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FCA Comment |
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Reproduced with kind permission from Magnum Magazine |
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August 2003
August 2003: Firearms Control Act - The Basics
By Alex Holmes
Although there has been much discussion about the Firearms Control Act (FCA), which will soon be coming into effect, there is still a great deal of confusion and ignorance about its effects on the ‘Firearm Fraternity’. Part of the problem in predicting its impact is due to the fact that the regulations are still not complete and, as the regulations determine how the Act will be applied in practical terms, it is a matter of “the devil is in the details”.
The regulations are supposed to do just that - regulate the enforcement of the Act. Unfortunately in this case the regulations also seek to reintroduce some concepts that were rejected by parliament (and were thus removed from the final Act), and in some cases try to legislate through the backdoor by introducing requirements that are not part of the legislation. These regulations should be finalized in the next few months and selected parts of the legislation are to be brought into effect in phases.
Another source of confusion over the FCA is a simple lack of understanding of the motivation behind the Act. Far too many firearm owners are still under the misunderstanding that this legislation is a misguided attempt to control crime or some other ‘noble’ effort. The fact of the matter is that the FCA has only one purpose, “to drastically reduce the number of licensed firearms in circulation” as instructed by the then Minister for Safety & Security, Sydney Mufamadi. Or, as put more bluntly by Mluleki George, chairman of the parliamentary committee on Safety & Security, “to make it as difficult as possible for you to obtain a firearm licence”, “this legislation has nothing to do with criminals or crime”.
It is only within that context that we can understand how the legislation is to be applied, its intentions and eventual impact. I realize that many firearm owners choose to ignore this context. I can only suggest that these ‘innocents’ read the minutes of recent parliamentary meetings where the measures of success have been recorded as the number of licences refused, the decrease in licence applications, and the number of firearm dealers and gunsmiths that have closed their doors.
Let’s leave the politics there for now and turn to the basic practical implications of the FCA. The FCA also contains many other problems and assaults on our rights that we shall deal with another time. For now we will focus on a few basic differences between the current Act and the soon to be FCA.
Numerical limits and Renewable licences
The FCA imposes arbitrary limits on the number of firearms and rounds of ammunition that you may possess. It also creates different categories of licences based on the reason for needing the licence. The term ‘need’ is a critical one as simply ‘wanting’ a licence is not sufficient motivation.
Currently firearm licences are issued for life unless the holder disqualifies himself or is declared unfit to possess firearms. In future all licences will be issued for a limited period, where after they must be renewed and the holder reapply and remotivate the ‘need’ to retain his firearms. In essence these limits are:
Ammunition is limited to 200 rounds per licence at any one time. Registered dedicated sportspersons and hunters are exempted from this limit and there is also a provision for a ‘normal’ person to apply for an exemption.
You are limited to one handgun, or manually operated shotgun, for self-defence. These licences are valid for a period of five years. There is provision for more than one person residing in the same household to have a licence for the same firearm.
Provision is made for you to acquire one ‘restricted’ firearm for self-defence. A restricted firearm is a semi-automatic shotgun or rifle and may only be issued to a person who proves that a handgun will not provide adequate protection. These licences are valid for two years. It is likely that these licences will be difficult to obtain.
You are limited to a maximum of four firearms for occasional sporting or hunting use. Only one of these may be a handgun, the others may be manually operated shotguns or rifles, not semi-automatic. If you already own a firearm for self-defence then that firearm counts as one of the four allowed, leaving an additional three that will be allowed, one of which may be a handgun. These licences are valid for a period of ten years.
Certain parts of firearms will also require licences in future. These are frames, barrels and receivers. Any spare actions, etc, will be treated as complete firearms and will count towards the numerical limits.
Registered dedicated classes of people - collectors, sportsmen and hunters - are theoretically exempted from these numerical limits. I say ‘theoretically’ because of the recent spate of refusals being experienced by people in the existing bona fide categories. Many people believed that their current bona fide status will be automatically converted to the future dedicated categories and that this means they may possess as many firearms as they wish. That may not be the case at all. I will go into more detail on these special categories in a future issue.
All existing licence holders will have to reapply for new licences. They will then have to comply with the new limits. Should a person already own ‘excess’ firearms, they will be forced to dispose of these firearms, failing which they must be surrendered to the State - without compensation.
Competency
In future licences may only be issued to people in possession of a valid competency certificate. There is still a great deal of confusion over the exact meaning of this. To obtain a competency certificate the person must have undergone practical training in the use of firearms, not be dependent on alcohol or narcotics, be sane and stable, not inclined to violence and not have been convicted of any of a whole string of criminal offences or any offence involving violence or firearms, and have successfully completed a test on knowledge of the FCA.
Although not specified in the FCA, it is expected that the practical training will be split into different categories of firearms - handguns, rifles and shotguns - with a different course being required for each type of firearm.
Competency certificates lapse after five years. This creates an overlap between the validity of licences and competency certificates. The fact that a competency certificate has lapsed does not make the licence invalid, but you need to have a valid competency certificate at the time you apply for a licence. This means that if you apply for another licence after the competency certificate has expired, you will first have to obtain another certificate. For example Mr A obtains a certificate and then a licence for a hunting rifle. The certificate lapses after five years but the licence remains valid for ten years. In year four if he applies for another licence the original certificate is still valid, but if you apply in year six (or later) then you must first obtain another competency certificate, including redoing the training, etc.
It is not clear if this will also apply to the renewal of a licence. If it does then firearm owners will find themselves continuously having to undergo training courses for each of the types of firearm that they own.
Restricted and prohibited firearms
The FCA formalizes the existing SAPS policy on the issuing of licences for semi-automatic rifles and shotguns. In future these will be restricted firearms. Restricted firearms may only be licensed for self-defence where a handgun is proven to be inadequate and for registered dedicated sportsmen, hunters and collectors. For sportsmen and hunters, semi-automatic shotguns may not have been manufactured to fire more than five shots without reloading. There is no magazine capacity limit on rifles. If you already own a restricted firearm and do not become a dedicated person then you will be forced to dispose of that firearm or surrender it to the State.
Certain firearms will be deemed to be prohibited. These are essentially all fully automatic firearms and certain military weapons such as mortars, cannons and rocket launchers. In some respects this is one of the very very few improvements in the FCA since it allows dedicated collectors to license prohibited firearms. It does hold other problems for normal people though.
Any replica of a prohibited weapon is also prohibited as is any projectile or replica projectile for a prohibited weapon. There must be many thousands of people in possession of deactivated artillery rounds that would seemingly now be illegal. This could even be taken to mean the prohibition of toys that are replicas of prohibited weapons, not to mention miniature cannons. The SAPS seem unwilling to clarify these definitions. It may seem a minor issue but, like so many other sections of the FCA, the penalties are very harsh, in this case any contravention of this prohibition carries a maximum penalty of 25 years in prison.
Summary
In summary then, a normal person may possess one handgun for self-defence and a maximum of three other firearms for occasional sporting use, a further one of which may be a handgun. He/she will not be allowed any semi-automatic rifles or shotguns and will be limited to 200 rounds of ammunition per licence at any one time. These limits will be applied to current firearm owners as well as new applicants. If a person already owns anything outside of these limits they will be forced to dispose of them or surrender them without compensation.
All firearm owners will also have to obtain a certificate of competency including undergoing practical training, in many cases on an ongoing basis as often as every five years.
I hope to go into more detail next month. There are many vitally important provisions which could inadvertently lead to criminalization and expose you to some harsh penalties.
September 2003: So much ‘Dedication’ ... So little Joy?
By Alex Holmes
Last month we mentioned that dedicated hunters, sportsmen and collectors were exempted from many of the restrictions and limits imposed by the Firearm Control Act (FCA). During the process leading up to the final approval of the FCA, the authorities made a great deal of these exemptions, giving assurances that these provisions would amply cater for the needs of multiple gunowners. Just how valid these assurances are remains to be seen. This became one of the most divisive issues between the various firearm user groups, some accepting the promises at face value while other groups were much more cynical. That rift still exists to a degree and whichever way the situation develops I sincerely hope that the various groups can mend any broken fences and present a unified front.
On the face of it, the concept is that you simply need to become a member of an approved body to achieve dedicated status; that this would be a relatively simple process and would comfortably accommodate your needs (and passions). Even at this basic level there has been disagreement between groups, many bodies welcoming the fact that people would be compelled to join up, while others do not support such compulsory memberships. Associations should be made up of like-minded people who voluntarily subscribe to and support the purpose of that body, not people who join simply because they have to. Does it make you any less a hunter if you do not attend meetings? Or reduce the joy and pride you have in your collection if not a member of a body?
The true impact and meaning of much of this will only become known once the regulations are finalized and the FCA comes into full effect. However, the draft regulations and current attitudes of the Central Firearm Register indicate that the process is unlikely to be as simple and painless as many had thought and hoped for. One of the main differences between the current ‘bona fide’ and future ‘dedicated’ status is that in future there will be no separate application to become a dedicated person. When you apply for a licence to possess a firearm for a dedicated purpose then that licence itself (if approved) is granted for the ‘dedicated’ purpose.
The sections of the FCA and the regulations governing accreditation were put into effect on 1 July this year. Organizations wanting to be accredited for dedicated purposes must apply now and re-organize in order to comply with the new regulations. Any existing recognition that such bodies may have had under the old system will not be valid in future. There is no mechanism to simply transfer current status for bona fide purposes to the new accredited status for dedicated purposes. Probably the biggest surprise is that hunting and sporting bodies must provide a training course (which all full members must undergo and successfully complete) that complies with the Skills Development Act. This is entirely separate training from the basic firearm competency training. The various sporting and hunting bodies will now have to create these courses and take them through the SAQA/SITA process before they can become accredited organizations. This is a slow painful process. Likewise all of their members will have to complete these courses in the future, whether they intend to become dedicated persons or not.
It would appear that simply holding bona fide or dedicated status will not be the blanket guarantee that many had hoped for. All these memberships and training courses are absolute requirements but do not assure that licences will be granted. In every case the applicant must still fully motivate the application and prove a ‘need’ for that particular firearm. The effects of this are already being seen - many applicants who hold current bona fide status are being refused licences for additional firearms.
The future situation for dedicated collectors is similar but has one additional new twist. The FCA allows collectors to own ‘restricted’ and even ‘prohibited’ firearms. Essentially ‘restricted’ means semi-automatic rifles and ‘prohibited’ means fully automatic firearms. The regulations now create different subcategories of collectors, category A being ‘normal’ firearms, B being restricted firearms and C being prohibited firearms. All new collectors will initially be limited to category A firearms. The actual wording of the regulations is very poorly done. As it is written, only those who already own restricted or prohibited firearms will be able to progress beyond category A.
Assurances have been given that that is not the intention, that there will be a process and means to advance through the different levels. However, this process has yet to be determined fully. Of course, some would argue that since the FCA itself makes absolutely no provision for any such subdivisions of collectors then the whole requirement and system should be contested and rejected.
The whole issue of individuals who hold current bona fide status and how they can become future dedicated persons has yet to be officially finalized. Many people and organizations had believed that this would be a simple and automatic process during the re-licensing phase. Such a simple process no longer seems possible. At the very least you will have to comply with the requirements for training, etc, now being imposed on the various associations. And then of course, you will have to motivate the continued need for your existing firearms, let alone any you might wish to acquire in the future.
As these developments unfold it would certainly seem that the blanket exemptions that were assured are not going to be as simple and all encompassing as many believed. Of course the very notion of blanket exemptions and accommodating firearms owners is totally contrary to the whole ethos and principles of the FCA so these difficulties should be no surprise for any but the most naive. One thing has become clear, that is that the authorities envisage and want all multiple firearm owners to become dedicated persons. The provisions for casual or occasional hunting and sport are for just that, people who might occasionally hunt or shoot. Anyone in any way serious about any type of shooting will have to fit into the dedicated groups. These dedicated groups will have to meet higher standards of training and participation, far beyond what was initially believed. Dedication is not just another term to replace bona fide, and anyone who wishes to achieve this status is going to have to prove that they are indeed dedicated to their sport or activity in the true sense of the word. Proving that dedication could well turn out to be an expensive and difficult exercise.
November 2003: Ease of Compliance?
By Alex Holmes
The implementation of the Firearm Control Act draws ever nearer. The regulations regarding accreditation of bodies and instructors have already been promulgated and are in place. The actual accreditation process itself may take far longer than the SAPS had expected since much of it also involves processes controlled by SAQA/SITA and they, and their systems, are clearly not set up to deal with the situation that has been dumped on them. Particularly the requirements for dedicated sporting and hunting bodies.
The bulk of the remaining regulations are expected during November. It would then be realistic to expect implementation of most of the FCA to start in January.
Quite apart from the new limitations and restrictions that we have already discussed the FCA also contains a number of new provisions and requirements that licensed firearm owners should be aware of lest they inadvertently fall foul of the law.
A key part of Government policy is the declaration of Firearm Free Zones. This is something entirely different to the gun-free zones and “no firearms allowed” signs one sometimes finds at public places such as shopping malls. Currently such areas are no more than the property owners exercising their right to reserve access to their property. Basically they are saying they don’t want people with firearms on their property and if you do try to take one onto the premises you will be asked to leave.
The major, and considerable, difference with the new Firearm Free Zones is that they will have the force of law behind them. Carrying a firearm into or through such a zone will be a criminal offence and a serious one at that. The maximum penalties vary from 5 years for allowing a firearm into a firearm free zone to 10 years for carrying one and 25 years for storing a firearm in a firearm free zone.
It is very important to note that these offences refer to any firearm OR AMMUNITION. Having a single round of ammunition in such a situation carries the same penalties. Finding a loose cartridge or two in the pocket of a jacket or lying in the boot of the car can now have very serious consequences. There can’t be many firearm owners out there who have not come across this situation at some time, so beware.
The precise method and procedures for firearm free zones will not be known until the regulations are finalised. The FCA allows the Minister to declare any premises or any categories of premises to be firearm free zones, if it is in the public interest or if it is in accordance with the purposes of the Act. The previous Minister, Steve Tshwete was under the impression that he could simply declare entire suburbs or areas to be firearm free. In reality it should be far less simple than that. The owner of the property still has some rights.
What we are likely to see is State-owned or controlled properties becoming firearm free zones as well as any private property where the owner has requested this to be done.
Hospitals and schools for instance are almost certain to become firearm free zones. A great deal depends on the actual wording and description in such a declaration. In the USA for instance, all schools are firearm free zones by Federal law. (Which is, of course, a reason so many mass shootings take place at schools). However in the USA the zone is described as on the premises or within 1000 feet of the premises. If such an approach is taken here then licensed gunowners could very easily find themselves in serious trouble for driving past a school a few blocks away that they did not even know existed. Not to mention the implications for people who normally carry firearms and will be dropping kids at school or visiting someone in a hospital, etc.
Another new requirement is that in future the major components of firearms, namely the barrel, frame or receiver, will be considered firearms and must be licensed. When assembled as a complete single firearm then one licence will be issued but if you happen to have a spare frame or a spare action lying around in your gunsafe then they must be declared as firearms and licensed. If you then take two or more such components and permanently assemble them into a single firearm then a new licence must be issued that reflects this. Of course this poses an interesting dilemma for people who own firearms like Thomson Contenders or practical pistol shooters who compete with large capacity frames then switch to single stack frames for carry purposes. Would one be expected to inform the SAPS of the new configuration on a weekly basis?
In addition it will be an offence to possess any slide, bolt or breechblock of a firearm unless the person holds a licence for a firearm capable of bearing that part. Most long-term firearm owners have habits akin to pack rats, never throwing away any firearm part, no matter how obscure, just in case it comes in handy in the future. Time to have a good look in those parts boxes, that handy bit lying around could land you in prison for 5 years.
Leading on from this requirement there will now be an official specification and process for deactivating firearms. In a way this is to be welcomed as long as the requirement is reasonable. What is unclear however is the situation with firearms that were deactivated before this using a different procedure. The thousands of Lee Enfield rifles adorning many walls in this country come to mind. They are clearly no longer firearms, despite a recent, prominent court case trying to prove that they are. Improper deactivation of a firearm carries a penalty of five years imprisonment. Any such prosecution would face legal difficulties regarding retroactivity of laws, etc but, as with many of the concerns regarding the FCA, who eventually wins in court is less of a concern than the harassment and inconvenience an accused would face before that point.
On top of that there is the question of the prohibited parts contained in these wall-hangers. Here again my concern is not so much in the eventual outcome of any court case but in how the situation will be handled by poorly trained police officers on the street and what that means for innocent unaware owners.
Yet another provision that could all too easily be abused is the requirement that any person carrying a firearm must produce the licence and also identify themselves forthwith. Here again we have what seems to be a reasonable requirement: if you are carrying a gun you should have the licence with you. This is very similar to the situation with drivers’ licences. The similarity ends with the penalties, not having your driving licence with you results in a spot fine, not being able to produce your firearm licence carries a maximum penalty of ten years in prison and not being able to identify yourself forthwith is another two years in prison. I doubt very much that any court in the land would actually impose these penalties but that does not help the hapless gun owner stopped at a roadblock who has left their licence or ID at home. The likely outcome of such a situation is to be thrown in the holding cells until someone can bring your licence and ID, assuming, that is, that the SAPS don’t simply hold you until you appear in court.
These are just some of the implications of the FCA. There are many other conditions and requirements that must be complied with, from notification of change of address or ‘circumstances’ (two years a piece), to reapplying for your existing licences in good time, through to failing to assure that no firearm or ammunition is illegally brought onto property you control.
