The National Firearm Forum (NFF) is an umbrella organisation with over 30 member bodies. These bodies are all national associations in their own right with one common interest, the lawful and responsible use of firearms.

Our member bodies cover every possible field of interest in firearms. These include both recreational and professional hunters, agricultural unions and game farmers, shooting sports bodies, the security industry, firearm instructors’ and gunowners’ associations, firearm dealers and manufacturers. In short almost every meaningful firearm body in South Africa.

The NFF was created specifically to represent the broader interests of licensed firearm owners and users and to provide Government with a large pool of specialised knowledge and expertise to assist in formulating sensible, effective firearm policy, regulations and legislation.

Unfortunately, despite numerous repeated offers and requests, this broad base of expertise has been totally ignored in preparing this Bill. This is reflected in many of the clauses of this Bill. Clauses where we would support the general intent but which are badly flawed in execution because of a total lack of technical expertise on the part of the drafters.

We must state clearly that the NFF, and all of its’ member bodies, strongly supports effective legislation to regulate lawful firearm ownership and eradicate and strictly punish the criminal misuse of firearms.

While we have great sympathy with the difficult task faced by the SAPS in combating violent crime, we cannot support this Bill in its’ present form. Indeed we believe that this Bill will achieve nothing other than limiting and criminalising the lawful activities of licensed firearm owners whilst misdirecting and squandering huge amounts of SAPS resources.

We must also express our great dismay and concern over the almost total lack of consultation on this Bill. The Bill will have a serious and immediate impact on the rights and activities of over three million South African citizens who own licensed firearms. The rights and interests of these millions of citizens have been deliberately ignored in drafting this Bill. Indeed every effort has been made to exclude these citizens from the entire process.

Licensed firearm owners constitute a sizeable portion of the population. It is difficult to imagine Government undertaking legislation in any other field without at least some attempt to consult such a large group who will be directly affected.

We have endeavoured to provide this Committee with as much input and comment as possible. However this submission is by no means exhaustive.

The very limited time period allowed for submissions, compounded by the timing of the Bill’s publication, has made a truly exhaustive analysis of this very complex and badly written Bill impossible.

Our concerns can largely be divided into three areas.

1. Flawed conception
2. Problematic technical execution and implementation
3. Denigration and infringement of Rights

Apart from addressing these concerns we have also provided information which the committee may find informative and useful. We would also welcome the opportunity to expand on this and provide any additional information and expertise that we have available.

The publicly stated motivation for this Bill is the belief that licensed firearm ownership is a major contributor to violent crime. By reducing and restricting licensed firearm ownership it is hoped that there will be a reduction in criminal violence.

This is also based on the widely propagated myth that South Africa is a "heavily armed" society.

This is a demonstrably false presumption.

Accurate statistics for South Africa are difficult to obtain and the Secretariat for Safety & Security has made no attempt to gather more comprehensive data, nor have they apparently examined any of the wealth of information and research from overseas.

The UN Commission on Crime Prevention and Criminal Justice has undertaken an international survey on firearm regulation. The purpose of the study was to compare firearm ownership and regulation in various countries and to discover if there is any correlation between firearm ownership and violent crime.

No such correlation could be found.

From this study we can also see that the ratio of firearms ownership in South Africa is considerably lower than in many countries, none of which have a violent crime problem approaching that of South Africa.

This UN research clearly proves that there is no simplistic correlation between high rates of legal firearm ownership and violent crime involving firearms.

Indeed, this and similar research, suggests exactly the opposite. Every country in the world with high violent crime also has severely restricted firearm ownership.

It is problematic to attempt a simplistic comparison between different countries. Their unique socio-economic circumstances make direct comparison difficult.

Considerable research has been conducted on this topic in the USA. The findings of this research are more conclusive as this research was conducted within the confines of a single country and society.

Within the USA one finds varying levels of control over the possession and use of firearms. In many cases these are controlled by state, city and county legislation. This offers some interesting comparisons.

US Department of Justice and FBI data is readily available comparing all major US cities. Both in respect of crime and firearm ownership. An examination of this data shows that those cities which restrict firearm ownership all have very high rates of violent crime whereas those cities with very low rates of violent crime all have very few, if any, restrictions on firearm ownership.

The most striking example of this is Washington DC. Washington DC has had a total handgun ban for 25 years yet it still has the highest homicide rate in the USA at ten times the national average and 30% higher than that of South Africa.

The majority of homicides in Washington DC involve handguns. This makes an interesting comparison with other jurisdictions with similar socio-economic conditions. Richmond Virginia is located close to DC. It also has a similar social and economic profile. However because this area falls under the jurisdiction of the State of Virginia it has radically different and more liberal firearm laws.

If one accepts the argument that more firearms equals more crime then one would expect Richmond to have a higher violent crime rate than Washington DC proper.

This is not the case. Richmond, where firearms are freely available, has a homicide rate slightly below the national average and one tenth of that in Washington DC.

Richmond is also worth mentioning as the home of Project Exile. Project Exile is an experiment in Federal prosecution. The objective is to fully apply existing Federal firearm legislation. In many cases when a prosecution is brought for a crime such as armed robbery the emphasis has been on the principal crime and the criminal possession and misuse of the firearm has been neglected or less actively pursued.

Under Project Exile every single breach of existing firearm legislation is fully prosecuted in Federal court. This has resulted in a huge reduction of all types of firearm related crime. The project has been so successful that it is soon to be expanded into other major US cities.

The single largest research project in the field of firearms and crime was conducted by Professor John Lott while at the Law School at the University of Chicago. Lott is now teaching at Yale.

This is a summary of the findings, the entire report is included as an annexure.

• In his report on crime, deterrence and the right of all citizens to carry concealed firearms, Lott assesses whether allowing people to own or carry guns will deter violent crime.

• His assessment is that people’s - whatever ideological spectrum they follow - answers are all too often founded upon mere impressionistic and anecdotal evidence.

• His report is indeed a direct challenge to conventional wisdom that guns cause crime. This report is one of the most comprehensive data analysis researches on gun control to emanate from the USA in the last decade.

• His unexpected findings reveal that many of the most commonly held assumptions about gun control and its crime-fighting efficacy are simply wrong.

• Waiting periods, gun buybacks, and background checks yield virtually no benefits in crime reduction, this is confirmed by US Department of Justice research. Instead, Lott argues, allowing law-abiding citizens to legal concealed handguns currently represents the most cost-effective methods available for reducing violent crime.

• In addition, through his research Lott discovered that Concealed Handguns dramatically reduce violent crime once law-abiding citizens in a state are allowed to carry handguns that are concealed.

• Lott maintains that criminals generally respond to deterrence: as the risks and potential costs of criminal activity rise, criminals either commit fewer crimes or move on to other areas. The possibility of getting shot by somebody carrying a concealed weapon constitutes a substantial risk, and discourages any sort of physical confrontation.

• Accordingly, the states now experiencing the largest reductions in crime are also the ones with the fastest-growing rates of gun ownership and concealed carry of firearms. Evidence on accidental gun deaths and suicides is also examined in his report.

• Lott suggests that – in addition to the relationship between carrying concealed handguns and violent crime – there also appears to be an extremely small and statistically insignificant change in accidental deaths once citizens are allowed to carry firearms.

• His statistics show that - if the rest of the country had adopted right-to-carry concealed handgun provisions in 1992 - at least 1,414 murders and over 4,177 rapes would have been avoided.

• The largest population counties where the deterrence effect from concealed handguns on violent crimes is the greatest also experienced the greatest substitution into property crimes.

• The estimated annual gain in 1992 from allowing concealed handguns was over $5.74 billion.

• Lott’s evidence implies that concealed handguns are the most cost-effective method of reducing crime thus far analysed by economists, providing a higher return than increased law enforcement or incarceration, other private security devices, or social programs like early educational intervention.

• The data also supply dramatic evidence supporting the economic notion of deterrence. Higher arrest and conviction rates consistently and dramatically reduce the crime rate. Consistent with other recent work the results imply that increasing the arrest rate, independent of the probability of eventual conviction, imposes a significant penalty on criminals.

• Perhaps the most surprising result is that the deterrent effect of a 1 percentage point increase in arrest rates is much larger than the same increase in the probability of conviction. Also surprising is that while longer prison lengths usually implied lower crime rates, the results were normally not statistically significant.

• This study incorporates a number of improvements over previous studies on deterrence, and it represents a very large change in how gun studies have been done. This is the first study to use cross-sectional time-series evidence for counties at both the national level and for individual states.

• Instead of simply using cross-sectional state- or city-level data, the Lott study has made use of the much bigger variations in arrest rates and crime rates between rural and urban areas, and it has been possible to control for whether the lower crime rates resulted from the gun laws themselves or other differences in these areas (for example, low crime rates) which led to the adoption of these laws.

• Equally important, the Lott study has allowed examination on what effect concealed handgun laws have on different counties even within the same state. The evidence indicates that the effect varies both with a county’s level of crime and with its population.

• Lott clearly demonstrated, using 18 years of FBI data for the whole Continental United States, that the higher the ratio of legal gun ownership in a US community, the lower the incidence of violent crime.

• He showed that this was particularly true when comparing similar communities. Increased availability of firearms for carry purposes has a strong correlation with a general almost immediate and sustained decrease in violence; in particular, murders and rapes.

• It is possible to compare the US Nation’s capital, Washington with nearby Arlington and Richmond Virginia. THEY ARE FAIRLY SIMILAR AND NEARBY ONE ANOTHER, BUT WASHINGTON IS ‘GUNFREE’, yet Washington has a murder rate of 77.8 per 100 000, while Richmond and Arlington both have a murder rate of 7 per 100 000 despite liberal firearm ownership and carry laws.

• The FBI’s Crime Index Total (1999), percentage change from 1994 supports Lott’s analysis.

• Availability of permits to carry firearms has been made easier for law abiding persons in the majority of states. The overall violent crime rates have been falling since 1994 despite ever increasing number of people legally carrying firearms.

Some research has been conducted into firearm ownership in the neighbouring SADC countries. Although this research is flawed and incomplete it is of some interest to examine the situation in our neighbouring countries.

This research and an analysis thereof are attached as an annexure.

The degree of regulation of firearms within SADC ranges from very liberal to total prohibition of firearms. A comparison of these countries once again totally disproves the notion that there is any correlation between licensed firearm ownership and violent crime. Again the indicators are actually exactly the opposite.

Zimbabwe has the most liberal firearm legislation within SADC. Essentially Zimbabwe has "shall issue" licensing. In effect this means that a licence must be granted for a firearm unless the State can prove good reason for refusing such a licence.

There are also no restrictions on the type and number of firearms that may be possessed. It is particularly interesting to note that the government of Zimbabwe has distributed large numbers of military automatic rifles to its’ citizens, mostly subsistence farmers. Tens of thousands of these military style rifles have been freely distributed without problem or abuse.

Zimbabwe does not maintain a central firearm register as South Africa does. This makes it impossible to give an exact number of firearms licensed in Zimbabwe. However the official estimates indicate that Zimbabwe has a higher ratio of firearm ownership per capita than South Africa.

The data also clearly shows that Zimbabwe does not have a serious violent crime problem.

Zimbabwe is a useful comparison as it has similar socio-economic problems and has also undergone political change and a period of armed struggle.

The other country in SADC that has a high ration of firearm ownership is Namibia. Again in many ways Namibia has a similar history and make up to South Africa.

Namibia is currently undergoing a process of creating/updating a national firearm register. Final figures are not yet available but again the official estimates suggest that Namibia has a similar, and perhaps higher, per capita ratio of licensed firearm ownership.

Namibia also has a low level of violent crime.

Namibia has very liberal firearm laws with one exception, it imposes the types of arbitrary numerical limits proposed in this Bill. It should be noted that the imposition of these limits in Namibia had absolutely no effect on crime rates.

It should also be noted that to avoid economic damage to the farming/hunting sectors hunters and sportsmen are exempted from such limits in Namibia.

On the other end of the scale, the SADC country with the strictest firearm legislation is Swaziland. Firearms for protection are effectively banned and even hunting firearms are severely restricted.

Here we must note that Swaziland has by far the highest violent crime and murder rate within SADC at 25% higher than ours.

In preparing this Bill the Secretariat received input and assistance from various countries such as the UK and Canada.

Although happy to accept this advice the Secretariat has neglected to examine the success, or rather lack of success, such measures have had in these countries.

In the aftermath of the Dunblane shooting in the UK, the government there banned the possession of handguns. These handguns were confiscated at a cost of some 300 million pounds.

In the two years subsequent to the ban violent crime involving firearms has increased considerably. This has led to the UK government declaring that the handgun ban was never intended nor expected to reduce violent crime or the availability of firearms to criminals.

A similar situation has arisen in Australia. Australia banned and confiscated some 650 000 rifles and shotguns of the same types that will become restricted under this Bill.

The net result? Hundreds of millions of dollars spent in compensation and a 37% rise in violent crime involving firearms in the first year after implementation.

All of this proves once again that removing firearms from licensed owners cannot be expected to have any impact whatsoever on crime.

Papua New Guinea is perhaps the most striking example of the failure of gun control.

PNG is historically a volatile society with considerable violent crime.

Under the influence and pressure of Australia PNG passed legislation banning the use of firearms for self defence and prohibiting certain categories of firearms. Within months the rate of armed crime in PNG had tripled. This is a classic example of violent career criminals taking advantage of the disarmament of their law abiding victims.

What makes PNG such an interesting example however is the fact that this trend was reversed.

Following an uproar from the public and opposition parties the restrictive firearm legislation was repealed. The effects were almost immediate. As the citizens once again started carrying and using firearms for protection the violent crime rate rapidly dropped back to the previous levels.

Here again no attempt has been made to undertake meaningful research and accurate data is simply not available.

It would be reasonable to expect that decisions that directly affect and criminalise millions of South African citizens would be based on a sound basis of reasoned fact. This is not the case. This Bill is based entirely on ideology and subjective supposition.

There are three possible areas of concern regarding private licensed firearm ownership.

1. Accidental deaths involving firearms

The Central Statistical Service no longer maintains records of accidental death involving firearms. They stopped recording this data in 1993 because of the very low incidence. Examining the data available prior to this we find a fairly consistent number of incidents. Typically this is between 20 and 30 per year. Figures released by the Secretariat of Safety and Security indicate only 6 accidental firearm deaths in 1998.

While every single death is tragic and a matter of concern it must be obvious that accidental firearm deaths are not problematic for society as a whole. This should also be viewed in perspective with other causes of accidental death.

 

In 1992 with over four million licensed firearms in circulation there were 22 accidental firearm deaths. In the same year the following other accidental deaths were recorded.

Killed by lightning 113

Choking on food 257

Drowning 755

Accidental falls 615

Accidental poisoning 371

From this we can see that South Africans were 500% more likely to be killed by lightning than killed in a firearm accident.

 

2. Violent crimes committed by licensed firearm owners

Another reasonable area of concern would be violent crime committed by licensed firearm owners.

Again no data is available to quantify this.

There have been statements from the SAPS, including Commissioner Fivas, that there is very little violent crime committed by licensed firearm owners. It was stated that this problem was "statistically insignificant" and an unsubstantiated figure of less than one half of one percent of firearm crimes was attributed to licensed firearm owners.

We must stress the unsubstantiated as, despite numerous requests, we have been unable to obtain any data from the Secretariat to quantify these crimes.

The only indicator that we have available is the number of declarations of unfitness. Under the existing legislation conviction for any serious offence results in the person being declared unfit to possess firearms. There have been very few such declarations.

This supports the various SAPS statements that very few violent crimes are committed by licensed firearm holders.

 

3. Loss of licensed firearms

The loss of licensed firearms and there subsequent illegal misuse by criminals is a matter of great concern and has been declared as being the principal motivation for restricting licensed firearm ownership.

While we certainly agree that this issue must be addressed it is important that this be done with due consideration of the facts.

Between 1994 and 1998 an average of 19 881 firearms were reported stolen and 2 656 lost annually by licensed owners. The SAPS lost a smaller but proportionally much higher number and no data is available for firearms lost by the SANDF etc.

We should strive toward the total elimination of firearms being lost but we also need to examine these figures in context.

First we must clearly understand that it is already a serious offence to negligently lose a firearm or to fail to take the proper measures for its’ safekeeping. Around 1% of firearms reported stolen result in prosecution for negligence. This must indicate that the vast majority of firearms that are stolen do not involve negligence on the part of the owner.

Secondly we should look at the number of licensed firearms in circulation and what proportion of these are stolen annually. There are around 4.5 million licensed firearms in South Africa. Taking these figures we see that this means that 0.5% of licensed firearms are stolen every year and only 0.01% of licensed firearms are lost or stolen through negligence. We believe this figure would be even lower if licensed firearms stolen from the security industry were to be excluded.

While we strongly support measures to enforce proper safekeeping of firearms and the criminal prosecution of those who fail to do so, we fail to see the logic in restricting and disarming millions of citizens as an attempt to reduce the already tiny percentage of firearms lost negligently. Thorough enforcement and prosecution of the existing legislation would over a far higher probability of success.

It should also be noted that this flawed logic has not been applied to the SAPS. Again accurate data has not been collected and made available but, according to statements made in Parliament by previous Minister Mufamadi, during the same time period over 12 000 firearms were lost or stolen from the SAPS.

The SAPS consists of some 120 000 members of which perhaps 80 000 are armed "working" police officers. On this basis a SAPS member is between 20 and 30 times more likely to lose a firearm than a licensed civilian owner.

In the debate on firearm theft we should never lose sight of the real issue. The real issue is that there is a small number of violent career criminals in our society, perhaps 30 000. They and their criminal activities are actually the problem.

Previous Government estimates suggested that there is a pool of 4 000 000 illegal firearms in South Africa. More recent estimates put this number at 500 000.

The precise number is actually immaterial to the core problem. We have a small number of armed violent criminals. They have access to illegal firearms, from whatever source, and will always have access to illegal firearms. The immediate confiscation of every single licensed firearm in the country would not change this nor disarm a single criminal. One need only look at countries that do have prohibition of firearms to confirm this.

If we accept the lower estimate of 500 000 illegal firearms in circulation and further accept that a different firearm is used in every single firearm homicide then, at current rates, the small criminal element have enough firearms for at least the next 30 years.

There can be absolutely no reasonable expectation that disarming citizens will in any way deny that small core group of career criminals' access to firearms.

 

In our opinion the entire foundation of this Bill is based on unfounded and flawed assumptions. This should have been immediately apparent had any serious research been undertaken and considered objectively.

 

 

 

 

2. Problematic technical execution and implementation

This Bill contains many technical errors. These have been largely caused by a total lack of technical expertise regarding firearms and their use on the part of the drafters.

We address some of these issues more fully later in our submissions and comments.

These problems are compounded by the general approach taken by the drafters. In general principle Law should determine and prescribe the unacceptable. In other words, X, Y and Z are unacceptable to society and are illegal.

However in many parts of this legislation the drafters have taken the opposite approach. They have attempted to list the lawful uses of firearms and declared all other uses as being illegal. This is highly problematic as the drafters cannot possibly be aware of every single type of lawful use and thus exclude and criminalise perfectly legitimate activities.

A classic example of this is that the Bill does not allow for purely recreational shooting. This is a hugely popular pastime but no provision is made for this. This is not to be confused with occasional participation in sport as allowed by the Bill.

Another example is in the case of .22 rimfire rifles. These are the single most popular type of rifle. Both the rifles and their ammunition are inexpensive and are widely used for training and practise purposes as well as simple recreational shooting. Other than for serious competitive sporting use the Bill makes no provision to possess and use these small calibre rifles. Such rifles are also never used in violent crime and prohibiting them would serve no useful purpose. We do not believe the drafters intended to prohibit these rifles and their use but rather that they were "forgotten" by the drafters.

This type of oversight and shortcoming is common throughout the Bill and will have severe implications.

If it is felt that certain things should not be allowed then they should simply be prescribed in the Bill and all other legitimate activities could then continue without a need to specifically allow them in the Bill.

A similar confusing and inefficient approach has been taken in the attempt to classify types of firearm by their intended use. The Bill clearly reflects that the drafters have greater concern for certain types of firearm over others.

Certain categories of firearm should require greater motivation and be more controlled than others. In order to do this the emphasis must be placed on the type of weapon and not on the declared use.

A schedule of types of firearm should be created which clearly determines the degree of restriction / control over that type of firearm and the requirements to license such a firearm. Once these requirements are met and a licence has been issued then that firearm should be allowed to be used for any lawful purpose.

This is the approach that has been taken in all countries that differentiate between different categories of firearms.

Those firearms that are not deemed to be especially problematic should be recognised as such while other types that are an area of concern should be subjected to stricter controls and vetting procedures regardless of the use of the firearm.

 

The following table is illustrative of such a schedule. It is not exhaustive but demonstrates our suggested approach rather than the concept of trying to differentiate between types of firearm purely by their stated use.

Category		Requirement	Additional Requirements	Acceptable motivation
Class 1	airguns of 4.5mm or smaller calibre	not registered or licensed	none	N/A
Class 2	muzzle loading and antique firearms	registered but not licensed	none	N/A
Class 3	airguns of larger than 4.5mm calibre, rimfire rifles	licensed	Competency safekeeping	Recreational shooting, vermin control
Class 4	Centrefire manually operated rifles	licensed	Competency safekeeping possible requirement for membership of body above a certain number	Recreational shooting, vermin control hunting, sport shooting
Class 5	Sporting shotguns, all shotguns with a capacity of 6? Or less shots.	licensed	Competency safekeeping possible requirement for membership of body above a certain number	Recreational shooting, vermin control hunting, sport shooting
Class 6	Handguns	licensed	Competency safekeeping possible requirement for membership of body above a certain number,	Recreational shooting, vermin control hunting, sport shooting, defensive use (specific motivation required for more than one for defensive purposes)
Class 7	Shotguns with a capacity of more than 6? Shots	licensed	Competency, safekeeping	Security and defensive use
Class 8	Semi-automatic centrefire rifles	licensed	Competency, safekeeping, membership of approved body for sporting use	Restricted licensing for security defensive use, specific sporting use under approved sporting body

 

 

Implementation

No study has been undertaken into the resources required to implement this Bill.

It has been suggested that the necessary studies will be conducted in the near future. It is a matter of great concern that new legislation could be approved before it has been established if the SAPS has the necessary resources available for its’ successful implementation. Particularly in light of the fact that the primary problems with existing legislation is a lack of enforcement and a shortage of resources to meet the obligations of the current Act.

Even the briefest examination of this Bill clearly shows that there will be a huge increase in manpower and other resources required to administer this new system.

Currently the SAPS, and the Central Firearm Register (CFR) in particular, simply do not have the resources to properly manage the existing +/- 180 000 licence applications per year.

Under the system proposed under this Bill each application will require vastly more processing. The proposed system of competency certification will also more than double the existing workload.

An entirely new and massive workload will be created with the annual reports of the activities of every hunter, collector and sportsperson.

Added to this will be the requirement to process periodic licence renewals. There are currently around 4.5 million licences in circulation. These will have to be renewed periodically. Even if one accepts an average renewal period of every 5 years then this will still entail processing almost one million additional licences every year.

The CFR cannot adequately cope with the existing 180 000 applications. How then can they be expected to cope with 1.1 million? To compound this workload each new application will require at least four times the amount of functions and processing.

This workload must be put in perspective and clearly understood. Assuming 240 working days of 8 hours per year and 1.2 million applications / renewals then we find that this will require the CFR to consider, vet, approve and issue 10 licences every minute of every day.

To adequately meet the new obligations will require at least a 4000% increase in capacity. New information management systems may well improve the efficiency of the register but not to this magnitude.

An additional heavy workload will be placed on the SAPS officials at station level. Even if there is only one or two officers per station this will require literally thousands of police officers with specialised training and skills.

It is absolutely vital that thorough studies be completed and presented to this Committee before this Bill can be seriously considered. Creating new duties and obligations for an already overburdened and under resourced SAPS will at best lead to legislation that is simply impossible to enforce. At worst it could well lead to the total collapse of the firearm licensing system.

As this committee must be aware, legislation, which is not enforced or at best selectively enforced, can often lead to contempt for the Law and a culture of non-compliance. Such a possibility must be avoided at all costs. There is a very real risk of non-compliance with this Bill. Should even 5% of licence holders (170 000 people) fail to comply then the situation becomes untenable and the Bill unenforceable. The likelihood of such non-compliance has been greatly increased by the dictatorial, exclusive and non-consultative approach taken in drafting this Bill, to the point where non-compliance is more a probability than a possibility.

Even if the additional resources can be found we must seriously consider the cost to benefit ratio and determine if such huge resources could not be better directed to other more serious problems.

 

 

4. Denigration and infringement of rights

The third major area of concern with this Bill is the infringement of rights.

Several million South African citizens own licensed firearms and will thus fall directly under the ambit of this legislation.

This Bill will severely limit the freedoms and rights of these millions of citizens. We address this more fully in the supporting documents included.

While we accept that all rights may be limited this must be justifiable. Any legislation that intrudes on and limits the freedoms and rights of so many citizens must be proven to have a corresponding and over riding benefit to society as a whole.

We submit that this Bill holds absolutely no benefits at all for society and will have no impact on its’ stated target i.e. violent crime.

In addition to the freedom and rights of licensed firearm owners this Bill also has severe implications for the rights of all South Africans.

The most important of these must be the reversal of the assumption of innocence.

The various presumptions in this Bill are clearly contrary to the Constitution. The Constitutional Court has already ruled against similar presumptions. It would appear that the inclusion of these presumptions in the Bill is a specific attempt to circumvent the Constitutional Court ruling which struck them from the previous Act.

At the insistence of the State Law Advisers the drafters have rewritten some of these provisions. This redrafting has made no change to the actual effect of the Bill. Instead of simply stating that a person is presumed to be guilty and must prove innocence we now see a requirement that the person must lead evidence to rebut an accusation to establish innocence beyond a reasonable doubt.

Nothing has changed here other than the wording, the intent and effect are exactly the same. All persons have the right to remain silent and to be presumed innocent. It is the very basis of our legal system that the State must prove guilt beyond a reasonable doubt.

We hope and trust that this Committee will not approve legislation in such blatant contravention of the Constitution and Constitutional Court rulings.

Another worrying infringement of rights in this Bill is the creation of administrative offences.

Comparisons have been drawn between these administrative offences and the system of traffic fines. This comparison is invalid and spurious.

The proposed system of administrative offences is nothing other than a clear attempt to circumvent the courts and our entire legal system, indeed the very basis of our Law.

In the system used in traffic offences predetermined offences are punished by issuing prescribed fines. If the accused wishes he or she may accept this penalty and submit to the penalty without further jeopardy. If the accused does not accept the penalty the matter is then dealt with within the courts with due process.

Under the proposed system of administrative offences the SAPS will act as accuser, prosecutor and judge. The SAPS will have the power to impose severe penalties far beyond that granted to many of our courts.

Even should the accused choose to accept such an administrative penalty the accused is still exposed to further jeopardy in that he or she may still be prosecuted again in the courts for the same offence.

There is a startling degree of contempt for the courts in these proposals as evidenced by the provision that any penalty imposed as an administrative offence will stand even if a court of law finds in favour of the accused.

We cannot support a system whereby the SAPS may prosecute and penalise a person who has been found to be innocent in the courts.

The proper place for any prosecution is in a court of law. The very concept of tribunals managed and staffed entirely by police brings back frightening visions of the abuses of power from South Africa’s dark past.

An overburdened court system cannot be allowed to excuse such a blatant denigration of rights. If the drafters are so concerned about reducing workload in the courts they should instead revisit the dozens of pointless and petty transgressions that will inevitably end up in court.

One of the fundamental principles enshrined in our constitution is that Government is subject to and answerable to the constitution. The constitution was drafted to curb the excesses of Government. The second corner stone is, in order to achieve this it was to make all aspects of Government open, transparent and accessible.

Before we refer specifically to the provisions of the Bill the birth of the Bill has fundamentally breached the following provisions of the constitution. On this basis alone the Government should not proceed with the debate on the Bill until such time as the Firearms community has been properly consulted.

PREAMBLE

"To lay the foundations for democratic and open society in which Government is based on the will of the people and every citizen is equally protected by law."

This Bill of rights is a corner stone of democracy in South Africa. It enshrines rights of all people in our country and affirms the democratic values of human dignity.

ACCESS TO INFORMATION

1. Every person has the right of access to

1. any information held by the state

"Everyone has the right to administrative action that is lawful, reasonable and procedurally fair."

"Peoples needs must be responded to and the public must be encouraged to participate in policy making."

"Transparency must be fostered by providing the public with timely and accurate information."

From the inception of the Gastrow enquiry, there has been no openness in the Government’s actions in formulating its policy or the drafting of the Bill.

The Government has conducted surveys, for example of the illegal firearms units, and has not disclosed the results of these surveys to the public, notwithstanding demand, but has formulated its firearms policy based upon these results.

Finally there has been an almost absolute lack of meaningful consultation with firearms organisations prior to the formulation of the Bill. The list of organisations printed at the schedule to the draft Bill states that a number of organisations have been consulted. With the possible exception of CHASA, this is totally false.

It is thus clear that the openness and democratic provisions of the constitution have clearly been ignored and have been sacrificed on the alter of ideological desire to blame legal firearm owners for the Government’s inability to control crime and to steer the focus away from the Government’s inability to control its own firearms.

More seriously perhaps is that the Bill breaches the following specific provisions of the Bill of Rights.

"The state may not unfairly discriminate directly or indirectly against any one on one or more grounds including race..... conscience, belief, culture ......"

"Everyone has the right to freedom and security of the person."

By the arbitrary depravation and express intention of taking away firearms from licensed owners, this will have the effect of leaving civilians unarmed at the mercy of armed criminals.

"Everyone has the right to privacy, which includes the right not to have-

1. their personal home searched
2. their property searched
3. their possessions seized

The Bill grants sweeping powers of search and seizure to the police and other officials who are not qualified police officers.

"Everyone has the right to freedom of association."

In terms of the Bill individuals are required to become a member of organisations formed in terms of the Bill. Should they fail to do so they are not entitled to the " privileges" embodied in the Bill.

"Everyone has the right to freedom of movement."

With the creation of gun free zones, this will act as a restriction on the right of individuals to travel in areas that were previously open to the public and may in certain circumstances lead to an individual not being allowed to possess firearms on their own property.

The Bill will have the effect of forcing firearm owners to dispose of their firearms (as is the stated intention of the Bill by both Minister Tshewete and the previous Minister, Mufamadi).

In addition to this the determination of compensation is effectively at the discretion of the Registrar of the Central Firearms Registry in the event that there can be no agreement as to the value of the firearms to be surrendered. This is but one example of a clear breach of the provisions of our constitution.

"Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or where appropriate another independent and impartial tribunal form."

The Bill makes extensive provision for the Registrar of the Central Firearms Registry to summon an individual or organisation before it to answer to and provide reasons for alleged breaches of the Act.

The procedure provided completely usurps the authority of the courts in that it is for the Registrar to issue the Summons and only then can an individual have the right to decide whether he is prepared to subject himself to the jurisdiction of the Registrar or take the matter to court.

Furthermore, it is clear that the Registrar, who will be in charge of firearms, can not be "independent and impartial" and will be judging his own cause.

"Every person who is arrested for committing an offence has the right to remain silent "

Notwithstanding statements from the State Law Advisor, there are provisions of the Bill that are clearly in contravention of this simple straight forward and easy to understand principle. The Bill places an obligation upon any person found in possession or in the vicinity of a firearm (which is subject to certain limitations) to give reasons sufficient to create reasonable doubt in the mind of a court. This completely deprives an individual of the right to remain silent.

This also contravenes Section 35(h) which states a person "is given the right to be presumed innocent, to remain silent and not to testify during the proceedings".

This section gives the Minister extremely wide powers simply at the stroke of a pen and without judicial scrutiny to declare any or all types of firearms illegal. This is not open, democratic or transparent.

Sub Section 10

This section contains the first reference to regulation. The Act relies extensively upon regulation, which will be drafted without consultation with those affected by them, and without the same requirements that the Bill has in terms of the constitution. This means that the Registrar effectively has the means to create legislation without public or judicial scrutiny. Not only is this reasoning fundamentally unsound but it places the Registrar in an extremely powerful position without any form of control.

This specifies that a firearm for self-defence can only be utilised on an accredited shooting range or other prescribed place. This amounts to a limitation on the individual’s right to utilise their firearm on their own property that is not regulated by other laws, for example municipal regulations. This is an unconstitutional unlawful restriction of ones right to use ones property. This principle is repeated throughout the Bill in respect of the use of firearms, for example in respect of hunting and sporting purposes.

Section 18 & 19

Deals with dedicated hunters and sport shooting, forces a person to join an association to become a dedicated hunter or sports person.

This breaches the presumptions of guilt and allows the Registrar to suspend a dealer’s right to deal (same applies in terms of Section 58 for a manufacturer and Section 72(1) in respect of gunsmiths), without the dealer having the opportunity to answer the allegations contained in the sworn statement for a period of at least seven days.

Usurps the function and scrutiny of the courts. It is interesting to note as a matter of practise the equivalent enquiries under the current Act have been subject to severe self-imposed restrictions by the police, and the police themselves have expressed reservations as to the constitutionality of these types of enquiries. It is astounding that notwithstanding the police's own queries concerning the constitutionality of an enquiry of this nature, the drafter of the Bill have deemed fit to include it in the new Bill.

Section 111

Usurps the guaranteed right to remain silent.

The effect of this section is, where the police are not capable of properly investigating a crime, is to assume that a person

1. on residential premises;
2. in control of such premises;
3. present in the vicinity of the place of location of a firearm etc.

to be the possessor of such firearm.

The effect of this is to force the accused to give reasons why this firearm was not in their possession. This has been declared unconstitutional in the matter of S vs Prinsloo - Mbatha.

This reintroduces the concept of collective intent that has been dismissed by our Appellate Division as an inapplicable and inappropriate principle in South African Law.

Section 121

The same comments concerning Section 120 to apply to Section 121 in respect of the presumption of guilt.

This introduces a concept alien to South African Law i.e. that a person has a positive obligation to do something in respect of insuring that a third party complies with the law. Not only is this concept completely alien to South African Law, but it most certain will breach the privacy provisions of the constitution and cannot be enforced between in individuals.

The effect of Section 125 (4) is that any person accused of an offence that is deemed to be a criminal offence in terms of the Act, is, in the event that they do not comply with a notice deemed to be received by them, convicted of the offence and punished by way of judgement being taken against them equivalent to the amount of the fine, using a civil onus of proof. In other words they are: -

1. Convicted in their absence and
2. Subject to a lessor onus of proof

being used against them to determine a punishment. Not only does this contravene Section 34, but also it contravenes Section 35(3)(c) in that a public trial before an ordinary court does not take place.

This section is vague because it does not determine who decides whether the loss of a firearm was negligent. What it does do is allow the state to seize the firearm without compensation, which is clearly a contravention of Section 25.

It clearly contravenes Section 25 because it allows the Registrar to be the final Arbitrator of the compensation to be payable to the exclusion of a competent court.

Given the complexity and poor drafting standard of this Bill the time period allotted for comments is insufficient for a truly detailed and comprehensive response. These comments are by no means exhaustive and do not address every issue of concern with this Bill.

However we have endeavoured to identify some of the primary issues in this Bill as follows. Further, shorter but specific comments on the Act are included as an annexure to these submissions.

Many of the definitions contained in the Bill are either inadequate, problematic, technically flawed or in some cases totally absent. Many of these simply reflect the lack of technical expertise in this field on the part of the drafters and should be corrected through a process of consultation with persons and organisations that do have the necessary technical expertise.

Amongst these are;

The move to deregulate airguns is welcomed and supported by the NFF, as this would bring South Africa back into line with worldwide norms.

In the overwhelming majority of the world airguns are not considered to be firearms. Indeed this was the case in South Africa until the late 70’s. Prior to that time airguns were not considered firearms and there was absolutely no involvement or use of airguns in serious crime.

This situation was changed during the 70’s for political reasons. It was the policy of government at that time to deny the majority of South Africans access to firearms along racial lines. The then government believed it was necessary to change the status of airguns to prevent people who were effectively prohibited from owning firearms obtaining airguns, training with them and in so doing obtaining skills and competence which could then be applied to real firearms.

Although most of the world does not consider airguns to be firearms there are two notable exceptions, the United Kingdom and Germany. Both of these countries set a maximum energy level as is proposed in this Bill. All major manufacturers of airguns make airguns certified to be within these limits.

However the actual energy level proposed here is exactly half that of the UK standard. If this level is adopted it would preclude virtually all airguns. If the concept of an energy level is accepted it would be logical and sensible to accept a valid and internationally recognised energy level of 12 ft-lbs. as used in the UK. This would also simplify control over the imports of such airguns as the various suppliers already comply with this standard.

The disadvantage of accepting a maximum energy level is in practical law enforcement. The police officials on the ground will not have the scientific equipment required to measure and calculate energy of a particular airgun. This would make this provision difficult to enforce.

A far simpler solution would be to differentiate purely on calibre. Airguns are made in various calibres, most commonly 4.5mm and 5.5mm, with a few very rare and often historical larger calibres.

The vast majority of airguns in 4.5mm calibre would fall below the UK standard whilst the majority of larger calibres would be over this limit.

From a purely simplicity of enforcement point of view we would recommend that calibre be the defining factor. All 4.5mm air rifles would not be treated as firearms while all larger calibres would be. This would hugely simplify the entire issue as even a layman could readily establish calibre and thus the need or not for the airgun to be licensed.

The given definition of ammunition includes primers and propellant powder. This is problematic.

Propellant is a granulated powder and is sold and used by mass. It is impossible to quantify numerically as proposed here. A standard container of propellant weighs 500g, that 500g consists of tens of thousands of granules. By this definition each granule could be deemed to be ammunition, making a mockery of any numerical limits.

The possession and use of propellant is already properly controlled in terms of the Explosives Act, which is where it belongs. All references to propellant in this Bill should be removed and left to be controlled by the Explosives Act, which has always been the case in South Africa.

Primers should also be excluded from the definition of ammunition. Primers are a necessary component in modern centrefire ammunition but are only functional once inserted into a cartridge case. Prior to that they cannot be used to discharge a bullet from a firearm or indeed be used in anyway in a firearm.

The definition of ammunition should be changed to the standard internationally recognised definition of complete cartridges and not include components which are useless until assembled into complete ammunition.

The proposed definition of firearm is also problematic.

Included in the definition is any device which is not a firearm but which can be readily altered to be a firearm. Readily altered is a subjective opinion that is very difficult to define.

This could lead to confusion that could easily criminalise the possession of many objects.

There are numerous possible examples of this. A legally deactivated firearm might subjectively be deemed to be readily alterable.

This definition would also include many, perfectly innocent, normal domestic objects. An example of this is standard 1 inch water pipe. By screwing a cap on the end of such a pipe and adding a normal nail one can readily create a 12 bore shotgun within minutes.

This definition is far too wide and open to confusion and abuse. If an object is not a firearm and is not capable of being used as one in it’s current form then it simply is not a firearm and should not be treated as such. It is only when it becomes a firearm that it can and should be treated as a firearm and prosecuted as such.

The definition of firearm also includes any barrel, frame or receiver of a device.

Here there are two problems. Firstly the ridiculous and subjective situation that innocuous objects such as water pipe would be deemed to be restricted parts of a firearm without any intent to use them as such.

Secondly this is problematic with real parts of firearms and is a total reversal of current sensible firearm legislation.

Under current South African law the barrel is deemed to be the licensed part of the firearm. This is eminently sensible and enforceable. There is also an additional restriction on selling or providing any major firearm part to a person who does not possess a licence for a firearm that part can be used in.

A practical example of this is with hunting rifles. The action of a rifle is incapable of being used as a firearm until it has a barrel fitted to it. Many of the most sought after actions are scarce and not readily available. It is quite common practice for a person to purchase a barrel in a given calibre, which requires obtaining a licence. The person then acquires the action separately and has them assembled into a rifle.

In current practice this is controlled by virtue of the barrel requiring a licence. Under the proposed Bill both the action and barrel would require a licence this would then lead to the situation whereby the rifle, once assembled, is one firearm but with two different licences.

We would suggest that the current status of the barrel being the licensed part of the firearm be retained. If additional control over frames, actions etc are required then we would suggest that the current prohibition on providing frames and actions be amended to prohibit possession unless the person is the holder of a valid firearm licence for a firearm of that type.

Possession is not included in the definitions.

It is absolutely vital that possession be fully defined. In legal terms there must be intent to possess as well as the physical possession of an item. However in this Bill it would appear that a broader definition is given to the term possess. In particular the presumptions assume a person to be in possession by virtue of merely having been in the vicinity of where a firearm is found.

This sweeping definition of possession gives rise to many problems. For instance a family member living in the family home would be deemed to be in illegal possession simply because he or she resides in a home where licensed firearms are stored.

Similarly the proposed prohibition of being in possession of a firearm whilst under the influence of alcohol or a narcotic substance. In this sense a person could be deemed to be in possession of their licensed firearm even if the firearm was safely locked away in a safe. This effectively would prohibit any person consuming any amount of alcohol or even taking prescribed medication in any household containing licensed firearms. In this particular instance current legislation prohibits the handling of a firearm whilst under the influence. We suggest that this restriction be retained but that possession be very carefully defined to prevent misinterpretation and unnecessary criminalisation of lawful responsible behaviour.

This definition of antique firearm is clearly intended to describe muzzle loading firearms and to deregulate their ownership.

This step is very welcome and rational. We are not aware of a single case of any such firearm being used to commit a crime anywhere in the world in the last 75 years. Such firearms have a considerable historical and nostalgic interest to specific interest groups but in practical terms they are totally obsolete and should not be considered any form of danger to society.

However this recognition and deregulation should be applied to all firearms of this type, i.e. muzzle loading firearms, regardless of date of manufacture.

It is often very difficult to exactly determine the date of manufacture of old firearms. It would seem unreasonable and could possibly lead to complications if two identical firearms, one made in 1869 and the other in 1870, were treated differently under the law.

The important issue is the type and function of the firearm, not the exact date of manufacture. If we recognise that muzzle loading firearms are not problematic then they should all be deregulated, regardless of when they were made.

Enthusiasts of this type of firearm also often use exact replicas of the originals. These replicas are of modern manufacture but are precisely the same as the originals in every respect of design, appearance and function. Indeed in many cases these replicas would fool many firearm experts into believing they were the original.

We would suggest that the reference to date of manufacture be removed from this definition and that the proposed deregulation apply to all firearms of this type regardless of date of manufacture.

Vetting and approval of the individual

This Bill goes some way toward recognising the importance of vetting and approving the individual as a firearm owner.

We strongly support this concept and believe the emphasis must be placed firmly on the suitability of the firearm owner.

We believe this Bill still places too much emphasis on the type and number of firearms possessed rather than on the person. Once a person has been vetted as suitable and meets the necessary safe keeping requirements then the exact number and even type of firearms owned should be very much a secondary issue.

This Bill unsuccessfully attempts to classify firearms and licence them by specific use.

We believe this is a flawed approach.

We accept that certain types and categories of firearms may be of greater or lesser concern to government. With that in mind firearms should be classified on what type of firearm they are and not on their usage. This is the approach followed in most countries such as the UK, Australia, Canada and New Zealand. Indeed this approach is almost universal in those countries that have restrictions on firearm possession.

If the issue of concern is the type of firearm then this should be directly addressed through a schedule of categories of firearm. Where a specific type of firearm is perceived to be more or less problematic then the requirements and conditions to possess such a firearm can be adjusted where necessary.

This Bill already concedes this concept by deregulating airguns and antique firearms and attempting to restrict other categories of firearms. However these measures are mixed in with the concept of licensing usage.

We suggest that a schedule of firearms by type be created which also stipulates the conditions and requirements for owning that category of firearm.

This would properly address the concerns of government whilst avoiding the confusion of trying to classify every possible lawful use for a firearm and then attempting to stipulate which firearms may be used for that purpose, which is the approach taken in this Bill.

Such an approach would also avoid the untenable situation whereby a properly licensed firearm may only be used for a specific purpose. An example of this would be in a rifle licensed for target shooting, using that rifle for the lawful extermination of vermin on a farm would be illegal in terms of this Bill. This is clearly not the intention of the drafters as they attempt to allow such use by allowing a sporting firearm to be used for hunting purposes. However the Bill cannot possibly describe and specify every single lawful use. In terms of the various laws regulating hunting shooting vermin is not considered to be hunting. Indeed vermin or problem animals are not even classified as game animals.

Another example would be where a firearm collector wishes to hunt with one of his historical firearms. The Bill makes provision for a collector to shoot such a firearm on a shooting range but lawfully hunting with that same firearm would be a serious criminal offence. This is presumably an oversight on the part of the drafters but such oversights would constantly arise and have serious implications.

The approach taken in this Bill would be unworkable and would need constant revision as new legitimate uses come to the attention of the drafters.

Rather than attempt to specify every single use of a specific firearm the Bill should allow for a licensed firearm to be used for any lawful purpose. Again the important function should be to vet the suitability of the person to own that category of firearm.

If it were felt that certain categories of firearms should not be used for a specific purpose then it would be easier and more efficient to simply prohibit certain uses for particular types of firearms. Although here again we must state that we can see no purpose in restricting the lawful use of a licensed firearm.

The existing legislation recognises certain special categories of persons such as collectors, hunters and sportspersons.

The proposed Bill places further restrictions on these categories and places a huge administrative burden on them and their respective associations as well as the SAPS who must administer this system.

We believe this additional administration is totally misdirected. We are not aware of a single person from any of these categories using their firearms in violent crime. These special categories were created in recognition of the fact that these persons and their activities were neither problematic nor contributed to the problem of crime.

This system has been successful since its’ creation. We do not believe any further restrictions on these persons are necessary or justified.

We must note that there are large numbers of sportspersons and hunters who are not currently registered in these special categories. This is simply because there was no benefit in so doing unless applying for additional firearm licences.

Under the proposed Bill all hunters, collectors and sportspersons will be forced to register if they wish to retain their existing firearm licences. This will lead to tens of thousands of people registering in these categories. Of concern here are statements from the drafters and the Secretariat that any increase in registration in these categories will be treated with suspicion and acted against. Such an increase is predictable and to be expected and should not be a reason for further restriction.

The proposed Bill will bring ammunition under the same safekeeping requirements as firearms.

This is problematic in two ways, practicality and safety.

Ammunition is not a safety risk when stored normally. However when stored in the prescribed steel safe it becomes an immediate safety hazard. Enclosing ammunition in a safe creates the risk of explosion.

This is compounded by including propellants under the definition of ammunition. In terms of the Explosive Act it would actually be illegal to store propellants in a safe.

It would appear that the drafters of the proposed Act are not aware of the provisions of the Explosives Act 26 of 1956 as amended and certainly have not applied their minds and/or given due consideration to the requirements of this Act and how the proposed Act will be in conflict with, or negate them. For example;

• The act of placing a propellant (generally a ZZ category) into a safe will change it to category Z with the potential for an explosion with missiles/fragmentation and all this implies in terms of the Exp. Act. (In terms of the Act nitrocellulose propellant is a category Y or ZZ i.e. mass fire/moderate explosion risk but no mass explosion risk or cat. ZZ, i.e. mass explosion but no missile effect). Ammunition on the other hand is considered very safe, being category Y.
• The Explosives Act requires that nitro propellant be kept in a "sturdy cupboard". If it were to be kept in a steel container/safe for all intents and purposes sealed, it would essentially create a bomb. The only way to reduce the risk is to add ventilation, i.e. holes would have to be drilled in a gun safe thereby reducing its strength and the security of its contents, as well as making it vulnerable to arson.
• The Explosives Act prohibits generally the storage of anything with the explosives except certain approved tools for handling the explosives and such tools are to be from non-sparking materials - certainly no provision is made for storing arms or other metallic objects with it.
• There is no specific provision for "Gun powder" which is also known as Black powder which is used in antique/non-licensed firearms. This is also a ZZ category explosive requiring similar safety precautions.
• The Explosives Act presently allows private re-loaders a maximum of 2400 grams of propellant. The Act has always allowed an increase of this amount on application for such and it remains in the best interests that the inspectorate determine the quantity the individual may have.
• It is recommended that either a lockable wooden (treated) box of light construction be used to store propellants or that no other measures than a well secured (burglar bars on all windows) room with a locked door, be made law. These are the safest and most effective measures.

Storing ammunition in a firearm safe also has practical implications particularly in the case of shotgun ammunition but also in others. One months supply of ammunition for a serious shotgunner takes up a large amount of space and volume that would be several times larger than a typical safe that could contain six firearms.

Admittedly this would only apply to a few thousand firearm owners. However we would suggest that this is all the more reason why such a requirement is totally unnecessary.

There is also no evidence to suggest that stolen ammunition is a major problem. Most certainly not in the case of sporting ammunition.

We would suggest that ammunition be excluded from this safekeeping requirement. Alternatively this requirement should only be applied to metallic centrefire ammunition.

As previously stated the NFF strongly supports improved vetting of the suitability of the person to possess firearms. If certain categories of firearms are deemed to be of a greater concern then even greater attention should be paid to approving the person’s suitability to possess such firearms. This would place the emphasis in the proper place, the person.

We do not support the imposition of arbitrary numerical limits. Each and every application should be properly considered by the registrar and approved subject to his discretion.

If there is concern of the possible theft of large numbers of firearms from a single person then it would be reasonable to more carefully consider and enforce the safe keeping facilities of that person.

The suggested limit of four firearms per person is particularly objectionable and has no justifiable basis. There are only a few thousand South Africans who own more than four licensed firearms. Most of them fall into the categories of hunter, collector or sportsperson that are exempted from this limit. This limit would then only serve to restrict a small number of enthusiasts who are not competitive sportspersons or dedicated hunters.

The Secretariat and SAPS members have repeatedly stated that such enthusiasts play no part in criminal activities and are not problematic. In that case we can see no purpose in imposing an absolute limit on their activities.

We believe the registrar must have the discretion to approve any properly motivated application. We accept that it would be reasonable for the Registrar to more closely scrutinise the motivation and safe keeping facilities of multiple firearm owners but cannot support arbitrary numerical limits.

The proposed limits on ammunition are even more problematic and nonsensical.

We must assume that the intention of these limits is to reduce the availability of ammunition for use in violent crime. Although a noble goal this notion fails every test of logic.

Again it is obvious that no proper consideration and thought has been applied in this issue, nor has any research been conducted to indicate any particular problem.

First we should examine the amount of ammunition used in crime. Criminal activity consumes very small quantities of ammunition. Our estimate would be in the order of perhaps 60 000 rounds of ammunition per year. A typical armed robber or hijacker may only fire one or two shots per year.

We would submit that it is futile to attempt to interdict such small quantities of ammunition. Particularly in light of the fact that 90% of all armed crime utilises the standard ammunition calibres of the SAPS and SANDF and how lax both organisations have been proven to be in the control of their firearms and ammunition.

In comparison the millions of licensed firearm owners lawfully consume tens of millions of rounds of ammunition annually.

Limiting the amount of ammunition a licensed owner may purchase is also contradictory of the desire to see these persons become more competent. The proposed limits of 200 rounds and 2400 rounds per year would severely restrict those persons who do wish to practice more often and become truly proficient with their firearms.

The concept of an annual limit is especially pointless. An annual limit would have no impact on the amount of ammunition that could possibly be stolen from any one person so this is an illogical limit. Annual limits would only be sensible if it was believed that criminals were using licensed firearms and buying licensed ammunition for use in crime. This argument falls short in two areas. Firstly it is generally conceded that very few licensed firearms are used in crime. Secondly if this were the case a limit of 2400 rounds would be far in excess of the requirements of any criminal.

Instead this limit serves only to restrict the law abiding. It will also be hugely difficult to enforce and to comply with.

It might be reasonably expected that a person should know exactly how many rounds of ammunition they have in their possession at any one time. It is much less reasonable for a person to be able to recall exactly how many rounds of ammunition for each firearm they had purchased in a given year. This would lead to people inadvertently purchasing more than the allowed annual quantity. This inadvertent act would attract a fine of R15 000 and a ten year prison sentence.

The dealer who sold the ammunition would have no means of knowing or controlling the annual purchases of the person and could be construed to be illegally supplying this ammunition attracting severe penalties and criminal sanction.

We do not believe the drafters have made any attempt to assess the huge volumes and numbers of ammunition transactions that take place daily. The recording and administration of this ammunition control would require a huge amount of manpower and effort for no perceivable benefit.

The Bill does make provision for exemptions to these limits. If these exemptions are restricted it will impose severe limitations on the lawful activities of firearm enthusiasts.

In the event of these exemptions being readily issued to enthusiasts the entire system becomes meaningless. All firearm enthusiasts can easily justify need to exceed the limits and will receive exemption. This then leaves a huge administration in place to monitor those few owners who do not exceed the set limits.

These numerical limits do not recognise the different types of ammunition available in any given calibre and the many legitimate uses for these different types of ammunition. Ammunition in any given calibre is available in a huge range of different projectile weights and types for very different applications. Shotgun ammunition is a simple example. This ammunition is made in a variety of pellet/projectile sizes ranging from less than 2mm to 9mm, each with unique and non overlapping uses. A bird hunter would typically use size 7 shot for pigeons, size 5 for ducks, size 4 four guinea fowl and sizes 3 and 1 for the different types of geese, not to mention the larger sizes for small game and vermin. It would be common for a day's shooting to comprise different bird species and thus a variety of different ammunition types. An overall limit of 200 cartridges would make this impossible.

Similarly a rifle hunter with a single rifle would commonly use different types of ammunition in the same calibre for different game animals.

This Bill contains many presumptions that would appear to be in contradiction of the Constitution. Primary of which is the presumption of guilt.

We submit that such presumptions are clearly unconstitutional. Similar such presumptions have been ruled as such by the Constitutional Court.

The NFF strongly supports heavy penalties for criminal activities involving firearms.

However this Bill proposes draconian penalties for minor transgressions and for actions where there is no criminal intent.

We find for instance a penalty of a fifteen year prison sentence for "failing to provide an satisfactory explanation". How can an innocent person with no knowledge of the offence offer a satisfactory explanation other than a simple denial of knowledge? Coupled with the presumption of a person’s guilt this would offer any accused no defence and offer the courts no option than to impose lengthy prison terms on innocent people.

The entire schedule of offences and penalties must be reviewed.

As argued previously we cannot support this concept.

As proposed in this Bill these provisions are clearly designed to circumvent our entire legal system, restrict the accused’s right to due process and even to punish people already found innocent in the courts.

These provisions should be removed or amended to function along the lines of the system used to administer traffic offences whereby double jeopardy is excluded and the accused at all times is entitled to full access to the courts.

The most recent amendments to this section partially address this issue. However we maintain that the only proper place for a trial remains the courts and not an internal police tribunal.

This section is totally untenable.

It is based on the assumption that by declaring an area as firearm free violent criminals will not bring their firearms into these zones.

If violent criminals fail to adhere to existing prohibitions on murder, rape and pillage, we cannot believe they will comply with restrictions on carrying firearms.

Considerable research on this subject has been conducted in the USA and in Israel. A copy of the findings from the USA is attached.

It has been clearly established that the concept of firearm free zones actually increases the probability of violent crime.

Within such zones law abiding citizens will be disarmed and prevented from protecting themselves or others. Violent criminals on the other hand will be drawn to such places. Crime patterns in South Africa already substantiate this with criminals more frequently targeting places such as schools, hospitals and most recently churches where they do not expect resistance.

Here again we see a clear case of this Bill only having an impact on the law abiding with no effect on criminal elements other than to facilitate their activities.

This provision could also lead to an increase in firearm thefts. If a person who is lawfully carrying a firearm is excluded from entering a particular area there is the very real possibility that the firearm will be left temporarily in a car. Although this may be prohibited in the safekeeping provisions this is still very likely to happen. This would in all probability result in an increase in firearms stolen and again would likely lead to further contempt and non-compliance with the law.

Such firearm free zones also seriously intrude on the right to freedom of movement. This will also lead to inadvertent breach of the law. A person lawfully carrying a firearm could easily and unknowingly drive through a firearm free zone and would then be liable to severe criminal sanction.

Private property owners have the right to refuse access and entry to their property. This includes denying access to persons lawfully carrying a firearm. While we do not necessarily support such denial and restriction of access we feel strongly that this decision must rest with the property owner and should not be imposed by the State.

The declared intention to declare certain types of private property to be firearm free zones also makes no allowance for the owners of such property or their employees to be armed for their personal protection.

The Bill attempts to avoid the issue of compensation for already licensed firearms. It would also appear that no attempt has been made to examine the costs of such compensation.

It is important to note that all accessories, parts, components and ammunition for such firearms will also become illegal and therefor must be included in any calculation of compensation.

The Bill suggests that compensation be determined by the Registrar. This is in clear contravention of the Constitution. Values of compensation should be determined by the courts in every case, as is prescribed. We would suggest that an independent panel of experts in this field be created to advise the courts on values.

Valid claims for compensation can essentially divided into three categories;

1. Prohibited firearms

These are certain types of firearms that will immediately become prohibited. These licensed firearms will be confiscated by the State and full and proper compensation must be paid as prescribed in the Constitution.

We estimate that this will consist of a relatively small number of firearms, perhaps 20 000. However the vast majority of these firearms will have considerable value. We would estimate compensation for these firearms to amount to at least one hundred and fourty million Rand (R140 000 000).

2. Restricted and "excess" firearms

Large numbers of existing firearms that will become either restricted or excess in number will become illegal and will have to be surrendered. The drafters have estimated this to be 500 000 firearms. We believe this to be a very low estimate but even accepting this figure compensation for these firearms will amount to a minimum of some two billion Rand (R2 000 000 000).

The Bill seeks to avoid paying compensation for these firearms by compelling them to be sold to a dealer, failing which the firearms must be handed to the State for destruction without compensation.

This is a clear attempt to circumvent the Constitutional requirement for compensation that we believe will be successfully challenged in court.

The simple fact of the matter is that these firearms are currently lawfully held that will now be declared illegal and thus a disposal forced by the State.

It should also be noted that the current South African market for firearms is around 120 000 per year. This market could not possible accomodate 500 000 additional firearms. This will result in the huge majority of these firearms being confiscated by the State.

3. Claims from dealers

Licensed arms and ammunition dealers will also have valid claims for firearms that they have in stock which will now become prohibited. Obviously this should only apply to stock on hand before the enactment of the Bill.

The value of such firearms is more difficult to accurately assess. However considering that all spares, accessories, parts and components for these firearms will also become prohibited this is likely to be a considerable amount. Our best estimate would be twenty million Rand (R20 000 000).

There is a possibility that dealers might also pursue further compensation for restricted firearms they have in stock on the basis that at the time of purchase these were nor restricted as proposed in this Bill. Should this happen the amounts involved would be very large indeed, probably in excess of one hundred million Rand (R100 000 000).

It is vital that this committee fully consider all of these implications when considering this Bill.

We cannot support the concept of periodic relicensing. The motivation given for this is to ensure accurate record keeping. This could easily be achieved through a far simpler system of periodic re-registration which we would support along with an initial audit and re-registration of all licensed firearms.

Once a person has been properly vetted, declared as being a competent person and issued with a firearm licence we can see no purpose in that person continually having to remotivate their possession of their existing firearms.

This system will create a huge workload that will put the entire licensing system under immense pressure with absolutely no benefits over a simple re-registration system.

It is obvious that no study has been conducted to properly evaluate the workload involved in relicensing. There is a very real risk that the system will not be able to cope, additionally there is a large probability of non compliance. Either of these scenarios would result in the total collapse of the licensing system.

It is suggested that all new conditions be imposed on existing licence holders.

Such retroactive provisions have a dubious legal basis and will almost certainly be challenged in court.

More importantly any attempt to restrict or confiscate existing licensed firearms will most certainly be met with antagonism and opposition from those millions of citizens that will be directly effected. Again such antagonism is already widespread because of the abusive procedure followed in creating this Bill.

This Bill, indeed any legislation, is entirely reliant on the acceptance and compliance of the people. Should this acceptance and support not be obtained then this legislation is doomed to absolute failure. The drafters have already stated that the SAPS does not have the ability to enforce this Bill and that the onus must be on voluntary compliance.

Although the overwhelming majority of licensed firearm owners are inherrently law abiding it is unlikely that they will willing comply with legislation they perceive as flawed and which seeks to restrict their rights and confiscate their property.

Such consequences must be fully taken considered when deliberating this Bill.