SUMMARY The intent of the Firearms Bill is to deal with firearm violence by reducing the availability of firearms and creating a culture of responsibility. Important stakeholders in the campaign against firearm violence were identified as being the women and the youth of the nation. South Africa also has to consider how it was being perceived internationally. It should be seen as a nation that takes firearm violence seriously and a nation that stands together across political divides to combat firearm violence as it attacks the prosperity of the nation.
Various mechanisms for the effective implementation of the Bill were explained.
MINUTES The Chairperson said that the Bill is a section 75 Bill and as such it is unusual for provinces to be engaged in the Bill. However the provinces were involved in the process as the effect of the Bill would be felt at ground level.
Mr R De-Caris (legal advisor to the office of the National Commissioner) made a presentation on the essence of the Bill. Ms B Holtman of the National Crime Prevention Centre dealt with the public communication campaign while Mr J Oosthuizen, SAPS Director of Firearm Strategies made a presentation on the implementation strategies of the new Firearm Bill. Finally Mr J Bothma, Director of the Central Firearms Register, made a few comments on the Central Firearms Register (CFR). About the Bill Mr De-Caris made the following comments:
The intent of the Firearms Bill is to deal with firearm violence and not to hurt the firearm business or sport of safari hunters and so forth. The Bill was aimed at reducing the availability of firearms and changing peoples attitudes to firearms. They wanted to create a culture of responsibility and regulate legal and illegal firearms.
An applicant for a licence must satisfy the National Commissioner that he is a fit and proper person. Further the applicant must provide proof of identity which includes a photograph and a set of fingerprints. The onus is on the applicant to give notification of any offences with which he has been charged.
The licence also has to be renewed. This is different from the old position where licences were valid until they were revoked.
What the Department is hoping for is maximum voluntary compliance with the Bill. All existing licence holders must undergo an audit and qualify to keep their licence. On the current licence there is no picture identification whereas the new one will contain this. This will make it harder to abuse the licence.
They are also trying to create an computerised database system where the information will be reflected at the Central Firearms Register.
The Bill introduces a new kind of penalty for contraventions namely administrative fines.
The Minister can declare certain areas to be gun-free zones, for example, banks shebeens, government buildings, schools and casinos.
The number of firearms licenced for self-defence should be limited.
The Bill contains certain presumptions. These have been redrafted in a way that will hopefully be considered constitutional by the Constitutional Court.
Mr De-Caris concluded by saying that the Department wanted to encourage citizens to comply with the regulations so that they can focus their energies on illegal firearms and not the legal ones. Communication campaign Ms Holtman said that communicating the Bill was central to ‘’making it happen’’. Lawlessness in South Africa was said to be a problem but an even bigger problem she said was ‘’complicity with lawlessness’’. A workshop had been held at Spier recently to mobilise involvement against firearm violence. It had aimed to establish community strategies and to hear the objectives of all the roleplayers. Important stakeholders who were recognised were women and youth, specifically male youth.
Ms Holtman said that the women of South Africa had a role to play regarding the perceptions of men involved in firearm violence. She said that women must ‘’reject men with firearms’’ and not regard them as masculine or as heroes.
She also said that their campaign should be aimed at the youth of the nation before they reach the age bracket of 18 – 29 years (the category with the highest level of firearm victims and offenders). At present they were asking the youth to help them with the process of target campaigns. She said that the most important functions of the firearm campaign are:
- to co-ordinate the interests of the roleplayers and
- to get a clear message across to the public.
A big problem that she identified was that our youth do not expect to live long lives. Through the campaign they wanted to provide youth with a dream and a long life expectancy. She emphasised that the campaign is information based and that they wanted to resource young people to see what role they could play in the campaign.
An important consideration for this country was the way that South Africa was perceived internationally. It should be seen as a nation that takes firearm violence seriously and that stands together across political divides to combat firearm violence as it attacks the prosperity of the nation.
Implementation of the new Firearm Bill Mr Oosthuizen raised the following points: Voluntary surrender of unwanted firearms This would present an opportunity to hand in unnecessary and unwanted arms. There would be a communication of the process to the public and to the SAPS. There may need to be special transport arrangements to transfer arms to safer places after physical surrender had occurred. The destruction process would be contracted out. The administration process involves the issuing of receipts and the cancellation of licences.
Audit of firearms in deceased estates Prior to 1994 there was no obligation on executors, trustees or curators to report firearms in their safekeeping. There will now be a follow-up on these arms. The administrative process will involve the provision of receipts for confiscated arms.
Amnesty The policy for the amnesty process of handing in illegal firearms voluntarily is with the Minister for his approval. Police stations would be the primary collection points but other collection points would also be important to ensure anonymity. Security would however be necessary at these places. The processes would be communicated in the Government Gazette.
Audit of state-owned firearms The Government should be the example and must show that it is committed to the programme. He stated that there would be an extensive communication campaign and that there would be physical inspections at State departments. Excess and redundant firearms should be handed in. There will be record-keeping process and then a destruction process which will be contracted out and will be secure in order to ensure that there is no corruption.
Audit of privately-owned firearms This is a controversial issue that may appear to be a vast and expensive process but that the SAPS feels it is manageable. Again there will be an extensive communication campaign and there may be a need to allocate additional personnel. Proof of the audit will need to be provided and there will need to be an archive and record-keeping process.
Business Process Reengineering (BPR) He remarked that this is important and will gear the SAPS for the re-licensing process. The process encompasses the whole life-cycle of the firearm from manufacture through importation to destruction or exportation. The process will involve all role-players including the SAPS and other government departments.
BPR of the Central Firearms Register The SAPS is legally bound to task the State Information Technology Agency (SITA) to conduct BPR. It would take approximately six months and would be dealt with in phases. The first phase will look at the current situation for arms control, the second at the ideal situation and the third at what is needed to fill the gap.
Training of prospective firearm owners The idea here is the same as for the acquisition of a driver’s licence. The programme is aimed at training owners to be competent and responsible and to be aware of the legislation. The programme will also ensure that there is no corruption involved in the training process for example in the issuing of certificates.
Designated Firearm Officers (DFOs) These officers provide a link between the Registrar and arms users. They will perform the background check on those applying for licences.
The Operational Policing Strategy
This will be an overarching strategy.
Mr Oosthuizen concluded by acknowledging that the SAPS understands that it plays a central role in ensuring the effectiveness of the Act and that the SAPS is committed to doing a proper job.
The Central Firearms Register Mr Bothma said that they were currently in the process of restructuring the CFR and that the focus now was on state-owned firearms. The Department was also looking at the issue of licencing and proper record-keeping of dealers.
Discussion (Q) Will the implementation of this Bill result in any job losses?
Ms Holtman said that they had met with the pro-gun lobbyists who had raised the issue of job losses. The feared that because of stringent legislation, hunters may choose not to hunt in South Africa but rather go to neighbouring countries. In response to this argument, she said that the committee must look carefully at the trade-offs that were being made. On the one hand there was the firearm market and on the other hand there was the cost of gun violence on our society. The impact on society included the impact on health workers specifically their inability to cope with all the patients who are victims of gun violence. The question to be asked is: ‘’How serious are we about reducing gun violence?’’ While there may be job losses now, the long term effect will be good for the country.
Director De-Caris responded that in essence the Bill does make special provision for people who use firearms as a tool of trade, for example, hunters.
(Q) If a firearm owner loses his firearm will he be charged with an offence or will he simply be fined? (A) Firearm loss will be criminally charged and not simply administratively fined. Negligent loss specifically was considered to be a very serious matter.
(Q) When you renew your firearm licence will you be re-tested; or is the renewal of the licence simply a formality? (A) Renewal of a firearm licence consists of two phases:
1) the audit process (where the information is checked) and
2) a competency test to check if the person is still a fit and proper person.
If during the tenure of the person’s licence something happens, for example, the person has become a drunk or he has negligently lost his firearm then the renewal of his licence can be refused.
(Q) There are two useful types of technology available. Firstly it is possible to insert a microchip in a firearm to enable it to be traced. Secondly there is another kind of microchip which can be inserted in a firearm which has the effect that only the owner can use it (as his fingerprint is the only one which the weapon will respond to). Why is this technology not being utilised in the Bill?
(A) These firearms are referred to as smartguns. They were developed to counter the problem of lost and stolen guns but the installation of the microchip has a very limited application. Some companies use it but as it cannot be placed in the metal of the firearm (it must be placed in the soft part – the butt of the firearm), it is generally very easy for a criminal to remove the chip. Also it is sensitive to heat and to other electronic devices. Another problem is that it is very expensive adding approximately R8 000 – R10 000 to the already existing value of the firearm. It is not a good idea to require its installation in legislation as it will be too costly and ordinary citizens would probably not be able to afford it.
(Q) At the public level, the Bill was projected very badly. What is the programme for communicating this important piece of legislation?
(A) Regarding the criticism of bad press Ms Holtman said that before the firearm policy was approved by Cabinet they were not in a position to openly discuss the Bill with the public. The result was that they could not defend misunderstandings about the Bill. However in September last year the policy was approved by Cabinet and they were then in a position to discuss the proposed legislation. The result was good feedback from the media. To support her point she cited ‘’Die Beeld’’ who after the workshop at Spier said that the Minister ‘’deserv[ed] first prize’’ for the proposed legislation. She continued that they should not apologise for harsh gun-control legislation and that it must not be seen as a central government campaign. The plan was to go to the provinces and work with the youth to get their idea of how to reach their peers. They were also mobilising women as widely as possible. They were planning to have a march in Cape Town on 8 March which included women from rural and outlying areas. Thus they were committed to marketing at a grassroots level.
Mr Lever (DP) said that the process whereby firearms must be disposed of to a licenced firearm dealer could have unintended consequences. He noted that it could create a market for cheap weapons to be sold elsewhere.
Regarding the issue of firearms surrender he suggested that the Department consider the idea of a tax credit on a sliding scale. This would mean for example that if you surrender your firearm in the first year of the request you get R2 000 and if you surrender it in the second year you get less and so on. Thus some kind of ‘carrot’ for surrendering rather than a penalty for not surrendering.
Mr De-Caris said that the notion of tax credit had been debated and he agreed that they needed some kind of an incentive. Ms Holtman said that a sliding tax credit would amount to government paying people for the surrendered firearms)and government cannot afford to subsidise this. She then commented that what they should be doing is looking at ways of tapping into the proper market. For example some people bought a firearm, then when they got old they did not really want it anymore. This was the market that they should be trying to tap into for the surrender of firearms.
Mr Lever said one needed to consider whether people would be able to afford the renewal of a licence every five years. He conceded though that the cost of a licence renewal was ‘’not a major factor’’. He asked how many legally licenced firearms there are presently and how many of these do the police have.
Mr Bothma said that there were over 487 000 firearms in the police and the military. He said that they were now in the process of auditing the different government departments.
Mr Lever commented that the drafting of the clause relating to the use of a firearm for self-defence, should be more user-friendly.
Mr De-Caris said that in his opinion only the Departments of Safety and Security and Correctional Services need firearms. There are plans to destroy all excess firearms but before these guns are to be destroyed their details must be recorded and they must be ballistically tested.
Mr Lever raised a concern about the fact that only specific types of firearm can be registered for self-defence saying that if you live on a farm you may want a shotgun for self-defence and not a handgun. He asked from where the illegal firearms in circulation came?
Mr De-Caris said that it was difficult to say. However it appeared that most of the guns come from within the country. In the neighbouring countries of Angola and Mozambique most guns were assault rifles and of the AK variety. These were not the types of illegal firearms that they were recovering in South Africa. What they recovered here were primarily handguns (pistols and revolvers) that had been privately or State owned (leakages must have occurred there).
The final point that Mr Lever raised was that mistakes were often made when the serial number of a firearm was recorded. He asked whether the person in possession of a firearm with an incorrect serial number could be criminally charged.
Mr Bothma said that they were currently involved in an auditing process the primary purpose of which was to rectify mistakes which had occurred for example in the incorrect recording of serial numbers of firearms. They would ensure that all the information on the computers was correct and also that any duplications were eliminated. Mr De-Caris continued that in order for a criminal charge to be laid, the person must have had the intent to commit a crime. If the person held the licence in good faith then there could be no question of a criminal offence.
Mr Taabe (ANC, Mpumulanga) said that before 1994 South Africa was clearly a police state. In this previous regime commandos (on farms) were issued with firearms by the State and now from these commandos all kinds of vigilante groups had sprung up. He asked the Department if they had recovered these weapons and if not, how they hoped to deal with the situation.
Mr De-Caris said that the commandos fall under the Department of Defence and that they are still operational. The process of the state audit did involve these firearms which are being placed on the database system so that they can access information regarding ‘’who has what’’. In certain areas the SANDF had withdrawn the firearms and in certain areas they had left them with the commandos.
Mr Taabe asked why a concession was being made and amnesty given? He believed that these people should face the full might of the law.
Ms Holtman said that the question of amnesty was complex and said that debates on the issue were taking place extensively with the community. Mr De-Caris said that he had been to a meeting yesterday with the Minister and the National Commissioner who seemed to share the committee’s feeling on amnesty. However it must be recognised that it is extremely difficult to recover these illegal weapons with normal police work. Even if they receive only 200 or 300 weapons in the amnesty surrender, this would be a great help. For this reason the Minister said that there should be amnesty but there will also be ballistic testing of the firearms surrendered (to determine if the firearm had been involved in the commission of a crime). Mr Bothma agreed that granting amnesty for the voluntary handing in of firearms is definitely a soft approach but he said ‘’it is a reliable process’’.
A committee member asked if the issue of amnesty was linked to investigations. He suggested that if someone does surrender the firearm and they are caught with it, there should be a penalty.
Mr Oosthuizen explained that amnesty is aimed at pardoning someone for the possession of an illegal firearm and not at pardoning them for the commission of a crime with the firearm. Further if an illegal weapon is not handed in and that person is later found in possession of it, then that is a crime on its own. A separate penalty does not have to be instituted.
The following concerns were raised: What if a gun changed hands and the person who handed it in did not know that the firearm was used in the commission of a crime. Would this person stand the risk of being charged for that crime? Should there not be a mechanism whereby someone facing domestic violence charges was automatically disqualified from getting a firearm licence.
The panel responded that ballistic testing only determines that the firearm was used in the commission of a crime and nothing further. The police must still determine who it was that committed the crime. In answer to the second concern, Mr De-Caris said that in South African law someone is innocent until they are proven guilty. However in such a case the application for a firearm would probably be suspended until the end of the trial. If there is a conviction the person would not be granted the licence. If there is no conviction, it does not necessarily mean that the applicant will get the licence. The spouse would be consulted for an opinion. Depending on the particular circumstances the licence may still be refused. Thus an acquittal in a court of law does not guarantee that a firearm licence will be granted. A system was being developed to red flag high-risk applications.
The Department was asked how they hoped to control the spate of suicide killings amongst police officers?
The issue of police suicide relates to the screening of police applicants. Mr De-Caris said that the question had a social character and as such he was unqualified to venture an answer. Ms Holtman said that they were looking at building resilience in the police community so that police officers are less likely to be suicidal, violent or corrupt. However the committee must not assume that the Bill can perform this function.
Mr De-Caris commented that the Bill does not permit the SANDF and the SAPS any special privileges. They too must go through the screening process in their department. The standard applied to everyone else is the minimum standard applied to state employees. The selection process will be done very carefully and those persons who are undesirable will be excluded.
The issue of corruption was raised by a committee member. He commented that people could easily be bought to provide a competency certificate especially if the applicant had no criminal record.
The Chairperson asked what it meant to declare an area gun-free?
Mr De-Caris said that it means that you cannot take a gun (including a legal gun) into that area under any circumstances. The idea was to discourage people from taking their guns with them when they go out. There are two levels of gun-free zones: official gun-free zones (proclaimed by the Minister) and areas which people have chosen to make gun-free zones (for example, banks and schools).
The rationale behind this is to encourage people to feel safe in gun-free zones.
On the flip side however they did not wish to encourage people to leave their firearms in their cars. This could have undesirable consequences. For example the recent situation where a man left his gun in his car and the car was stolen with the firearm.
Examination of the Bill Mr De-Caris took the committee through the Bill, commenting on particular clauses: Chapter 1 Clause 1 - Definitions Mr De-Caris pointed out that a differentiation was made between airguns, antique guns and firearms and noted specifically that airguns and antique guns were not considered to be firearms.
Clause 2 - Purpose of the Bill This is the essence of what the Act wants to achieve.
Chapter 2 – Prohibitions This is the main issue at which the Bill is directed. It deals with prohibited firearms and devices. All devices referred to in section 4 are declared to be prohibited firearms. While there was not a problem with the principle of this section, the drafters hoped to make the wording more ‘’user-friendly’’. Clause 3 People do not have an automatic right to own a firearm, a licence must first be sought.
Clause 4 This deals with specific types of prohibited firearms.
Clause 4(2) specifically gives the Minister the power to declare certain firearms to be prohibited firearms. This occurs a number of times in the Bill and some people are not too happy with this provision. However this power comes with certain requirements which have to be complied with and which are set out in the Bill.
Chapter 3 – Firearms and devices that need not be licenced Antique firearms are included under the list of firearms that do not need to be licenced. A dealer is however required to keep a register of antique firearms and airguns. This register includes the acquisition and disposal of these firearms.
Chapter 4 and 5 – Competency certificates The Registrar is given the power to issue these on application of the party who wishes to acquire a firearm licence.
The issue of competency certificates is a new feature. The competency certificate determines whether you can get a firearm licence. Different kinds of competency certificates can be acquired such as for private individuals, for manufacturers and for gunsmiths. The competency certificate makes provision for background checks to be made on the applicants. There are various requirements set out which will determine whether the applicant qualifies or not.
Chapter 6 – Firearms required to be licenced 12. Separate licences to be used in respect of each firearm
Provision is made for having more than one licence on one document provided that there is a licence for each firearm. For example, a company is licenced to have 200 firearms but for the sake of convenience all these licences are reflected on one document.
13. Additional licences Additional licences are allowed to be granted in respect of the same firearm. In other words two people (for example, husband and wife) would be able to obtain separate licences for the use of the same weapon.
14. Licences for restricted firearms used for self defence This section deals with people who are in grave danger and cannot be adequately protected by one self-defence firearm where they are allowed to have semi-automatic guns or other guns allowed by the Minister by notice in the Gazette.
15. Licences for firearms used for self-defence This is the normal self-defence licence where you have one hand gun and one shotgun which can be licensed for self defence purposes. The need has to be demonstrated.
16 - 18. Licences for firearms used for occasional hunting and occasional sports-shooting , dedicated hunting and sports-shooting No comment.
19 - 20. Licences for firearms in private collections and public collections. Both these collections could include prohibited as well as restricted firearms. This was because some collections include cannons and various other dangerous weapons. Special safety measures were taken in these cases. The main difference between the two sections was one was publically displayed.
21. This deals with licences for firearms used for business purposes
23. Temporary authorisation to possess a firearm No comment. 24. Identification marks on firearms An important question in this regard is whether manufacturers alone should be obliged to mark firearms. The firearm will be marked by stamping it and they will prescribe how deeply the serial number has to be stamped. The problem with stamping too lightly was that the number would disappear with use making it impossible to trace the firearm.
25. Renewal of firearms licences This clause sets out the procedure to be followed.
26. Notification of change of address This is obligatory
27. Notification of change of circumstances This is obligatory
28. Periods of validity of firearms licence No comment
29. Termination of firearms licence This section refers to a number of matters:
- the competence of the registrar to cancel a firearms licence and the circumstances where this would occur;
- the fact that a period of 14 days is provided to lodge representations to oppose cancellation
- where the registrar gives notice that the licence is cancelled, the person must dispose of the firearm through a dealer within 60 days.
- an extension could be granted in this regard but the policy is to try and put pressure on persons to dispose of these firearms fairly quickly. 30. Defaced lost or stolen licences If defaced lost or stolen a copy of the licence has to be obtained.
31. Central Firearms Database This would include the licences issued in terms of this chapter
Chapter 7 The various categories are dealt with in a similar way and there is much duplication. It was possible to word the chapter in a different way to make it much shorter but the drafter opted to have separate sections regarding dealers, manufacturers, gunsmiths and others for the purpose of easy access for the reader. 32. Prohibition of unlicensed dealing in firearms or ammunition The inclusion of this was obvious.
33. Requirements for a dealers licence A competency certificate as well as a few other things.
34. The dealer’s licence This states what is contained in the dealer’s licence itself.
35. Conditions imposed on a licensed dealer These would be prescribed by the minister.
36. Renewal of the dealers licence The procedure is specified.
37. Temporary authorisation to deal in firearms and ammunition on premises other than those specified in the dealer’s licence No comment
38. Change of licence Dealers cannot be allowed to change their premises without informing the registrar.
39. Notification of change of circumstances The same as above
40. Duties of a licensed dealer There are a number of duties listed in each of the categories which deal explicitly with the idiosyncrasies of that category. In 40(6) there is the requirement of the establishment and maintenance of a workstation and 40(7) requires the registrar to exempt someone from this in certain circumstances.
41. Establishment of centralised dealer’s database This is the same as the previous provision in regard to individual firearm licences.
42. Suspension of a dealer’s licence Whether this would still be enforceable in the light of the new administrative justice act would have to be debated since provision is made for suspension without a hearing for 7 days. This is a crisis situation where there is a suspicion but no evidence yet and if the dealer is allowed to continue he/she may dispose of their firearms. The suspension is for 7 days and may become 60 days and then a further 60 days if certain circumstances arise.
43. Termination of dealer’s licence This would occur for example where a dealer is found no longer to be a fit and proper person. The provisions for disposal of firearms are included here again.
44. Dealer’s licences in respect of partnerships and juristic persons Some detailed provisions are made for the specific requirements of the law relating to juristic persons and partnerships.
45. Application of other licences This is important to provide that it is necessary for a dealer also to obtain the necessary trader’s licence from the municipality for example. It is thus not intended to exempt the dealer from having to comply with other laws applicable to him/her.
46. Defaced lost or stolen licences This is included again.
Manufacturers and Gunsmiths As stated previously the majority of the subsections under dealers were duplicated to a large degree under the parts of manufacturers and gunsmiths from sections 47 – 77. Chapter 8 Sections 78-81 are straight forward. An important provision in 82 is that an import permit will constitute a licence to possess. This is very important to cater for foreign sportspersons and hunters coming into South Africa all the time.
From sections 83 to 88 there was once again a substantial duplication as with
dealers manufacturers and gunsmiths.
Chapter 9 89 Storage transport and carrying of firearms and ammunition This was intended to be dealt with more fully in regulations.
90 Carrying of firearms in a public place There is an existing provision similar to this . Once again provision is made for a holster or an appropriate holder covering the firearm in a public place.
91 Firearms transporter’s permit This was dealt with in a slightly watered down fashion if compared with the importers and exporters permits referred to since this person would simply carry the firearm from point A to B thus this is not as onerous.
92. Conditions imposed on transporters of firearms This could entail inspection and registers to be maintained. There is no requirement (as before) that registers have to be linked to the central firearms register since this is a more temporary type of operation being dealt with.
Sections 93-95 are straightforward.
Chapter 10 96. Prohibition of possession of ammunition There is a general prohibition of possession of ammunition if not authorised in terms of the act.
97. Restriction on possession of ammunition There are limitations on quantities to ensure that there is no unnecessary proliferation of ammunition subject to the exception in 97(4).
98. Prohibitions and restrictions on use of certain ammunition Here the minister has the discretion to prohibit or restrict acquisition disposal possession or use of ammunition.
99. Prohibition of possession of firearm parts The definition of a firearm includes just the barrel as well. Thus if you want to have a barrel in your possession you have to have a licence for this barrel. The same applies to the frame or receiver.
Chapter 11 Exemptions In terms hereof the SAPS SANDF Correctional Services intelligence services and certain government institutions are exempted from most of the provisions of this act. Permits are issued in respect of firearms within these institutions and a specific dispensation is created in this chapter for proper control and more stringent control than is currently possible over these firearms. 100. Definitions No comment
101. Exemptions In addition to providing for the exemptions this makes provision for 114 (inspection of premises) and 157 referring to official institutions to still apply.
There is also reference to members of military forces of foreign countries to be exempted from the act under certain conditions.
102. Further conditions applicable to certain official institutions. The registrar is empowered to impose these.
103. Possession and use of firearms by official institutions The permit referred to earlier is mentioned in 103(1).
104. Register to be kept by official institution Even though these firearms may be in possession of the SANDF if a firearm is found the registrar must be able to trace the firearm to an individual licence holder or to a state organisation. 105. Establishment of central official institution database This facilitates the need in 104.
106. Official Institutions workstations This also facilitates the proper control over official institutions’ firearms.
Chapter 12
Declaration of unfitness to possess a firearm Sections 107- 110 deal with this in some depth. There are for example in 108 (1) instances where a person is automatically deemed unfit to possess a firearm. If a person is declared to be unfit his competency certificate and licence(s) cease(s) to be valid. Once again provision is made for 60 days to dispose of the firearm and ammunition. This period may again be lengthened by the registrar. Whilst age is a factor to be considered here old age alone cannot justify unfitness to possess a firearm. Only if the firearm cannot be of use to such person any longer or if the person poses a danger with the firearm then the person may be declared unfit to possess a firearm.
Chapter 13 – Inspections Request for information is specifically provided for as well as the duty to comply with the request of police official or authorised person. The inspection of premises (114) was also applicable to government institutions.
Chapter 14 – Search and Seizure The relevant sections of the criminal procedure act (CPA)51 of 1977 have been amplified to make more extensive provision for searches and seizures.
Chapter 15 – Presumptions Mr De-Caris described this as the ‘’most contentious part of the Bill’’ and said that they had sat for a long time with leaders in constitutionality dealing with this aspect. The presumptions had previously been struck down by the constitutional court on the grounds that they were too general. The way that it was drafted now was much more limited. Now the presumptions made reference to specific numbers and to specific people whereas the first presumptions did not (they were general presumptions). Thus the approach has been to limit the scope of the presumptions to make it applicable only in specific circumstances.There are some who still believe that the presumptions are unconstitutional and will be struck down while others argue that they are constitutional. Mr De-Caris said that he was convinced of the constitutionality of the presumptions and that if the constitutional court found these to be unconstitutional then they must say exactly what it is that they want.
Chapter 16 – Offences and penalties Clause 126 deals with criminal offences and administrative transgressions. Mr De-Caris said that he felt that this clause should fall under the previous chapter (on presumptions) and added that he would bring the matter up with the SAPS chief legal advisor, Advocate Kok.
Clause 127 makes reference to schedule 3 of the Bill.
Clause 128 deals with the refund of administrative fines if a criminal sentence is imposed. The purpose of this was to avoid duplication of penalties.
Clause 129 deals with administrative sanctions imposed by the Registrar. Mr De-Caris said that next to the presumptions this was the most controversial clause in the Bill.
Clause 130 deals with additional offences and obligations.
Clause 130(1) also appears to contain presumptions and should possibly be moved.
Clause 130(3) says that there is a duty on a person giving a firearm to another person to ensure that such a person has the requisite capacity to be in possession of the firearm.
Clause 130(8) deals with the safekeeping of a firearm.
Clause 130(9) deals with certain administrative offences.
Clause 130(10) deals with administrative offences committed by dealers and manufacturers.
In Clause 130(10)(c) a typing error in the draft Bill was identified: the word ‘’not’’ must be added to read ‘’or not believing it’’.
Chapter 17 – Organisational structures No comment. Chapter 18 – Right of appeal No comment. Chapter 19 – Compensation Compensation is only payable by the State to the person when the firearm was legally possessed and the firearm was destroyed by the State. Chapter 20 – Special powers relating to amnesties, firearm free zones and emergencies Clause 148 deals with amnesties. These provisions are very similar to the provisions in the old Act. Chapter 21 – General provisions This was described as not being very important.
Clause 160 makes provision for a permit to inherit a firearm without using the firearm.
Shedules There are three schedules to the Bill:
Schedule 1 deals with transitional provisions. These are necessary for the switch from the old Act to the new Act. For example, people regarded as unfit under the old Act must continue to be seen as unfit.
Schedule 2 makes provision for the courts to declare people to be unfit.
Schedule 3 deals with the nature of the contravention, the maximum period of imprisonment and the maximum administrative fine or other administrative sanction. Mr De-Caris said that they had not inserted any minimum sentences as these did not really work in our courts. He said that the courts usually found a way of circumventing it and in any event they did not want to remove the discretion of the court. He concluded by saying that the courts were the best institution for determining suitable sentences.
Discussion Mr Lever noted that word ‘’disposed’’ was not defined in the Act and the panel said that they would look into this.
Mr Lever referred to Clause 9 of the Bill where was no indication of which organisations would be accredited with the function of testing the competency of applicants. He asked if it would be sports clubs.
The panel said that the SAPS would accredit organisations to do competency testing as they did not have the manpower to train people to use firearms themselves. These accreditations would have a financial value. The downside of this was that this would leave room for corruption.
Regarding Mr Lever asked if an applicant was still required to disclose the conviction on his application form after the period stipulated in Clause 10(4)(c).
The answer was that previous convictions must be indicated no matter how far back the conviction goes. A number of similar offences will definitely indicate a propensity for that particular action and will negatively affect an application.
Regarding the database Mr Lever asked if their would be public access and whether the police would have a webpage to report contraventions of the Act.
The panel said that the finer detail of the database had not been decided on yet. The general idea was that all dealers and manufacturers would be online. The idea of a webpage was described as an ‘’excellent idea’’.
In relation to section 25(1) (which deals with the renewal of licences) he asked if provision would be made for a grace period. This would have the effect that if someone forgot to renew their licence within the prescribed period the licence would not lapse automatically. There could be a fine as a penalty and the person would still have the opportunity to renew their licence within the ‘’grace period’’. This kind of concession for the renewal of licences existed in the Liquor Act.
Mr Lever suggested that in section 10(3)(m) the word ‘’or’’ be added after the word ‘’person’’ and before the word ‘’been’’. He also suggested that section 10(3)(n) be broadened by adding the phrase: ‘’law relating to self-defence’’.
He said that the wording of section 119 which deals with body-prints and genetic samples must be carefully considered as it may be infringing on the constitutional rights of privacy and integrity.
Finally he suggested that section 130(1) must also be considered carefully as it may be creating a presumption. It may be only a drafting problem and must be looked at. The other presumptions must be looked at carefully.
(Q) When a firearm is inherited would it not be better to simply deactivate it?
Mr De-Caris said that the position regarding inherited firearms had been taken from the German model. The problem with deactivation is that the gun loses value and in any event even if the gun is not going to be used, it still has to comply with the requirements regarding the safekeeping facilities. He said that the committee must lead them on this issue. (Q) How the use of drugs is verified or checked?
Regarding the detection of drug use they will look at that person’s criminal record and try to pick up convictions for drug use. It is unlikely that a single conviction for drunk driving will be sufficient to render an applicant unfit. The provision refers to ‘’abuse’’ and a single contravention does not amount to abuse. Consultation with the spouse will take place to try and determine if the applicant is a heavy drinker at home.
A question was raised with regard to constitutionality of the clause that provides for the automatic suspension of a dealer’s firearm licence for a period of seven days. The suspension is for the purpose of auditing that dealer’s stock in the event that some kind of irregularity is found in his business.
Mr De-Caris said that the initially the period had been three days. However it was increased to seven days because the Illegal Firearm Council said that three days would not be sufficient to carry out a check of all the weapons in a dealer’s business. The panel felt that the Constitutional Court would find this provision acceptable and that they were on "reasonably good ground’’.
In response to other questions the following emerged:
In terms of Clause 23 a barrel is considered to be a firearm because it is the functional part of the gun. The purchase of a barrel must be recorded at the Central Firearms Register.
All firearm licences will be on the card system. These will include a picture of the licencee. This will make identification easier as the old licences did not include a picture.