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Last week gun owners' associations were up in arms over a draft bill on gun licences which proposes taking away self-defence as a reason to own a gun. The South African Police Service (SAPS) called for calm and said concern over the bill is premature. Advocate Jackie Nagtegaal answers six questions about gun ownership laws in South Africa.
Is it legal to own a gun in South Africa?
From home invasions, hijackings and muggings, many South Africans own a gun out of fear for falling victim to violent crime. In fact, according to the Small Arms Survey, a weapons watchdog organisation, there are approximately 5 350 000 guns in South Africans' possession; however, only three million of those firearms are registered and legally owned.
While it isn't a right enshrined in the Constitution – unlike the United States' Second Amendment – you can legally own a gun in South Africa. But, legislation makes it rather difficult and there is a very thorough process that one has to go through before being allowed to bear arms.
Before you can acquire a gun, you have to undergo prescribed training at an accredited training provider and obtain a competency certificate. You can then apply for a firearm licence at the SAPS.
What are the requirements to own a gun in South Africa?
You must be a South African citizen or permanent resident and at least 21 years old;
You must be mentally stable and fit;
You will have to pass a background check;
You can't have a criminal record;
You can't be addicted to drugs or alcohol.
Is there a limit to the number of firearms you are allowed to own?
The law is strict and the number of firearms a person is legally permitted to own depends on the reasons why the gun is needed. Section 13 of the Firearm Control Act 60 of 2000 specifically provides for a licence to be issued to a person that needs a firearm for self-defence and cannot reasonably satisfy that need by other means. There are however limits:
Self-defence: only one shotgun or handgun;
Occasional hunters/sports shooters: up to four firearms (limited to one handgun a rifle or shotgun);
Dedicated hunters/sport shooters: no limit, but must prove membership to a hunting or sports organisation and a need for additional firearms;
Business purposes: no limit for security companies or shooting instructors, for example.
How long is a licence valid for?
Gun owners have to renew their licences and competency certificates at least 90 days before the expiry date of their licence. If they don't they will have to dispose of the firearm or hand it over to the SAPS. It is important to keep in mind that it's illegal to be in possession of a firearm without a valid licence.
Licence to possess a firearm for self-defence: Only valid for 5 years.
Licence to possesses a firearm for occasional hunting or sport shooting: Valid for 10 years.
Licence to possess a firearm for dedicated hunting or sport shooting: Valid for 10 years.
Licence to possess a firearm for business purposes: Valid for 5 years.
Where and when are you allowed to shoot your gun, permitted you have a licence for it?
The law clearly states that a licenced firearm can only be used where it is safe to use and for a lawful purpose. If you own a firearm for self-defence, you can only use the weapon to defend your life against an unlawful attack. Pointing a gun at someone or discharging in public can lead to criminal charges and a person can lose their licence.
When can you claim self-defence? If there is an intruder in your home?
Owning a firearm for self-defence is a huge responsibility and oftentimes gun owners are not adequately prepared to defend themselves or their loved ones during an attack. Of course, a person whose life is threatened is lawfully entitled to use necessary force to defend themselves. Even if it means the attacker is injured or killed.
Bear in mind, the force may not be excessive, and must be proportionate to the attack. Say someone hits you, for example. You could prevent the attack by grabbing their hand. If the person stops and you continue hitting that person, you become the attacker and guilty of assault.
But, when it comes to violent crimes in South Africa, criminals are usually armed and they won't hesitate to use force. When considering whether the defence is proportionate to the attack, it doesn't imply that the same weapon or type of force must be used. Being hit in the face would not permit someone to shoot in self-defence. But, if you are attacked by say a professional boxer, and you could lose your life or you are attacked by a violent, but unarmed group of attackers, shooting in self-defence could possibly be justified.
Having an intruder present in your home doesn't justify shooting them. If you take out a gun and the threat is diffused, you can't shoot. The question is whether your life is in imminent danger.
- Nagtegaal is an advocate with Law for All.
