SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
16 October 2000
CONSIDERATION OF FIREARMS CONTROL BILL
Chairperson: Mr J L Mahlangu
Drafting panel: Advocate Louis Kok, Advocate Gert Joubert (a consultant working with the Department), Superintendent Rosa le Roux (from the Firearms Registry).
SUMMARY The Joint Committee on the Improvement of the Quality of Life and the Status of Women attended the meeting to point out a lacuna in the Firearms Control Bill: the deletion of the old clause 9(2)(m) had the effect that where a final protection order had been granted against someone (in terms of the Domestic Violence Act) that person could still qualify for a competency certificate for a firearm. Thus the Firearms Bill did not provide adequate protection for women who were victims of domestic violence. The committee flagged this Clause 9 issue.
The Democratic Party suggested that an independent body should provide oversight for accreditation institutions to prevent potential abuse such as buying firearm licences. The Chairperson felt that this was a sensible suggestion and said that the committee should include it as part of their report.
The Committee completed deliberations up to the end of Chapter 11 on the Firearms Control Bill. Discussion focussed on Clauses 24 and 98. Clause 24 requires that a licence holder must renew his licence at least 90 days before its expiry and that there are no exceptions for late renewals. Clause 98 on the other hand makes provision for employees of official institutions to be issued with permits to use firearms without these permits being evaluated on a regular basis to check whether the holder is mentally fit to be in possession of such firearms. The Committee flagged this issue.
MINUTES
Input from Joint Committee on the Quality of Life and the Improvement of the Status of Women on "offence involving violence" Ms Pregs Govender (Chairperson of the Joint Committee on the Quality of Life and the Improvement of the Status of Women) made the following point:
In practice magistrates do not categorise rape as an offence involving violence. This affects women’s rights negatively because someone who is guilty of rape would not be considered to be guilty of violence in the context of the Firearms Control Bill. As such the person could then still qualify for a competency certificate. To counter this problem certain women’s groups submitted that the drafters insert a definition of an "offence involving violence’’ that would include specific reference to rape and sexual abuse. The Portfolio Committee of Safety and Security had not done this.
Advocate Kok replied that the drafting team and Portfolio Committee did not accept the suggestion of a definition to solve the problem. However, the team and Portfolio Committee had solved the problem by making amendments in the following clauses:
Chapter 5 Competency Certificates Clause 9 Application for competency certificates In subclause 9(h)(i): Inserting the words ‘’or sexual abuse’’ after the word ‘’violence’’. Thus a person may not obtain a competency certificate if the person has been convicted and sentenced for an offence involving violence or sexual abuse.
In subclause 9(h)(ii): A person may also not obtain a competency certificate if he has been convicted of abuse within a domestic relationship (as it is defined in Section 1 of the Domestic Violence Act)
Chapter 12 Declaration of persons to be unfit to possess a firearm Clause 102 Declaration by Registrar of person to be unfit to possess a firearm In subclause 102(1)(a): If a final protection order is granted against someone in terms of the Domestic Violence Act, then the Registrar may declare the person unfit to have a firearm.
In subclause 102(1)(b): The Registrar may also declare the person unfit to have a firearm if the person has an ‘’inclination toward violence’’
Clause 103 Declaration by court of person to be unfit to possess a firearm (A person is unfit to possess a firearm if guilty of the listed offences unless the court decides that the person is fit)
In subclause 103 (1)(g): Inserting ‘’or sexual abuse’’ after the word ‘’violence’’ so if a person has been convicted and imprisoned for this offence then the person is automatically unfit to possess a firearm unless the court determines otherwise.
Schedule 2 Offences giving rise to unfitness enquiry by court This schedule lists the crimes and offences in terms of which the court must make an enquiry of unfitness [if the crime is not covered by clause 103(1)]. In item 7(b) of the Schedule the court refers to an offence in terms of the Domestic Violence Act where the person was not sentenced to imprisonment. In item 7(c) where the person committed an offence involving ‘’sexual abuse’’ and the person was not sentenced to imprisonment.
Advocate Kok concluded by saying that it was patently incorrect for a court not to define rape as a violent crime. Deliberations on Firearms Control Bill Definitions – Clause 1 Mr Lever referred to clause xii (e) (definition of firearm) and asked what a ‘’receiver of a device’’ was. Advocate Kok replied that it was an international trend to licence essential parts of a firearm in addition to licencing the firearm. In SA the barrel of the firearm must also be licenced. Some countries also licence the frame or the receiver. The frame/receiver is the part that holds the barrel. In terms of the Bill this must also be licenced. The Portfolio Committee had considered licencing other parts of the firearm too but they decided that it would be too impractical.
Mr Lever asked if a de-activated firearm could technically be interpreted to mean a receiver. Advocate Kok replied that proper de-activation will require an object making the firearm not useable. De-activation will be dealt with in the regulations.
Mr Lever asked if they could not define ‘’receiver’’ for the benefit of lay people, to make it more understandable. Advocate Kok replied that they only need a definition if they want to derogate from the dictionary meaning of a word. ‘’Receiver’’ has a specific dictionary meaning therefore it does not need to be defined again. The term is normal for people who use firearms and it is easy to find the meaning.
Mr Lever commented that the general attitude of Parliament is that they write laws for people and not for lawyers and judges. It would not create a problem for the courts to interpret the Bill if such a definition was added as the word appeared many times in the Bill. The Chairperson flagged this issue.
Prohibitions - Chapter 2 Clause 4 Prohibited firearms Mr Lever commented that it is unacceptable that the Minister is given the power to declare firearms prohibited in 4(3). He asked what would happen to firearms affected by such a declaration. Do they get handed in? Does the person get reimbursed for costs? He said that Parliament does not vote on the Regulations. The Regulations simply get tabled. Therefore they are giving the Minister unfettered powers here.
Advocate Kok replied that 4(3)(c) gives Parliament the right to withdraw the Regulations. In this way true parliamentary oversight exists. Situations may arise where the Minister must act swiftly. Parliament can override the decision later. Subclause 3(a)(i) and (ii) sets out the guidelines which the Minister must follow. He must act in the interests of public safety and the maintenance of law and order. If the Minister makes an arbitrary decision and does not apply his mind then, the court can overrule. Parliament can also overrule. Where a firearm is declared prohibited and the owner has incurred costs compensation should be payable by the government.
Mr Lever commented that this was a viable approach since not that many people would be affected. He asked if the disposal of such a weapon would be governed by the Regulations. Advocate Kok replied that it would.
Competency certifcates, licences, permits, authorisations and accreditations - Chapter 4 Mr Lever suggested that they write a manual explaining people’s rights to them in lay terms. Advocate Kok replied that a manual is necessary for competency testing in respect of enabling people to study what they will be tested on and also for the evaluators to evaluate the results of the test. They could start writing this manual now but the Regulations will also influence the content of the manual.
Ms Le Roux said that a book on competency testing will be made available. It could be sold at bookstores and stationers. The Central Firearms Registry will compile this. Developing a manual for the remainder of the Act would be more complicated.
In answer to Mr Lever’s question on monitoring and review of accreditation, Advocate Kok said that the Regulations would provide for this. They can do spot checks for example. The designated firearms officer will act as a watchdog. Explicit power is granted in the Bill allowing the Regulations to withdraw accreditation therefore a special section is not needed in the Bill.
Mr Lever commented that he does not think that this should be in the Regulations, it should rather be in the Bill. He asked if they had considered an independent body to provide oversight for the accreditation institutions. This should be done to protect the public as corruption could arise with a person illegally buying a licence from an accredited institution. The industry should have an oversight body to prevent abuse of the system.
Advocate Kok replied that nothing in the Bill prohibits such an oversight body. The Regulations will deal with this.
Ms le Roux added that private institutions, hunting associations, the South African Bureau of Standards, Department of trade and Industry and various other roleplayers will have a say in what must happen at the Central Firearms Registry. They will play a role in accreditation and in competency testing.
In respect of general standards Ms le Roux said that the South African Qualification Authority Board will provide oversight. The SAQA (South African Qualification Authority) Bill is in place to ensure compliance with standards. The SABS will set minimum standards for shooting ranges. Currently nothing regulates this. They will do inspections to ensure that they keep up to standard year after year.
The Chairperson said that the committee should include this as part of their committee resolution: there should be an independent oversight body for the accreditation institutions.
Competency Certificates - Chapter 5 Clause 9 Application for competency certificate Ms Govender revisited the issue she had raised earlier. She noted that the portfolio committee had decided to delete the old clause 9(2)(m) dealing with unfitness for a competency certificate on the grounds of having a final protection order against one in terms of the Domestic Violence Act.
She said that the solution that the drafting team had come up with (as discussed at the beginning of the meeting) did not provide adequate protection for women. There is a lacuna in the law because the Firearms Bill does not protect women who obtained a final protection order against their partner. Their partner can still qualify to get a competency certificate if a final protection order has been granted against him. These women need protection. Basically the Committee on the Status of Women found that there was no reason to exclude clause 9(2)(m) from the Firearms Bill. The clause was deleted for technical reasons but it appears that a large number of women are now unprotected because of this. The motivation is that they want clause 9(2)(m) to be reinserted into the Bill.
They also want to tighten clause 103(2) by obliging the court to examine whether a final protection order has been granted against the person applying for a firearm licence. This means that a final protection order should be included in the Schedule 2 list.
Advocate Kok said that the reason the old clause 9(2)(m) was removed was because it implicitly overrode the Domestic Violence Act. This is so because if they cover ground that has already been covered in another Bill then that is by implication an amendment to the existing law.
Ms Govender agreed that this was an important principle which had to be upheld. However she did not believe that this would be the effect of reinserting the old clause 9(2)(m).
Mr Joubert explained that this issue is covered. In terms of clause 103 (1) there is automatic unfitness on particular grounds unless the court finds otherwise. Disqualification follows but the court still has a discretion. Clause 103(2) lists cases where the court must make an enquiry. When the court has made an enquiry the Registrar is bound by the court’s decision and cannot overrule the court.
The committee indicated that they would come back to this issue in clause 9.
In Clause 9(2)(o) there is a reference to ‘’public violence’’, Mr Lever asked if this clause was retrospective. Advocate Joubert said that clause 9 could be.
Mr Lever said that this could affect people’s rights because of silly past offences. For example when he was practicing law he represented a lady from a trade union who was convicted of ‘’public violence’’ for taking a burger out of a customer’s hand at Kentucky Fried Chicken and throwing it into the bin. For this reason he said, they should consider putting in some kind of threshold for an offence to be serious enough to constitute ‘’public violence’’.
Mr Joubert said that the Department wanted a general threshold but the Portfolio Committee did not think that there should be one. With violence there is a threshold (imprisonment without option of a fine) but with public violence there is no threshold.
This was a party political decision. Mr Joubert said that in his opinion having an absolute means that there will always be some bad cases.
Mr Lever commented that there should be some kind of safety valve. Courts act as guardians therefore they should be given an overriding discretion in cases where an obvious injustice will result from the strict application of the Bill.
Advocate Kok said that the original Bill had a clause which pertained to all the convictions. It related to a 6 months imprisonment threshold. It was a political decision to remove this.
Mr Lever asked if they would consider an alternative to a threshold, for example, a period within which to apply for condonation. He said that he would try to draft something.
In response to a question by Ms Mokoena (ANC) Advocate Kok explained that the Registrar had a general discretion to decide if a person was fit and proper. Where there was an absolute unfitness the Registrar did not have the authority to declare the person fit. The person must go to court to have this done. The court can make such a finding and the Registrar cannot override the courts. Clause 10 Competency certificate Mr Lever asked if the competency certificate would relate to a particular type of firearm. Advocate Kok replied that this would be dealt with in the Regulations. Practically they hoped to cover a wide category of firearms. They do not want to have one person with many different competency certificates for different firearms. The basic elements of all firearms will be covered in the testing. Sometimes there will be separate questions. They want a practical way to go.
Licence to possess a firearm - Chapter 6 The Chairperson asked why the number of firearms for self-defence had been reduced to one. Advocate Kok replied that this had been a political decision.
Mr Lever commented that different people must defend themselves in different circumstances (such as on farms). The DP believe that this need should have been accommodated.
Clause 16 Licence to possess a firearm for dedicated hunting and dedicated sports shooting In terms of subclause 16(2) Mr Lever said that the term membership to an association was a loose term and it should be defined more clearly. Adv Kok replied that they would accredit only institutions that have proper control over their membership. Mr Lever suggested that the Registrar oversee this.
Clause 19 Public collections Mr Lever asked if they should say that all firearms in public collections should be put out of commission as firearms. Advocate Kok replied that there are currently no problems with firearms in public collections getting lost or stolen. The Registrar can require this but they do not consider it necessary. These firearms are well cared for and put in safes.
Mr Lever asked who would be responsible for the firearms in a museum. Advocate Kok replied that the owner of the museum would be responsible.
Mr Lever asked what the position would be if the state is the legal owner. The panel replied that if the institution is declared an official institution, then it is exempt from the Bill and the Regulations will apply to it. The public will not be endangered through these exemptions.
Licence to possess firearm - Chapter 6 Clause 20 Licence to possess firearm for business purposes The committee agreed to this clause.
Clause 21 Temporary authorisation to possess firearm Mr Lever felt that the ability of the Registrar to make a subjective decision on granting a temporary authorisation is problematic. Adv Kok replied that practically speaking it should not be a problem. The provision was envisaged to close the gaps in circumstances where temporary authorisations are appropriate. Adv Kok added that they did not want to tie it down formally as this would diminish its flexibility. He stressed that in certain circumstances a competency certificate could be a requirement for granting such authorisation.
The Chair felt that it was a sound clause and that flexibility is sometimes required.
Clauses 22 and 23 Holder of licence may allow another person to use firearm / Identification marks on firearms The committee agreed to these clauses.
Clause 24 Renewal of firearm licences Mr Lever asked if there condonation for late renewal if the person does not renew his licence within the 90 day period. He felt that over a 5-year period a person might forget to renew his licence. Adv Kok stated that they do send out notifications to licence holders to remind them. He however felt that the Bill as a rule does not condone late renewals, as it is a serious responsibility to own a firearm.
Mr Lever asked what happens if the individual has valid reasons for non-compliance with the 90 day period. Adv Kok stated that the Bill is flexible to cope with various circumstances that might arise. He felt that granting such an individual a temporary authorisation might be a solution.
Mr Lever thought it was preferable to give the Registrar the discretion to renew such licence depending on the circumstances. Adv Kok reacted that this would burden the Registrar with unnecessary administrative work. Adv Joubert added that the individual would also have the option to apply anew for the licence even though it would be costlier for him to do so.
Mr Lever felt strongly that there would not be many late renewals and that there should be a forum to handle it. The Chair asked Mr Lever if he wished to make a proposal. Mr Lever stated that he could make a proposal but that he would need some time to do it.
The Chair felt that the clause should remain as is. He added that they would not want to relax provisions unnecessarily. The Chair felt that the temporary authorisation solves the problem of late renewal. Adv Kok stated that the period of renewal could be clarified in a regulation.
The committee agreed to the clause remaining as is.
Clauses 25-30 Notification of change of address-Central firearms database The committee agreed to these clauses.
Chapter 7 Licences issued to particular categories of persons-dealers, manufacturers and gunsmiths Part 1-Dealers
Clauses 31-39 Prohibition of unlicenced trading in firearms or ammunition-Duties of a dealer The committee agreed to these clauses.
Clause 40 Establishment of centralised dealer’s database Mr Lever asked whether the database is going to be online and if dealers would have access to it. Adv Kok stated that this was envisaged.
Clause 41 Suspension of dealer’s licence Mr Lever asked if the suspension of a dealer’s licence based on an affidavit is not an infringement of the dealer’s rights. Adv Kok stated that this suspension is only limited for a 7-day period so as not to be unfair towards the dealer.
Clauses 42-44 Termination of dealer’s licence-Defaced, lost or stolen licences The committee agreed to these clauses.
Part 2-Manufacturers and Part 3-Gunsmiths The committee accepted both these parts.
Chapter 8 Import, export and carriage in-transit of firearms and ammunition
Chapter 9 Storage, transport and carrying of firearms and ammunition
Chapter 10 Control of ammunition and firearm parts The committee also accepted these three chapters.
Chapter 11 Exemptions Clauses 95-97 Definitions-Conditions applicable to institution accredited by Registrar The committee agreed to these clauses.
Clause 98 Possession and use of firearms by Official Institution Mr Lever asked whether there should not be an obligation on the person issuing a permit to an employee to review it on a periodic basis. He felt that the employee should go through a psychological evaluation every one or two years. He emphasised this is due to the large numbers of killings that are currently being committed by police force members who suffer from depression.
Adv Joubert stated that regulatory measures have been put in place to do such testing. It is provided for in Clause 145 (m).
The Chair commented that stress levels in the police and defence forces are high. Consequently such individuals are a danger to others and themselves because they carry firearms. He emphasised that measures are needed to keep a check on them. The Chair asked how other countries deal with this problem.
Adv Kok stated that South Africa is fairly advanced in this field. Adv Joubert added that statistics tend to vary from country to country.
Mr Lever was however not convinced. He felt that a regulation is not good enough to deal with this problem. He stressed that the police need to come up with proposals for an early warning system.
Adv Kok stated that the Bill mainly deals with the private individual. He explained that the reason why they have provided for this in the regulations is because it is an in-house problem of the official institution. Adv Kok stated that it is a policy decision.
Mr Lever stated that the regulation could remain as is but he felt that a simple solution would be for officers to undergo psycometric testing every two years. He felt very strongly about this point.
Adv Kok stated that psychometric testing for private persons as a requirement of the Bill was dropped because doctors were not willing to give a certificate to a person stating that he is a fit and proper person. The risk to these doctors was too great. He added that even if SAPS members were to be tested every two years, the task would be too great as circumstances are ever changing.
Mr Lever still felt that the person granting the permit must evaluate the granting of such permit every two years.
The Chair stated that an informed decision needs to be taken on this issue and they would flag this issue.
Clause 99 Register to be kept by Official Institution The committee agreed to it
The Chair adjourned the meeting for the day.
Appendix 1: LEGAL OPINION ON THE FIREARMS CONTROL BILL, 2000 AND HOW IT RELATES TO THE DOMESTIC VIOLENCE ACT, 116 OF 1998
1. DOMESTIC VIOLENCE ACT
1.1 Protection Orders and Offences:
The Domestic Violence Act ("DVA") creates a distinction between an "offence" committed and obtaining Protection Orders.
In order to obtain a Protection Order, a Complainant has to show that the Respondent is committing or has committed an act of domestic violence and that she will suffer undue hardship if the Protection Order is not issued immediately. In other words, a Protection Order is often issued once an act of violence has already been committed.
The Act does not create a specific offence of domestic violence. However, when a Court issues a Protection Order, the Court authorises a Warrant of Arrest of the Respondent and suspends the execution of the Warrant or until the Respondent breaches the Protection Order.
The Act provides that any person who breaches a condition of a Protection Order, reveals the identity of any party to the proceedings or makes a false statement shall be guilty of an offence and may be imprisoned for a period not exceeding five years.
The Act draws a distinction between an Interim Protection Order and the Final Protection Order. An Interim Protection Order can be obtained if there is prima facie evidence that an act of domestic violence has been committed. A Final Protection Order may be issued if the Court finds, after a hearing of written and oral evidence on a balance of probabilities that the Respondent has committed or is committing an act of domestic violence.
1.2 How difficult is it to obtain a Final Protection Order?
The DVA provides that in order to obtain a Final Protection Order, a Court has to accept that on a balance of probabilities an act of domestic violence has been committed. In order to prove that an act of domestic violence has been committed, a Complainant must prove that the actual act occurred and introduce evidence to that effect. The Respondent has an opportunity to lead evidence and to cross examine the Complainant in regard to her evidence. Both parties are entitled to legal representation. It is unlikely that Final Protection Orders will be granted in circumstances where there has not been an act of domestic violence.
1.3 What is required to obtain a conviction in terms of the DVA?
In order to obtain a conviction for an offence in terms of the DVA, a Complainant must prove beyond reasonable doubt that the Respondent has breached the conditions in the Protection Order. Beyond reasonable doubt is the standard of proof used in criminal trials. This is a high onus for a Complainant to meet.
1.4 What does the DVA say about firearms?
Section 7 of the DVA provides that in granting a Protection Order a Court may impose conditions which it deems reasonably necessary to protect and provide for the safety, health or well being of the Complainant. This includes an order to seize any arms or dangerous weapons in the possession or under the control of the Respondent. However, in order to do this the Court must be satisfied on the evidence placed before it, either that:
(i) the Respondent has threatened or expressed the intention to kill or injure himself or herself or any other person in a domestic relationship; or
(ii) possession of such a dangerous weapon is not in the best interest of the Respondent or any other person in a domestic relationship as a result of the Respondent’s:
(a) state of mind or mental condition;
(b) incarnation to violence; or
(c) use of or dependence on intoxicating liquor or drugs.
The Act make provision for a firearm to be seized and to be handed over by the South African Police Service for the period for which a Protection Order is in operation.
The DVA grants a discretion to Court in deciding whether to oppose an additional condition concerning a firearm or a dangerous weapon. It does not make it mandatory for dangerous weapons and firearms to be seized and to be removed from the Respondent.
Because of the nature of violence in domestic relationships and the cycle of violence in these relationships, there is often great economic and other pressure on Complainants to withdraw or vary Protection Orders. As a result, many Protection Orders are withdrawn by the Complainant and in these circumstances they result in the firearm being returned to the Respondent.
The DVA does not automatically require Magistrates who are considering applications for Protection Orders to consider whether it is necessary to order the removal of a firearm.
2. FIREARMS CONTROL BILL
2.1 Competency Certificates awarded in terms of the Firearms Control Bill:
Section 9(2) of the Bill sets out conditions under which a person may be issued with a Competency Certificate.
At present a competency certificate may only be refused if a Respondent has been convicted of breaching a Domestic Violence Protection Order, by physical or sexual abuse or been sentenced to a period of imprisonment without a fine for Section 9(2)(h)(ii) and Section 9(2)(l) In the earlier draft of the Bill, Section 9(2)(m) included the condition that the Applicant "has not, in a matter involving a reasonable apprehension of violent behaviour by that person, been the subject of a Final Protection Order issued in terms of the Domestic Violence Act, 1998 (Act No. 116 of 1998), or a similar Restraining Order issued in terms of any other legislation, in or outside South Africa.
In the final deliberations on the Bill, Section 9(2)(m) was deleted. The state law adviser’s justification for the late deletion of this Section was that this issue was adequately dealt with in terms of the DVA. However, the above analysis of the provisions in the DVA dealing with firearms reveal that:
a. removal of a firearm after a Final Protection Order is not mandatory;
b. the Magistrate has discretion as to whether to consider removing a firearm;
c. the firearm is only removed for the period under which the Protection Order is in operation and may be returned to the owner;
d. the DVA does not make it mandatory to hold an inquiry into the Respondent’s gun licence;
e. it will often require knowledge on the part of the Complainant to bring to the Court’s attention the existence of a firearm in order for it to be removed;
f. unless the offence complained of in relation to the Protection Order involves the use of a firearm, it is unlikely that this issue will canvassed during the Court granting a Protection Order.
2.2 Who is excluded from protection of this Firearms Control Bill by the deletion of Section 9(2)(m)?
Many women who have obtained Final Protection Orders on the basis of extensive physical or sexual violence, would not be protected by the Firearms Control Bill. Although they have obtained Final Protection Orders against their partners, their partners may successfully apply for a Competency Certificate because of the deletion of Section 9(2)(m).
PROPOSAL: Section 9(2)(m):
We propose, that in order to afford protection to women who are victims of domestic violence and to give effect to the right of all persons to be free from violence from both private and public sources, that Section 9(2)(m) is re-inserted in the Firearms Control Bill. It is suggested that this was a technical amendment proposed by the drafters in the final deliberations on the Bill and that the full implications of the deletions of Section 9(2)(m) were not considered.
Section 103(2):
Section 103(2) provides for circumstances in which a firearm licence may be removed. It is suggested that Section 103(2) may be used to link the Firearms Control Bill to the Domestic Violence Act. It is suggested that after a Final Protection Order is granted, a Court must enquire to determine whether the Respondent is unfit to possess a firearm and that Section 103(3) should be amended accordingly.