Firearm Motivations

South African Firearm Act – A Summary

Summary

South Africa’s current firearms regulatory framework consists of the Firearms Control Act (FCA) and its subsidiary legislation, which has been in place since 2004.  This framework imposes strict substantive and procedural requirements for obtaining a competency certificate, license, permit, or authorization to possess a firearm, to deal in firearms, or to carry out other firearm-related activities, including running a firearms-training enterprise or a hunting business.

Some of these requirements are of universal application.  For instance, a separate license must be issued for every firearm and applicants must obtain a competency certificate.  To do so, an applicant should, among other things, be a “fit and proper person” with no recent conviction for certain crimes, be stable, and not have a proclivity for violence.  Other requirements vary depending on the type and purpose of the specific license sought.  For instance, a person wishing to obtain a license to possess a firearm for self-defense is required to demonstrate a need for the weapon and inability to achieve protection through other means.  In addition, an eligible individual may obtain only one license of this class, which must be renewed every five years.

Limited, mostly secondary sources located for this report point to a decrease in firearms-related crimes since the FCA came into force, although none of the sources establish a direct causal effect.

Introduction

South Africa has a comprehensive firearms-control regulatory regime in place.  It consists of the Firearms Control Act of 2000 (FCA) and its subsidiary legislation, the Firearms Control Regulations (FCA Regulations).  Before these laws took effect in 2004, firearms were regulated through the Arms and Ammunition Act 75 of 1969 (the 1969 AAA).  The designated regulatory authority is the National Commissioner of the South African Police Service (SAPS), which also functions as the National Commissioner of Registrar of Firearms (the Registrar).

This regulatory regime has put in place stringent substantive and procedural limits on obtaining firearms.  It imposes a ban on certain firearms designated “prohibited” firearms except in very limited circumstances.  It also imposes thorough requirements for obtaining a license for other firearms.  For instance, a firearm for self-defense may be issued only if the applicant can demonstrate the need for a weapon and an inability to achieve protection through other means.  A person who meets these standards 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.  A person seeking a firearms license for dedicated sport shooting must be a member of an accredited hunting association.

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.  It also imposes equally strict rules on the safe custody of firearms.

The regulatory regime also imposes stringent requirements on dealers.  Among the notable obligations is a 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 available for inspection on request by any police official all firearms, ammunition, and records that he or she keeps.

The impact of the current regulatory framework on firearms-related crimes is hard to ascertain.  This is in large part because the SAPS has not released adequate statistical information on the matter since the early 2000s.  In addition, while the FCA has been in effect since 2004, it appears that various key provisions have been implemented in increments, with some parts, particularly certain provisions added to the FCA through a 2006 amendment, implemented recently and others not yet put into effect.  However, limited, mostly secondary sources located for this report point to a decrease in firearms-related crimes since the FCA went into force, although none of them establish a direct causal effect.

Definition of Firearm

The FCA adopts 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; or
  • any barrel, frame, or receiver of a device mentioned above.

 

However, the FCA excludes various devices that would otherwise be considered firearms under this definition.  Explosive-powered tools designed for industrial application for splitting rocks or concrete, or for application in the mining or steel industry for removing refractory materials, are not considered firearms.  Also not considered firearms are stun bolts used in slaughterhouses, antique firearms, air guns, tranquilizer firearms, paintball guns, flare guns, and deactivated firearms.  In addition, the FCA authorizes the Minister of Safety and Security (the Minister) to exclude any other device.

The Right to Possess Firearms

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

Certain firearms are categorized as prohibited firearms and cannot ordinarily be possessed or licensed under the FCA.  These include any

(a) fully automatic firearm;

(b) gun, cannon, recoilless gun, mortar, light mortar or launcher manufactured to fire a rocket, grenade, self-propelled grenade, bomb, or explosive device;

(c) frame, body, or barrel of such a fully automatic firearm, gun, cannon, recoilless gun, mortar, light mortar, or launcher;

(d) projectile or rocket manufactured to be discharged from a cannon, recoilless gun or mortar, or rocket launcher;

(e) imitation of any device contemplated in paragraph (b), (c), excluding the frame, body, or barrel of a fully automatic firearm, or (d); or

(f) [altered firearm].

The FCA stipulates 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.  However, the FCA Regulations impose rigorous requirements that need to be met for the proper utilization of these exceptions.

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

Competency Certificates, Licenses, Permits, Authorizations, and Accreditations

An application for a firearm license, permit, or authorization may be made to the Registrar of Firearms by a natural or juridical person.  When the applicant is a natural person, the FCA requires that the person comply with all the necessary requirements set forth under its provisions, including providing a full set of fingerprints.  Significantly, the person must possess the relevant competency certificate, which is issued, among other things, only after the successful completion of training and a test on the efficient and safe handling of a firearm by an accredited training provider or 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 authorization as the responsible person and who would be considered the holder of the license under the FCA.

Accreditation

The FCA requires accreditation before a license for certain activities or businesses related to firearms can be issued.  These include

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

 

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

a) trustworthiness and integrity;

b) suitability to perform the relevant functions in terms of the Act;

c) capacity to serve the purpose of the accreditation; and

d) capacity to advance the purposes of the Act.

The FCA authorizes the Minister to issue additional criteria applicable to specific accreditations through regulations.  Accordingly, the Minister 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 an accreditation fails to comply with any applicable criterion, is no longer qualified, or violates requirements under the FCA or terms of the accreditation.

Competency Certificate

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 for the area where the applicant currently maintains or will in the future maintain his or her residence or business.  A first-time application for a competency certificate may be granted only if the applicant

  • is at least twenty-one years old;
  • is a citizen or a permanent resident;
  • is a “fit and proper person” for the license he or she is seeking;
  • is stable and does not have a proclivity for violence;
  • does not have a substance-abuse problem;
  • has no conviction within the five years immediately preceding the application for certain crimes related to violence, dishonesty, recklessness, or instability;
  • 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; and
  • 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.

 

Competency certificates are not permanent.  A competency certificate to possess a firearm, trade in firearms, manufacture firearms, or open a gunsmith business is valid for as long as the license to which it relates remains valid, unless the certificate is terminated or renewed.  A competency certificate relating to a muzzle-loading firearm is issued for ten years.

The FCA Regulations impose additional requirements.  For instance, it requires anyone who provides a recommendation on behalf of any applicant to attest that the applicant

  • is a fit and proper person to be issued a competency certificate, license, permit, or authorization;
  • is in stable mental condition and does not have a propensity for violence; and
  • does not suffer from a substance-abuse problem.

 

Upon receiving an application for a competency certificate, the Registrar may launch an investigation for the purpose of determining whether the 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 would be launched if in the five years preceding the application the applicant, among other things,

  • has been served with a protection order or accused of domestic violence, necessitating a police visit to his or her residence;
  • has been denied a license, permit, or authorization for a firearm;
  • has attempted suicide, suffered major depression or emotional problems, or had a substance-abuse problem;
  • has been diagnosed or treated for depression, substance abuse, or behavioral or emotional problems;
  • 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.

 

In the course of investigating an applicant for a competency certificate, the Registrar may require the applicant to submit a doctor’s certificate regarding the applicant’s dependence on intoxicating or narcotic substances and/or a report compiled by a psychiatrist or psychologist on the applicant’s mental condition or propensity for violence.

Licenses to Possess Firearms

The FCA requires that the Registrar issue a separate license in respect of each of the following firearms: firearms for self-defense; restricted firearms for self-defense; firearms for occasional hunting and sport shooting; firearms for dedicated hunting and dedicated sport shooting; firearms for private collection; firearms for public collection; firearms for business purposes; firearms for temporary possession.  The Registrar may issue an additional license with respect to a single firearm to everyone who resides in the same premises as the license holder.

License to Possess a Firearm for Self-Defense

In this category, the Registrar may issue a license for any shotgun that is not fully or semiautomatic or for a handgun that is not fully automatic.  While any natural person is eligible to apply, a license is issued only if the applicant “needs a firearm for self-defense” and cannot “reasonably satisfy the need by means other than the possession of a firearm.”  A person is permitted to hold only one license of this kind.

A license in this category is issued for a five-year term and may be renewed provided that the licensee continues to comply with all the applicable requirements.

License to Possess a Restricted Firearm for Self-Defense

A restricted firearm includes any semiautomatic rifle or shotgun that cannot be readily converted into a fully automatic firearm, or any firearm declared as such by the Minister.  The Registrar may issue a license for a restricted firearm to any natural person if he or she can demonstrate that a license to possess a firearm for self-defense (see section C(1) above) “will not provide sufficient protection” and submits “reasonable information to motivate the need for a restricted firearm for self-defense purposes.”

A qualifying person can hold only one license for a restricted firearm for a two-year term, which can be renewed if the licensee continues to be in compliance with all applicable rules.

License to Possess a Firearm for Occasional Hunting and Sport Shooting

In this category, the Registrar may issue a license for any handgun (which is not fully automatic) or a rifle or shotgun (which is not semi- or fully automatic) that is not a restricted firearm, or a barrel, frame, or receiver of any of these firearms.

There are limitations on the number of licenses that may be issued in this class.  Any natural person who is an occasional hunter or sports person is eligible for a maximum of four ten-year-term licenses.  The number of licenses that can be issued may be less depending on whether the applicant holds a license of a different class.  For instance, an applicant who has a license to possess a firearm for self-defense can be issued a maximum of three licenses in this category.  In addition, an applicant cannot be licensed for more than one handgun.

A license in this class is issued for a ten-year term and may be renewed if the licensee is in compliance with all the applicable rules.

License to Possess Firearm for Dedicated Hunting and Dedicated Sports Shooting

The Registrar is authorized to license the following kinds of firearms in this category: a handgun, rifle, or shotgun that is not fully automatic; a semiautomatic shotgun with the capacity to fire a maximum of five shots before it has to be reloaded; or a barrel, frame, or receiver of any of these firearms.

The FCA imposes certain requirements for applicants in this category.  In order to be licensed, an applicant should be a member of an accredited hunting association or sport-shooting organization and the license application should include a sworn statement or a solemn declaration from a chairperson of the association or organization indicating that the applicant is a registered member.

A license in this category is issued for a ten-year term and can be renewed if the licensee continues to be in compliance with all applicable requirements.

License to Posses a Firearm in a Private Collection

Any firearm, including a prohibited firearm, can be licensed in this category.  However, the firearm must be one approved for collection by an accredited collectors association; the applicant must be a member of an accredited collectors association; and the license application must be accompanied by a sworn statement or solemn declaration from the chairperson of the association verifying the applicant’s membership.  The firearm must be at least fifty years old and have an attribute of collectability that is of historical, cultural, artistic, technological, heritage, or scientific value.

This type of license is issued for a ten-year term and may be renewed if the licensee is in compliance with all applicable requirements.

Both the FCA and FCA Regulations impose rigorous safety requirements for holders of licenses in this category.  A storage place is specified in every license, and the licensee is required to store the firearm at the specified place.  The licensee may put the firearm on public display provided that

(a) the firearm is unloaded;

(b) the firearm, if it is a handgun, is displayed in a lockable display cabinet; or

(c) where the firearm is on open display, it must be rendered inoperable by means of a secure locking device; or

(d) the firearm is securely attached to a non-portable structure on which, or in which, it is displayed by a metal attachment, chain, metal cable or similar device in such manner that the firearm cannot readily be removed; and

(e) the firearm is not displayed with, and is not readily accessible to, ammunition that can be discharged from it, except where such firearm or ammunition is displayed in a locked display cabinet or similar device.

License to Posses a Firearm for Business Purposes

The Registrar may issue a license for any firearm other than a prohibited firearm to a security service provider who holds a firearms competency certificate, or anyone accredited to provide training for use of firearms; to provide firearms for use in theatrical, film, or television production, to conduct a hunting business; or to be a game rancher.

The FCA and FCA Regulations impose rigorous restrictions with regard to licensees providing firearms for use by other people.  For instance, a person holding a license to possess a firearm for a business purpose can provide the firearm for use by another person only if it is for business use as specified in the license and the person carries valid official identification documents and a written authorization document issued by the holder of the license detailing the specifications of the firearm; its intended use and period of use; and the reason for its use and place of use.  The holder of a license in this category is required to keep a register of all firearms.

The term of licenses issued in this category is five or ten years, depending on the specific type.  Firearms licenses issued to a game rancher or to hunting businesses have a ten-year term, whereas all other licenses are issued for a five-year term.  All licenses are eligible for renewal provided the applicant remains in compliance with all applicable requirements.

Temporary Authorization to Possess a Firearm

A temporary authorization can be issued to anyone, including an alien.  Among other things, applicants are required to submit a written motivation for their use of the firearm, including information on steps they plan to take to ensure the safe custody of the firearm, and a declaration that they have the capability to ensure safe custody of the firearm.  An authorization of this kind is valid for “the firearm and period and specific use specified in the authorization.”  The Registrar may require an applicant to complete any relevant training.

Termination of a Firearms License

Any of the licenses discussed above may be terminated under certain circumstances.  A license may terminate if the period of time for which it is issued expires, the holder of the license surrenders it, or if the license is cancelled under provisions of the FCA.  Significantly, it may be terminated if the holder of the license “becomes or is declared unfit to possess a firearm.”

A person may be declared unfit to posses a firearm by the Registrar.  The Registrar may declare someone unfit if a final protection order has been issued against him or her under the Domestic Violence Act.  Before taking any action, the Registrar is required, among other things, to ensure that the person is afforded due time and opportunity to challenge the allegations made against him or her, as well as to request the appearance of and examine anyone who has made a statement against him or her.

In addition, a conviction for certain crimes automatically renders a person unfit to possess a firearm unless the court that convicted the person says otherwise.

If a person is declared unfit, all competency certificates, licenses, authorizations, and permits issued to him are automatically terminated and remain so even during an appeal process, if any.  In this situation, a person is required to surrender any competency certificates, licenses, authorizations, and permits to the nearest police station immediately.

Firearms Dealers

A person may not trade in firearms or ammunition without a license.  In order to be issued a dealer’s license, an applicant must be a “fit and proper person to trade in firearms.”  A dealer’s license is issued for a one-year term and may be renewed if, among other things, the licensee continues to be in compliance with all applicable requirements.  While a dealer’s license is not transferrable, another person who has a competency certificate may engage in trade on behalf of a licensed dealer.

There are various duties associated with a dealer’s license.  Dealers must follow specific record-keeping requirements and keep a register of every firearm and all ammunition they have in stock, regardless of the source, in a Firearms Stock Register and an Ammunition Stock Register.  They must also keep a record in a separate Firearms Safe Custody Register of all the firearms they receive and hold on behalf of any licensee.  Dealers are also required to establish a workstation linking all these registers to the central dealers’ database established by the Registrar, as well as make available for inspection by any police official any firearm or ammunition in stock, their dealer’s license, and any register they keep.  In addition, when approached by a holder of a license for possession of a prohibited firearm, dealers are required to seek and obtain a written confirmation from the Registrar before transferring such firearm.

Safe Custody of Firearms

When license holders do not have their firearm on their person, they must store the firearm and its ammunition in a safe or a strong room that meets the requirements of the South African Bureau of Standards (SABS), standards 953-1 and 953-2.  The same requirement applies to dealers.

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

Firearm-free Zones

The FCA authorizes the Minister, in consultation with certain authorities, to declare any place to be a firearm-free zone if doing so is in the public interest and in accordance with the provisions of the FCA.  The FCA states that unless specifically permitted, no one may allow, carry, or store any firearm or ammunition in a firearm-free zone.

The FCA gives police broad search and seizure powers in firearm-free zones.  Police officials may conduct warrantless searches of any building or premise within a firearm-free zone if they have a “suspicion on reasonable ground” regarding the presence of a firearm or ammunition.  They may also search without a warrant any person in a firearm-free zone.  In addition, the police may seize any unauthorized firearm or ammunition in a firearm-free zone.

Any owner or lawful occupier of any premise can apply to have the premise declared a firearm-free zone.  The application must include reasons for seeking the declaration, availability of the capacity to maintain the premise as a firearm-free zone, and a means for informing the public of the premise’s status as a firearm-free zone.

Offenses and Penalties

Under the FCA

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

Failure to lock a firearm in a safe, strong room or device as required by law is an offense.  A person also commits an offense if he or she loses possession of a firearm by failing to take the necessary steps to ensure is safekeeping.

The FCA also stipulates various offenses regarding the use of competency certificates, licenses, permits, or authorizations.  It makes it an offense to fraudulently alter, use, or possess any fraudulently altered document.  It is also an offense to use any document issued to someone else or to allow the use of such document by another person.  In addition, it criminalizes supplying false information in any document required for submission under the FCA, or while acquiring any of these documents or filling out registers.

Additionally, failure to report the loss, theft, or destruction of a firearm to the police is considered an offense, whether by the person licensed to possess the firearm or anyone who was in possession of the firearm when it was lost, stolen or destroyed.

The FCA states that a person convicted of an offense under its provisions may be subject to a fine or imprisonment.  The maximum possible prison term for each offense is spelled out in great detail, the terms ranging from two to twenty-five years.  In addition, if the penalty stipulated for the offense in question is a fine or prison term of up to five years, additional administrative fines are imposed.

Under the FCA Regulations

Anyone who violates or fails to comply with the FCA Regulations commits an offense.  Anyone who makes a false claim with regard to his or her accreditation or that of another person, or provides any false information while providing information required by the Regulations also commits an offense.  A conviction under the Regulations is punishable by a fine and/or imprisonment of up to one year.