Advocate Swart of the DP commented that it was bad that the concessions which had been previously made by the ANC were taken away that morning. He was referring to the fact that the ANC moved for alternative formulations for certain clauses. This was to the surprise of the committee as these were not the formulations to which the committee had previously agreed. The opposition parties displayed general disapproval for this tactic of the ANC. They described it as a ‘’watering down of the whole practice of Parliament’’.
MINUTES The Committee decided to vote on the Bill chapter by chapter unless there was a particular chapter where a party supported some clauses in the chapter but did not support all the clauses in the chapter. In such chapters, the committee voted clause by clause.
Mr Geldenhuys (NNP) commented that there should not be an opportunity for parties to motivate when they vote as everyone had already had an opportunity to do that. They should simply note their vote.
General Viljoen (FF) disagreed with Mr Geldenhuys. He pointed out that he had a few new formulations to put to particular clauses.
Preamble General Viljoen suggested the following formulation for the third item:
‘’… and whereas the increased availability and accessibility to criminals of firearms and ammunition and the abuse thereof has contributed significantly to high levels of violent crime in our society’’
Mr Booi (ANC) was opposed to this formulation. He wanted to know who exactly the criminals being referred to was. According to him such a formulation ‘’prejudges the whole of society’’ and ‘’would put the whole Bill in jeopardy’’.
Vote for the Preamble as it stands in the Bill (against General Viljoen’s suggestion): For: IFP, ANC, PAC
Against: DP, NNP, FF, ACDP
The ACDP stated that it had voted against the preamble because they did not support the use of the word ‘’availability’’.
Chapter 1: Introductory provisions Advocate Kok said that in for the definitions of "occasional hunter" and "occasional sports person" in (xxi) and (xxii), the drafters would like to add the words ‘’who is not necessarily a member of an accredited hunting association’’.
Mr Booi (ANC) was opposed to this. He complained that the drafters could not come with amendments at this late stage unless there was a very good reason. He said that the proposed formulation would create a problem.
Advocate Kok replied that they only discovered this the previous night and it is not really a serious issue.
The Chairperson agreed with Mr Booi. They did not want to accept legal amendments at this late hour (unless it came from political parties).
Advocate Swart (DP) said that there was no practical implication as to whether the additional words remained in or out.
The PAC wanted to know why the words ‘’bodily integrity’’ was used in Clause 2(a) The Chairperson explained that it simply meant ‘’not being injured’’.
Vote (without the amendment proposed by the drafters): The committee voted unanimously in favour of this chapter.
Chapter 2: Prohibitions Advocate Kok pointed out a printing error in Clause 4(2) where the reference should be to subclause(1)(f)(iii) and not (1)(g)(iii).
The ANC moved for the alternative formulation to Clause 4(3)(b). [They noted that wherever there was an alternative formulation in the Bill that would be the one that the ANC moves for.] The alternative formulation in this instance gives the Minister the power to declare a firearm prohibited by means of publishing a notice. The notice will be of full force and effect unless it is withdrawn by the Minister or by Parliament.
The clause that the Committee previously agreed to provided that the notice had to be approved by Parliament before publication.
The oppostion parties were unhappy with the alternative formulation and noted their protest as this was not the formulation that the Committee previously agreed to.
Advocate Swart said that what the ANC was doing amounted to a ‘’watering down of the whole practice of Parliament’’.
The IFP said that the clause had been watered down too much.
The FF said that they are not prepared to vote for the alternative formulation but they would have voted for the agreed-upon formulation.
The PAC said that they must not interfere too much with the work of the Minister but bringing the notice to Parliament will not inconvenience the Minister too much. The alternative clause grants him too much power and this is contrary to a democracy.
The ANC explained that Parliament would still have an oversight role. The Minister must however be able to use his discretion. Parliament will be made aware of what is going on through the tabling in Cabinet. The oversight role of Parliament remains. The executive must have some leverage to move. With amnesty (and other fundamental issues), Parliament must approve.
Mr Geldenhuys (NNP) said that it gives the Minister the power to declare a firearm prohibited without coming to Parliament.
Advocate Swart noted that they had been told that the only changes made to the document of the previous Thursday were spelling corrections. He objected saying that this big change went far beyond a spelling error. He had only received this document that morning and wondered what other changes were in there.
Vote: The Committee voted on Clause 3 and 4 separately. Clause 3 - all parties voted in favour of this unanimously. Clause 4 (alternative formulation) - ANC in favour,
Against - DP, NNP, FF, ACDP, IFP, PAC
Chapter 3: Special Provisions in respect of Certain Devices Vote on the whole chapter: For - ANC, IFP
Against - DP, NNP, FF, ACDP, IFP, PAC
Chapter 4: Competency Certificates, Licences, Permits, Authorisations and Accreditations Advocate Kok said that in Clause 8(2) the word ‘’must’’ would be changed to ‘’may’’ (technical change).
The ANC suggested a change to Clause 6(1)(a). The change to this clause would have the effect that the Registrar must require fingerprints. The Chairperson said that he did not know why the Registrar was given the discretion because even at the Central Firearm Registry fingerprints were required.
Advocate Kok replied that if someone already has a competency certificate then his fingerprints would already be on record and a duplicate set of fingerprints (for the Registrar) would not be necessary. This is a policy decision.
The Chairperson said that he would prefer if they put a stop after the word "applicant’’ and deleted the words "if required by the Registrar’’
The committee voted in favour of this chapter unanimously with the Chairperson’s suggestion.
Chapter 5: Competency Certificates The committee voted in favour of this unanimously.
In Clause 9(2)(j) and (k) all agreed that alcohol and drug abuse should be included.
In Clause 9(2)(h)(ii) all agreed that sexual abuse should be included.
In Clause 9(2)(h)(i) the ACDP asked if the reference to violence included people who had been found guilty of "corporal punishment". If this was the case then they would not support the clause. Advocate Kok replied that it would but only if the "corporal punishment" was so serious that it had led to imprisonment. This was the threshold.
In Clause 9(3) Advocate Kok noted that the clause must be clarified to indicate that the court has not made a determination that the person is unfit. In terms of the clarification the clause reads ‘’a court has not made a determination that the person is not unfit to possess a firearm despite the conviction’’.
The committee voted in favour of this chapter unanimously.
Chapter 6: Licence to Possess a Firearm The committee voted on this clause by clause: Clause 11: For - PAC, IFP, ACDP, ANC
Against - The NNP, DP, and FF (they feel they should licence the person not the firearm).
Clause 12 The committee voted in favour of this unanimously.
Clause 13:
The DP said that a person may need different weapons for self-defence in different circumstances. The Bill does not support this need. Therefore they voted against it.
The NNP said that they are voting against because it is not necessary to prove a need for self-defence. The Bill restricts this basic right.
The FF said that they would vote for the Bill if the word ‘’semi-automatic’’ in Clause 13(1)(a) was deleted. Semi-automatics are better as a defence weapon in rural areas.
The PAC supported the clause.
The ACDP agreed with the NNP and voted against.
The IFP voted against.
Only the ANC and the PAC voted in favour of this clause. The ANC pointed out that the person can only have one firearm for self-defence. Clause 14 covered the special need for a firearm.
Clause 14: The ANC moved for the alternative. Only the ANC voted in favour of the clause.
Clause 15:
Advocate Kok identified an error in Clause 15(3)(c): the reference should be to Clause 1(b) an not (a).
The FF requested that a semi-automatic firearm be allowed. There was no support for this request by the other parties. All the parties voted in favour of this clause as it stands in the Bill.
Clauses 16 - 26:
Advocate Kok pointed out Clause 20(8) was an error and the whole clause must be deleted.
The FF proposed that a Clause 20(1)(c) be added. The effect of the additional clause would be to keep a window open so that Minister could approve the issue of prohibited firearms for business purposes for ‘’exceptional operational purposes’’ if it was necessary in a particular situation.
Mr Booi opposed this. He said that they cannot give the Minister such authority. What are ‘’exceptional purposes?’’ This will amount to opening up the clause to abuse therefore the ANC cannot support it.
The committee voted on Clauses 16 –26. They were unanimously in favour of the clauses (without the amendment proposed by the FF). [The UDM member now joined the meeting]
Clause 27: The FF proposed that made a proposal that section number 14 in the table (licence to possess restricted firearm for self-defence) and number 20 in the table (licence to possess a firearm for business purposes other than hunting) should have the period of validity increased from 2 years to 5 years because relicencing is expensive and cumbersome.
The UDM objected to this. They said that they could possibly agree to number 20 being changed but absolutely not to number 14.
All except the FF voted in favour of the clause as it appeared in the document.
Clauses 28, 29 and 30:
The committee voted in favour of these unanimously.
Chapter 7: Licences issued to Particular Categories of Persons - Dealers, Manufacturers and Gunsmiths Advocate Kok pointed out an error in Clause 55(4). The word ‘’trade’’ is deleted and it must read ‘’A manufacturer may not conduct business as a manufacturer ….’’ .
Also in Clause 70(4)(a) the words ‘’through a dealer’’ is deleted. Clause 70(4)(a) becomes 70(4) and 70(4)(b), 70(5), and 70(6) is deleted.
The committee voted unanimously in favour of this chapter.
Chapter 8: Import, Export and Carriage in Transit of Firearms and Ammunition
Advocate Kok pointed out an error in Clause 81(4). In subclause (a) the word ‘’through a dealer’’ is deleted. Subclause (b), (5), and (6) is deleted and 4(a) becomes Clause 4.
The committee voted unanimously in favour of this chapter.
Chapter 9: Storage, Transport and Carrying of Firearms and Ammunition The committee voted unanimously in favour of this chapter.
Chapter 10: Control of Ammunition and Firearm Parts The committee voted clause by clause: Clause 90 - Unanimously in favour Clause 91 - All parties voted in favour of this clause except the FF (they want to increase the number of rounds). Clause 92 - Against: FF, NNP, DP, IFP, PAC, ACDP and For: ANC, UDM Clause 93 - Unanimously in favour Clause 94 - Against: FF, NNP, DP, IFP, PAC, ACDP and For: ANC, UDM
Chapter 11: Exemptions The committee voted unanimously in favour of this chapter.
Chapter 12: Declaration of Persons to be Unfit to Possess a Firearm Advocate Kok pointed out an error. In Clause 103(1)(g) the word ‘’sexual abuse’’ is included after the word ‘’violence’’ to read "any offence involving violence, sexual abuse or dishonesty, for which the accused is sentenced to a period of imprisonment without the option of a fine".
In this clause the word ‘’dishonesty’’ is also included. Advocate Swart pointed out that this had the effect that small theft would also render a person unfit. The term was very broad and dishonesty as such had no real connection to firearms control.
The Chairperson said that the legal team explained that dishonesty would be construed in the context of the Bill. Advocate Swart replied that dishonesty as it relates to a weapon has already been covered in another section of the Bill. The FF agreed with the DP that trivial offences should not render a person unfit.
Mr Pheko of the PAC said that violence cannot be equated with dishonesty.
The ANC was in favour of leaving in the word ‘’dishonesty’’.
Advocate Swart requested a clause by clause vote on this Chapter.
Clause 102: Unanimously in favour Clause 103: Against: DP, NNP, FF and For: ANC, PAC, IFP, ACDP, UDM Clause 104: Unanimously in favour Clause 105: Unanimously in favour
Chapter 13: Inspections The committee voted in favour of this unanimously.
Chapter 14: Search and Seizure The committee voted on this chapter clause by clause: Clause 110 - Unanimously in favour Clause 111 - Unanimously in favour Clause 112 - Unanimously in favour Clause 113 - For: ANC, UDM, IFP, ACDP, PAC and Against: DP, NNP, FF
The FF suggested that the words ‘’involving firearms’’ be inserted after the word ‘’offence’’ in Clause 113(1)(a). Advocate Swart objected to this clause as it stands because it provides for any offence. It gives the police power beyond firearms and therefore is too broad. Clause 114 - Unanimously in favour Clause 115 - Unanimously in favour
Clause 116 - The ANC suggested that they delete Clause 116 completely. They would then place an alternative to this clause as a new subclause 115(4). The way it will be worded will allow police to exercise the powers - only if obtaining the warrant would delay the purpose for which the power is exercised. The committee agreed to make the change. They emphasised that not anybody would have this power, it had to be a police official. The committee agreed to this unanimously.
Clause 117 - Unanimously in favour
Chapter 15: Presumptions For: ANC, UDM
Against: ACDP, DP, FF
Abstain: PAC, IFP
The PAC stated that it abstained because although they understood the rationale for these clauses, they did not approve of the shift of the burden of proof. Persons were now required to prove their innocence.
Chapter 16: Offences, Penalties and Administrative Fines Advocate Kok noted that in subclause 121(7), the words ‘’in municipal area’’ have been deleted. Also in 121(8)(b) the word ‘’disposed’’ should read ‘’dispossessed’’.
The committee voted on the chapter clause by clause: Clause 121: The ANC proposed an alternative formulation to Clause 121(2)(a) that did not include the phrase, ‘’ought reasonably to have been aware’’.
For alternative formulation: ANC, UDM and Against: ACDP, IFP, DP, NNP, FF Clause 122: The FF voted against it as they said it is too harsh with the sentences.
All the other parties voted in favour of it. Clause 123: The FF voted against it.
All the other parties voted in favour of it.
Chapter 17: Organisational Structures The committee voted unanimously in favour of this chapter.
Chapter 18: Right of Appeal The committee voted unanimously in favour of this chapter.
Chapter 19: Compensation The committee voted clause by clause: Clause 135 - Unanimously in favour. Clause 136 - Unanimously in favour. Clause 137 - Unanimously in favour. Clause 138 - Against: DP, FF, NNP and For: ANC, IFP, UDM, PAC
Chapter 20: Special Powers relating to Amnesties, Firearm Free Zones and Emergencies Advocate Kok pointed out that in Clause 140(2) words had been added which makes amnesty valid only if it was approved by Parliament.
The committee voted unanimously in favour of this chapter.
Chapter 21: General Provisions The committee voted unanimously in favour of this chapter.
Schedule 1: Transitional Provisions The FF suggested that the words ‘’unless otherwise permitted by the Registrar on good cause shown’’ be added at the end of Clause 1(2)(a). The DP suggested that General Viljoen had suggested this because he was concerned that the period provided for in the Bill might not be sufficient, for example if the computer system broke down. This was not a political point it was simply a practical point. It was noted that the Minister is trusted with a lot and perhaps the Registrar should also be given a discretion here.
The other parties indicated that they were comfortable with the clause as it stands. The FF’s suggestion was not accepted. All parties vote in favour of the clause as it stands with the FF abstaining.
Schedule 2: Offences Giving Rise to Unfitness Enquiry by Court Advocate Kok noted that the words "sexual abuse’’ must be added to item 7(c): ‘’involving violence, sexual abuse or dishonesty’’ [ie offences where the court must enquire.] He pointed out that Clause 103(1) was the counterpart to this schedule.
Advocate Swart said that it was not a good idea to burden the courts to hold an enquiry where the person had the option of a fine and imprisonment was not even necessary. He said that this was an impossible burden to place on the court. Instead they could grant the court a discretion to hold an enquiry by changing the word ‘’must’’ to ‘’may’’.
The ANC was against this because it would not only affect the word ‘’dishonesty’’, it would affect all the other grounds too. They did not want to tamper with the whole section especially in light of the fact that they were trying to send out a strong message against sexual abuse. This is a serious issue.
Advocate Swart was unhappy with ‘’dishonesty’’ being left in because it would mean that anyone guilty of an offence is automatically unfit.
The Chairperson said that they want to be emphatic about the message that if people want to own a firearm, they must not do silly things. They must be serious citizens.
Advocate Swart asked if they wanted to burden the courts to do a fitness enquiry. He said that the principle may be correct but the burden is massive.
The Chairperson said that the courts could not be given the discretion to hold an enquiry because magistrates are ‘’reckless" and do not care. Parliament must ensure that ordinary people are protected as the courts do not protect them.
Mr Pheko interjected to tell the Chairperson that it was not proper to say that magistrates are reckless.
Vote (with the inclusion of sexual abuse, and otherwise as it stands):
For - ANC, ACDP, UDM and Against - IFP, PAC, DP, NNP, FF
Schedule 3: Laws Repealed The committee voted unanimously in favour of this chapter.
Schedule 4: Penalties The FF voted against this chapter. All the other parties voted in favour of it.
Concluding comments The Chairperson commented that the Bill will be tabled on Thursday, 12 October 2000. He said that the committee had disagreed on many issues but they had learnt to respect each other. It was democracy in action. Time will answer whether the Bill serves the purpose for which it was intended.
Advocate Swart thanked all the parties. He commented that it was bad that the concessions which were made by the ANC were taken away that morning by means of the alternative formulations). He concluded by saying that he supposed that that was democracy.
The Chairperson reported that the Bill was agreed to with amendments. The Bill was passed. In conclusion the Chairperson noted that the regulations must still come through Parliament to ensure that the committee agreed to its contents.