Legal perspective

The ECA
Under the ECA the distinction between open streets and closed estates no longer exist. Icasa has complete control over every square centimeter of any network using any topology using any equipment. Both open streets and closed estates can run fiber as long as the network is not for profit if not in association with an ECNS, VANS or whatever license holder.

Under both the ECA and Alien invasive species act there are criminal penalties. But where the legal profession is deceiving the public is this is not what the law says. It is merely interpretations of the ECA by Icasa, environmentalists and lawyers because only the court can decide what the law says. We will only understand what the law says once the NPA prosecutes a farmer and a court rules on the matter. This of course isn't going to happen, like it isn't going to realize that the NPA will prosecute Vodacom for RICA Act violations. The ECA isn't the only piece of legislation with criminal penalties for non-compliance: RICA, PAIA, Alien invasive species Act etc. The court granted Icasa a confiscation order in order to pursue criminal charges against WBS and the confiscated equipment would be used as evidence. But because South-Africa has the best constitution in the world Icasa cannot prosecute WBS like the FCC in the USA are able to do.

The SAPS will not arrest the person unless the NPA indicates they will prosecute. If this were not so then we would have politically motivated terrorizing of farming communities by having the SAPS lock-up all the farmers over the weekend after finding alien species on their farms.

In terms of section 20 of the National Prosecuting Authority Act, No 32 of 1998, the power to institute and conduct criminal proceedings on behalf of the State (and to discontinue criminal proceedings) vests in the national prosecuting authority.

And since the NPA will in eternity not get involved in who has what license to cut what road where and when, this entire debate is interesting academic exercise since Vodacom, Icasa or the SAPS telling people to relicense their firearms can't prosecute anybody.

In the civil case between Icasa and Altron that Altron won giving VANS license holders the right to cut roads, the court didn't say people without a VANS license isn't allowed to cut roads. No civil ruling was made on this issue, nor could there be because such an issue would be criminal and only the NPA could make a decision on whether to prosecute or not.

Naspers problem project http://www.smartvillage.co.za/index.php?option=com_sobi2&sobi2Task=sobi2Details&catid=0&sobi2Id=9&Itemid=183 wrote "...While inside gated estates developers and occupants have the freedom to do whatever they like, in traditional suburbs residents would need to find a company with the legal right to provide telecoms infrastructure to offer such services...."

This is factually wrong. Only the courts can decide whether it is legal or not for open streets to lay fiber. This is not for the SAPS, Naspers, Vodacom, NPA or ANC or the minister of communications to decide. All the NPA can do is prosecute a road cutter, something they wouldn't dream of doing and thus the legality or not from a criminal perspective will forever remain of academic interest.

Firearms Control Act

 * ''This article was written in 2007, the High court ruled in 2011 or 2010 that the FCA must go to the constitutional court for a ruling, vindicating the view of those who stood on their legal rights. The deceived people, though through cowardice, ignorance and lawyers who betrayed them, did relicense. Let us pray that the constitutional court realizes that throwing 1mil in jail(the half that did not relicense) would lead to chaos..

With the Firearms control act the view of the http://www.npa.gov.za is that an existing right given under the previous Firearms act that was replaced can't be arbitrarily revoked. Under the previous law a gun license was valid for life. Under existing law your house remains your property for life and after death you can decide who inherits it. Should there be a prosecution and conviction of a person who did not relicense it would establish a general precedent that the government can confiscate property without any form of compensation. Next one could be forced to 'relicense' his house or his wife. One remains married for life until either of the parties decided to file for divorce in terms of the Marriage Act. A conviction in terms of the FCA would mean that at any time any law's terms can be amended as the ANC deems fit and thus there would be no certainty that '... valid for life' means just that. No, it would mean valid for life or until the government decides that it is not valid for life anymore. The Constitution allows for the government to expropriate property with compensation. Taking a firearm for which the government gave a license under a law stating that this piece of property remains that of the owner for life, is thus a violation of the constitutional principle that compensation must be paid for property expropriated.

The SA lawyer helping people "relicense" of course know this but they want to scam money out of you by being paid for "appeals" and other legal hurdles. It was reported in the Citizen 2005 that John Welch(deputy director NPA) views it as unconstitutional to force a person to relicense who had received a firearm license under the old law. It was reported in Beeld five days before the Dec.31 2005 deadline Minister Nqakula had a meeting with John Welch the deputy director of Prosecutions. John Welch himself has 12 guns and won't relicense his firearms, in other words the government expects Welch to prosecute himself. In the meeting Welch indicated that he won't prosecute anybody, including himself, who failed to relicense. The ANC again tried to intimidate people in signing away their rights with the 31 March 2006 deadline, but the NPA refused to prosecute themselves and thus the government postponed the whole thing till June 2009. In terms of the present gazette notice all firearms licensed under the old law remain valid until June 2009. Rumor has it that June 2009 the ANC will give a 3 month "amnesty" to all those who haven't relicensed which would make it the fourth extension of a cut off date in their frantic attempts to disarm the public. And so it will go on until the NPA decides to prosecute themselves.

The FCA is open ended. Meaning any terms and conditions can be arbitrarily amended. So for example if the act is amended after enough people has relicensed then it would be a simple matter to gazette that all guns that have been relicensed and licensed under the FCA must be immediately handed in at the nearest police station. And this would be valid because the fool that relicensed signed a form giving the government such a right.

In contrast the old Firearms law did not allow for such an open ended arbitrary amendments. And thus a test case or precedent where a single individual gets prosecuted for failing to relicense and convicted would be the only way to test the validity of the FCA in court. But only the http://www.npa.gov.za can decide to proceed with such a test case. Such a case would probably go all the way to the constitutional court. Only after they have ruled would a final decision be made and one should wait for such a ruling. The ANC is creating the illusion that they can throw all 2million licensed gun owners into a jail system that can only hold 200 000. People should relax, the worst that could is that a court decides we must relicense. But the court would then also give instruction that people must given a final deadline to relicense, but since the http://www.npa.gov.za would never prosecute themselves for failing to relicense their personal fire-arms obtained under the old Arms and Ammunition act we will never find out what the court would rule.

The http://www.npa.gov.za can neither be forced nor prevented from attempting taking a test case to court. In terms of our constitution a person is innocent until proven guilty. Some would argue that somebody not relicensing is guilty of an ofence. This is a factual and legal inaccuracy. Only the court can determine this in the first test case. But since there are no test cases and the http://www.npa.gov.za has indicated that they won't prosecute themselves or anybody else for failing to relicense, all such old license holders remain innocent until proven guilty. And the constitutional principle of innocent until proven guilty applies to all the other compliance laws. Lawyers that specifically deal with firearm relicensing also deal with cases where appeals are made in terms of the FCA. They must of course be paid for this. The gun shops know that a person who doesn't relicense will never be able to purchase another firearm from them. The training institutes makes their money from people getting a competency certificate in terms of the ECA. Under the old Gun law one did not need a competency certificate. And thus one should carefully evaluate what your are told by the various stake holders. What is the monetary gain to be extracted from a person relicensing and what implications are there for them from a financial perspective should such a person not relicense?

Billy Downer the deputy director of prosecutions prosecuted Jacob Zuma. Selebi the head of the SAPS is a staunch supporter of Zuma. What the SAPS is asking of Billy Downer is for him to sign the FCA form on p.6 but where on p.10 Selebi can recommend under the section: Describe the mental condition of the candidate .... - anything which Selebi wishes Billy Downer's mental condition to be. Based this mental condition the Central Firearms Registrar must decide wether to relicense Bill Downer's personal firearms or not. The constitution mandates procedural fairness. Who is best qualified to determine your mental condition a psyciatrist or policemen? What tests did the police perform to determine your "mental condition"? Who professionally evaluated such data? What was his qualifications. There is no love lost between the http://www.npa.gov.za and the SAPS. Would Vusi Pikoli sign a form giving the SAPS the right to confiscate his personal firearms that he obtained under the old gun law? What about the wifes, brother, sisters and friends of the http://www.npa.gov.za - could they attract the special attention of a relicensing official in the SAPS dealing with their application forms? What about the prosecutors in general? What would be the effect if the criminals knew that all the prosecutors have had their firearms confiscated but also that of their wifes who are now defenceless at an address organized crime can easily obtain ? The http:/www.mg.co.za reported that Willie Hofmeyer, Billy Downer, Pikoli and John Welch are investigating Selebi's links to the criminal underworld. The scorpions recently arrested Agliotti a friend of Selebi. The FCA is the SAPS ultimatum to the http://www.npa.gov.za that they in their personal capacity must either relicense or prosecute themselves. The FCA can be amended anyway the government wants to. For example they could amend it that if there is any negative report from anybody say your farmworker that you shot at him then the next day the police can take away your firearms - without a trial and court conviction.

Under the old gun law this was not possible, there had to be a trial and criminal conviction. And then it was up to the court to decide wether you forfeit your firearm. Thus the government is asking people to sign away their existing rights under the old gun law. What the http://www.npa.gov.za is saying is that they won't prosecute anybody for refusing to sign. And if a person is not prosecuted he can't have his firearms confiscated which he received under the old gun law. For only a court can do this. But since a criminal charge laid by the police will never get past the http://www.npa.gov.za in the first place, such a  case will never go to court. The government keeps on extending the deadlines for criminal prosecution precisely because the http://www.npa.gov.za views the terms and conditions for which a gun license was issued under the old law as valid for life. Thus the government is busy with a cat and mouse game where they simply issue a threat in the papers warning everybody that they will be criminally charged. Which is the truth of course. They can criminally charge but they can't prosecute - only John Welch and Billy Downer can do this after they have either proved to us that they have relicensed their guns or after they have prosecuted themselves.

Under the FCA a policeman must enter your house to see where is your safe. The reason for this is that after enough fools have relicensed the ANC will amend the FCA confiscating all firearms and then know where to go and get the firearms. You are also giving the police the right to kick down your door and confiscate your guns under the FCA. Only the people who have a license under the old law will have their guns 10 years from now. Everybody else will be disarmed.

CAC don't understand the law
''Citizens Against Crime comment on the FCA: http://www.cac.co.za/modules.php?name=scamlate. Based on the wording of a recent SAPS Communication, we believe that either the wording is incorrect or there is something rather weird in the new Firearms Act, it allows totally untrained Security Officers to carry a weapon up to the year 2006 - as long as the weapon is licensed. Firearms do not kill people or require training – it is the person carrying it who does! All institutions that own firearms, including security service providers, will be called up to renew their firearm licenses from 1 July 2006 to 31 December 2006. It is important to take note that companies may continue to issue company firearms to employees who do not have a competency certificate under the following conditions; As long as the firearms are licensed in terms of the Arms and Ammunition Act When the company obtains a firearm license in terms of the Firearms Control Act, 2000 or when the current firearms are renewed in terms of the firearms Control Act, the firearm may only be issued to an employee who is in possession of a competency certificate. In terms of this legislation there is a serious contradiction – it should surely have added a proviso to the effect that "As long as the employee has met the relevant training criteria as laid down by PSIRA (Security Regulatory Authority) to be armed." We believe that when cognizance is taken of the fact that there are more Private Security Officers out there than Policemen we believe this is essential.''

This is why security guards without the new training can still use security company firearms licensed under the old gun law - these were the terms of the license. And thus the government extended the deadline dealing with this issue until Dec.2007. And they will have to keep on extending it as the http://www.npa.gov.za won't prosecute anybody who uses a firearm under the terms issued to it under the old gun law. ''What CAC don't understand is that it is irrelevant what they consider to be ,,essential.. - it only matters what the old gun law states under which terms these firearms were issued''. For example many people think it essential that people with more than two houses should give their extra house to somebody with a "housing need". But the terms under which you own these houses - the law which governs this - does not allow the government to force you to "relicense" your property. It has been argued by some that a person should only relicense once John Welch and Billy Downer have relicensed their guns. The question arises would the police not be able to obtain a court order to confiscate a firearm from a person who did not relicense? The answer would be no, because that would mean that Selebi is in essence asking the court for a warrant to do a raid on the directors of http://www.npa.gov.za. The public and the directors of the http://www.npa.gov.za are equal before the law. The directors of prosecution can themselves be prosecuted if they violate a law for which there is a precedent. Since there are no precedents and the prosecutors themselves are not relicensing their personal firearms the government is in essence asking the directors of the http://www.npa.gov.za to establish that precedent by prosecuting themselves.

Quote from http://www.npa.gov.za
''In terms of section 20 of the National Prosecuting Authority Act, No 32 of 1998, the power to institute and conduct criminal proceedings on behalf of the State (and to discontinue criminal proceedings) vests in the national prosecuting authority. In practice, decisions in most courts on a day-to-day basis are taken by prosecutors with delegated authority from the National Director. In more important or difficult matters, the decision is taken by the various provincial directors or the investigating directors in consultation with the relevant provincial director and subject to the control and directions of the National Director. In some cases, the National Director himself will be involved in the decision-making process and he may even make the decision himself.''