Introduction to a section 102 inquiry and steps to be followed when conducting unfitness declaration inquiries in terms of the firearms control act, 60 of 2000 (the FCA)
The authority of the National Commissioner of the South African Police Service (SAPS) to declare a person unfit to possess a firearm is delegated to a functionary who holds the rank of Captain or higher in terms of section 141 of the FCA. This inquiry and subsequent hearing do not require a criminal conviction in a court of law.
GROUNDS UPON WHICH SAPS MAY INITIATE A SECTION 102 INQUIRY
Is contained in section 102(1)(a), (b), (c), (d) and (e) of the FCA, and we quote:
102 Declaration by Registrar of person as unfit to possess firearm
The Registrar may declare a person unfit to possess (own) a firearm if, on the grounds of information contained in a statement under oath or affirmation including a statement made by any person called as a witness, it appears that-
- (a) a final protection order has been issued against such person in terms of the Domestic Violence Act, 1998 (Act 116 of 1998);
- (b) that person has expressed the intention to kill or injure himself or herself or any other person by means of a firearm or any other dangerous weapon;
- (c) because of that person’s mental condition, inclination to violence or dependence on any substance which has an intoxicating or narcotic effect, the possession of a firearm by that person is not in the interests of that person or of any other person;
- (d) that person has failed to take the prescribed steps for the safekeeping of any firearm; or
- (e) that person has provided information required in terms of this Act which is false or misleading.
That person may then be called to an inquiry hearing to advance reasons as to why he / she should not be declared unfit to possess a firearm.
STEPS TO BE FOLLOWED WHEN INSTITUTING THIS INQUIRY:
- When the state obtains or receives a statement under oath or affirmation from witnesses or from a police case docket, a police officer will summarise and present the evidence to his/her legal section in a memorandum and the latter will decide if an inquiry in terms of section 102 should be instituted or not;
- Where it has been decided to continue with the section 102 inquiry and hearing, a notice to appear must be completed and a police official must deliver the original notice to the respondent 21 days before the date of the inquiry hearing, as well as notices to any witnesses to appear.
- The police official, when serving the notice on the respondent, must inform the respondent of the relevant ground/s, (which subsection/s of section 102), upon which the state rely on to hold this inquiry hearing and the respondent’s right to legal representation at the hearing.
- The respondent, or his/her legal representative, is entitled to cross-examine any state witness about the contents of an affidavit deposed of during the hearing, or question any other material evidence presented during the hearing. The respondent may also present its own witnesses to give evidence during the hearing.
- The respondent, or his/her legal representative, is then afforded the opportunity to present legal argument as to why he/she should not be declared unfit to possess a firearm.
DECISION THAT RESPONDENT IS UNFIT TO POSSESS A FIREARM FOR A MAXIMUM PERIOD OF 5 YEARS:
If the Designated Officer (presiding) declares the respondent unfit to possess a firearm, the officer must clearly explain the effect of this declaration and the appeal procedure in terms of section 104 and Regulation 91 of the FCA to the respondent.
Compiled by: J.C. (Johan) Martin: BA Pol. LLB, Unisa. Practicing Attorney
Contact details: 051 011 6995 and cell: 083 391 8180
Office: 14 Akademie Street, Dan Pienaar, Bloemfontein, 9301