SA CRIME QUARTERLY No 10 DECEMBER 2004 19

D
omestic violence in South Africa is marked
by high levels of physical violence
accompanied, in many cases, by weapon

use. In this article research conducted by the
Consortium on Violence Against Women1 is used to
illustrate the extent of the problem and consider
available remedies in terms of existing legislation
and regulations. If courts rigorously apply these
legislative tools, they will go a long way in
protecting women from the potentially lethal
consequences that result from being trapped in an
abusive relationship.

Use of physical violence and weapons 
Proforma applications for a domestic violence
protection order under the Domestic Violence Act
(116 of 1998) require applicants to complete an
affidavit setting out the details of all incidents of
abuse experienced at the hands of the respondent,
along with whether firearms or other dangerous
weapons were used, and what injuries were
sustained. In addition, applicants are required to
specify the types of abuse from which they are
seeking protection, and may request that any of a

number of other conditions be attached to the court
order. These include an order for seizure by a
member of the South African Police Service (SAPS)
of a specified firearm or dangerous weapon, which
is in the possession of the respondent. 

The Consortium on Violence Against Women
analysed 616 of these applications for domestic
violence protection orders filed at Cape Town,
George and Mitchell’s Plain magistrates’ courts
during 2001.2 The extent to which physical
violence pervades abusive domestic relationships is
reflected in this sample, which constitutes 10% of
applications made during the research period, with
well over 65% of supporting affidavits mentioning
physical violence. An alarmingly high 77% of
applications filed in George reflected incidents of
physical assault (Table 1).

The use of a weapon in perpetrating the assault was
noted in more than 40% of the files mentioning
physical violence, with George magisterial district
once again presenting the highest frequency at 48%
(Table 2).

Dee Smythe 
Gender, Health and Justice Research Unit
University of Cape Town
dsmythe@curie.uct.ac.za

MISSED
OPPORTUNITIES

Confiscation of
weapons in domestic
violence cases

Part of a series in the SA Crime Quarterly on the implementation of the Domestic Violence Act,

this article focuses on the use of weapons in incidents of domestic violence as reflected in

applications for protection orders at three Western Cape jurisdictions. Weapons are often used in

domestic violence. If the police and magistrates use the powers available to them to seize

weapons, it will go a long way to protecting women and the broader public.



SA CRIME QUARTERLY No 10 DECEMBER 200420 SMYTHE

protect and provide for the safety, health or
wellbeing of the complainant”. 

This provision cross-refers to s9 of the Act, which is
far more specific in placing a responsibility on the
court to order such a seizure. Thus s9(1) provides
that the court must order seizure of a firearm or
dangerous weapon, if the magistrate is satisfied that
the following factors apply:

a) the respondent has threatened to kill or injure 
himself; or 

b) has threatened to kill another person with whom 
he is in a domestic relationship (it is noteworthy
in this respect that the person threatened need
not necessarily be the applicant for a protection
order, and that the threat need not necessarily
have been made with reference to the weapon
under consideration); or

c) that continued possession of the weapon is not 
in the respondent’s best interest or in the
interests of any person with whom they are in a
domestic relationship, because of the
respondent’s:
i) state of mind or mental condition;
ii) inclination to violence;
iii) use or dependence on drugs or alcohol.

This means that over a quarter of all applications
for domestic violence protection orders, including
those in which physical violence was not noted
(and 37% of all applications in George) mentioned
the use of a weapon. 

This is clearly one arena in which respondents who
can be shown to have a propensity towards
violence can be dealt with by the criminal justice
system. Criminal justice officials are in a position to
take precautionary measures to protect not only the
respondent, but also potentially the broader public.
The next section considers the legal obligations
placed on criminal justice officials to act in these
circumstances.

What the DVA requires of officials 
The Domestic Violence Act (DVA) places an
obligation on magistrates to order the seizure of
weapons under certain circumstances. Mirroring the
request that may be made by applicants in this
respect, section 7(2)(a) of the DVA allows
magistrates to order, as a specific condition of a
domestic violence protection order, that a SAPS
member should seize any firearm or dangerous
weapon in the possession or under the control of
the respondent, when “reasonably necessary to

Table 1: Frequency of physical violence mentioned in affidavit, by magisterial district

Cape Town Mitchell’s Plain George  

Total number of files examined 170 279 167 
Number of files mentioning physical violence 117 184 129  
Frequency of physical violence in sample 68.9% 65.9% 77.2%  

Source: Parenzee, Artz and Moult

Table 2: Frequency of weapons mentioned in affidavit, by magisterial district

Cape Town Mitchell’s Plain George  

Number of affidavits mentioning physical violence 117 184 129 
Number of affidavits mentioning use of weapons 44 70 62 
Frequency of use of weapons 37.6% 38.0% 48.0%  

Source: Adapted from Parenzee, Artz and Moult



SA CRIME QUARTERLY No 10 DECEMBER 2004 21SMYTHE

The DVA makes further provision that any firearm
seized under such an order should be dealt with
under s11 of the Arms and Ammunition Act (now
repealed and replaced by s102 of the Firearms
Control Act), in terms of which a person may be
declared unfit to possess a firearm. The DVA
specifically requires the court to have the clerk of
the court refer a copy of the record of evidence
concerned to the national commissioner of police
for this purpose. There was no evidence in the files
examined of this having been done.

Firearms Control Act
The Firearms Control Act (60 of 2000) came into
full effect on 1 July 2004 and provides, as did its
predecessor, the 1969 Arms and Ammunition Act,
that the national commissioner of police (“the
Registrar”) may declare certain persons unfit to
possess a firearm. Topping the list of those against
whom such an order may be made are respondents
against whom a final protection order has been
issued in terms of the Domestic Violence Act. 

This represents an important recognition of the
lethality of violent domestic relationships, in which
research suggests that over 40% of fatalities occur
as a result of gunshots.3 If narrowly interpreted it
will, however, deny protection to applicants with
interim protection orders that have not yet been
finalised under the DVA. 

It is therefore important to note that application
may be made to the Registrar to have a person
declared unfit on other grounds, including that
continued possession is not in the interests of the
person possessing the firearm or any other person
because of:
• threats made to kill or injure themselves or 

another person by means of a firearm or other
dangerous weapon;

• their mental condition, inclination to violence, 
or dependence on drugs or alcohol.

In this respect it mirrors s9 of the DVA and means
that an application under s102 of the FCA can, and
indeed should, be made at the time that an interim
protection order is issued. When a final protection
order is issued applicants should be informed,
regardless of whether seizure of a weapon has been

ordered under the DVA, of the remedy available to
them under the Firearms Control Act. When the
court has ordered a weapon to be seized at any
stage of the proceedings, this order must be
conveyed to the Registrar for administrative action.

For the Registrar to determine that someone is
unfit to possess a firearm, application must be
made under oath setting out adequate reasons.
Although at the time that an interim protection
order is made, it is possible that the person against
whom a s102 order is subsequently sought will
not have had the opportunity to respond to the
DVA application, the s102 hearing clearly
constitutes an independent determination in which
the respondent is provided with a reasonable
opportunity to give reasons as to why a
declaration should not be made. As such it cannot
be seen as infringing on the respondent’s due
process rights.

This does not mean that the courts are off the
hook. Section 103 of the FCA requires the court to
apply its mind to the question of whether a person
should be declared unfit to possess a firearm, by
creating a presumption of unfitness in respect of
convictions for certain offences. 

A number of these offences typically occur in
domestic violence cases, and point to the
importance of police laying ancillary charges
when assisting a victim of domestic violence.
These include:
• unlawful or negligent handling of a firearm;
• handling of a firearm while under the 

influence of drugs or alcohol;
• a crime or offence in the commission of which 

a firearm was used;
• any offence involving violence, sexual abuse 

or dishonesty for which the accused was
sentenced to imprisonment without the option
of a fine;

• any offence involving physical or sexual abuse 
occurring within a domestic relationship;

• any offence involving the abuse of alcohol or 
drugs; and

• any offence under the DVA where the accused 
is sentenced to imprisonment without option of
a fine.



What the DVA regulations require of SAPS 
Specific obligations are placed on the SAPS in terms
of the National Instructions regarding domestic
violence, which were promulgated under the DVA.
The emphasis of these guidelines is on executing a
court order to seize a weapon or firearm which is in
the possession or under the control of the
respondent, with a view, again, to dealing with the
matter in terms of s11 of the Arms and Ammunition
Act. 

However, these instructions go beyond the
provisions contained in the DVA, by providing (in
s6(7)) for a SAPS member to enter and search a
premises at any time, without a warrant, as specified
under s41(1) of the Arms and Ammunition Act, and
to seize a firearm when that member has reason to
believe that:
• a person has threatened or expressed the 

intention to kill or injure himself or herself or any
other person (note that here a domestic
relationship is not required) by means of a
firearm; 

• or is in possession of a firearm and continued 
possession is not in his or her interest or in the
interest of any other person as a result of his or
her mental condition, inclination to violence
(regardless of whether a firearm was used in the
violent act or not), or his or her dependence on
intoxicating liquor or a drug which has a narcotic
effect. 

These provisions mirror those contained in s11 of the
Arms and Ammunition Act, the DVA and now the
FCA. 

Interviews show that some police officers are using
their powers under the Arms and Ammunition Act to
confiscate firearms, even when there was no court
order in place. As one police officer said:

I have confiscated weapons. Sometimes when
there is a court order, but other times when
we perceived it to be a threat because of the
types of abuse the complainant has been
subjected to. Rather safe than sorry. (P3X)

It would, however, seem that this is the exception
rather than the rule. In the words of another police
officer:

SA CRIME QUARTERLY No 10 DECEMBER 200422 SMYTHE

It is clear from the wording of this section that the
court must apply its mind to these cases and must,
whether it finds the person convicted to be unfit or
not, forward that determination to the Registrar.
Subsection (4) requires that unless the court
determines that a person is fit to possess a firearm,
the court must make an immediate order for the
search and seizure of all authorising
documentation (licences, competency certificates,
etc), firearms and ammunition in that person’s
possession.

Under s103(2) this duty becomes discretionary,
with the court required to enquire and determine
whether a person is unfit to possess a firearm upon
conviction for a number of scheduled offences.
While there is not the same presumption as that
arising under s103(1), this section clearly places a
positive duty on the court to make such an enquiry
and come to a determination. Relevant Schedule 2
offences include:
• malicious damage to property;
• entering a premises with the intent to commit 

an offence;
• offences under the DVA for which the accused 

was not sentenced to imprisonment without the
option of a fine; and

• offences involving violence, sexual abuse or 
dishonesty in respect of which the accused was
not sentenced to imprisonment without the
option of a fine.

It is not necessary that a firearm be used in the
commission of any of these offences. As such these
provisions have the potential to provide an
important means of protection to those subject to
domestic abuse. This requires, however, that
appropriate charges are initially laid and that the
accused/respondent’s possession of a weapon be
brought to the attention of the court. It also
requires that police, prosecutors and magistrates
take the threat of firearms seriously. 

Research has clearly illustrated that in ss11 and 12
hearings these roleplayers have tended not to
adequately apply the relevant provisions and,
where they have, to focus on cases where a firearm
was used, rather than the potential for violence of
someone who owns a firearm.4



SA CRIME QUARTERLY No 10 DECEMBER 2004 23SMYTHE

You do have to confiscate weapons, but not
that often. Yes there are complaints that the
husband has threatened to shoot her, or kill
her, but he never does. It’s never serious.
(P10bSF)

This approach is clearly at odds with the positive
duty placed on police members through legislation
and recognised by the Supreme Court of Appeal in
the case of Minister of Safety and Security v Van
Duivenboden.5 In that case the failure of police
members to hold a s11 hearing on at least two
occasions when Mr Brooks (a man described by the
SCA as being both “fond of firearms” and “fond of
alcohol, which he habitually consumed in excess”)
had clearly shown a propensity for violence, was
recognised as providing the basis for a delictual
action by Mr Van Duivenboden against the police
when he was subsequently shot by Mr Brooks (who,
at the same time, shot and killed his own wife and
daughter). 

That is, the failure by police members to declare
Brooks unfit to possess a firearm, when it could
reasonably have been expected of them to do so,
had in all likelihood given rise to the damages
suffered by Van Duivenboden. It is quite feasible
that this reasoning could be extended to magistrates
who have – and refrain from using – similar powers.

The purpose of a seizure is to provide the basis for
an administrative hearing. The National Instructions
require that a SAPS member who has seized a
firearm must ascertain whether that firearm is
licensed and, if it is not, include the offence in the
docket. In practice, no evidence has been found
that this is occurring in domestic violence cases. 

Despite the commotion engendered by the passage
of the FCA, it seems that provisions for search and
seizure have been somewhat narrowed in s110,
which parallels Chapter 2 of the Criminal Procedure
Act (51 of 1977) in requiring that a search be done
only upon a warrant unless the person concerned
consents or the police member has reasonable
grounds for believing that a search warrant would
have been issued and that a delay in obtaining a
warrant would defeat the object of the search. This
may require an amendment to the National

Instructions, as there seems to be no analogy to s41
in the new Act.

Dangerous weapons
Both the DVA and FCA make reference to the use
of “dangerous weapons”. The DVA defines it with
reference to the definition given in s1 of the
Dangerous Weapons Act (71 of 1968), in terms of
which a dangerous weapon is any object, other
than a firearm, which is likely to cause serious
bodily injury if used to commit an assault. Any
person who is in possession of such a weapon is
guilty of an offence unless they can prove that they
did not at any time have the intention of using the
weapon or object for an unlawful purpose. 

This is a very broad definition and particularly
problematic when applied to domestic violence. As
one police officer pointed out, in domestic violence
cases “…just about anything can be a weapon”.
Docket analysis reflected the following types of
‘weapons’ as having been used in reported
incidents of domestic violence: firearms, knives,
sharp objects, bottles, iron pipes, hose pipes,
spade, axe, belt, sticks, brooms, metal pot, chairs,
sjamboks, irons, wooden plank, brick, cricket bat,
knobkierries, chains, golf clubs, hammer, ashtray,
shoe, and a coffee table. In this context, a
‘dangerous weapon’ includes many common
household objects – the seizure of which is clearly
problematic, if not impossible.

Seizable weapons
Given the plethora of potentially dangerous
weapons reflected in the applications for domestic
violence protection orders, the researchers decided
to focus on four weapon types that were
considered to be potentially susceptible to
confiscation: knives, sjamboks, knobkierries and
firearms. They tracked those cases in which these
weapons had been used through the application
process. When the affidavit stated that the
complainant had been stabbed, but did not specify
the object used, it was assumed, as the most likely
scenario, that a knife had been used.

Knives were the weapons most often used in all
three magisterial districts, with Mitchell’s Plain (19
incidents) and George (18 incidents) both



exhibiting usage that was significantly higher than
Cape Town (8 incidents). Although firearms were
relatively seldom used, it is important to note that
guns were most often used to threaten the
complainant, with Mitchell’s Plain having the most
incidents of threats using a firearm (21 incidents) in
comparison to Cape Town (8 incidents) and George
(6 incidents), followed closely by knives (34
incidents across the three jurisdictions). Eight
affidavits mentioned that the respondent carried a
knife or firearm on their person or slept with that
weapon.

For the court to order the seizure of a weapon on
the basis of information supplied in the affidavit,
evidence should be supplied that the respondent is
in possession or in control of the weapon
concerned. In the data therefore the distinction was
drawn between instances where the complainant
had written that “he said he would stab me”, where
it was not stipulated that the respondent actually
possessed or had access to a particular weapon, and
instances where it was stated that “he chased me
round the house with his knife and tried to stab
me”. The number of requests made by applicants for
the confiscation of these weapons, and the number
of applications ultimately granted by the magistrate
were tracked. The results, as they pertain to firearms
and knives, are indicated in Table 3 below.

Applications for removal of a weapon
It is clear from this data that applicants for
domestic violence protection orders, while
mentioning the use of weapons in their supporting
affidavits, and even averring ownership or
possession of these weapons, are not requesting
that the court order their seizure:
• In Mitchell’s Plain the total number of requests 

made by applicants for seizure of weapons
represents 18% of the number of instances
when there was confirmed possession, and a
mere 8.5% of the total number of affidavits
mentioning seizable weapons.

• In George the total number of requests made by 
applicants for seizure of weapons represented
10% of the number of instances of confirmed
possession, and only 6.5% of the total number
of affidavits mentioning seizable weapons. 

• In Cape Town the picture looks better, with 88% 
of applicants averring possession or control of a
weapon by the respondent requesting that it be
seized, amounting to 47% of affidavits
mentioning weapons that we would consider
capable of being seized. 

When broken down further, only two complainants
of the eight in Mitchell’s Plain who confirmed a
firearm as being in the possession of the
respondent, actually requested that this be

SA CRIME QUARTERLY No 10 DECEMBER 200424 SMYTHE

Table 3: Number of cases per type of weapon at each stage of the domestic violence application process

Mitchell’s Plain Mention in Proof of access/ Request for seizure Order granted by
affidavit control and threat by applicant magistrate

Guns 14 8 2 4 
Guns and knives 9 4 0 0  
Knives 12 9 1 1  

Cape Town      
Guns 14 11 9 8 
Guns and knives 0 0 0 1  
Knives 11 5 3 1  

George      
Guns 6 4 1 0 
Guns and knives 3 3 0 0  
Knives 17 11 0 0  

Source: Adapted from Parenzee, Artz & Moult, Figures 24, 25, 26.



SA CRIME QUARTERLY No 10 DECEMBER 2004 25

removed. In a further two cases magistrates also
ordered the removal of firearms, so that in half of
the cases mentioning firearms, an order was made
that they be seized. 

When guns were confirmed as being in possession
of, or in the control of, the respondent in Cape
Town, nine out of 11 complainants requested that
these be removed, representing 82% of these cases.
The magistrate failed to order the seizure of the
weapon on one occasion when this was specifically
requested, crossing out the request on the
application form, and giving no reason for doing
so. 

Although firearms were mentioned in six affidavits
filed in George, and confirmed as being in the
possession of the respondent in four cases, only
one request was made for seizure and no order was
made in respect of this request. It is in fact notable
that in George not one order was made for the
seizure of a weapon.

When knives were confirmed as belonging to, or in
control of, the respondent in nine Mitchell’s Plain
applications, only one complainant requested that
this be removed, a request that was granted. In the
four cases where both guns and knives were
confirmed, there were no requests for removal of
either, and no orders were made. Although mention
was made in one affidavit that the respondent
owned a knobkierrie, the complainant did not
request its seizure and no order was made. 

In Cape Town five affidavits referred to the
respondent’s control or ownership of knives, but
only two requested seizure, with one request
granted. Despite the fact that there were seven
cases in which the applicant had been stabbed,
only one of these applicants applied for and was
granted an order for seizure of the knife.

Court orders for removal of a weapon
In Mitchell’s Plain the total number of orders by
magistrates for seizure of weapons represents 27%
of the number of instances of confirmed possession
or control, and 13% of the total number of
affidavits mentioning seizable weapons. In one
case, when mention was made of the respondent

owning a “sword, knife and bullets”, only the
sword was ordered to be confiscated. 

In Cape Town the total number of orders by
magistrates for seizure of weapons represented 65%
of the instances of confirmed control/possession,
and 34% of the total number of affidavits
mentioning seizable weapons. 

In George only two applications were made out of
20 affidavits in which control/possession was
established, and 32 cases in which the use of a
seizable weapon was mentioned in the affidavit.
None were granted. One applicant requested the
removal of keys to a safe containing firearms which
were in the possession of the respondent, but this
was not ordered by the magistrate. 

Confiscation by the police
The fact that applicants are not required to specify
the type of weapon used against them in the
application form may result in a further barrier to
enforceability, as police are not provided with the
relevant detail to make confiscation possible. This
may lead to further vulnerability for complainants.
As one police officer explained:

The other day there was also an interdict …
informing us that we must go take a gun …
That is difficult. Maybe he has a safe with a
lot of guns, so which one must we take? So I
let the guy come and say listen, this is the
interdict … and I want your gun. So he says
he doesn’t have a gun. (P11aK)

The best way around this conundrum is for the
respondent to be declared unfit to possess a firearm,
which one assumes is what the magistrate in this
instance was in effect trying to achieve. In the case
of other weapons, further assistance by clerks and
volunteers would help to ensure that complainants
make applications for seizure that will be effective
in restricting the respondent’s access to a dangerous
weapon. An explanation of what constitutes a
dangerous weapon in the application form would
also provide clarity for applicants and further detail
for police officers. 

When an order for seizure is made there is no
indication in the court file as to whether it has been

SMYTHE



carried out and to what effect, which makes follow
up difficult. There is also no indication that any
case in this sample was referred for a s11 hearing
under the Arms and Ammunition Act.

Conclusion
In many domestic violence cases, magistrates are
not ordering the removal of weapons, despite their
use being mentioned in the affidavit and despite
there being evidence to suggest that the weapon is
owned by, in the possession of, or under the
control of the respondent. 

Although it is unclear why so few applicants
request the removal of weapons, it is likely that the
lack of clarity in the application form is a factor,
along with cultural and conceptual problems
around the definition of a dangerous weapon. It is
nonetheless of considerable concern that
magistrates, reading these affidavits, are not using
their powers under the DVA to order the
confiscation of weapons. 

It is similarly of concern that police officers who
are receiving reports of weapon use in cases of
domestic violence are not charging this as a
separate offence nor initiating hearings to have the
respondent declared unfit. 

The SCA’s reasoning in Van Duivenboden,
recognising that but for the failure to remove Mr
Brooks’ lawful means of access to a weapon, Van
Duivenboden would not have been shot, applies
in its entirety to the life of Mrs Brooks, another
victim of intimate femicide in a country where one
in five intimate femicides is perpetrated with a
licensed firearm.6 With the Firearms Control Act,
criminal justice personnel have an explicit
mandate to remove firearms from the arsenal of
weapons available to perpetrators of domestic
violence.

Acknowledgement
The docket analysis and interview data contained in this
study was drawn from aspects of a more comprehensive
study into the implementation of the Domestic Violence
Act. See P Parenzee, L Artz and K Moult, Monitoring the
Implementation of the Domestic Violence Act: First
Research Report, Institute of Criminology, University of
Cape Town, 2001.

Endnotes
1 The Consortium consisted of the Gender, Law and 

Development Project at the University of Cape Town,
the Gender Project at the University of the Western
Cape, Rape Crisis (Cape Town) and a public health
consultant.

2 P Parenzee, L Artz and K Moult, Monitoring the 
Implementation of the Domestic Violence Act: First
Research Report, Institute of Criminology, University of
Cape Town, 2001.

3 Personal correspondence with Kelley Moult.
4 D Mistry and A Minnaar, Declared unfit to own a 

firearm: Are the courts playing a role? in SA Crime
Quarterly No 6, 2003, p 27.

5 SCA Case No 209/2001.
6 S Mathews et al, Every six hours a woman is killed by 

her intimate partner: A National Study of Female
Homicide in South Africa, South Africa Medical
Research Council Policy Brief No 5, June 2004.

SA CRIME QUARTERLY No 10 DECEMBER 200426 SMYTHE