Ammunition: Police say they are within the law

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The police say they were within their mandate and the law in confiscating 8.1 metric tons of ammunition manufactured for the United Nations by a Pretoria munitions company because the export permits appeared “fraudulent”.

But the company, New Generation Ammunition, denies this, saying the permits, which were issued by the National Conventional Arms Control Committee were valid and correct.

Directorate of Priority Crimes Investigation (the DPCI, known as the “Hawks”) spokesman Musa Zondi says the unit will apply to the North Gauteng High Court in Pretoria to set aside an order granted Monday for the police to return the ammunition and deliver it to the UN in Kinshasa, in the Democratic Republic of Congo.
“Police are of the opinion that they acted accordingly and in keeping with their mandate when they confiscated the ammunition from the airport on January 5 and will defend this decision in court,” Zondi said yesterday, a month after the incident.
“In the meantime police will apply to the high court for the decision that forces us to release and transport the ammunition to the destination to be set aside. We believe the court will, with all the facts on the table, agree that there is a lot more investigation that needs to be undertaken regarding this ammunition, its destination and what appears to be fraudulent permits that were presented to officials.”
“We are also working closely with the SANDF [South African National Defence Force] who are also a party to these proceedings by virtue that they were allegedly going to transport the said ammunition on behalf of this company.

NGA said in court papers on Monday that the Hawks and Crime Intelligence unlawfully seized the ammunition the UN urgently needs for the close protection of senior officials in Burundi, the Cote d’Ivoire and Liberia, thereby potentially endangering the lives of senior representatives of the world body.

NGA CE Richard Potgieter says the UN paid 50% of the purchase price upfront and was set to pay the rest on delivery. Two UN officials inspected and accepted the 9mm and 12-bore shotgun ammunition at NGA’s Pretoria plant on November 13, thereby taking ownership.

The company and the UN then confirmed delivery of the 8.1mt of ammunition to the air force for transport on the afternoon of January 5. The ammunition was then to be loaded onto the aircraft and flown to the DRC the next morning.

In the court papers Potgieter says the ammunition was duly taken from its facility to that of Denel Aviation, next to OR Tambo International Airport in Kempton Park, from where the SAAF aircraft would depart.
“On arrival at 13.20, I noticed that the SANDF’s agent was in the process of preparing to load the first palette of ammunition,” Potgieter said in an affidavit supporting an action that the police return the ammunition and see that it is transported to the UN in he DRC at their expense.
“I walked towards the truck with the … paperwork in a file… Just before reaching the truck, I was confronted by a Superintendent Malapo who immediately confiscated my file and informed me that he will be confiscating the ammunition.
“I was then escorted to a police vehicle and detained there for the rest of the afternoon. I was questioned by various police officers, but never asked for a formal statement. I was told that I was not under arrest, but to remain there in the vehicle as they would need a statement from me later. I was not allowed to move around freely.
“No one could tell me why the ammunition had been confiscated, in fact, I was asked if there were any irregularities. I assured one and all that all my documents were in order and asked if I may have my file back to show everybody. The accusations ranged from me allegedly smuggling ammunition on military aircraft to insurgents in Africa to doing things behind the minister’s back. Yet, the permits were approved by the minister…
“I was also told that I was allegedly smuggling ammunition to Senegal,” Potgieter continues in the affidavit. “My file contained documentation for a separate contract we have to supply a dealer in Senegal and that ammunition was due to leave South Africa that coming week only. It must further be noted that all the relevant permits for Senegal were/are also in order.

Potgieter insists the allegations are scurrilous and the police’s conduct was further irregular under the Firearms Control Act 60 of 2000 read with the Criminal Procedure Act (CPA) 51 of 1977.
“The police official who seized the ammunition did not make any copies from the documents that I had in my possession, that were seized by him, nor did he make any extracts thereof. He also did not request an explanation of any of the documents and he failed to issue a written receipt for the documents and ammunition that he seized.”

Th NGA CE adds that contrary to the law, the police also did not have a warrant. “In terms of Section 20 of the CPA, the State may seize anything only by virtue of a search warrant issued in accordance with Section 21 of the Act. The member of the South African Police Services who seized the ammunition failed to provide me with a copy of the warrant (Section 21(4)), notwithstanding a demand thereto.
“The ammunition and the documentation could only be seized in terms of Section 20. I have, to date, never been informed regarding any offence that had been committed, either by myself or by the Applicant.

As no criminal charges were instituted in connection with the seized ammunition and documentation, the ammunition and documentation, Potgieter petitioned the court to order the police to returned it “to the person from whom it was seized, if such person may lawfully possess such article, or if such person may not lawfully possess such article, to the person who may lawfully possess it” under Section 31 of the firarms law.
“The ammunition was seized from the UN as delivery had already taken place to its agent (the South African National Defense Force), alternatively the ammunition was already delivered to the UN in terms of International Law.
“…the ammunition should be delivered to the UN in Kinshasa, Democratic Republic of the Congo, by the First Respondent[the police], alternatively the First Respondent should be ordered to pay for all expenses to deliver the ammunition to the UN at Kinshasa, Democratic Republic of the Congo, as may be arranged by the Applicant. The documentation should be returned to the Applicant forthwith.”



PIc: The NGA ammunition vaults at its Pretoria facility