Picture: THINKSTOCK
Picture: THINKSTOCK

A DIRECTIVE from acting national police commissioner Khomotso Phahlane that firearms owners who fail to relicence their firearms before their existing licences expire must forfeit their weapons to the state has run into legal trouble, and will be challenged in court soon.

Gen Phahlane issued the directive to all police stations earlier this month, instructing them that if a firearms licence has expired then the weapon must be handed in to the nearest police station, because "the owner is no longer in legal possession" of the firearm.

Gen Phahlane’s directive has attracted the attention of firearms legal specialist, attorney Martin Hood, who wrote to Gen Phahlane on February 9, complaining that the directive was in conflict with two court orders, and was also in conflict with the property clause in the Constitution. He confirmed on Sunday that papers had been prepared, and the legality of the directive would be challenged in court within the next four to five weeks.

"Until now, the South African Police Service (SAPS) has renewed expired licences and to now reverse this policy is inconsistent and capricious, and prejudices firearm owners who have a reasonable expectation of proper and objective administrative action," Mr Hood said. He drew Gen Phahlane’s attention to a court order from the High Court in Pretoria in June 2009 that held that all firearms licences issued before the adoption of the Firearms Control Act in 2000 remained valid until the court challenge to the act by the South African Hunters and Game Conservation Association had been resolved. The matter is still before the court.

Mr Hood also complained that there had been no consultation with the firearms stakeholders’ forum set up after Parliament’s police committee’s firearms summit in March last year. The lack of consultation made the directive vulnerable to being set aside by a court, he said. The directive also offended section 25 of the Constitution — the property clause — because the forced surrender was effectively a forced expropriation without compensation.

The property clause also states that no person may be deprived of his or her property arbitrarily.

In a second letter to Gen Phahlane, Mr Hood said that at one police station, firearms owners were being forced to sign forms cancelling their licences. "We would suggest the fact that one has to cancel the licence means the SAPS is not sure of the legality of its directive and needs to coerce the legal firearms owner into agreeing to have the licence cancelled. This conduct is … unlawful."

SAPS spokesman Hangwani Mulaudzi confirmed receipt of the letters, saying "the matter is receiving attention from SAPS legal services".

Francois Beukman, chairman of Parliament’s portfolio committee on police, said the committee would meet soon to try to find a solution.