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!