Fourth of July holds a special place in the hearts of Americans, not least because it is their celebration of their obtainment of freedom and the establishment of their country; it is also known as Independence Day for this reason. On 4 July 2017, a certain section of civil society in South Africa had reason to celebrate their own Fourth of July: the High Court handed down a verdict on the constitutionality of sections 24 and 28 of the Firearms Control Act (2000), also known as the FCA, ordered parliament to amend these sections within 18 months, referred the ruling to the Constitutional Court to confirm the ruling of the High Court, and ordered in what appears to be an interim ruling making all expired firearm licenses valid until the completion of the this process. If firearms weren’t so synonymous with American culture and ideas of freedom, the date of this ruling being made wouldn’t be uncanny.
In South Africa, the inanimate object (usually comprised of metal and plastic), is a magnet for opportunistic politicians in need of a bogeyman for political point scoring, while organisations such as Gun Free SA push their gun control narrative, fraught with fallacies, flaws, lies, and dance moves on the graves of victims of crime to appeal to the emotions of the public. This is par for the course. What does become an area of grave concern, is when the enforcers of the law (the South African Police Service), also seek out political point-scoring for their own advantage – in this case using the previously extremely vulnerable gun owning element of civil society as a target.
Law enforcement in all its manifestations (traffic, metro, SAPS, City Law Enforcement) has only one job: to enforce the law. The constitution does not afford interpretation of vague or confusing legislation, or writing of laws, to these agencies. However, this is exactly what the SAPS has been doing for some time, using poorly crafted directives to push their will with regard to firearm ownership and regulation. The High Court ruling mentioned above illustrates this perfectly. On the court order, the only respondent of the state is “the Minister of Safety and Security”. The SAPS have, however, proceeded to appeal the judgement, despite the SAPS being an institution, not the Minister. Secondly, a Brigadier has issued a directive that no firearms surrendered or forfeited to the state because of expired licenses be returned to their owners when claimed back, despite the court ruling. This is contempt of court, as the ruling specifically declared all expired licenses valid. The SAPS management argue that:
“The learned judge ought to have found that a forfeiture of a firearm as a result of a failure to comply with the act is not a deprivation; and that any deprivation that does arise is in accordance with a law of general application, and is a legitimate exercise of power because it’s purpose is to protect health, welfare, safety and security for everyone’s benefit.”
Anything that you legally purchase based on willing buyer/willing seller principle becomes your legal property, by which the confiscation without your consent becomes theft. Despite the ruling, the SAPS have opted to literally write their own law, despite the constitution’s placing of authority in the judicial system. Also note the reference to the collective of “everyone’s benefit”. Ordinarily, a ruling is suspended during the appeal process, unless the ruling contains an interim judgement.
This argument by the SAPS is therefore highly arbitrary and unlawful. It is also completely misguided in reason and logic, because their view is that despite the owner having already jumped through numerous onerous and bureaucratic processes to obtain their original firearm license, at a certain second on a certain minute at a certain hour of a set date, the owner ceases to fit from then on, thereby becoming a danger to society.
The entire concept of the Firearms Control Act is arbitrary as its entire purpose is for eventual total disarmament of the civilian population. This arbitrary piece of work has found friends willing to deliberately break multiple laws to enforce it. Previously, the SAPS allowed expired firearms to be ‘sold’ to a gun dealership and then ‘bought’ back while the owner could make a new application from scratch, thereby keeping their property, even within the arbitrary and bureaucratic mechanisms. This was because the Central Firearms Registry is incapable of renewing an expired firearm licenses without moving the serial numbers around the various databases. For some reason, virtually overnight, the SAPS then stopped this practice, adopting the current stance that resulted in this court case. What is more incredulous, is that a proposed amendment was thrown out of parliament because of how unworkable it was. This proposal, however, contained a clause dealing with expired license holders in the form of a small administrative fine. No attempt was made to keep that clause and push it through by the Ministry, thereby creating the entire fiasco currently consuming enormous amounts of resources of both the state and private entities. Had the Ministry exhibited competence over a year ago, SAPS would have had little wriggle room to ‘interpret’ anything.
A question that legitimately exists, even if few people have acknowledged it or tried to answer it, is: “How and why is this all happening?”
The reason for this lies partly in the awful document that is the FCA that has afforded the SAPS these opportunities of making up things as they go along, however, the root cause is the current state of government. The atrocious leadership of our President, the incompetence of his cabinet, and the corruption of the state from the bottom up has rendered the enforcers of the law completely and utterly incapable. The SAPS acting as lackeys for the president is one thing, but the intentional targeting of one of the single most law-abiding sectors of society just by virtue of their choice of property is completely another; they have become their own masters.
This is because the SAPS have not had leadership since George Fivaz (appointed by Mandela). All commissioners since have been implicated in corruption (Selebi, Phahlani), maladministration or irregular administrative behavior (Cele), or been overall incompetent (Phiyega). The crime intelligence division has also been obliterated by the likes of Mduli’s tenure, and elements that remain within it. The Hawks is politically compromised, and the NPA is a Jacob Zuma and Gupta puppet show. Much of the top brass within these institutions is also present by virtue of their connections or allegiances; hence competence is not a requirement. Coming back to the topic of gun rights, it becomes easy to see how this horseless carriage has run away to the extent it has.
The gun lobby is vehemently fighting for gun rights, and a non-gun owner will probably ask “what does this have to do with me? I don’t even like guns. It is for them to sort out between themselves.” Ordinarily this may be true. However, what the non-gun owner may not realise is that if the right to property is only selective (in this case firearms), then it is only a matter of time before something of theirs is targeted. One could say that, “First they came for the gun owners, but I did not speak up, for I was not a gun owner.” This horseless carriage could very quickly gain new passengers depending on the political climate and the actors involved at any point in time.
What makes the concept of encroaching on gun rights so important for attention, is that I personally believe that apart from total freedom of speech, there is no greater warning sign on infringing individual freedoms and liberties than firearm restriction. Furthermore, without free gun ownership, the state has a total monopoly on violence to be used against its citizens, thereby almost completely removing the possibility of a civil response to a tyrannical government. Tyrannical governments do not happen overnight – they are a process, gradually eroding certain rights and freedoms, using slow changes. Gun control is one of them, as is control and censorship of speech.
The court ruling also made mention that the FCA was comprised of poor language in general, and in need of revision, while the overall mechanisms such as the Central Firearms Registry managed by the SAPS, is chaotic and dysfunctional, with administrative challenges created by the Act that are “insurmountable”.
One would think that the door on this chapter would have closed already, since this has been the state of the overall system since pre-2009 when it was less than six years old. However, the SAPS continue to insist on the current trajectory. And if this case is lost at the constitutional court, how much hope is there for a truly free South Africa, considering that oratory utterances can already land you in front of the South African Human Rights Commission?
South Africa is running out of time, because situations such as these can only be solved by the executive’s cabinet and parliament. Even with a new government in 2019, the Constitutional Court could rule against gun owners not because of lack of merit, but because the SAPS have access to millions of rands to spend on court cases, and associations and groups such as gun owners can only manage what their members can muster. Institutional degradation is a long and slippery slope with lasting damage.
Author: Jonathan Wright holds a degree in BA International Studies from the University of Stellenbosch majoring in Political Science and History. He is also active on the South Africa gun rights scene, and a dedicated firearms advocate, as well as that of federal and libertarian government despite his personally conservative values, with a particular interest in safety and security matters of society.