What is the Firearms Control Act?

Introduction

South Africa has an inclusive firearms-control regulatory system in place that consists of the Firearms Control Act of 2000 (FCA) as well as its subsidiary legislation, the Firearms Control Regulations (FCA Regulations).

These two laws came into effect in 2004, and before that, firearms were regulated through the Arms and Ammunition Act 75 of 1969 (the 1969 AAA).

The National Commissioner of the South African Police Service (SAPS) is the designated regulatory authority and also functions as the National Commissioner of the Registrar of Firearms (the Registrar).

The Firearms Control Act 60 of 2000 was put in place to establish a comprehensive and an effective system of firearms control and to provide for all matters connected therewith.

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This regulatory rule has put in place stringent practical and procedural limits on obtaining firearms, it imposes a ban on certain “prohibited” firearms except in very limited circumstances and it also imposes the requirements for obtaining a license for other allowed firearms.

Different rules apply for different situations, for instance, a firearm for self-defence may be issued only if the applicant can demonstrate the need for a weapon and an inability to achieve protection through other means. Once a person can meet these standards, he can be issued only one license for a five-year term, which may be renewed if the licensee continues to show compliance with all applicable requirements.

On the other hand, a person that seeks a firearms license for dedicated sport shooting must be a member of an accredited hunting association.

Content of the Firearms Control Act

The Firearms Control Act comprises 21 chapters with the following described in each chapter:

Chapter 1 – Introductory Provisions

Chapter 2 – Prohibitions

Chapter 3 – Special provisions in respect of certain devices

Chapter 4 – Competency certificates, licences, permits, authorisations and accreditations

Chapter 5 – Competency certificates

Chapter 6 – Licence to possess firearm

Chapter 7 – Licences issued to particular categories of persons dealers, manufacturers and gunsmiths

Chapter 8 – Import, export and carriage in-transit of firearms and ammunition

Chapter 9 – Storage, transport and carrying of firearms and ammunition

Chapter 10 – Control of ammunition and firearm parts

Chapter 11 – Exemptions

Chapter 12 – Declaration of persons as unfit to possess firearm

Chapter 13 – Inspections

Chapter 14 – Search and seizure

Chapter 15 – Presumptions

Chapter 16 – Offences, penalties and administrative fines

Chapter 17 – Organisational structures

Chapter 18 – Right of appeal

Chapter 19 – Compensation

Chapter 20 – Special powers relating to amnesties and firearm-free zones

Chapter 21 – General provisions

The following schedules also form part of the FCA:

Schedule 1 – Transitional provisions

Schedule 2 – Crimes and offences giving rise to unfitness enquiry by court

Schedule 3 – Laws repealed S

Schedule 4 – Penalties Firearms Regulation Firearms Control Regulations GNR.345 dated 26 March 2004

The impact of the Firearms Control Act

The regulatory system prescribes that all applications for a firearms license must be accompanied by a competency certificate, which is issued only after it has been determined that, among other things, the applicant does not have a proclivity for violence or a substance-abuse problem and he or she completes training on the safe and efficient handling of firearms.

The regulatory system also imposes equally strict rules on the safe custody of firearms.

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The regulatory system further imposes severe requirements on dealers, such as notable obligations like the duty to keep records on all firearms and ammunition in stock and all firearms that the dealer holds on behalf of licensees, as well as the duty to link these three registers to a national database established by the Registrar. A dealer must make all firearms, ammunition, and records that he or she keeps available for inspection by any police official on request.

The impact of the current regulatory framework on firearms-related crimes remains however hard to ascertain. Adequate statistical information on the matter is not always available and since the FCA came in effect in 2004, various key provisions have been implemented in increments, with some parts, particularly certain provisions added to the FCA through a 2006 amendment, were implemented only recently and others not yet fully put into effect.

The definition of a firearm

The FCA has adopted a broad definition of “firearm,” which includes

• any device that can “propel a bullet or projectile through a barrel or cylinder by means of burning propellant, at a muzzle energy exceeding 8 joules (6 ft-lbs)”
• anything with the capacity to “to discharge rim-fire, centre-fire or pin-fire ammunition”
• any device that can be “readily altered” to be any of the above-listed firearms
• any device designed to discharge any projectile of at least .22 calibre at a muzzle energy of more than 8 joules (6 ft-lbs), by means of compressed gas
• any barrel, frame, or receiver of a device mentioned above.

The FCA However excludes several devices that otherwise could have been considered as firearms under this definition. These include for example explosive-powered tools that were designed for industrial application for splitting rocks or concrete, or for application in the mining or steel industry for removing refractory materials.

Stun bolts used in slaughterhouses, antique firearms, air guns, tranquilizer firearms, paintball guns, flare guns, and deactivated firearms are also not considered as firearms. In addition, the FCA authorizes the Minister of Safety and Security to exclude any other device.

The right to possess a firearm

The right to possess a firearm is not guaranteed by law in South Africa. The FCA in fact imposes a general ban on the possession of firearms except in limited circumstances, and then firearms may only be possessed with a license, permit, or authorisation issued under the provisions of the FCA.

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Certain firearms are also categorised as prohibited firearms and cannot ordinarily be possessed or licensed under the FCA. These include the following:

• Any fully automatic firearm
• Any gun, cannon, recoilless gun, mortar, light mortar or launcher manufactured to fire a rocket, grenade, self-propelled grenade, bomb, or explosive device
• Any frame, body, or barrel of such a fully automatic firearm, gun, cannon, recoilless gun, mortar, light mortar, or launcher
• Any projectile or rocket manufactured to be discharged from a cannon, recoilless gun or mortar, or rocket launcher
• Any imitation of any device contemplated in the above paragraphs.

The FCA specifies limited exceptions in which prohibited firearms may be licensed for private and public collections as well as for use in theatrical, film, or television productions but in such cases the relevant FCA Regulations impose rigorous requirements that need to be met for the proper utilisation of these exceptions.

The FCA also authorises the Minister of Safety and Security to add any firearm to the prohibited firearms category if doing so is deemed in the interest of public safety or desirable for the maintenance of law and order.

People that may possess a firearm

Only a person that possesses a firearm licence, permit, or authorisation from the South African Police Service, may be in a possession of a firearm.

Before you may possess any firearm, you must obtain the firearm licence and you need a licence for every firearm that you possess.

The application to obtain a firearm license, permit, or authorisation can be made to the Registrar of Firearms by a natural or juridical person.

Where an applicant is a natural person, the FCA requires the person to comply with all the necessary requirements under its provisions, including providing a full set of fingerprints. The person must first obtain the relevant competency certificate, which will only be issued, among other things, after the successful completion of relevant training by an accredited training provider and a test on the efficient and safe handling of the specific firearm by the Safety and Security Training Authority.

If the applicant is a juridical person, the FCA requires that the entity be represented by a natural person who is to be identified in the license, permit, or authorisation as the person responsible and who would be considered the holder of the license under the FCA.

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The FCA further requires accreditation in order for a license for certain activities or businesses related to firearms will be issued. These include the following

• public collectors or museums;
• hunting associations or sport-shooting organizations;
• those that provide training in the use of firearms;
• those that provide firearms for use in theatrical, film, or television productions;
• those that run hunting businesses;
• those that use firearms for business purposes; and • government institutions.

The FCA provides a list of minimum compulsory criteria that the Registrar must impose when reviewing an application for accreditation. These criteria include:

• Trustworthiness and integrity
• Suitability to perform the relevant functions in terms of the Act
• Capacity to serve the purpose of the accreditation
• Capacity to advance the purposes of the Act.

The FCA authorises the Minister of Safety and Security to issue additional criteria applicable to specific accreditations through regulations. Accordingly, the Minister of Safety and Security has issued additional accreditation criteria for each of the above-listed specific firearms-license applications.

The Registrar may cancel an accreditation in certain instances, including if the holder of such an accreditation fails to comply with any applicable criterion, if the holder is no longer qualified, or if the holder violates any requirement under the FCA or terms of the accreditation.

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The FCA requires that an application to possess a firearm, trade in firearms, manufacture firearms, or be licensed as a gunsmith be submitted to a firearms officer in the area where the applicant maintains his or her residence or business.

A first-time application for a competency certificate will only be granted in the following circumstances:

• If the applicant is at least twenty-one years old
• If the applicant is a citizen or a permanent resident of South Africa
• If the applicant is a fit and proper person for the license that he or she is seeking
• If the applicant is stable and does not have a proclivity for violence
• If the applicant does not have a substance-abuse problem
• If the applicant has no conviction within the five years immediately preceding the application for certain crimes related to violence, dishonesty, recklessness, or instability
• If the applicant has not become or been declared unfit to possess a firearm under the FCA or the 1969 AAA within the five years preceding the application
• If the applicant has completed all the required tests on his understanding of the FCA, the training and test for the safe and effective use of a firearm, and all other applicable training and tests for the specific license he or she is seeking.

Applicants should note that Competency Certificates are only valid for as long as the license to which it relates remains valid, unless the certificate is terminated or renewed.

Upon receiving an application for a competency certificate, the Registrar may launch an investigation for the purpose of determining whether said applicant is a fit and proper person, is in stable mental condition, or has a tendency for violence or a substance-abuse problem.

An investigation will be launched in the following circumstances:

• If the applicant has, in the five years preceding his application, been served with a protection order or accused of domestic violence, necessitating a police officer to visit his or her residence
• If the applicant has been denied a license, permit, or authorisation for a firearm
• If the applicant has attempted suicide, suffered major depression or emotional problems, or had a substance-abuse problem
• If the applicant has been diagnosed or treated for depression, substance abuse, or behavioural or emotional problems
• If the applicant has been reported to the police or social services for threatening or attempting violence or other conflict anywhere or if in the two years preceding the application the applicant went through a divorce or separation from a partner in which violence was alleged or was fired or laid off from his or her job.

The Registrar may require the applicant to submit a doctor’s certificate regarding his or her dependence on intoxicating or narcotic substances or a report from a psychiatrist or psychologist on his or her mental condition or propensity for violence when investigating an applicant for a competency certificate.

Safety requirements for holders of firearm licences

Both the FCA and FCA Regulations impose severe safety requirements for holders of licenses. A storage place is specified in every license, and the licensee is required to store the firearm at the specified place.

When license holders do not have their firearm on their person, the firearm and its ammunition must be stored in a safe or a strong room that meets the requirements of the South African Bureau of Standards (SABS).

A person who is licensed to possess a firearm may store a firearm licensed to another person if he or she has written permission from the person to whom the firearm is licensed, the authorisation is endorsed by a relevant Designated Firearms Officer, and the firearm is stored in a safe at the place stipulated in the written permission.

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Failure to lock a firearm in a safe, strong room or device as required by law is an offense.

Termination of licences

A licence may be terminated if the holder of the license becomes or is declared unfit to possess a firearm. The Registrar may declare someone unfit if a final protection order has been issued against him or her under the Domestic Violence Act.

A conviction for certain crimes automatically renders a person unfit to possess a firearm. When a licence holder is declared unfit, all competency certificates, licenses, authorisations, and permits issued to him are automatically terminated and remain so even during a possible appeal process.

Violations of the FCA

Violation or failure to comply with the provisions of the FCA or the terms of a license, permit, or authorisation is an offense.

According to the FCA a person convicted of an offense under its provisions may be subject to a fine or imprisonment – ranging from two to twenty-five years.