4.2 South African legislation
4.2.8 Conditions for import firearms permit
When applying for an import permit the following should be considered:
1. Who may apply?
2. What conditions must the applicant satisfy and is prior approval necessary?
A temporary or multiple import permit may only be issued to certain persons intending to enter South Africa.352 These persons are limited to hunters,353 collectors attending a trade and/or collectors’ show,354 sport shooters,355 foreign government officials,356 foreign law enforcement personnel357 and for any other legitimate reason.358 It is clear that PCASP applicants would fall into the ‘catch all’ category of “for any other legitimate reason”. The researcher argues in the conclusion to this study that this is one of the main areas of the Regulations that require amendment in order to accommodate PCASP by removing the stringent requirements that are presently not applicable to hunters, collectors, sport shooters and foreign government officials but are applicable to PCASP.
Number 3390/2011, annexed to the replying affidavit of Mark Andrew Wilson (see paragraph 4.6) marked
“MAW9”.
351 Protection Vessels International Ltd v Minister of Safety and Security and Others (unreported), KwaZulu-Natal High Court, Durban, Republic of South Africa Case No. 3390/2011. Confirmatory Affidavit of Derek Coetzee at para. 18, annexed to the Applicant’s founding affidavit. See also Solace Global Maritime UK Ltd v Minister of Police and others (unreported) KwaZulu-Natal High Court, Durban Case No. 35/2012 where Captain Pillay issued and renewed multiple import and export firearms permits.
352 Regulation 62(7) of the Firearms Control Act 60 of 2000, as amended.
353 Ibid Regulation 62(7) (a).
354 Ibid Regulation 62(7) (b).
355 Ibid Regulation 62(7) (c).
356 Ibid Regulation 62(7) (d).
357 Ibid Regulation 62(7) (e).
358 Ibid Regulation 62(7) (f).
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Applicants who fall under the catch-all category have to comply with a more rigorous set of requirements than hunters, sports shooters, persons attending a trade show and foreign government officials. They need to demonstrate lawful possession of the weapons,359 knowledge and vast experience in the use of the weapons,360 understanding of the FCA,361 a need to possess the weapon,362 that the applicant cannot satisfy this need without a weapon363 and that the applicant is older than 21.364
Due to the expertise and training of PCASP, the above requirements do not seem to pose a problem, except for the age restriction which might hinder personnel under the age of 21 from being able to possess weapons in South African territory.
However, the applicants under the catch-all category must also comply with the prior approval requirement. Consideration of this requirement involves determining who can grant approval, what the required notice period is and whether such requirements can be met by ship owners and PCASPs.
The prior approval requirement is set out in Regulation 62(7) (f):
A temporary import permit may only be issued: –
to a person who, for other legitimate reasons, has received the prior approval from the Registrar and where the applicant can demonstrate…
This appears, prima facie, to mean that a vessel owner or PCASP team needs to obtain prior authorisation from the Registrar before making a formal application for an import permit. In other words, an application for a permit under the “catch all”365 category is, in the researcher’s view, a two-step process; (i) prior approval must be obtained from the Registrar, and, (ii) thereafter the required documentation for the processing of a permit application must be submitted either to the CFR or DFO at the port of entry.
359 Ibid Regulation 62(7) (f) (i).
360 Ibid Regulation 62(7) (f) (ii).
361 Ibid Regulation 62(7) (f) (iii).
362 Ibid Regulation 62(7) (f) (iv).
363 Ibid Regulation 62(7) (f) (v).
364 Ibid Regulation 62(7) (f) (vi).
365 The Firearms Control Act 60 of 2000, as amended, Regulation 62(7) (f).
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The researcher is of the view that the “prior approval” requirement in Regulation 62(7)(f) is not expressly subject to the 21 day rule requirement set out in Regulation 62(4)(b). Unless both regulations must be read together, it is possible to argue that in terms of Regulation 62(7)(f), a PMSC may apply for general or “blanket” prior approval from the CFR, and may thereafter make individual applications for import permits to the DFO on arrival at the port of entry, in terms of Regulation 62(4)(c). The researcher recommends that the South African authorities develop a list of approved PMSCs similar to the Panamanian Maritime Authority’s approach discussed in Chapter Three, section 4 whereby prior approval is not required for certain companies that have already been vetted.366 This would reduce unnecessary delays in the permit processing procedure and improve efficiency for PMSCs. The Mauritian policy expressly states that authorisation must be obtained from the Prime Minister’s office to operate in territorial waters and thereafter, 48 hours’ notice of arrival by a PCASP team on board a merchant vessel (with necessary details of equipment and personnel) is required.367 The South African authorities should use the Mauritian procedures as a model for the development of a new policy regarding PCASP subject to their own security assessment.
It is submitted that this is desirable as it reduces administrative requirements by allowing the CFR to vet a PMSC once, and then allow future permit applications for a PCASP team arriving in South Africa to be submitted directly to the DFO on reasonable short notice. Alternatively, the PMSC can submit the documentation set out in the Regulation for each and every employee who may possibly enter South Africa in the near future. This does not seem sensible and will, in the researcher’s view, add to the already backlogged CFR.
As permits are not granted in the individual security personnel’s name but to the PMSC firm and the South African agent is nominated as the “responsible person”, it is submitted that it is not
366 Panama Maritime Authority ‘Authorized Private Maritime Security Companies (PMSC) transiting High Risk Areas’ - Merchant Marine Circular MMC-245 (21 January 2013) available at http://www.segumar.com/wp- content/uploads/2014/05/MMC-245mayo2014.pdf accessed on 16 May 2014.
367 The Republic of Mauritius response to the IMO FAL Questionnaire on Information on Port and Coastal State Requirements Related to Privately Contracted Armed Security Personnel on Board Ships, MSC-FAL. 1/Circ.2 available at http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Pages/Responses-received-on- Private%20Armed%20Security.aspx accessed on 3 September 2014.
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clear whether it is also necessary to demonstrate that each security personnel meets the requirements of Regulation 62)(7)(f).368
There is ambiguity in the Regulations to the FCA; alternatively, the authorities are simply not applying it correctly. Thus the researcher recommends that urgent amendments to the FCA are required in order to clarify the import permit application requirements, or that consideration is given to formulating a list of approved PMSCs following the Panamanian example.