I share you this from Mr Martin MJ Hoods FB page :
CRIMINAL CONVICTION FOR FAILING TO RENEW A GUN LICENCE
There has been an article in the Cape Times reporting that a Mr Derick Johnson was convicted in the Parow Regional Court for failing to renew his firearm licence and was fined R10 000.00 and given a suspended period of imprisonment.
This brief report is intended to provide comment on and provide guidance as to what to do should anyone be charged with an offence for failing to renew their firearm licence.
It goes without saying that you should immediately obtain the services of an attorney if you are charged with an offence. You can email the details of any charges to
martin@mjhood.co.za or
info@mjhood.co.za and we will endeavour to help you.
The news report is a summary of what happened. In creating a summary, inevitably some detail is omitted. Additionally, reporters are expected to write reports on a wide variety of topics where they have little or no understanding of the subject matter and therefore rely on information given to them which may not be accurate or may be deliberately misleading. We also have to take into account the possibility of bias in the reporting itself. As firearms owner, we all know that inherently the press at the best of times is neutral to us and in many instances is antagonistic towards us.
I am now going to comment generally on why a failure to renew a firearm licence is, generally speaking in my view, not a criminal offence. Please note that until I have further information on the specific details of the Johnson case, I will not comment further on it.
Firstly, in order to be convicted of a criminal offence other than one which is based upon negligence (such as culpable homicide) the State must prove beyond reasonable doubt that you intended to commit an offence. There are numerous cases that deal with firearms and ammunition that have clearly stated a mere failure to do something or a mere possession of arms or ammunition does not in itself mean intent exists. Intent is a specific state of mind where you know that you have or are about to commit an offence, you understand what you have done or are about to do is an offence and you proceed in the knowledge knowing that it is an offence. A mere failure due to an oversight to renew a licence because it had expired without your knowledge does not mean that you can be convicted of the criminal offence of illegally possessing a firearm.
There is a distinction in my view of possession of a firearm without a licence and possession of a firearm with an expired licence. The second is merely an administrative error or oversight and the former may constitute a far more serious offence.
In our current context the following circumstances must also be taken into account. Many of us have green licences and the Court Order of Mr Justice Prinsloo in my view, is unequivocal, inasmuch as it declared all green licences valid pending the finalisation of the main application instituted by SA Hunters and Game Conservation Association. That has not happened so the Court Order remains effective and therefore if a person has a green licence, then the existence of the green licence should be sufficient to rebut any argument about intending to possess a firearm illegally if a white licence has expired. The argument is quite simply, “I have a green licence and I believed that in terms of the Court Order of Mr Justice Prinsloo my licence was valid.” Therefore there can be no intent.
Secondly there are the various legal challenges both of a Constitutional and a practical nature to Sections 24 and 28 of the Firearms Control Act underway in the North Gauteng High Court. Any reasonable Magistrate as well as the National Prosecuting Authority if aware of these constitutional challenges, should have halted any prosecution pending a decision of the relevant court on these legal challenges.
Finally, I believe any charge of illegal possession of a firearm based on an expired licence is incorrect.
Section 122 of the Act provides a far more reasonable alternative to a person who did not renew their licence and where intention to commit an offence may be proven. Section 122 provides for the imposition of an administrative fine where a person fails to comply with any provision of the Act. Section 121 of the Act provides that a discretion is granted to any judicial officer to sentence to a fine or to imprisonment for any contravention of the Act, and therefore the judicial officer can refer the matter to administrative adjudication.
If an administrative fine is paid, it is not recorded as a criminal conviction.
It seems to me that the approach of the court and the prosecutor in the circumstances was completely inappropriate and harsh.
For any further advice or assistance you are welcome to contact me.