17 Jan 2025
Pointing a firearm at someone is illegal in South Africa, unless there is a valid reason to justify it. Interestingly, the law does not only apply to actual firearms; it also includes objects that look like firearms, such as toy guns. Recently, this principle has come under scrutiny.
On 23 December 2024, the Pietermaritzburg High Court in S v Jojo[i] dealt with an automatic review from the Magistrates’ Court, where Mr Gaba Octavimra Jojo was found guilty of contravening Section 120(3)(a) of the Firearms Control Act[ii]. The allegation was that Mr Jojo “had unlawfully and intentionally pointed a firearm, an antique firearm, or an air gun, and, more specifically, a ‘black gun,’”[iii] at the complainant. Mr Jojo initially pleaded guilty. However, after the Magistrates’ Court questioned Mr Jojo, Mr Jojo stated that he merely pointed a toy gun at the complainant and not a firearm or the like.
Accordingly, the Court changed Mr Jojo’s plea from guilty to not guilty. Mr Jojo conducted his defence and maintained that the object in question was merely a toy gun. It is noted that he did not deny having pointed the toy gun at the complainant, and it is clear that the complainant, at all reasonable times, believed that the object was a real firearm. The State failed to present any evidence to the contrary. The Magistrates’ Court, however, still found Mr Jojo guilty of contravening Section 120(3)(a).
The High Court overturned the verdict of the Magistrates’ Court and set aside the conviction and sentence. The High Court quoted Section 120(3)(a), as follows:
“It is an offence to cause bodily injury to any person or cause damage to property of any person by negligently using a firearm, an antique firearm or an airgun.”
The High Court held that not only had the complainant failed to allege that Mr Jojo caused bodily injury or damage to property, but also, as the object in question was not a firearm as defined by the Firearms Control Act, the object did not fall within the ambit of Section 120(3)(a).
While it is submitted that the High Court was correct in holding that Mr Jojo did not contravene Section 120(3)(a), it is jarring why he was charged with contravention of said section in the first place. It is submitted that Mr Jojo should rather have been charged with contravention of Section 120(6), which states:
“It is an offence to point─
(a) any firearm, an antique firearm or an airgun, whether or not it is loaded or capable of being discharged at any other person, without good reason to do so; or
(b) anything which is likely to lead a person to believe that it is a firearm, an antique firearm or an airgun at any other person, without good reason to do so.”
In short, Section 120(6) makes it illegal to merely point a firearm at a person or point anything which may lead that person to believe it is a firearm without having good reason to do so. As such, a person would be guilty of contravening Section 120(6) even where there was no bodily injury or damage to property or where the object pointed was merely a toy gun. Snyman CR[iv] states:
“The effect of paragraph (b) of subsection (6) is that X may commit the offence even if she points a toy pistol at Y, provided the toy pistol is such that it is likely to lead a person to believe that it is a real pistol.”
Given the facts of the matter and the fact that Mr Jojo was charged with contravention of Section 120(3)(a) instead of Section 120(6), it is submitted that the verdict should have been guilty. In the decision itself, no mention is made of Section 120(6). It is, therefore, completely unclear whether the said section was dealt with by the Magistrates’ Court, whether Mr Jojo was at all charged in terms of said section, and if Mr Jojo was not charged in terms of Section 120(6), what was the reason for such omission.
Since the decision in question does not deal with Section 120(6), it is clear that precedent is not set for it being legal to point a toy gun, which a complainant believes to be a real firearm. Pointing a firearm, or anything resembling a firearm, like a toy gun, without sufficient reason is still very much illegal and would probably amount to a criminal offence.
References:
[i] (Review) (A53315/2023) [2024] ZAKZPHC 122 (23 December 2024)
[ii] 60 of 2000
[iii] Par 2
[iv] Criminal law, 6th ed., LexisNexis, South Africa, p459
See also:
(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Philip Venter
Philip Venter, the founder and director of Philip Venter Attorneys in Paarl, is an articulate and driven litigator. As an admitted attorney since September 2021, Philip is passionate about the… Read more about Philip Venter