The South African Hunters and Game Conservation Association (“SA Hunters”) brought an application in the Pretoria High Court against the Minister of Safety and Security to declare sections 24 and 28 of the Firearms Control Act (“the Act”) as unconstitutional.
In terms of the Act, firearm licenses have a limited lifespan and are required to be renewed before the expiry of the stipulated period. The periods for the various categories of licences are set out in section 27 of the Act. A license to possess a firearm for self defence, for example, is valid for 5 years.
What is problematic is that section 24 of the Act stipulates that the holder of a licence “must” apply for a renewal of the licence “at least 90 days before the date of expiry”. The Act does not provide for any mechanism allowing a person to renew a licence after the 90 day cut-off date. As a result of the strict timeframe imposed, failure to renew a licence at least 90 days prior to its expiration would, in terms of section 28(1)(a) of the Act, result in the licence terminating and continued possession being illegal.
In a judgment delivered on 4 July 2017, Tolmay J declared sections 24 and 28 of the Act as unconstitutional and ordered Parliament to amend the Act within 18 months. The provisions were unconstitutional as a result of them being –
- irrational, vague and lacking in clarity;
- in violation of the constitutional right to equality; and
- because the Act failed to provide a suitable procedure for one to surrender a firearm after a licence has not been renewed, in violation of the property rights stipulated in the Constitution.
Of importance for all firearm owners is the following portion of the order, quoted in full below:
“All firearms issued in terms of the Firearms Control Act, 2000 (Act 60 of 2000), which are or were due to be renewed in terms of section 24 of the Firearms Control Act, 2000 (Act 60 of 2000), shall be deemed to be valid, until the Constitutional Court has made its determination on the constitutionality of the aforesaid sections.”
Thus, pending the confirmation of order by the Constitutional Court, all licences due to be renewed in terms of section 24 are regarded as valid.
This judgment will hopefully provide clarity to many firearm owners, and will hopefully result in firearm licences being regulated in a rational and consistent manner.
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