Published originally in Gun Africa (edition 27).
What rights do a firearm owner have in terms of South African law and, more importantly, the Constitution of the Republic of South Africa, Act 108 of 1996?
The right to own a firearm is not entrenched in our Constitution, unlike the Constitution of the United States of America. The well-known Second Amendment states: “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be fringed.” (my emphasis). The right to keep and bear arms was adopted by the US and signed into the Bill of Rights on 15 December 1791. Thus every law-abiding citizen in the US has a right to own firearms, with this said right protected by the Second Amendment to the US Constitution. Despite this right being entrenched, the Supreme Court of the United States of America, the highest court, has ruled in the past that the rights of individuals are not unlimited, and that the regulation of either firearms or similar devices is allowed. As a result, there are State and Federal laws that, in certain instances, do limit these Second Amendments rights. Federal statutes For example, there are now a number of Federal statutes that deal with the manufacturing and transferring of firearms.
There is also the National Firearms Act, among other legislation, that deals with firearm licences and interstate commerce, and background checks on most firearm purchases. Although the right to own or possess firearms is not entrenched in our Constitution, we do have other constitutional rights that we can rely on to protect our possession and ownership of firearms.
The right to own a firearm is not entrenched in our Constitution, unlike the Constitution of the United States of America.
One of the most important rights in our Constitution relating to firearms is the right to own property. It should be noted that ‘property’ does not just refer to immovable property such as houses and home ownership, but includes movables such as motor vehicles and firearms. Ownership and possession of such items is protected by Section 25 of our Constitution. Section 25, which entrenches the right to property, states that: “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.” Property may, however, be expropriated in terms of a law of general application, but only for public purposes, or in the public interest. Any person is entitled to approach a court to protect these rights, if infringed upon, or if they are being treated unfairly.
Thus the SAPS cannot remove your firearm from your possession arbitrarily without recourse to the law. It must follow a legal process. Even then, the firearm owner is still entitled to approach a court to protect his or her right to undisturbed possession of the firearm. Note that, in terms of Section 9 of the Constitution, which deals with Equality, it states that: “(1) Everyone is equal before the law and has the right to equal protection and benefit under the law.” Thus firearm owners cannot be treated unfairly and still be said to enjoy equal protection under the law as other persons and groups who do not own firearms. Furthermore, even persons within the same group, that is firearm owners, should be treated equally by the State.
Freedom of Association
Other rights that one may use to protect ownership and the use of firearms is Freedom of Association, in terms of Section 18 of the Constitution. Hereby everyone has the right to join a sporting shooting, hunting or collecting association of their choice, and the right to do so is protected under the Constitution.
Freedom of trade, occupation and Profession
There is also the right of Freedom of Trade, Occupation and Profession, which is protected in terms of Section 22 of the Constitution. This entitles a person to run a business of their choice. One may choose to own a business that uses firearms, such as a Section 20 business in terms of the Firearms Control Act (FCA), including security companies and hunting outfitters, firearm dealers (Section 32 of the FCA), manufacturers (Section 48 of the FCA), and gunsmiths (Section 62 of the FCA), and to derive an income from the use of, or buying and selling, manufacturing, or repairing of firearms.
Language and culture
Furthermore, in terms of Section 30 of our Constitution, we have the right to Language and Culture, and in terms of Section 31, the right to Cultural, Religious and Linguistic Communities. Thus if it has been part of your culture for many generations to use firearms, this culture and/or heritage, based on the use of firearms, is protected under the Constitution.
Just Administration Action
One of the most important rights in terms of the Constitution which ensures that government bodies and State institutions, including the SAPS, act fairly and reasonably with all persons, is Section 33 of the Constitution, which deals with Just Administration Action, as follows:
(1) Everyone has the right to administration action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administration action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must-
(a) provide for the review of administration action by a court or, where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration.
The end result of Section 33 is the Promotion of Administrative Justice Act, 3 of 2000 (PAJA), established to give effect to Section 33 of the Constitution, giving further rights to all South Africans, and providing for equal, fair and just administrative action. PAJA is an extremely powerful piece of legislation, entitling a firearm owner to place pressure on the SAPS to act within a reasonable time period, such as with respect to the processing of a firearm licence application, which is within 90 working days, or to provide full and proper reasons on refusal of a firearm licence. high court PAJA also entitles an applicant to take the SAPS to task if no decision has been made within a reasonable period, and to approach the High Court to enforce a decision. Furthermore, if a licence application has been refused, and if the applicant is unhappy with the reasons provided by the SAPS for such a refusal, PAJA can be used to request full and adequate reasons, before proceeding to appeal the refusal of the licence. The Appeal Board, although a creature of statute, in that it was established in term of Section 128 of the FCA, also falls under the ambit of PAJA. In fact, the entire FCA and all its of processes relating to the SAPS, falls within the ambit of PAJA.
Despite the before-mentioned rights in terms of the Constitution, all rights can still be limited. There is a limitation clause in terms of Section 36 of the Constitution, which regulates the way such rights can be limited, in that rights can only be limited in terms of a law of general application, and that the limitation must be reasonable and justifiable. There are other rights which may have application to firearms, but I have highlighted the most important ones that are of general application on an almost daily basis. Thus although we do not have an entrenched Constitutional right to own or possess firearms, such as the Second Amendment, we do have other constitutional rights that we can use to protect our use and possession of firearms for personal, business or cultural reasons.
We must always be on our guard to protect these and other Constitutional rights. Although the South African citizen may appear to be the weaker party in any conflict with the government, state or with the SAPS, never be afraid to use the power of the Constitution and PAJA in a correct and legal manner, so as to ensure that we continue have the right to possess, own and keep firearms, but always for lawful purpose.