SUMMARY The Chairperson indicated that they would try to accommodate the views of all parties but the aim of the Bill (which is to bring down the number of firearms in the country) must not be watered down.
The DP felt that there is not an adequate framework in place to administer the Bill. They noted a specific concern in respect of staff shortages in the SAPS. In response to this concern the Chairperson said that the National Commissioner would visit the committee to answer questions on the readiness of the SAPS to implement provisions in the Bill.
In terms of the Bill the maximum number of firearms that can be licenced to an ordinary person is four. The DP, NNP and the FF felt that the rights of responsible firearm owners are being infringed upon by such a restriction. General Viljoen said that it was a very emotional issue for "his people" and they would not hand their firearms to the ANC government. He indicated that he would rather leave the country than hand in his own firearms.
The committee also looked at Section 49 of the Criminal Procedure Act which is not operational yet. All parties agreed that this section should be revisited and so worded that a policeman will know when he can fire at a suspect and when he cannot.
MINUTES Present to brief the committee: Advocate Louis Kok (Chief legal advisor)
Also present: Mr R De-Caris (Legal advisor to the office of the National Commissioner) and Ms B Holtman (of the National Crime Prevention Centre).
Hearings The committee does not have a clear idea of how long the public hearings will take because they do not know how many submissions and how many appeals there will be. Mr Gibson (DP) suggested that they should not confine themselves to completing the public hearings within a specific period. [They are slotted to begin on 14 June; submissions to the committee: closing date is 12 June]
Introduction Advocate Kok made the following comments on behalf of the National Commissioner: Firearm violence in South Africa is rife and a big threat to stability in the country. Therefore they are taking a hard line on crime but support mechanisms are necessary to enable police to ensure law enforcement.
It is important to empower police to defend themselves and to arrest violent crime suspects without any compromise. Therefore Section 49 of the Criminal Procedure Act must be revisited and they would like to work with the Justice Portfolio Committees on this.
The National Commissioner supports strict control over firearms and also supports the changes in the new tabled Bill. He also supports the accommodation of additional concerns to the extent that it will not compromise firearm control in South Africa.
The problem concerning the proliferation of handguns poses the most significant threat to South Africa in terms of violence. Sometimes the aim of housebreaking is merely to steal firearms. In the new Bill the focus is sharply on the proliferation of handguns. A more lenient attitude is taken toward rifles.
Discussion The Chairperson said that S49 has not been implemented because of the problems attached to it. This section must be revisited as there is an element of impracticality in it. The Justice Portfolio Committee and this Committee (Safety and Security) must get together and look at it. They must also address sections of the Criminal Procedure Act which have a bearing on police but were decided on by Justice Portfolio Committee without police consultation or consultation with this committee. For for example, the Domestic Violence Act took a long time to implement because there was no consultation with Safety and Security.
Mr Gibson (DP) said that it would be good to co-ordinate the work of the two committees. The problem with S49 was that it was too cleverly worded and it was too subtle. The problem is that the police must apply a test which leaves them in doubt as to when they can fire and when not. The section must be worded so that they know exactly when they can fire.
General Viljoen (FF) supports the revisit of S49. He said that amendments are often passed through the house "emotionally" without the proper consideration of the House. He warned the committee that the present Bill would also need revisiting in time.
The Chairperson said that he was happy that opposite parties support the revisit.
General Viljoen asked if they knew how many firearms were stolen at gunpoint (pointing a gun to someone’s head and demanding his firearm) and how many were ‘’just taken’’.
Mr De Caris replied that 27% of firearm theft was theft from safes. Often, he said, people had small safes and they did not bother to bolt them to the wall so thieves just took the whole safe.
The Bill The constitutional concerns that were raised by the law advisors in respect of the previous draft of the Bill had been worked on. The wording of the new Bill differs from the old one. The legal advisors have certified the language used in the Bill. This means that the language used by them complies with the norms applied in drafting legislation. The language differs but the content and the structure remain basically the same.
The comments that they had received on the Bill were scrutinised and considered. The intent of the Minister and the National Commissioner was to accommodate legitimate needs of people within the policy framework.
Response to submissions made to the Department Some of the requests made by people were:
1) That more than one firearm could be licenced for self-defence (for example, a shotgun to be kept on a farm or at a shop and a handgun for travelling, both which could be licenced for self-defence. In terms of the new Bill this is possible.
2) A request to licence more than one handgun for self-defence. In terms of the new bill one can licence one handgun and one shotgun for self-defence. The request to be able to licence two handguns for self-defence was not allowed because the greatest crime threat is posed by handguns (and the theft thereof).
The maximum number of firearms obtainable by an ordinary person (someone who is not a dedicated hunter, not a dedicated sportsman, and not a firearm dealer) is four firearms. (Two may be handguns but only one may be licenced for self-defence).
3) A request that more than two persons should be allowed to licence the same handgun, for example, a husband and wife in one household should be licenced to use the same firearm. One firearm can be licenced to all in the household (the number of firearms can be reduced in this way).
- Some firearms which pose no threat should not have to be licenced. Examples of these are paint ball guns and tranquiliser dart guns. These firearms are not used in crime. For this reason they removed these from the definition of firearms.
Some sporting activities require semi-automatic firearms. These are dangerous but they found that dedicated sportsmen and women have control of their firearms and they store them safely. The feeling was that allowing them to have possession would not compromise safety and security. Therefore they can licence semi-automatic firearms to dedicated sportsman and for the making of movies. These firearms get modified not to shoot live rounds, therefore there is no problem with this.
- The new Bill favours control over state-owned firearms. Measures in the Bill take the same strong stance against illegal possession.
- Re-licencing and competency testing of firearm owners – These are related. They are used to ensure that a licence holder remains a competent person. Therefore after deliberation they decided not to make a compromise on these.
- Declaration of unfitness – The previous Bill provided that the Registrar and the Courts had the power to make declarations of unfitness. The new version provides for the same types of provisions. There is a large variety of instances where the court has a discretion to declare someone unfit or not. In some serious cases the court is obliged to say that someone is unfit.
There were requests that a court should always have a discretion and not be obliged to declare someone unfit in any particular circumstance. On the one hand one could say that the legislature is interfering with the courts discretion, but on the other hand automatic unfitness sets in by operation of law and it is simply put in the Bill to make sure that the courts take note of this.
The drafters decided not to change the measures for the purpose of tabling the Bill. Thus, an automatic declaration of unfitness after convictions for serious crimes remains in the Bill but the Portfolio Committee may want to discuss the matter further.
Constitutional concerns These were revisited in the new Bill and there have been changes with regard to Presumptions, Administrative fines and Ministerial powers.
1) Presumptions In the old version some presumptions had a reverse onus. They required the accused to prove his/her innocence in respect of the possession of a firearm. For example, a person could be charged with possession of an illegal firearm if found in his vehicle. The person then had the burden to prove otherwise.
In terms of the new provision the only burden on the accused is to raise a reasonable doubt.
There is a Constitutional Court case which recently considered Section 37 of the General Laws Amendment Act in terms of which it is an offence to possess stolen property. The Court held that the accused only had a duty to create a reasonable doubt. The accused will only be required to prove his innocence in very exceptional circumstances. The accused would have to lead some evidence to raise a reasonable doubt but the onus is only to raise a reasonable doubt.
2) Administrative fines These are retained in the new Bill. The Registrar is given the power to do this to alleviate the burden on the courts. A new provision is that the administrative fine cannot be enforced if the accused wants to go to criminal court. The accused can insist on this. However if the accused goes to court and is found guilty then he will have a criminal record, if he pays the administrative fine then he will not have the record.
3) Ministerial powers In the draft Bill the Minister had emergency powers to restrict/prohibit the sale of firearms in certain regions (in the presence of particular circumstances). In the new version the Minister’s powers are limited substantially. He can only exercise these powers after the declaration of a state of emergency by the President. This provision is arguably too strict and it can be debated by the Committee.
Discussion Mr Gibson (DP) asked what role the public submissions had played in the redraft of the Bill. He noted that the public submissions seem to have been ignored.
Advocate Kok replied that they took these comments into consideration. They were given to a scrutiny team to look at. This happened from the second week in March. Their mandate was to accommodate legitimate needs of people. People will still have time to note objections during the oral presentations. They do not profess to have accommodated all comments as there was simply too many for this. They did accommodate some for the purpose of tabling the Bill.
Mr Zondo (ANC) asked for a clarification of the legal licencing age.
Advocate Kok said that the legal age for obtaining a firearm licence has been increased from 16 to 18 in the tabled Bill. The committee can debate whether they want to push it higher.
Advocate Swart (DP) asked if they had considered the possibility that shared licences should not be considered as ‘’proper licences’’. (In this way the person who has a shared licence can get another firearm licence for self-defence as the first one does not really count).
Advocate Kok said that they had considered this but decided against it because it would open up the possibility of a large number of licences becoming available. This issue can still be debated.
General Viljoen asked how many fully automatic weapons there were in the country and whether security firms would be allowed to have fully automatic firearms.
Advocate Kok said that there were no statistics on these firearms. No allowance has been made for security firms to use automatic weapons. He added that a new Security Officers Bill would be tabled in the near future.
Mr Gibson asked about competency testing and re-licencing. He said that he was sure that the committee did not want to pass a Bill that they could not administer properly. He said that millions would have to be tested for competency and he asked who would do this. He said that he had recently visited various police stations with his party and there was insufficient police officers at most stations. He asked if they were taking any steps to improve this situation.
He said that the demands on the Central Firearms Register were already more than the SAPS could handle (extra staff was needed) and the demands placed on them by this Bill would be enormous in the future and there was no framework in place to administer these things properly.
A committee member responded to this comment by saying that the object of the Bill was to control firearm violence and to reduce crime. This Bill was the first stage toward a gun-free society. It is a fact that criminals target people with firearms and this has to be addressed. He said that they must put forward proposals to implement the Bill and that it was wrong to focus on vacancies in the police force especially because transformation in the SAPS was on-going.
The Chairperson commented that he has already asked the National Commissioner to discuss the issue of police personnel shortage with the committee. They would find out if there was a shortage of manpower once and for all and would finally lay this question to rest.
Mr Gibson asked if this would happen before they passed the Bill because they needed to determine if there was enough manpower to administer the Bill.
The Chairperson replied ‘’As soon as possible’’ because this issue had to be finalised.
Advocate Kok said that there were some concerns about the police issue. He had raised the issue of the implementation of the Bill and funds related to this issue with the National Commissioner and the Minister. Even without the current Bill more resources are needed by police departments. He said that additional funds have been approved by Deputy National Commissioner Eloff so there should not be a problem with the implementation of the Bill. Advocate Kok said that there was also a Business Process Re-engineering process underway to efficiently implement the new dispensation.
On the issue of administrative fines the Chairperson asked if it was a good idea to create the option of going to court as this would contribute to the problem of clogging up the courts.
Advocate Kok said that this was a valid concern. From a practical point of view it would be preferable not to have that option but administrative justice is a right granted to citizens in the Constitution. In the old Bill there was no option but that could be interpreted as being unconstitutional because the audi alterem partem rule must be observed. Therefore they had built in this safeguard.
Administrative fines cannot be issued arbitrarily. The law advisors said that it is unconstitutional to force someone to pay a fine without recourse to the courts. This is however a value judgement and it may be incorrect.
A committee member asked if it would be possible to give the powers granted to the Minister (in respect of declaring firearms prohibited in certain areas) to the MECs of provinces. He asked if this would be unconstitutional. On the issue of genetic sampling, he asked if the State had the capacity to do this and under which circumstances it could be done.
Advocate Kok said that granting powers to the MECs was a purely political question and he had no view on the matter. On the question of genetic samples he said that the present measures in the Criminal Procedure Act are inadequate. This has been recognised widely and the Department of Justice is currently considering this.
The Firearms Bill explicitly grants wider powers and it may still need further expansion. The problem was that when you empower the police to take genetic samples then you are limiting the individual’s right to privacy. The Bill provides for a certain limitation of the right to privacy to allow for sufficient investigation. They must implement this with the necessary circumspection.
Personally, Advocate Kok thought that the provision in the Bill is a justifiable limitation of the right to privacy because the decision is not left to the whims of the police officer. The police must ensure that the test will advance the investigation concerned. There must be a rational connection between the tests taken and the advancement of the investigation or else the action will be unconstitutional.
The Member then asked in what circumstances they would be able to do this. Advocate Kok gave the following example: if you have a group of people and you know that one of them was involved in the crime but you do not know which one. Currently the position is that the police cannot test or fingerprint anyone in the group without arresting them first. With the Bill the police will be able to take the fingerprints of all in the group to determine who the guilty party is.
Mr Geldenhuys (NNP) referred to Advocate Kok’s point that certain firearms were not considered to be dangerous firearms and were therefore excluded from the definition of firearms. He said Clause 6 regulates antique firearms and asked why. He also asked why the competency certificate expires after two years but licences expire after 5 years. Why were the periods not simultaneous? Finally he said that he was aware that certain branches of the SAPS had objected to the previous draft of the Bill. How did they feel about this draft?
Advocate Kok said that antique firearms were excluded from the definition of firearms but there still had to be some measure of control. They posed a lesser threat so they needed lesser control.
Even though the competency certificate lapses the licence is still valid. This operates on the same principle as a learners (drivers) licence. After you have obtained a competency certificate you have two years within which to buy your firearm. If you do not do so within this period then the competency certificate lapses (and you have to get a new one before you can buy a firearm).
Many branches had concerns about the Bill and all were invited to note these. They used these inputs and had made some changes. Not everyone was accommodated. This Bill embodies the view ultimately decided on and accepted by the Minister and the National Commissioner. Other views will still exist.
Mr Gibson commented on the transitional provisions. He urged the committee to take account of the fact that not everyone with firearms was incompetent to have them. He said that requiring them to lawfully dispose would create a market for cheap firearms (if they must dispose of their firearms within a certain period then the market would be flooded with firearms and they would be available at cheap prices). Thus the Bill would create a market for cheap weapons.
Advocate Kok said that the issue of the transitional provisions will be hotly debated. There is a possibility to tailor the transitional provisions to accommodate these people. They will go some way to accommodate legitimate concerns while keeping in balance the ultimate goal.
Mr Swart asked if compensation for the persons handing in their firearms had been considered.
Advocate Kok said that this had been considered and they had even looked at the compensation dispensation in other countries. The problem was that this would be difficult to implement on a full-scale. Financially the State cannot afford to compensate all. They had to consider the practicalities of this and they had to take a conservative approach. In terms of the Bill people would be required to dispose of their firearms within a certain period. If people were unable to do this within the prescribed time then the State would rather extend those periods to enable people to find a buyer than to put a burden on the State to buy.
General Viljoen commented that he saw no reason why they could not accept people who acted responsibly with their firearms. He said that this was a very emotional issue for his people and that they would not hand in their weapons to an ANC government. This was the way his people felt. He said that he himself had twelve weapons and he would rather leave the country than give them up.
The Chairperson said that this was a political question and that Advocate Kok could not answer it. At the appropriate time members would respond. He said that it was not good for the country to emotionalise the issue and it would not help in nation-building and reconciliation.
A committee member asked about the temporary authority for possession of firearms which could be granted by the Registrar. Could the Registrar allow this whenever he felt that a person was fit and how long would the period last? On the renewal of firearm licences, he asked if people would be reminded.
Advocate Kok said that the length of the period will depend on the circumstances. The principle was that the period should remain as short as possible but still accommodate the need. Advocate Kok gave the following true example: a small holding was attacked, the attackers did not find what they were looking for and they threatened to come back. In such an instance a temporary licence could be granted. The licence must be renewed 90 days before expiry. Sending reminders was in order and they could implement such a system.
Mr Geldenhuys asked if Clause 105 meant that the Registrar had the power to impose prison offences.
Advocate Kok said that the Registrar may not impose prison sentences and if the wording of the section gives him this power then that was a drafting error and it must be corrected.
Concluding comments Mr Swart said that he agrees with the main purpose of reducing the number of illegal firearms but it does bear on the rights of law-abiding citizens. It must be ensured that these people can protect themselves properly. This must be borne in mind without watering down the aims of the Bill. He also said that they must always look at the practical implementation of what they pass and they must get proper answers from the appropriate authorities.
The Chairperson said that the National Commissioner would be present at the next meeting. They will have pubic hearings and they will look for consensus on the issues. They will discuss the Bill and try to accommodate the views of people but the aims of the Bill must not be watered down. The aim is that the proliferation of firearms in South Africa must be brought down drastically. It is an emotional issue but he appealed to parties to ‘’keep their heads cool’. They will not agree on everything but that has never happened in the past either. The idea was to get as many people on board as possible. He said that they would meet after constituency week [30/5 – 2/6/2000].