1. The role of the criminal justice system in excluding unfit persons from firearm ownership
 Institute for Human Rights
 & Criminal Justice Studies

2. The legal framework
Old Arms and Ammunition Act still largely in effect
Firearm licences required by law, issued by the SAPS
Declaration of unfitness in terms of s11
Automatic unfitness in terms of s12(1)
Discretionary unfitness in terms of s12(2)
Case law

3. Methodology
Research in 4 provinces, rural and urban – 4 provinces cover 72% of all applications
92 interviews or focus group sessions with magistrates, prosecutors and police
376 records from Criminal Records Centre perused and analysed
250 firearm licence applications perused and analysed
Two cases observed

4. National Firearms Data
firearms registered to individuals as at October 2002
registered in names of institutions
applications approved Jan-Oct 2002
5 453 applications refused Jan-Oct 2002
Only 541 successful s11 applications

9. Section 11
49% of all successful applications in Western Cape January to October 2002
26% in Gauteng
Fewer than 10 each in KZN, Limpopo, Northern Cape
None in Mpumulanga
Importance raised since case of Van Duivenboden

10. Police – Findings on application procedure
Safes – some confusion regarding specifications
Background interviews – face-to- face only with partners, depends on other information whether conducted
Mental and emotional stability, propensity to violence – police find difficult to measure
Domestic Violence register – inconsistency
Alcohol and drugs – difficulties

11. Police Findings cont. Stated refusal criteria
Absence of or incorrect safe
Inadequate overall security
Provision of false information
Previous convictions
Prior declaration of unfitness

12. Police Other Application Factors
Unemployment not a factor
Other firearm licences checked, but checks on possession not always done
“Competency certificates”

13. Police and s12 Police perception that courts are not applying s12
Confusing term “no order made”
Unnecessary s11 hearings held

14. Magistrates
Reasons given by accused why they should not be declared unfit:
Need firearm for
For work
For self-protection
To protect their business

15. Magistrates Accused rarely contest declaration
Most accused commit crimes with unlicenced firearms
Magistrates rarely overturn automatic declaration

16. Magistrates – s12
S12(1) automatic declaration - “No order made” inconsistency
S12(2) discretionary declaration – only with crimes involving violence, but some said would not come to mind if firearm not involved in the matter

17. Prosecutors
Prosecutors say seldom have endorsement on docket from police
Is magistrate’s duty to raise declaration of unfitness with crimes involving firearm
With crimes not involving a firearm, would raise the issue if degree of violence high – but some said this seldom happened
Tendency to wait for detective or magistrate to raise the issue

18. Analysis of Criminal Records
376 SAP 69 files perused
In 87.9% records magistrates did not state on SAP 69 whether or not the accused had been declared unfit to possess a firearm - left blank
In only 6.3% of cases in the sample did magistrates expressly state that the accused had been declared unfit

19. Statistical Analysis
CFR receives applications each month on average
250 Firearm licence applications randomly selected
Of these, 124 approved by CFR

20. Age of Applicant

34. Conclusions
Ultimate responsibility for approving and declining firearm applications rests with the CFR
Prosecutors appear to lack initiative regarding declarations of unfitness
Magistrates tend to consider declarations of unfitness primarily where a firearm is involved
“No order made” creates confusion in respect of automatic declarations

35. Conclusions Magistrates do not routinely declare people unfit
Background checks by local police are as thorough as is possible given constraints relating to resources
Police are conducting more s11 than before
The Firearms Appeals Board seems to lift declarations of unfitness routinely

36. Recommendations
Re-training in respect of automatic declarations of unfitness
Standardise manuals and procedures
Awareness of Domestic Violence Act
Link police and court systems regarding protection orders
Prosecutors give clear instructions to investigating officers regarding confiscation of firearm
Police interview partners of applicant