The Minister of Police v. Stanfield

South Africa

02.12.2019

Criminal

In order to satisfy requirement of an absence of criminal proceedings, an applicant would have to prove that, no criminal proceedings were pending in connection with seized firearms

In present case, on 25 June 2014, the South African Police Services (SAPS) seized certain firearms (the firearms) from the Respondents in terms of a search and seizure warrant issued under the Criminal Procedure Act 51 of 1977 (CPA). The Respondents were arrested and charged with various offences relating to the unlawful issuing of the licences for the firearms.

The Respondents applied to the Gauteng Division of the High Court, for an order compelling the SAPS to return the firearms to them in terms of Section 31(1)(a) of the CPA, alternatively, that the matter be referred to an enquiry in terms of Section 102 of the Firearms Control Act 60 of 2000 (the FCA). Although of the view that criminal proceedings were not pending against the Respondents, Twala J nevertheless had ‘legitimate concerns’ as to the lawfulness of the firearm licences and was thus not persuaded that the respondents were entitled to the relief sought in terms of Section 31(1)(a) of the CPA. The high Court dismissed the return application but granted the alternative relief.

The SCA considered Section 31(1)(a) of the CPA and confirmed that, in order to satisfy the requirement of an absence of criminal proceedings, an applicant would have to prove not only that no criminal proceedings were pending at the time, but also that there was no reasonable likelihood of criminal proceedings being instituted in connection with the seized article in the foreseeable future. Only if the applicant has discharged this onus would the Respondents have to show, on a balance of probabilities, that an Applicant may not lawfully possess the article.

The SCA held that firstly the Respondents in the present matter had not been able to satisfy the requirement that criminal proceedings were not pending (or likely) either at the time the order was granted or at the present time, when the criminal proceedings had been re-instituted. Secondly, the appellants demonstrated that, the possession of the firearms by the Respondents would be unlawful. The SCA thus held that, the Appellants’ retention of the seized firearms was justified and that, the Respondents were not entitled, on any of the grounds listed in Section 31(1)(a) of the CPA, to the return of such firearms. In the result, the appeal was upheld with costs.

Tags : Seized firearms Retention Legality

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