Michael Trapido
Michael Trapido

Mukwevho decision can bring some relief to gun owners

One of the most emotional issues in South Africa today is that of the licensing, ownership and disposal of firearms.

The introduction of the Firearms Control Act 60 of 2000 (Act) has brought with it controversy and resentment from the gun owners of South Africa who are struggling to come to terms with its onerous provisions and strict requirements.

It is not all doom and gloom however as the decision by Judge Willis and Judge Farber in the South Gauteng High Court in Mukwevho Versus State demonstrates.

Lets track back a bit.

Recently I have been dealing with firearms cases in the Johannesburg, Sophiatown and Alexandra Magistrate’s Courts where the recurring problem seems to be unlawful possession of a firearm and ammunition as set out in Mukwevho.

This relates to normal every day guys (no women in my experience) who have inherited a gun or failed to apply for the license in the ordinary course. These are not armed robbers or hijackers who, in my experience, couldn’t care less about gun licences in the scheme of the charges that they are facing.

In terms of race my split of clients has been roughly even which means that in terms of the country’s demographics whites would represent a higher percentage of their community at present. Yet blacks, in my experience, are increasingly arming themselves lawfully as a means of resisting criminal attacks.

Which means ordinary law abiding citizens who are desperate to defend themselves against criminals but are not brilliant at following local gun laws could be exposing themselves to long term jail sentences.

This requires the courts playing an increasing role in interpreting a highly prescriptive Act with terrible sanctions for the unwary.

Looking at Mukwevho’s case it will soon become apparent to readers that unlawful possession of a semi-automatic will result in a sentence of 15 years unless the accused can the satisfy the court that “substantial and compelling circumstances exist which justify the imposition of a lesser sentence” than the term imposed by the Criminal Law Amendment Act as read with Part II of Schedule 2 of the Act.

That is scary in anybody’s language.

What the Mukwevho decision does is clarify a number of issues which will bring a measure of relief to beleaguered accused.

These include the following :

Firstly that in the opinion of Justice Willis “it will be desirable, especially where the State seeks a conviction on a charge of possession of a particular type or genus of firearm as a “stand-alone” count (i.e. not with other more serious counts such as murder, rape or robbery where such a firearm is used as an instrument of such offence), to set out in the charge sheet itself such alternative and competent verdicts which it may seek”.

This if read with the Constitution – which requires in terms of Section 35 (3)(a) that “every accused person has a right to a fair trial, which includes the right to be informed of the charge with sufficient detail to answer it” – may well lend itself to an argument, in cases where the only charge relates to the unlawful possession of a firearm, that if the State has failed to set out competent and alternative charges to the main counts that they have forfeited the right to seek those verdicts.

In terms of sentences that represents an enormous difference.

Secondly “in order to attract the prescribed minimum sentence, all the necessary elements must be proven at the stage of conviction, including the fact that the weapon in question was a semi-automatic one.”

In other words the fact that the gun is a semi-automatic has to be proved by the State as part of its case prior to conviction or again they cannot seek the prescribed minimum sentence.

There are also other issues which are raised in Mukwevho such as the wrong description of the firearm, the failure to lead certain evidence and those instances in Statutory offences where a defence of lacking mens rea is of application :

“Without attempting to formulate a proper definition of mens rea, it seems to me that conduct which falls within the terms of a statutory offence, will only escape the taint of criminality on the ground of absence of men rea, where it appears that the person concerned through ignorance or mistake was at that time unaware of some fact or circumstance which either by itself or in conjunction with other facts and circumstances rendered such conduct an offence.”

If you haven’t read through Mukwevho it’s worth the effort and accessible by simply clicking on the link above. It is not a long judgement so take a few minutes and go through it during lunch time.

An Act that carries enormous penalties for ordinary people, often caught on the wrong side of the law through ignorance, requires a measured response.

In this case there are two major routes to follow if people wish to change it or at least lessen the impact of it.

Either lobby for a change in legislation or start bringing as many matters as possible to court in order that the Act be tempered through interpretation..

If you want to know just how serious the Act is just ask any knowledgeable gun owner if your weapon is a semi-automatic. Chances are it is. If you haven’t got a licence start sweating … now!

  • Zoo Keeper

    Traps

    What about the apparent lack of a warrant for the search?

    There appears to be a serious constitutional problem with warrantless searches in the FCA.

    Do we have a “fruit of the poisoned tree” principle in SA as in some jurisdictions abroad?

  • Bernard K Hellberg

    My advice to ‘Gun Free South Africa” – suck my Glock

  • chris.

    The fact that someone can be given such a heavy sentence for mere possesion smacks of a paranoid totalitarian government. By all means if a weapon is used in the commision of a crime throw the book at them but the right to defend oneself and property through any means necessary is right up there with the right to breathe.

  • Paul

    What is the signifcance of a ‘semi-automatic’ firearm (presuming that this is in reference to pistols as opposed to rifles, but notwithstanding)?

    Does it kill you deader than a revolver (or bolt/pump/slide action)?

    Are you more disposed to be a danger to society with a ‘semi-auto’ than with another type of firearm?

    It is a wholly nonsensical distinction which illustrates the total lack of rational thought which went into the drafting of the entire FCA.

    The Act is a travesty on many levels and shouts out for Constitutional review!

  • Steve

    The FCA is full of such onnerous and unconstitutional clauses. Warrantless searches, offences of ommission, onus on citizen to prove innocence and compliance etc. The current weight of litigation against the state should make it clear that the law needs to be repealed and replaced with something objective and fair. Even if you are not a FA owner nor care for them, these assaults on your rights need to be stopped, before all rights are undermined.

  • David Greville

    This is a useful case. I assume the accused had no valid firearms licence.

    Has any case decided on the validity of the old (theoretically Constitutionally protected) firearms licences? What would happen if the same charge was levelled at an owner who only had the old licence? Is this considered the same as having no licence ?

  • Brett Nortje

    Thank you for taking up and discussing this case, Mr Trapido.

    There are examples of greater injustice.

    Willem Andrew du Buisson, 51, was sentenced to 15 years in prison in the Bronkhorstpruit Regional Court last year – for what appears to be constitutionally protected conduct – making property in the privacy of his home!

    I think Du Buisson was making trap guns – a shotgun cartridge in a piece of pipe with a spring holding back a nail. This contraption is rigged over a small hole in a sheep pen with a tripwire. This is IMHO an irresponsible method used to protect livestock against jackal. But…Lamb is selling for R55/kg at the abbattoir right now and al the agricultural magazines have stories about the economic impact of jackal.

    DuBuisson is in custody right now and will be for the next 14 years. 

    There was only one charge on the charge sheet. The state alleged no further criminal nexus. 

    According to the State (I got this information from the prosecutor) Du Buisson had no recent
    criminal record or charges against him, nor investigations pending.  

    The prosecutor told me the investigating officer testified on the accused’s behalf in order that he not get the maximum sentence.
     
    I am concerned that the Legal Aid Board inadequately represented Du Buisson.  

    His legal representative admitted all allegations and the charge against him and admitted that his conduct was unlawful.

  • http://gunfacts.co.za Stewart

    Why the great emphasis in the judgement, and presumably in the charge, on the fact that this was a ‘semi-automatic’ firearm.I have not seen anything in the FCA which allows for higher or different sentences for such, as opposed to any other type of firearm.

    I assume that the cops are making their own laws again?

    Furthermore there is no such make as Lorinco – how come the judge thinks that such a make does exist?

  • Jacques

    The FCA is unconstitutional. The law has cost the tax payer millions upon millions and had no positive affect on society, it has not taken a single gun out of criminal hands. All it has done is made criminals out of lawful gun owners and made a mockery of administrative justice in this country.

    You don’t have to care about guns to care about unjust and damaging laws. If we don’t stand together to protect our collective rights we will loose them as and when it comes convenient for the powers that be.

  • Zoo Keeper

    Wasn’t there supposed to be a class-action lawsuit against the FCA?

    Did it ever get off the ground?

  • http://gunsite.co.za wayne

    The FCA has failed to prove its value or worth. It shows its flaws every single time challenged. Why is government persistent to use such a detrimental system? This system has cost tax payers far beyond its original specifications.

  • Thoth

    “The FCA is a magnificent piece of legislation” Dir J Bothma (SAPS)

    There is nothing wrong with the FCA, just the implementation is flawed (SAGA, SAHunters, Collectors, the entire consultative forum of firearm organisations)

    So it seems firearm owners representatives are quite happy with this law and think is is a “magnificent piece of legislation” since not one of them has complained or mobilised members to object to this law. Their only complaint is about service delivery.

    Why did you bother Traps none of these organisations or firearm owners are interested. If they were the letters columns, websites and message boards would be full of objections.

  • http://www.thoughtleader.co.za/gavinfoster Gavin Foster

    I think the lines have become a little crossed here. Under the old act possession of a fully-automatic weapon – where holding the trigger back resulted in the weapon firing without interruption until the ammo supply was exhausted – was punishable by 15 years in prison without the option of a fine. Private citizens generally cannot get licences for full auto weapons, or machine guns. Ownership of semi-auto – where each pull of the trigger fires a single shot and loads the weapon for the next shot – is perfectly legal, but semi-auto riflesmay not, for ethical reasons, be used for hunting and are harder to get licences for unless you can give a good reason for needing one.

    Handguns are different. People generally refer to pistols as automatic pistols,automatics or autos, although they are in fact semi-automatic pistols. There’s no reason that the punishment should be any more harsh for owning one without a licence than for owning a revolver and I don’t believe the law has changed. I would guess that in handguns many more semi-auto pistols are sold legally in SA every day than revolvers. Please look into the legislation, Traps. I think you’ll find that there’s some serious misinformation going on here.

  • http://www.thoughtleader.co.za/gavinfoster Gavin Foster

    I see that there have been numerous convictions and sentencings as discussed for illegal possession of “semi-automatic” pistols, and the general feeling in legal circles is that this is bad law.

    It would be very interesting to see how the old Act’s “automatic weapon” became subverted to include relatively innocuous semi-automatic pistols. I suspect it was either a misunderstanding or slipped quietly in by some zealous anti-firearm individual.

  • http://www.thoughtleader.co.za/gavinfoster Gavin Foster

    ” In S v Sukwazi the High Court had to interpret whether it was the intention of the legislature that the possession of a pistol, solely because it has a semi-automatic firing mechanism, should attract a minimum sentence of 15 years imprisonment in terms of the provisions of section 51 of the Criminal Law Amendment Act in comparison with possession of a 375 Magnum revolver which is more powerful and only carries a maximum of 3 years imprisonment. The appellant after a plea of guilty of being in unlawful possession of a 9mm Bryco pistol was sentenced in the Regional Court to 15 years imprisonment, in accordance with the provisions of section 51 of the Criminal Law Amendment Act. The High Court found this piece of legislation to be ill conceived and badly drafted because it refers to automatic and semi-automatic firearms when there is no definition and no reference in the Arms and Ammunition Act too such weapons. One can only conclude that the drafters had no regard to the provisions of the Arms and Ammunition Act when drafting this legislation.”

    I think we can all see what happened here. Somebody slipped up.

  • http://www.thoughtleader.co.za/gavinfoster Gavin Foster

    “Strangely, when Parliament passed the Firearms Control Act, it chose a different, less severe, sentencing regime to that which it had already enacted some three years earlier in the Criminal Law Amendment Act. The effect is a bifurcated sentencing regime in terms of which a prescribed sentence of 15 years’ imprisonment applied in terms of the Criminal Law Amendment Act to the unlawful possession of automatic or semi-automatic firearms, whatever their nature, while a maximum sentence of 15 years’ imprisonment applied in terms of the Firearms Control Act to the unlawful possession of any other firearm, whatever its nature.14

    [21] The arbitrariness of this arrangement is clear: the prescribed sentence would apply to the unlawful possession of a small calibre semi-automatic pistol but the maximum sentence would apply to the unlawful possession of a pump action shotgun or large calibre revolver; the prescribed sentence applies to both the unlawful possession of the small calibre semi-automatic pistol and of an automatic weapon such as an AK47 assault rifle. It was incongruities such as these that led Combrinck J to conclude in S v Sukwazi15 that it could not have been the intention of the legislature, when enacting the relevant item of Part II of Schedule 2 of the Criminal Law Amendment Act, that the possession of a pistol, merely because it was a semi-automatic firearm, would attract the prescribed sentence of 15 years’ imprisonment.”

    OK. Now I promise I’ll shut up for a while.

  • Thoth

    Why shut up Gavin?

    I think a more important point is that this is easily corrected and what will that get us? Care to consider that any court case is not about fixing the law its about questioning why the stupid law exists in the first place. So tell me why does this law exist? What purpose does it serve? what will we do with the answer, nothing?