The provisions of the Firearm Control Act play an important role within the Private Security Compliance Framework and also carry serious sanctions for noncompliance including criminal prosecution and subsequently also the risk of incarceration.
We have previously expressed our doubts with the challenges armed reaction operators face this environment (Armed reaction, legal conundrums, and the exclusion of new entrants).
The interpretation of Section (20)(5)(b) of the Firearm Control Act gave rise to various inquiries and uncertainties within the industry in the past.
Section 20(5)(b) provides that:
“A security service provider, which holds a license to possess a firearm for business use may only provide a firearm to a security officer in its service who holds a competency certificate”.
To whom does this apply?
The gist of the uncertainty is to be found in the term “in its service” and was it uncertain whether this term would be limited to employees and whether third parties would be included in its application.
This question was recently brought before the Western Cape High Court for decision.
In the case before the court, independent contractors clothed in civilian clothes were issued with firearms by a security service provider.
The question as to whether armed personnel were required to wear uniforms was answered in the negative as the security officers, in this instance, were tasked to provide protection to natural persons – but is it not our intention to deal with the issue of uniform requirements in this article.
What does “in it’s service” mean?
In as far as the interpretation of “within its service” is concerned the learner judge expressed in his opinion that a distinction must be drawn between “in its service” and “the employment of” and that in applying the principles of interpretation the learner judge expressed its view that “in its service” does not envision employment and that “in its service” is akin to a contract of service.
The learner judge went further, stating that a contract of service is directed at the performance of a certain specified work or the production of a certain specified result. The learner judge rejected the argument that security officers must be permanently employed before a security service provider can provide them with any firearms and that the firearms issued to security officers, in the matter at hand, were not in contravention of the Firearms Control Act.
In conclusion
The reader should be aware that other courts may not and have perhaps not agreed with the learner judge’s findings and that each and every matter relating to firearms should be subject to proper scrutiny and legal advice.
