarity has been given on the status of these objects. In parliament, SAPS representatives indicated that these revolvers have always had to be licensed and that possession thereof without a licence is/remains/always-has-been a serious offence. I regard this attitude as a cover-up for a change of mind. The SAPS itself allowed the import of cap-and-ball revolvers without requiring the permits and import procedures necessary for 'ordinary' firearms. The SAPS told dealers that licences were not necessary. Now, all of a sudden, after 'freeing' these black powder revolvers, a change to the definition makes them illegal.

Possessors of cap-and-ball revolvers cannot be left in limbo. Sooner or later someone will be arrested for illegal possession of such a revolver and may have to spend time in a police cell. I believe that such a person would have a very strong claim against the SAPS for wrongful arrest and could be awarded substantial damages. Are the police 'in denial' about the past status of these revolvers? Does someone have to be imprisoned in order to force the SAPS to make proper provision for law-abiding citizens to legitimize their situation?

It has been suggested that the Minister declare an amnesty for persons with unlicensed cap-and-ball revolvers. The difficulty with this is that granting someone amnesty clearly means that he/she has been guilty of breaking the law and government will "forgive him his trespasses" - limited time offer. The truth of the matter is that it is government that should be seeking the forgiveness of the owners for the inconvenience and trauma occasioned by its omitting to make proper provisions. It is government who sinned by omitting to make proper provisions.

It is clear that one must be in possession of a competency certificate to possess a muzzle-loader as per the new definitions of muzzle-loader in the amendments because a muzzle-loader is now defined as "a barrelled device that can fire only a single shot, per barrel, and requires after each shot fired the individual reloading through the muzzle end of the barrel with separate components consisting of a (i) measured charge of black powder or equivalent propellant; (ii) wad; and (iii) lead bullet, sabot or shot functioning as a projectile, and ignited with a flint, match, wheel or percussion cap;".

A competency certificate for muzzle-loaders however requires the drafting and promulgation of a Unit Standard which applicants must be instructed on and pass in accordance with the provisions of Section 9. No such Unit Standard exists. SAGA hopes to convince government to be reasonable and to promulgate those provisions relating to competency for muzzle-loaders only after the Unit Standard has been finalized. If such an arrangement is not made, all of us who possess muzzle-loaders will again be put in an impossible position. No matter how competent, no matter how eager to comply with the law, it will be impossible to do so.

Some of the submissions of collectors have been accepted, the most progressive being the expansion of the criteria for collecting to include themes above and beyond the requirements of historical, technological, scientific, heritage and educational characteristics. Now we can include commemorative firearms, investment firearms, rarity, thematic or intrinsic value firearms. However, there is a sting in the tail. In this case it is the extension of requirements that previously applied only to prohibited firearms (fully automatic firearms such as machine guns) to include 'restricted' firearms as well. The regulations for collectors are rather complex so I'll leave the associations to inform their members about the other implications.

The Regulations now make provision for Professional Hunters but appears to equate them with 'dedicated' hunters despite the considerable differences in their interests. A PH earns a living from his profession whereas a dedicated hunter hunts for reasons such as pleasure and enjoyment. The requirements that apply to a dedicated hunter have been applied to a professional hunter, i.e. compliance with the Skills Development Act, membership of an accredited association, and ongoing assessments by that accredited association as to the professional hunter's capacity to advance the objectives of the Act and to comply with the objectives of the Act specifically in respect of being a professional hunter. At this stage the Professional Hunters' Association has neither an approved Unit Standard nor the capacity to monitor the activities of all professional hunters. If the Regulations are promulgated in their current form, the absence of a Unit Standard and/or provision to recognize prior learning may have the effect of making the operations of all professional hunters illegal. This was clearly not the intention of the drafters.

If anyone is ever in doubt about the police capacity to comply with the Act, look at the proposed amendments to Regulation 12 dealing with the accreditation of 'official institutions' - amongst others, the SAPS and Correctional Services. The existing Regulation requires that any person issued a permit to possess a firearm (by an official institution) must hold a valid competency certificate. The proposed amendment now states that such a person must only have completed the prescribed training and testing, i.e. no competency certificate is required.

I wonder how many of the South African Police Service members issued with firearms have competency certificates, or how many have completed the prescribed training and tests. The police are legislating away their obligations to comply with the fundamentals of the Act whilst imposing greater obligations on members of the public.

This injustice is but one reason why SAGA must continue to battle for just and reasonable legislation and even-handed administration for all firearms owners. We need, and will strive to deserve, your support. By joining today, you will be helping secure the future rights of all decent firearm owners.

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Other than the passage of the Firearms Control Act Amendment Bill through the National Council of Provinces, where the changes appear to have been mainly cosmetic, matters have been relatively quiet on the legislative front.

However, since my last report, I had one of the most unpleasant experiences any firearm owner could have. On 15 November 2006, together with various functionaries and news reporters, I 'witnessed' the public destruction of thousands of firearms. Heading up the proceedings were Commissioner Perumal Naidoo of Gauteng and the Provincial Minister for Security & Liaison, Mr Feroz Cachalia.

These 'destruction days' appear to be media events designed to improve the present rather dismal image of the SA Police Services. What made the event doubly disappointing for me were the attitude of SAPS and the unscrupulous way they attempt to deceive the press (and hence the public) about the origins of the firearms being destroyed.

At the SAPS presentation before we proceeded to the foundry, Commissioner Naidoo constantly made reference to removing firearms "from the wrong hands". I found this turn of phrase extremely interesting because at no point did he refer to removing firearms from criminal hands, nor did he define what was meant by the wrong hands. A member of the press specifically asked him about the origin of these firearms and, with Director Bothma concurring, happily proclaimed that only "a very, very small minute percentage" of the firearms were legal or surrendered firearms. It is therefore not surprising that, for example, the next day's Citizen reported "The firearms had been involved in cash-in-transit robberies, armed robberies, murders and house robberies." More of this later.

The meeting was then addressed by Minister Cachalia whose attitude was somewhat different, and perhaps more refreshing than that of Commissioner Naidoo. He indicated that he wanted firearms removed from criminal hands (as we all do), and later on stated to the press that he accepted that there will be private ownership of firearms.

I later approached Minister Cachalia and suggested that he invite firearm owners to Gauteng's provincial forums to help address the issues of crimes committed with the aid of firearms. I indicated that SAGA and other associations - of hunters, sport shooters, dealers, etc - had much to contribute to any debate in which firearms may be involved. The Minister said he would contact us in the new year. We were then ferried to the Mittal Steel foundry in Vanderbijlpark to witness the smelting of eighty thousand firearms. Here, it became apparent that the statement only "a very, very small minute percentage" of the firearms being destroyed were legal firearms was patently untrue.

I was allowed to have a closer look at some of the firearms in the containers. All of the firearms had tags on them that gave a docket or case number, which police station the firearm had came from and, in some cases, a note as to how the firearms came to be in the possession of the police. I saw many tags that indicated "inheritance", "amnesty" or "voluntary surrender". This was in stark contradiction to Commissioner Naidoo's statement.
Furthermore, I personally examined many of the firearms. I'd say that most of the rifles were clearly hunting rifles (scopes were still mounted on some of them) but there were also a good number of ex-Defence Force rifles which had been bought by soldiers on leaving the SADF. Many were in good, to very good, condition which to me was clear evidence of them not having been in criminal hands. I picked up one BRNO Model 1, .22 bolt-action which, to collectors of BRNO, is one of the most desirable .22 models.
Included in the total tally were firearm parts such as stocks, pieces of barrels, or pieces of piping intended to be a barrel. So much for fudging the figures!

I examined a number of handguns as well and they were mainly in good condition and had clearly been properly cared for. I only managed to find one handgun where the serial number had been deliberately filed off or erased.

I concluded that, because of their condition and the fact that they still had serial numbers, nearly all the handguns I inspected had never been used in "cash-in-transit robberies, armed robberies, murders and house robberies". They had probably never ever been in criminal hands; they were legal firearms surrendered by law-abiding citizens who had been intimidated by the complexity, cost and hassle of the new legislation.

It was also quite interesting to see the type of handguns handed in. Apart from 'modern' Taurus and Rossi revolvers, Astra pistols, etc, there were a large number of Baby Brownings (.25) as well as 22 pistols and revolvers. This confirmed my suspicion that the firearms that were being destroyed were surplus legal firearms.

I watched in a bitter and angry silence as box after box of these "illegal" firearms were dropped into an arc furnace and destroyed - under the pretext that they were "criminals' guns". What makes such deception necessary? Are the SAPS trying to bluff themselves or the public? Are they trying to 'justify' the Firearms Control Act? Is there perhaps a more sinister motive?

I finally want to briefly discuss the renewal process for those who were born in April, May or June.
The police have now agreed to accept certificates issued by training providers with your competency application, i.e. you no longer have to submit a SASSETA certificate. If you are applying for a new licence, you have to pass the full training course prescribed in Section 9(2)(r) of the Act. If you merely wish to renew an existing licence, you can do the abridged course based on Section 9(2)(q). Your accredited training provider will assist you in this respect - check that accreditation before parting with your money.

Please bear in mind that Section 9 of the Act provides that to be granted a competency certificate you must be a 'fit and proper person'. The Act provides some guidelines as to what constitutes 'fit and proper person', but these are concerned mostly with criminal convictions involving drugs, alcohol, firearms or violence; mental stability and dependence on any substance that has a narcotic effect.
However, there is much more that you can do to ensure that you are accepted as 'fit and proper'. The police have to judge you as a whole. In other words, take into account your qualifications, experience, where you live, what you do for a living and for leisure, how you contribute to society in general (e.g. police reservist, employer, neighbourhood watch, charit-able institutions, etc), whether you are single or are a family man, whether you have an established track record of helping others, etc. The more information you provide, the more difficult it is for the police to refuse your competency certificate.

If you are refused and want to appeal against the decision, you cannot supplement your appeal with 'new' information i.e. information not contained in your original application. If your original ap-plication does not contain sufficient information to sustain a successful appeal, you limit yourself, and prejudice your chances of success.

Paid-up SAGA members can obtain a generic list of suggested documentation from the office.

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