On 25 June 2014, SAPS seized firearms from the respondents pursuant to a search and seizure warrant issued under the Criminal Procedure Act 51 of 1977. The respondents were arrested and charged with offences relating to unlawful issuing of firearm licences. The respondents applied to the High Court for return of the firearms in terms of s 31(1)(a) of the CPA, alternatively for the matter to be referred to an enquiry under s 102 of the Firearms Control Act 60 of 2000. The charges were provisionally withdrawn as the DPP was awaiting directives from the NDPP regarding venue and authorization to proceed with charges under POCA. Evidence suggested the respondents obtained their licences unlawfully through a member of SAPS at Olifantsfontein, despite ordinarily residing in the Western Cape. No written applications were received by the Central Firearms Register, and the respondents allegedly did not complete required proficiency testing. On 1 February 2018 (after the High Court judgment), the NDPP authorized prosecution of 24 persons including the respondents, and summonses were issued for trial in Khayelitsha regional court.
The appeal was upheld with costs, including costs of two counsel. The High Court order was set aside and replaced with an order dismissing the applicants' application with costs, including costs of two counsel.
The binding legal principle is that for purposes of s 31(1)(a) of the Criminal Procedure Act, criminal proceedings are "pending" not only when charges are formally instituted, but also when, despite provisional withdrawal of charges, there is a reasonable likelihood that criminal proceedings will be instituted in the foreseeable future. The onus is on the applicant seeking return of seized property to establish on a balance of probabilities that there are no pending proceedings or no likelihood of proceedings being instituted. Only if this onus is discharged must the authorities show that the person may not lawfully possess the article. The provisions of s 102 of the Firearms Control Act do not oust the application of s 31(1)(a) of the CPA in determining whether seized firearms should be returned.
The court made obiter observations regarding the evidence showing the respondents likely obtained their firearm licences unlawfully, noting that they applied at Olifantsfontein SAPS despite ordinarily residing in the Western Cape, no written applications were received at the Central Firearms Register, and they did not complete required proficiency testing. The court observed that the reason respondents approached Olifantsfontein SAPS was likely because a member stationed there (Lt April) was prepared to assist them unlawfully. However, the court clarified it was not enjoined to finally decide whether the licences were obtained unlawfully, as that was the subject matter of the criminal proceedings. The court need only decide on a balance of probabilities whether the appellants' retention of the firearms was justified.
This case is significant for clarifying the interpretation of s 31(1)(a) of the Criminal Procedure Act regarding when criminal proceedings are considered "pending" for purposes of retention of seized property. It establishes that provisional withdrawal of charges does not mean criminal proceedings are not pending where there is a reasonable likelihood they will be reinstated. The case also clarifies the relationship between the CPA provisions on retention of seized items and the Firearms Control Act provisions on fitness to possess firearms, holding that the FCA enquiry provisions do not oust the CPA retention provisions. The case demonstrates the application of the Plascon-Evans rule in motion proceedings involving final relief and the circumstances in which appellate courts may consider evidence of events occurring after the judgment under appeal.
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