Can I use my dedicated sport shooting/hunting firearm (Section 16 licence) and/or occasional sport shooting/ hunting firearm (Section 15 licence) for self-defence?
In terms of the Firearms Control Act 60 of 2000 (FCA), it is clear that Section 13 makes provision for a firearm licence granted specifically to a natural person for self-defence. However, in terms of Section 13(4), it is possible to use a Section 13 licence for other purposes: “A firearm in respect of which a licence has been issued in terms of this section may be used where it is safe to use the firearm and for a lawful purpose.” Thus it stands to reason that a Section 13 licence can be used for occasional or dedicated sport shooting. Specifically with new sport shooters, this is quite often their only firearm when they start their sport shooting activities. The Section 13 licence is therefore being used for a lawful purpose – that is, sport shooting, and on a shooting range where it is safe to do so.
Section 15, which is a licence issued for occasional hunting and/or sport shooting, also has a clause with exactly the same wording, namely Section 15(4), which states: “A firearm in respect of which a licence has been issued in terms of this section may be used where it is safe to use the firearm and for a lawful purpose.”
Section 16, which is a licence to possess a firearm for dedicated hunting and/or dedicated sport shooting, likewise has similar wording in Section 16(3), which states: “A firearm in respect of which a licence has been issued in terms of this section may be used where it is safe to use the firearm and for a lawful purpose.”
Section 17, which deals with licences in a private collection, has a similar clause in Section 17(4): “A firearm in respect of which a licence has been issued in terms of this section may be used where it is safe to use the firearm and for a lawful purpose.”
Interestingly enough, in terms of Section 16A, which is a licence to possess a firearm for professional hunting, 16A(3) states: “A firearm in respect of which a licence has been issued in terms of this section may be used by the professional hunter for his or her private use (my emphasis) and professional hunting purposes where it is safe to use the firearm and for a lawful purpose.”
Section 20 deals with business licences, such as Section 20(2)(a) for security providers, 20(2)(b) for training providers, 20(2)(c) for use in the film industry, 20(2)(d) for game ranchers, 20(2)(e) to conduct a business in hunting, and 20(2)(f) for any other business purposes. Section 20(4) states: “A firearm in respect of which a licence was issued in terms of this section (my emphasis) may only be used as specified in the licence.” Furthermore, in terms of Section 20(3), a licence issued in terms of this section must specify the business purpose in respect of which it has been issued.
In terms of Section 21 providing a temporary authorisation to possess a firearm, Section 21(5) stipulates: “A firearm in respect of which an authorisation has been issued in terms of this section may be used only –
(a) if the Registrar by endorsement on the authorisation permits such use; and
(b) in accordance with such conditions as may be prescribed and imposed by the Registrar.”
The above is a short rundown of the relevant sections in order to give the reader a better understanding thereof.
For the purposes of this article, let’s say you have now used a firearm licensed to you other than in terms of Section 13 for self-defence, against an unlawful and violent attack, which more than likely may be a handgun for sport shooting, but may be your hunting rifle or shotgun, and that your defense of private self-defence has been accepted by the court. In such a situation, can you be charged and convicted in terms of any section/s of the FCA?
Of particular relevance is Section 120 (Offences, Penalties, and Administrative Fines), which states in 120 (1):
Section 120 Offences
(1) A person is guilty of an offence if he or she contravenes or fails to comply with any:
(a) provision of this Act;
(b) condition of a licence, permit or authorisation issued or granted by or under this Act; or
(c) provision, direction or requirement of a notice issued under this Act.”
There are other offences created in terms of Section 120, such as discharging a firearm, or using a firearm under the influence of alcohol, etc. which are not relevant for the purposes of this article.
In my opinion, were you to be charged in terms of Section 120 (1)(a), (b) or (c), following a situation where you have defended your life lawfully, you would be entitled to rely on the subsections referred to as above in Sections 15, 16 and 17, and would be entitled to declare you were using the firearm where it is safe to use. That is, the firearm was in a holster and concealed on your person, and that you were using the firearm for a lawful purpose, namely defending your life against an unlawful attack.
Before you ‘use’ a firearm
Please note that the term ‘use’ of a firearm, in my opinion, can have a fairly broad meaning, which includes not only firing the firearm, but also pointing and handling. There may, however, be different opinions on the definition of the word ‘use’ in this regard, and a more a restrictive interpretation may be applied. Whether one can be charged in terms of Section 120 (1), or any other section, will depend on each particular person’s circumstances, the situation you find yourself in, and where and when the unlawful attack occurs.
For instance, were you to be at home and happen to have your occasional or dedicated sport shooting firearm on or near you at the time of the attack, or were on a hunting trip and had used your hunting rifle, or were on your way to the shooting range and had to use your sport shooting firearm, whether handgun, shotgun or rifle, and were you to use the said firearm in self-defence against a violent and unlawful attack, I believe there is a very small probability of being charged for contravening any section of the FCA or of Section 120 in particular. Furthermore, it would be difficult for the State to pursue a conviction in the face of the lawful defense of your own life.
Please note that the conservative view is that when you are travelling with your sport shooting and/ or hunting firearm, it should be transported in an unloaded condition. Thus if you adhere to this conservative view, when driving to or from the shooting range or the hunting area, one may have great difficulties explaining why you had a loaded sporting or hunting firearm in the car. However, should the firearm be unloaded and bagged (as it should be) and you had a loaded magazine (against which there is no prohibition), one could easily load the firearm and deploy it in self-defence.
The burning question perhaps is whether you may carry your occasional or dedicated firearm for self-defence for a lengthy period or on a permanent basis. This is not an easy one to answer, as one must bear in mind that the intention of the FCA in terms of Section 13 was to create a category for the specific purpose of defending yourself, whereas Sections 15, 16 and 17 have other purposes.
One can also understand the purpose of Section 13 (4) in that it allows a person to use that firearm for sporting and training purposes. But with the similar clauses in Sections 15, 16 and 17, there might be a problem. When using such a firearm for self-defence, is it lawful? Yes, in the eyes of the defender, but ultimately it would be for the court to decide. If the defense of self-defence is not upheld, such a person will almost certainly be guilty of contravening Section 120 in that he did not use the firearm in accordance with the licence for which it was issued.
There is also great concern from some quarters that, because Section 13 is clear in that one may possess only one handgun or shotgun for self-defence, that the sport shooter or hunter, according to the popular argument, would be entitled to decide by himself or herself what to carry when and under what circumstances; also, that he or she wishes to carry a back-up gun, or two or even three guns, for self-defence, which may even be a semi-auto rifle in the guise of an M4/ LM5/ or whatever.
At the end of the day, the issue might be decided upon by a magistrate or judge. He or she may decide on whether there had been wrongful intent rather than unlawfulness, especially if intent is found to be a requirement. If one argues that wrongful intent is a requirement, obviously the State has to, among other things, prove knowledge of unlawfulness.
The prosecutor may have a problem should the accused have had an honest and bona fide belief that he or she was entitled to do what he or she did. However, the question of whether his/her belief was reasonable would also come into play – that is, would the reasonable person also have thought he/she was entitled to carry, as opposed to use, any gun for self-defence?
The best advice I can give is to always have a rational and factual reason for having a Section 15, 16 or 17 firearm on you at the time that the incident occurred, such as that you were on your way to a shooting range, on your way to a hunting trip or hunting at the time. Although some circumstances may possibly be covered by a state of emergency (defense of necessity), the use of a sport shooting or hunting firearm may negate, or at the very least frustrate, the objectives, as well as act against the spirit of, the FCA.
It is best in all circumstances, in my opinion, to follow the intention of the FCA, and to rather use your Section 13 licence for self-defence wherever possible, and to use any other firearms for the purposes for which they were registered. However, this is a hotly-debated and divisive topic. So far, to the best of my knowledge, the specific issue of a person carrying a Section 15 or 16 licence permanently, or being charged in terms of Section 120 in these particular circumstances, has not yet been decided upon by our courts.
*Please Note: This article was originally posted for Gun Africa and should not be construed as legal advice.
Check out Damian’s article originally posted on the Gun Africa website.