The Roadblock near Polokwane
Sipho holds a section 13 licence for a 9 mm pistol and a section 15 licence for a .375 rifle. He drives 600 km from Johannesburg to a farm in Limpopo. The pistol is loaded in a kydex holster under his shirt; two spare magazines are in the door pocket. The rifle is in the boot inside a soft rifle bag, with the bolt removed and placed in the glovebox, and a loaded five-round magazine in the side pocket of the bag. Under the spare wheel are 60 rounds of 12-gauge shotgun ammunition that belonged to his late father; Sipho has never held a shotgun licence. He stops for 40 minutes at a shopping mall and leaves everything in the car. At a roadblock near Polokwane an officer searches the vehicle and says he is arresting Sipho and seizing everything.
1. Assess the carrying of the pistol and the 40-minute stop at the mall.
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The pistol on his person
- A licence holder may carry a firearm in a public place if it is in a holster or similar holder designed for that purpose and is covered - carried discreetly, not displayed. A loaded pistol in a kydex holster under a shirt meets that requirement.
- He must be able to produce his licence card for the pistol, and his competency certificate is part of the lawful-carry picture. Driving without the card invites exactly the problem he now has at the roadblock.
- Two spare magazines in the door pocket are lawful: he may possess ammunition appropriate to the firearm he is licensed for, within the quantity limits (roughly 200 rounds for an ordinary licence holder).
The mall stop
- This is where the conduct fails. A firearm must remain under the holder's direct control. Leaving a loaded pistol and a rifle in an unattended vehicle for 40 minutes in a shopping centre car park is a failure of that duty and is the classic source of stolen firearms.
- Carrying it into the mall is the lawful option (subject to the mall's private rules, which are a condition of entry, not a legal prohibition on possession). Leaving it in the car is not a lawful compromise; it is a choice to abandon control of the firearm.
- If a firearm is genuinely lost or stolen he must report it immediately to SAPS - and failing to do so is itself an offence.
2. Assess the rifle and the 12-gauge ammunition found under the spare wheel.
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The rifle
- A firearm being transported must be unloaded and carried in a case or container designed for the purpose, and must not be readily accessible.
- Removing the bolt is good practice and reduces the risk, but it does not cure the rest. The rifle is in a soft bag, not a locked hard case, and there is a loaded magazine in the same bag. A rifle with a charged magazine in the same container as the rifle is not 'unloaded and secured' in any meaningful sense; the rounds are one movement away from being in the rifle.
- Putting the bolt in the glovebox is not itself unlawful, but it means the firearm and its vital component are stored apart in an unattended car - an invitation to theft of a firearm that then cannot be identified as his.
The 12-gauge ammunition
- A person may possess ammunition appropriate to a firearm for which he or she holds a licence. Sipho holds no shotgun licence.
- Sixty 12-gauge rounds under the spare wheel are unlawfully possessed ammunition, regardless of the sentimental origin and regardless of the fact that they were his father's.
- The lawful route was to hand them to a licensed dealer or to SAPS for disposal or to a person who holds a shotgun licence, or to have a shotgun licensed and recorded in the estate process.
Conclusion The pistol carry is lawful; the vehicle storage, the loaded rifle magazine and the shotgun ammunition are not. The single most damaging fact in the whole scenario is that he left everything unattended in a mall car park.
3. The officer announces arrest and seizure. What is the lawful basis, what should Sipho do, and what happens to the items?
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Lawful basis
- A police official may search a person or vehicle and seize a firearm or ammunition where there are reasonable grounds to suspect an offence under the Act. A roadblock search leading to the discovery of ammunition for a firearm he is not licensed for, and a rifle not properly secured, supplies that basis.
- The items may be seized and, on conviction, a court may order forfeiture to the State of firearms and ammunition involved in the offence.
What Sipho should do
- Comply and stay calm. Resisting or arguing at the roadside escalates both the criminal and the safety risk.
- Ask for the seizure to be documented - a receipt or notice recording each item's identifying particulars (make, model, serial number, quantity of ammunition). Without it he cannot later prove what was taken.
- Note details: officer's name and rank, station, case number, date and time, and the exact place of the search.
- Declare the licences he does hold and produce the cards. There is a large difference between 'unlicensed firearm' and 'licensed firearm, unlawfully stored, plus unlicensed ammunition'.
- Make a statement only after advice, and co-operate with the investigation. Do not attempt to explain the shotgun rounds by claiming a licence he does not have.
Realistic outcomes
- He faces prosecution for unlawful possession of ammunition and, on the poor storage and transport, for failing to comply with the storage and transport requirements. The 9 mm pistol and .375 rifle are lawfully licensed and may, on application and at the court's discretion, be returned - but they will stay in police custody until the matter is resolved.
- The consequences for his firearm licences may outlast the criminal case: a conviction for an offence under the Act can found a declaration of unfitness to possess a firearm, which would remove his ability to hold any licence at all.