Declaration of persons as unfit to possess firearm

[S 102 heading substituted by s 30(a) of Act 28 of 2006 with effect from date to be proclaimed.]

(1) The Registrar may declare a person unfit to possess 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—

Uncommenced amendment

(1) The Registrar may declare a person unfit to possess a firearm or muzzle loading 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— [S 102(1), words preceding (a), substituted by s 30(b) of Act 28 of 2006 with effect from date to be proclaimed.]

(a) a final protection order has been issued against such person in terms of the Domestic Violence Act, 1998 (Act 116 of 1998); (aA) a final protection order has been issued against such person in terms of the Protection from Harassment Act, 2011;

[S 102(1)(aA) inserted by s 21 of Act 17 of 2011.]

(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;

Uncommenced amendment

(b) that person has expressed the intention to kill or injure himself or herself or any other person by means of a firearm, muzzle loading firearm or any other dangerous weapon;

[S 102(1)(b) substituted by s 30(c) of Act 28 of 2006 with effect from date to be proclaimed.]

(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;

Uncommenced amendment

(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 or muzzle loading firearm by that person is not in the interests of that person or of any other person;

[S 102(1)(c) substituted by s 30(c) of Act 28 of 2006 with effect from date to be proclaimed.]

(d) that person has failed to take the prescribed steps for the safekeeping of any firearm; or

Uncommenced amendment

(d) that person has failed to take the prescribed steps for the safekeeping of any firearm;

[S 102(1)(d) amended by s 30(d) of Act 28 of 2006 with effect from date to be proclaimed.]

(e) that person has provided information required in terms of this Act which is false or misleading.

Uncommenced amendment

(e) that person has provided information required in terms of this Act which is false or misleading; or

[S 102(1)(e) amended by s 30(d) of Act 28 of 2006 with effect from date to be proclaimed.]

(f) that person has paid an admission of guilt fine contemplated in section 103(6) in respect of an offence contemplated in section 103(1) or 103(2)(a).

[S 102(1)(f) added by s 30(d) of Act 28 of 2006 with effect from date to be proclaimed.]

(2) A declaration under subsection (1) may only be issued if the Registrar—

(a) by notice in writing delivered by hand to the person, has called upon the person to appear before the Registrar at a time and place determined therein in order to advance reasons as to why that person should not be declared unfit to possess a firearm;

Uncommenced amendment

(a) by notice in writing delivered by hand to the person, has called upon the person to appear before the Registrar at a time and place determined therein in order to advance reasons as to why that person should not be declared unfit to possess a firearm or muzzle loading firearm;

[S 102(2)(a) substituted by s 30(e) of Act 28 of 2006 with effect from date to be proclaimed.]

(b) has given that person a reasonable opportunity to advance reasons as to why the declaration should not be issued;

(c) has duly considered the matter;

Uncommenced amendment

(c) has duly considered the matter having regard to—

(i) any reasons, submissions and evidence advanced under oath or affirmation by or on behalf of that person; or

(ii) any other information contained in a statement under oath or affirmation or evidence at his or her disposal;

[S 102(2)(c) substituted by s 30(f) of Act 28 of 2006 with effect from date to be proclaimed.]

(d) is satisfied that the person is unfit as contemplated in subsection (1); and

(e) does not rely solely on the same facts relating to a conviction in respect of which a court has made a determination in terms of section 103(1) or (2) that the person is not unfit to possess a firearm.

Uncommenced amendment

(e) does not rely solely on the same facts relating to a conviction in respect of which a court has made a determination in terms of section 103(1) or (2) that the person is not unfit to possess a firearm or muzzle loading firearm.

[S 102(2)(e) substituted by s 30(g) of Act 28 of 2006 with effect from date to be proclaimed.]

(2A) Upon proof that the notice contemplated in subsection (2)(a) was duly delivered or tendered to the person to whom it was addressed, the Registrar may proceed with an inquiry at the time specified in that notice, whether or not the person concerned complies with the notice.

[S 102(2A) inserted by s 30(h) of Act 28 of 2006 with effect from date to be proclaimed.]

(3) Any person appearing in pursuance of a notice issued in terms of subsection (2)(a) is entitled to—

(a) be represented by a legal representative;

(b) request the Registrar to call, in the manner referred to in subsection (2)(a), any person who made a statement referred to in subsection (1), to appear before the Registrar; and

(c) examine the person who has been called in terms of subsection (1) or paragraph (b) to appear, or to cause him or her to be so examined by such legal representative.

(4)

(a) Section 183 of the Criminal Procedure Act, 1977 (Act 51 of 1977), applies with the necessary changes to any person called to appear before the Registrar in terms of subsection (2)(a), including any witness.

(b) For purposes of paragraph (a) the expression “to a fine not exceeding R300 or to imprisonment for a period not exceeding three months” where it occurs in section 183(2) of the Criminal Procedure Act, 1977 (Act 51 of 1977), must be construed to read as follows— “to a fine or to imprisonment for a period not exceeding 12 months”.

(c) Section 181 of the Criminal Procedure Act, 1977 (Act 51 of 1977), applies with the necessary changes in respect of any witness whose appearance has been requested as contemplated in subsection (3)(b).

[S 102 commencement: 1 July 2004.]

[S 103 heading substituted by s 31(a) of Act 28 of 2006 with effect from date to be proclaimed.]

(1) Unless the court determines otherwise, a person becomes unfit to possess a firearm if convicted of—

Uncommenced amendment

(1) Unless the court determines otherwise, a person becomes unfit to possess a firearm or muzzle loading firearm if convicted of— [S 101(1), words preceding (a), substituted by s 31(b) of Act 28 of 2006 with effect from date to be proclaimed.]

(a) the unlawful possession of a firearm or ammunition;

Uncommenced amendment

(a) the unlawful possession of a firearm or ammunition or muzzle loading firearm;

[S 103(1)(a) substituted by s 31(c) of Act 28 of 2006 with effect from date to be proclaimed.]

(b) any crime or offence involving the unlawful use or handling of a firearm, whether the firearm was used or handled by that person or by another participant in that offence;

Uncommenced amendment

(b) any crime or offence involving the unlawful use or handling of a firearm or muzzle loading firearm, whether the firearm or muzzle loading firearm was used or handled by that person or by another participant in that offence;

[S 103(1)(b) substituted by s 31(c) of Act 28 of 2006 with effect from date to be proclaimed.]

(c) an offence regarding the failure to store firearms or ammunition in accordance with the requirements of this Act;

(d) an offence involving the negligent handling or loss of a firearm while the firearm was in his or her possession or under his or her direct control;

(e) an offence involving the handling of a firearm while under the influence of any substance which has an intoxicating or narcotic effect;

Uncommenced amendment

(e) an offence involving the handling of a firearm or muzzle loading firearm while under the influence of any substance which has an intoxicating or narcotic effect;

[S 103(1)(e) substituted by s 31(d) of Act 28 of 2006 with effect from date to be proclaimed.]

(f) any other crime or offence in the commission of which a firearm was used, whether the firearm was used or handled by that person or by another participant in the offence;

Uncommenced amendment

(f) any other crime or offence in the commission of which a firearm or muzzle loading firearm was used, whether the firearm or muzzle loading firearm was used or handled by that person or by another participant in the offence;

[S 103(1)(f) substituted by s 31(d) of Act 28 of 2006 with effect from date to be proclaimed.]

(g) any offence involving violence, sexual abuse or dishonesty, for which the accused is sentenced to a period of imprisonment without the option of a fine;

(h) any other offence under or in terms of this Act in respect of which the accused is sentenced to a period of imprisonment without the option of a fine;

(i) any offence involving physical or sexual abuse occurring in a domestic relationship as defined in section 1 of the Domestic Violence Act, 1998 (Act 116 of 1998);

(j) any offence involving the abuse of alcohol or drugs;

(k) any offence involving dealing in drugs;

(l) any offence in terms of the Domestic Violence Act, 1998 (Act 116 of 1998) in respect of which the accused is sentenced to a period of imprisonment without the option of a fine;

(m) any offence in terms of the Explosives Act, 1956 (Act 26 of 1956), in respect of which the accused is sentenced to a period of imprisonment without the option of a fine;

(n) any offence involving sabotage, terrorism, public violence, arson, intimidation, rape, kidnapping, or child stealing; or

(o) any conspiracy, incitement or attempt to commit an offence referred to above.

(2)

(a) A court which convicts a person of a crime or offence referred to in Schedule 2 and which is not a crime or offence contemplated in subsection (1), must enquire and determine whether that person is unfit to possess a firearm.

(b) If a court, acting in terms of paragraph (a), determines that a person is unfit to possess a firearm, it must make a declaration to that effect.

(3) A court which has convicted a person of a crime or an offence contemplated in subsection (1), has made a determination contemplated in that subsection or has made a declaration in terms of subsection (2) must notify the Registrar in writing of that conviction, determination or declaration.

(4) Unless a determination that a person is not unfit to possess a firearm has been made in terms of subsection (1), a notice contemplated in subsection (3) must be accompanied by a court order for the immediate search for and seizure of—

(a) all competency certificates, licences, authorisations and permits issued to the relevant person in terms of this Act;

(b) all firearms in his or her possession; and

(c) all ammunition in his or her possession.

(5) A firearm and any other item seized in terms of subsection (4) must be kept by the South African Police Service or, if appropriate, by the Military Police, until an appeal against the conviction or sentence has been finalised or the time for an appeal has elapsed.

[S 103 commencement: 1 July 2004.]

Uncommenced amendment

(6) This section does not apply in respect of the payment of an admission of guilt fine in terms of section 57 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

[S 103(6) added by s 31(e) of Act 28 of 2006 with effect from date to be proclaimed.]

(7) When a person becomes or is declared unfit to possess a firearm or muzzle loading firearm in terms of this section, the court dealing with the case must determine the duration of unfitness, which duration must depend on the seriousness of the conduct which gave rise to the unfitness and which may not be less than 10 years calculated from the date of conviction.

[S 103(7) added by s 31(e) of Act 28 of 2006 with effect from date to be proclaimed.]