The Committee continued its discussion of the Firearms Control Bill, focusing on the Transitional Provisions, sentencing, clause 123 which imposes on citizens the duty to report knowledge of the existence of an illegal firearm and clause 119 which gives the police additional powers to perform search and seizure without a warrant.

The Transitional provisions were agreed to, as were the sentencing guidelines at Schedule 4 of the Bill. Clause 123 was not agreed to but Clause 119 was.

MINUTES
Schedule 1 – TRANSITIONAL PROVISIONS
Advocate Kok (Dept): We are looking at the possibility of phasing in the provisions of the Act for existing licence holders.

General Viljoen (FF): I propose transitional measures focus on handguns first since most new licence applications are for handguns. In this way, the Central Firearms Registry is less likely to be overloaded if it only has to cope with applications for handguns.

Adv Swart (DP): The schedule now says relicencing must be within five years, but we must make provisions for the possibility of phasing in the legislation. Therefore, we agree with the basics of what General Viljoen says.

Mr Booi (ANC): We also agree with the General, in principle. There are many accidents with handguns and we agree that few people use rifles.

Mr Ndlovu (IFP): We understand the General’s proposal but wonder if technical accommodation of this suggestion is possible.

Ms Van Wyk (UDM): We have no problem with the proposal, but wonder how clause 11 of Schedule 1, "Renewal of licence", addresses this request.

Rev Meshoe (ACDP): I agree with the General’s proposal.

Chair: Just to clarify the General’s proposal, he is talking about a staggered implementation of this Bill, with the first priority going to handguns.

Adv Kok (Dept): Clause 11 of Schedule 1 says relicencing must be within five years but does give an option of staggering. Old licences will remain valid for five years. If a new licence is not granted, the firearm holder will have the rest of that five-year period to get rid of the firearm. Clause 11(1)(d) makes clear that decisions can come after the five year period so that a person’s licence will still be valid until a decision is made.

Adv Swart: I suggest we keep the option of possible future amendments open.

Mr Ndlovu: Advocate Kok, I ask you to be clear: is five years enough time to do all the licences?

Chair: Let’s be realistic. If a person knows she had five years to apply for a licence, she will wait as long as she can to apply. Otherwise she is taking a risk that her licence will be refused before the five year window shuts.

Adv Swart: But if we organise it according to surname or date of birth, applicants will have to come when they are called and won’t have the option of waiting five years.

Adv Kok: clause 11(1)(a) gives the Minister a lot of latitude.

Chair: So we are all happy, even the General.

Mr Booi: Everything can be arranged with the Minister. It is now Advocate Kok’s duty to take our suggestions forward; we can monitor him to make sure he does as we say.

Chair: Therefore we adopt Schedule 1 with the proviso that the Minister will use clause 11 to stagger implementation of the Bill. And even the Minister cannot operate outside of what we adopt here.

Mr Booi: The ANC is happy we are working well together and with trust. This is good for building a new South Africa.

Schedule 2
Chair: Does anyone have any problems with this Schedule?

General Viljoen: I have a problem with the inclusion of "intimidation" at #7. Mass action can be said to be a form of intimidation. This may mean that people who "toi-toi" will not be able to get firearm licences.

Chair: General Viljoen, I don’t think you’ll be able to sustain this argument.

Adv Swart: Schedule 2 only enhances clause 106, "Declaration by court of person to be unfit to possess firearm". Remember, Schedule 2 is only "Offences giving rise to enquiry", so a lot of discretion is left to the court.

General Viljoen: I’m worried about all these indicators of unfitness scattered throughout the Bill; for example, clause 11, clauses 105 and 106 and Schedule 2.

Chair: Are you saying this legislation will make too many people unable to get firearm licences? Aren’t there already many people now who have firearm licences and who shouldn’t?

General Viljoen: Sure, but there are contradictions in this Bill. We have to be fair.

Mr Booi: Advocate Kok will review the Bill and correct any superficial contradictions or inconsistencies. General Viljoen, I know you people in the army like to get up early in the morning and look good and sharp all day, as if you don’t kill people.

Chair: Do we all agree on Schedule 2 as it stands?

(All parties agree)

Schedule 3
Chair: What about Schedule 3? Do we agree?

(All parties agree)

Schedule 4
Chair: Dr Geldenhuys has problems here so we will adjourn now until our afternoon session.

Mr Booi: Before we break, I would like everyone to know that the ANC is re-considering the question of age for licence eligibility. It is possible that 21 may be acceptable.

[CAUCUS BREAK]

Afternoon session
Schedule 4
Dr Geldenhuys: Some of these prison sentences are too high.

Adv Kok: Remember these are maximum sentences, so they are very high. Maximum sentences can have a definite impact on responsible judicial officials to impose heavy sentences, although they also have the latitude to impose light sentences. But there are no minimum sentences in this Bill. Yes, there will be high sentences for serious offences and a high maximum sentence emphasises the seriousness of an offence.

Chair: Let me introduce Advocate Hoon from the State Law Advisors.

Dr Geldenhuys: I am concerned about the maximum sentence of 25 years for a violation of clause 153, "Inherited firearms". But possessing an inherited firearm is not a serious offence.

Chair: But the same offence could also get three months. 25 years is the maximum sentence.

Mr Booi: Is clause 153 the basis for your concern?

Adv Swart: He is just using clause 153 as an example to support his general concern that the sentences of Schedule 4 are too high.

General Viljoen: Yes, the penalties are excessive. The sentences for administrative offences should be lowered. We are legislating for ordinary people. These sentences are an embarrassment to us.

Chair: So is the General suggesting the maximum sentences be halved?

Mr Booi: As his title suggests, the General is generalising. He doesn’t say what his specific concerns are. The ANC is concerned about what punishments will show we take these crimes seriously. Violent crime is a severe and serious thing. I have seen whole families wiped out by it.
So to mention clause 153 as a specific problem is acceptable to us. We can discuss this as parties. But don’t generalise. And don’t think we don’t have to be strict and severe about stolen guns. We do.

Mr Kgauwe: These are maximum sentences. Don’t forget that a large constituency of this country is in possession of many illegal firearms.

Ms Van Wyk: Well, if the rest of you are going to be political, then I will, too. Look at the public outcry everyday on issues of violent crime. You only have to open a newspaper. These are maximum sentences that are subject to appeal! There are no appeals for victims of gunshots.

Adv Swart: Murder is a crime separate from the Bill we are looking at today. There are different sentences for murder. If a murder is committed with an illegal weapon, the possession of that weapon will be a lesser count.

Mr Booi: The other parties won’t tell us exactly what their problems with this Bill are. Look at the news. There are huge caches of arms sold in the townships. These people must be punished. We must send a strong signal or be seen as people who aren’t willing to do anything about crime. There is a lack of foreign investment in this country because of our high crime rate and still nothing happens to act against crime. We must do something and ask gunholders to take responsibility.

Chair: The ANC supports Schedule 4 as it stands, is this right?

(The ANC indicates its agreement)

Ms Van Wyk: Yes, I agree with my ANC colleagues, we are supposed to present specific problems with the proposed legislation.

Mr Ndlovu: Technical corrections will be made by the lawyers.

Chair: Yes, legal team, please take special not of the technical contradictions here.

Dr Geldenhuys: But I feel strongly about the maximum sentence of 25 years for someone who didn’t get a permit for an inherited firearm at clause 153. Other than this, though, we accept Schedule 4.

General Viljoen: I am asking the lawyers to make sure there are no particularly harsh sentences and we may cut them out. So I support Schedule 4, pending the opinion of the legal people that the sentences are not too harsh.

Chair: No, but these are maximum sentences, don’t you see? So the lawyers can’t help us here. What sentence is ultimately imposed is a matter of judicial discretion.

General Viljoen: I mean for administrative offences.

Chair: OK, so General Viljoen supports Schedule 4. So we all do, right?

(All parties indicate assent)

General Viljoen: I support Schedule 4 but my support is reserved.

Memorandum of Objects of the Firearms Control Bill
General Viljoen: We have to bring this in line with what we have decided on the Bill.

Dr Geldenhuys: Delete "availability" from Point 1 of the Memo. We totally disagree with the link made between the availability of firearms and violent crime. And the link is made more strongly here in the Memo than anywhere else in the Bill. We disagree.

General Viljoen: But you accepted this in the Preamble.

Chair: Right, this Memo must be linked to the Bill as a whole. As to "availability", we have already discussed that. So our technical team must make consequential arrangements to bring this in line with our discussions. We don’t need to go over the same ground again.

Mr Booi: Perhaps I should speak Afrikaans so you will understand me better: "Availability" is central to the ANC’s position.
As to our position on the age for firearm licence eligibility, we first were determined it be 25. We have now consulted further, in the spirit of this Bill and to maintain the unity of this House. We now agree with 21. We consent to this, in agreement with the IFP and UDM.

Adv Swart: I would like to nominate our IFP colleague, Mr Ndlovu, as "Lobbyist of the Year". He deserves it for being able to lobby the ANC away from 25. As for us, we don’t oppose 21. The DP accepts 21. We also agree the Memo should be revisited technically to bring it in line with the Bill.

Chair: So are we in agreement with 21 as the age for licence eligibility?

Dr Geldenhuys: Clause 11 is the one good clause in this Bill. We don’t want to vote against clause 11 so we accept the age of 21 as part of clause 11.

Mr Ndlovu: I would like to congratulate everyone on our agreement on age, particularly the ANC.

Adv Swart: Yes, it took the IFP to bring us together.

Ms Van Wyk: I agree with our approach to the Memo, to bring it in line with our decisions on the rest of the Bill, but I don’t want to lose our agreement to add "safe and efficient" to Point 2.1 of the Memo.

General Viljoen: The technical team will reformulate the Memo in accordance with our comments and we will check it.

Chair: They will finalise the Bill with our amendments and without any surprises.

Chapter 16 – Offences, Penalties and Administrative Fines
Clause 123 - Offences
Mr Booi: In terms of the drafts proposed by the State Law Advisors (see appendix below) for clause 123, the ANC supports Option 2, "any person who out reasonably to be aware of…"

Mr Ndlovu: The only difference from Option 1 is the words, "Ought reasonably to be".

Mr Swart: We have already discussed this and made decisions.

Mr Booi: The ANC explained this in caucus. We want to put responsibility in the hands of South African citizens. Don’t I see my own kid off when he leaves the house for school in the morning? Don’t I know what he is bringing with him to school? Of course, I do. That is my responsibility.

Mr Ndlovu: I reject what the State Law Advisor advises. You’re either aware or you’re or not. There’s no "ought to be". I will agree with whatever the Committee decides on.

Adv Swart: We can’t impose a duty to report in this country. This is too extreme in terms of the law.

Mr Booi: I have seen people die. In 1994, we created Community Police Forums to take responsibility and to have stability in townships like Khayelitsha. We all have to take responsibility for the crime that is taking place in our communities. This country is now a democracy and our citizens have every right imaginable. Why should we not now fight crime? We should be able to ask our people to fight crime.

Mr Ndlovu: I don’t agree with "ought to be reasonable". Someone could say in defence, "How could I have known somebody was going to shoot somebody?"

Chair: The onus rests on the accused to show she didn’t know there was a gun.

(There is a general outcry from the room)

Adv Swart; A reverse onus is against the presumption of innocence and unconstitutional. Chair, you are trying to mislead Mr Ndlovu.

Mr Booi: Let’s assist each other. The interpretation of this clause is what is important. Can we have a caucus?

Ms Van Wyk: I ask the State Law Advisor to please explain the implications of what it has drafted.

Chair: Yes, there is no need for a caucus.

Adv Kok: The first draft says if you’re aware, you must report. The second draft says in circumstances where you should have been aware of the existence of a firearm, you have a duty to ensure the illegal firearm is there. If you are in doubt, you must report. This comes down to a duty to be alert and a duty to report.

Ms Van Wyk: For example, a parent ought to know if her child is carrying a gun.

Adv Kok: Yes, that parent must investigate the existence of a gun or a court may find that she ought to have investigated and failed to do so.

Adv Swart: What about the onus of proof?

Adv Kok: It depends on the circumstances. There must be some indication that awareness of the firearm was reasonable. I want to emphasise there is no reverse onus, although the presumption of awareness may have to be rebutted by the accused.

Adv Hoon, State Law Advisor: I am uncomfortable with this. I will look at it again. What bothers me is the fact you can’t report something you are not aware of.

Mr Booi: I have been part of underground political structures. I know that in any uprising or underground structure, you know perfectly well what the circumstances are. You cannot plead innocence. This provision will help us get those who claim innocence who should have known.

Adv Swart: The State Law Advisors are not politicians. And the other lawyers said Option 2 for clause 123 is OK. We can’t delay and nothing we decide is final until Thursday. The DP does not accept Option 2 for clause 123.

Dr Geldenhuys: The NNP is also against it.

General Viljoen: The Freedom Front is also against. It looks like persecution.

Mr Ndlovu: I agree with the Committee and not with the State Law Advisor.

Ms Van Wyk: I reserve comment, but don’t foresee a problem.

Chapter 14 Additional police powers
Mr DeCaris of the Department: The main difference is that the proposed clause 119 empowers the police to do search and seizure without a warrant. Clause 119(2) is therefore important since it limits this wide power with "if" there is consent or reasonable grounds. The power is necessary since criminals can hide or dispose of evidence when they know or suspect the police are going to get a search warrant. We have also drafted 119(3) to be more gender sensitive.

Chair: So this section empowers the police.

Adv Swart: These are extensive police powers that we can grant. I suggest we add, "if the police reasonably believe" at 119(1).

Adv Kok: OK, we’ll look at that for the sake of plain English, but it means the same as what is already there.

Ms Van Wyk: We have no problem with this.

Mr Booi: Neither have we.

General Viljoen: The regulations need greater clarity on procedure. These powers can be abused by the police.

Chair: I think what is proposed captures what we want very well. Anything is open to abuse; you can’t legislate against that. We are legislating for the police we want, not corrupt ones. We should have no fear of abuse. And we do have good police in South Africa. We must legislate on the basis that we have a good police force.

General Viljoen: OK, I support the clause.

Dr Geldenhuys: I also support clause 119. But what about clause 115, "Exercise of powers set out in section 37 of Criminal Procedure Act, 1977"? I have doubts about the "Other person authorised" it refers to.

Adv Joubert: Don’t worry about that. Clause 115 is only in terms of the Criminal Procedure Act, not this Act. It is not applicable here.

Adv Swart: Look at the definition of "police official" in clause 1. It means only people who are appointed by the Minister, not the Registrar.

Dr Geldenhuys: So an ordinary person who is not in the SAPS will not be able to enter and perform a search without a warrant.

Chair: No, these are stringent powers for the police. They can’t go to anyone. If there is any doubt, ask the lawyers and drafters to tighten the exclusivity of these powers.
So is everyone OK with this subsection?

(All parties indicate consent)

The Chair asked the lawyers to bring them a new Bill with the amendments. He instructed them that where there had been no agreement, to put what the majority party had agreed to. Mr Ndlovu called this "undemocratic". The Chair insisted this was simply to help the drafters and called the discussion "unnecessary".

The Chair thanked all, and especially the ANC, for their input and "lack of arrogance".

Mr Ndlovu thanked the Chair for his patience and ability to keep the group moving forward during the long process.

Appendix 1:
ORIGINAL DRAFT

Offences
123
(2)(a) Any person who is aware of the existence of a firearm or ammunition that is not in the lawful possession of any person, and fails to report the existence and location of the firearm or ammunition, without delay, to the nearest police station or to such other police official to whom it may under the circumstances be more expedient to report the matter, is guilty of an offence.

(b) A police official to whom a person has made a report contemplated in paragraph (a) must immediately provide the person with written proof that the report has been made, or, in the case of a telephonic or similar report, with the official reference number of the report.

DRAFT OF STATE LAW ADVISORS
(2)(a) Any person who ought reasonably to be aware of the existence of a firearm or ammunition that is not in the lawful possession of any person, and fails to report the existence and location of the firearm or ammunition, without delay, to the nearest police station or to such other police official to whom it may under the circumstances be more expedient to report the matter, is guilty of an offence.

(b)A police official to whom a person has made a report contemplated in paragraph (a), must immediately provide the person with written proof that the report has been made or, in the case of a telephonic or similar report, with the official reference number of the report.

COMMENT
Mr De Caris was informed that the wording was changed by the State Law Advisors because it is difficult to prove that someone is subjectively aware of something.

Although it is more difficult to prove subjective knowledge, it happens regularly in court (e.g whenever intention is proved to get a conviction on murder or assault) Accordingly the original draft does not present a real problem in this regard.

It is not recommended to place a duty (as proposed by State Law Advisors) on a person to report something of which he or she ought reasonably to have been aware, but of which he or she might not be aware. This would imply a duty to report an illegal firearm even if the person is not aware of the illegal firearm

It must be noted that it is unusual in our law to place a duty to report on persons and to extend it to such a situation as envisaged by the State Law Advisors, makes it even more controversial.