DECLARED UNFIT TO OWN A FIREARM: Are the courts playing a role?

Duxita Mistry,Anthony Minnaar

doi:10.17159/2413-3108/2003/v0i6a1056

Abstract

This article is a follow up to a previous article dealing with the role of the police in declaring a person unfit topossess or own a firearm.Similarly, it draws on a studythat examined how the criminal justice system excluded unfit persons from firearm ownership; the primary legal means being sections 11 and 12 of the old Arms and Ammunition Act, no. 75 of 1969. Section 12(1) refers to persons who are automatically declared unfit due to a conviction for a crime involving a firearm. Section 12(2) refers to the discretionary declaration of unfitness upon conviction for certain other crimes. As a result of the large number of crimes that are committed with firearms and the number of firearms that are stolen from legal gun owners, there is a drive by the criminal justice system to reduce the amount of firearms, both legal and illegal, in circulation. This article concentrates on s12 and reveals a number of shortcomings by both prosecutors and magistrates in the application of this section. These may have a considerable impact on the effective implementation of the new Firearms Control Act.

Highlights

While the law gives the court discretion to declare a person unfit in instances not involving a firearm, prosecutors interviewed said that they tended to use these provisions only in cases involving violence
If an accused applies for a firearm licence the Central Firearms Register (CFR) will be able to determine whether the offence for which s/he was convicted attracted an automatic declaration of unfitness
In order to determine whether magistrates were routinely declaring people unfit to possess a firearm in terms of s12, the researchers examined 158 SAP 69 forms at the Criminal Record Centre (CRC).[6]

Summary

Introduction

While the law gives the court discretion to declare a person unfit in instances not involving a firearm, prosecutors interviewed said that they tended to use these provisions only in cases involving violence. The person is not automatically deemed to be unfit to possess a firearm, but the court may make an explicit order to that effect. The court is required by s12(3) to bring the provisions of these subsections to the attention of the convicted person and give him or her an opportunity to advance reasons and give evidence as to why he or she should not be declared unfit to possess a firearm.

Results

Conclusion