3.3. MACHINERIES THAT FLOW FROM A PROTECTION ORDER
3.3.4. Seizure of firearms and dangerous weapons
It is argued that the provision of houses or shelters is the duty of the state. Cases that require the respondent to vacate his/her home for the benefit of the complainant are a pointer to the failure of the state to provide adequate housing to those in need.341 This is a fair price to pay if the state hopes to succeed in the fight against domestic violence.
It is further arguable that by failing to provide housing to complainants, the state shifts its duty to the respondent who in turn takes unfair advantage on the complainant.
Therefore the state should empower victims by affording equal opportunities in terms of acquiring skills and employment. This way they are self-sufficient and less dependent. In the alternative the state must prioritise vulnerable women in providing housing.
(iii) use of or dependence on intoxicating liquor or drugs.343
This provision appears to mirror section 102 (1) (a) and (c) of the Firearms Control Act.344 This section allows the registrar to declare a person unfit to possess a firearm on precisely the same grounds as section 9 of the DVA. However the scope of section 102 is wider than the DVA in that the former applies to a variety of circumstances including domestic violence. For instance, section 102 also applies in instances when a person has failed to take steps for safekeeping of a firearm. Such person may be declared unfit to possess a firearm.
It is unclear when the registrar, acting in terms of section 102 of the Firearms Control Act, may make a declaration that a person is unfit to possess a firearm, whether on application by a third party or a victim of the respondent or a person on his own accord.
However, the section provides that the registrar may declare a person unfit to possess a firearm ‘on the grounds of information contained in a statement under oath or affirmation including a statement made by any person called as a witness…’345 This section makes it possible for a victim of domestic violence to instigate proceedings to declare the respondent unfit to possess a firearm by making information available to the registrar. In Minister of Safety and Security v van Duivenboden346 the court held that the police have a duty to take active steps in terms of section 102 of the Firearms Control Act347 in cases where there is sufficient information to do so.
The distinction between the DVA and section 102 of the Firearms Control Act is that the former only allows the court to seize a firearm from the respondent, while the latter allows the registrar to declare a person unfit to possess a firearm on the evidence supplied to him or her. The DVA has narrow application in this regard because it does not affect the respondent’s ability to obtain another firearm after confiscation.
Interestingly, section 102 (1) (a) of the Firearms Control Act makes it possible for a
343 Section 9 (1) (a) and (b).
344 Firearms Control Act 60 of 2000.
345 Section 102 (1) of the Firearms Control Act.
346 Minister of Safety and Security v van Duivenboden 2002 (6) SA 431 (SCA).
347 The van Duivenboden case was decided during the operation of section 11 of the now repealed Arms and Ammunition Act 75 of 1969. Section 11 of this Act was incorporated into the incumbent Firearms Control Act as section 102.
person to be declared unfit to possess a firearm on the ground that a protection order has been issued against him.348 This provision is consistent with section 9 (2) of the DVA which empowers the court to direct the clerk of the court to forward a copy of the evidence to the National Commissioner of South African Police Service (the National Commissioner) for his consideration in terms of section 102 of the Firearms Control Act. The DVA therefore has no powers beyond the mere seizure of the firearm.
It is submitted that there is no logic behind the absence of a provision that enables a court issuing a protection order to simultaneously declare the responded unfit to possess a firearm. Section 9 (2) of the DVA simply passes the buck to the national commissioner who may in turn takes his own time thus causing an unnecessary delay.
Firearms, if used, are deadly. There is equally no logic behind issuing a protection order amid allegations of violence involving a firearm, thus confirming that an incident of domestic violence has taken place, and yet leave the question of the respondent’s fitness to possess a firearm hanging. The DVA should be amended to allow for the impairment of a person’s fitness to possess a firearm especially in cases where there is overwhelming evidence of misuse of a firearm as early as possible.
In terms of Section 103 (1) of the Firearms Control Act a person who is convicted of contravening a protection order is automatically declared unfit to possess a firearm unless he leads evidence as to why such a declaration should not be upheld.349 This is subject to the proviso that the accused is sentenced to imprisonment without the option of a fine.350 Clearly section 103 (1) creates a presumption of unfitness to possess a firearm in the absence of evidence to the contrary after a person has been convicted of contravening a protection order.351 While this section is a good mechanism, it is not the best option in cases of domestic violence because in the absence of a conviction, it cannot be invoked thereby failing to play a preventative role.
348 This will be probably in cases envisaged in section 9 (1) (a) of the Domestic Violence Act where the respondent has threatened to injure himself or another person.
349 S v Rasena 2017 (1) SACR 565 (ECG). In this case the accused was convicted of one count of
breach of a protection order and one count of assault. The court held that in applying section 103 of the Firearms Control Act the trial court must consider are the nature and seriousness of the offence, the connection that the offence has with the use of a firearm and the interest of the community.
350 Section 103 (1) (l).
351 D. Smythe ‘Missed opportunities: confiscation of weapons in domestic violence cases’ (2004) 10 December SA Crime Quarterly 19, 21.
There is no justification for waiting until the damage is done before taking steps. It is submitted that when a court makes an order for seizure of a firearm and ammunition, the declaration of unfitness to possess a firearm should follow immediately if the evidence justifies such a declaration.352 This can only be achieved through an enabling provision in the DVA.
The inability of the DVA’s to simultaneously provide for the issue of a protection order and directly impair a person’s fitness to possess a firearm other than through the auspices of sections 102 and 103 of the Firearms Control Act is regretted. This makes it possible that, until the national commissioner has made a negative determination, a respondent may voluntarily surrender his firearm pursuant to a protection order only to turn and legally obtain another firearm thus making section 9 (2) redundant and impotent.
Research shows that, in domestic violence cases, a firearm is usually used to threaten victims.353 If it is used, however, grave results normally ensue. As a result of this, Smythe argues that an order for confiscation of a firearm should be made at interim stage.354 This will not be arbitrary because the respondent will get a chance to argue why an order confiscating his firearm should be set aside.355 Research also points out that it is difficult to enforce an order for the confiscation of the respondent’s firearm.
Unless the respondent has a licence to possess a firearm, he can simply deny having a firearm thus implying that the complainant is making it up. The cause for these is the applicants’ inability to give a description of the firearm and further particulars.356
It has also been suggested that applicants hardly request the court to make an order for confiscation of a firearm. They simply mention the use of a firearm in passing in the
352 Ibid 22.
353 Parenzee, Artz and Moult (note 204 above; 61). These authors point out that those applications for a protection order that mention a firearm usually allege that the respondent threatened to use the firearm. It must be pointed out that a threat is enough to commence an enquiry in terms of section 102 of the Firearms Control Act read with section 9 (1) (a) of the Domestic Violence Act. However there is no literature to suggest that the courts and the commissioner of police ever follow up in terms of these provisions; Smythe (note 351 above; 24).
354 Smythe (note 351 above; 21).
355 Ibid 21.
356 Parenzee, Artz and Moult (note 204 above; 64).
affidavit.357 Even if the order is requested and granted, it does not describe the firearm with enough details.358 The order can also be difficult to enforce in cases where the respondent has more than one firearm or an arsenal of weapons.359 As one police officer has pointed out, the respondent can simply ask: “which one?” And the order will speak of ‘a firearm’.360 Researchers have suggested the inclusion of a lethality checklist to overcome this problem.361 This suggestion is welcomed as it provide the courts with the necessary information to pronounce on the respondent’s fitness to possess a firearm should the DVA be enabled to impair a person’s ability to possess a firearm.
It is equally arguable that the illegal acquisition of firearms through the black market makes it difficult to ensure that a person does not obtain a firearm in circumstances where their ability to do same is impaired. This argument, whilst sound, should not deter the courts from confiscating firearms. It is submitted that actively confiscating all prohibited firearms and impairing person’s ability to obtain one might eventually wear out the black market. This way the only way to obtain a firearm is by following the proper channels. Further, disseminating the knowledge that to possess an unlicensed firearm or to possess a firearm whilst one’s ability to do same is impaired is an offence might be a step in the right direction.
(b) Seizure of dangerous weapons
Section 9 (2) also provides for the confiscation of dangerous weapons other than firearms. The Dangerous Weapons Act362 simply defines a dangerous weapon as ‘any object, other than a firearm, capable of causing death or inflicting a serious bodily harm,
357 Ibid 19. The author suggests that section 7 (2) (a) imposes a duty on the court to make an order in this regard even if the applicant does not specifically request it. This is a sound submission considering that victims are usually lay persons who do not have the expertise to depose an affidavit, even if they are assisted by a clerk of the court, the clerk does not necessarily have to relevant expertise to draft an affidavit succinctly.
358 Smythe (note 351 above; 25).
359 Ibid 26.
360 Parenzee, Artz and Moult (note 204 above; 65).
361 Parenzee, Artz and Moult (note 204 above; 35).
362 Dangerous Weapons Act 15 of 2013.
if it were used for an unlawful purpose’.363 The problem with domestic violence is that virtually anything can be a dangerous weapon capable of inflicting a serious bodily harm when used.364 However a holistic reading of the Dangerous Weapons Act clearly shows that it was meant to deal with the public possession of dangerous weapons in circumstances that raise a suspicion that such person intends using the said weapon for an unlawful purpose.365 What is necessary for making a living, like a knife or a fork, can be a deadly weapon in domestic violence. At the same time the court can scarcely confiscate these. If it does, strangely so, it cannot confiscate everything or prevent the