This month’s column may not make me very popular with some importers and distributors, but my purpose is to inform people about and sensitise them to firearm-related issues.

The primary part of this article is about optical devices that provide thermal or infrared imaging. For the purposes of this discussion, I am going to regard the two as one and the same.

We have the Firearms Control Act that regulates civilian possession of firearms and then we have a separate piece of legislation that deals with military and dual-use goods, namely the National Conventional Arms Control Act. Pause here for a moment and bear in mind that military arms include anything from a nuclear submarine to a self-loading pistol and everything in between. Some items are quite obviously of a purely military nature, such as a tank, fighter aircraft or nuclear submarine. However, in many cases an item can have both a military and a civilian application and it is the intended purpose that determines whether it is for civilian or military use. A simple example and the most common is a pistol. Any pistol can be licensed in South Africa (as long as it is not fully automatic) by a civilian. However, if that very same pistol is sold to the armed forces of a country, then it is for military use. The National Conventional Arms Control legislation therefore deems it to be a dual-use item. This is in keeping with international norms.

There is a list of products called the Wassenaar Arrangement, which is an internationally agreed upon list of products, technologies and related products that classifies goods according to their purpose and use. As I have indicated, purely military goods are prohibited for civilian use. Then there are dual-use goods, which may be permissible for civilian use, depending on the characteristics and technology of the product. Lastly, there is the residual category of non-military items.

We all should be aware that the military is often the primary driving force behind new technology. The Global Positioning System (the Magellan) was pioneered by the American military and found its way into civilian use. In a similar manner, night-vision devices or thermal-imaging devices started off as purely military hardware and software and have found increased use in civilian applications. A simple example would be a thermal-imaging device used to protect a farm homestead. The uses are obvious. There are other products on the market that have coupled the technology of the magnification of an image through a telescope and thermal or laser imaging. These are the products I want to discuss.

The National Conventional Arms Control Act, 2002 (Act No 41 of 2002) defines conventional arms as any component, equipment, system, processors and technology of whatever nature, capable of being used in the design, development, manufacture, upgrading, refurbishment or maintenance of anything contemplated in the legislation.

The legislation deals with articles of war and dual-use goods. Dual-use goods are products, technology, services or other goods that, besides their normal use and application for civilian purposes, can be used for the furtherance of general military capability and are contained in the list published by the minister by notice in the Gazette (broadly, the Wassenaar Arrangement).

The Wassenaar Arrangement then is divided into dual-use goods, which a civilian may possess, depending on its characteristics, and the Munitions List, which expressly excludes dual-use purposes and which is deemed to be conventional arms. The list is technically very complicated and detailed and runs into many hundreds of pages.

However, for the purpose of this article, the Munitions List defines the following items as not for dual-use, i.e. not for civilian use. Among the products listed here are image-intensifier equipment, infrared thermal image equipment and imaging radar sensor equipment, as long as they do use first-generation image-intensifier technology.

Over and above this, the Munitions List specifies which firearms in the list constitute a firearm for the purposes of conventional arms. Again the definition is quite complicated, but put simplistically, the definition of a firearm will cover all modern hunting rifles manufactured after 1938.

The Munitions List also excludes from the dual-use category optical weapon sights with electronic imaging processing and optical weapon sight capabilities, which includes target acquisition, designation, range finding, surveillance or tracking systems, or an integration of the above technologies.

What I have tried to explain thus far is that if you have a thermal-imaging telescope or a telescope that contains some sort of laser device, or it contains technology that intensifies the image, which is not first-generation technology, it is not a dual-use item and is a controlled item and you may not use it on a rifle manufactured after 1938. This means that it may only be imported by someone who is registered in terms of the National Conventional Arms Control legislation and it can only be transferred to someone who is similarly registered.

Many of the telescopes on sale at your favourite retailer contravene this legislation. Why have I mentioned this? There are two reasons. The first is quite simply that the Directorate of Conventional Arms Control has substantial powers to effect search and seizures, and in terms of the penalty provisions of the legislation, anyone who trades in conventional arms, which includes manufacturing, marketing, contracting, import or export or conveyance of such conventional arms, may be convicted and sentenced to a period of imprisonment of up to 25 years. Not so long ago, I had a case where a person obtained a pair of thermal-imaging binoculars from a controlled supplier, which he then sold to an entity that was not registered with the National Conventional Arms Control Directorate. He is currently sitting in the United Kingdom awaiting extradition to South Africa to face charges of contravening the National Conventional Arms Control Act. Be informed about your purchases and be aware of the possibility that your retailer may be dabbling in restricted or controlled goods.

The second issue is the sale of blank firing devices that fire either a pepper-spray projectile or a solid baton round. These objects are being sold over the counter by persons who do not have a licence to trade in arms and ammunition, and possession is given to people who do not have a licence for such items.

The Firearms Control Act defines ammunition as the assembled components of a round of ammunition or primer alone. Any item that is capable of discharging a primer constitutes a firearm. Therefore the objects are in law firearms and require a licence.

Be advised accordingly and don’t be caught in possession of an object that may result in serving you a mandatory 15-year prison sentence for unlawful possession of a firearm.

Martin Hood from MJ Hood & Associates Attorneys can be contacted on 011 234 7520. Alternatively, e-mail him at martin@mjhood.co.za or visit www.mjhood.co.za.