• competency certificates [section11],
• individual private security officers being required to obtain competency certificates [section 23(5) (b)]
• regular renewal of licences [section 27]
• the inclusion of domestic violence offences in the list of considerations to be taken into account for competency certificates [section 11] , declarations of unfitness by the Registrar [section 105] and declarations of unfitness by the Courts [section 106]
• firearm free zones [section 143]
• the requirement that existing gun owners must renew their licences and dispose of their excess guns [schedule 1]

• the preamble should be amended to include the aim of introducing stricter control over the storage of firearms and ammunition [Preamble]
• "an offence involving violence" should be defined to expressly include rape and other sexual offences [section 1 - definitions]
• all applications for firearm licences should be accompanied by a full set of finger prints [section 8]
• the age of eligibility should be 25 years [section 11]
• the offences in section 11 should not be qualified by the requirement of having carried sentences of at least six months imprisonment without the option of a fine [section 11]
• competency certificates should not be issued to people who have appeals pending for convictions for the offences listed in section 11 - once convicted, the competency process should be stopped until after the appeal has been decided [section 11]
• lack of competency should not lapse after the applicant has served his or her sentence and five years have passed - once incompetent, always incompetent [section 11]
• the competency determination process should allow for participation by the spouse or partner of the applicant and the broader community [section 11]
• the bill should ensure that the Designated Firearms Officers are adequately resourced
• occasional hunters and sports shooters should be required to register with accredited hunter associations or shooting clubs [section 17]
• firearms "for business purposes" should not be able to be lent out to persons who do not have competency certificates [section 23(5) (a)]
• licences for "occasional hunting and occasional sports shooting" should have to be renewed every 5 years, not every ten years - especially handguns and shotguns [section 30]
• the bill should impose timeframes for the establishment of the centralised database system to ensure that it is prioritised [sections 33, 43, 57, 71, 82 and 103]
• the provisions dealing with the safe storage of firearms and ammunition need to be fleshed out to specify that firearms and ammunition must be stored in safes [section 86]
• firearms should only be carried in holsters and not in bags [section 87]
• police officers with convictions for offences involving violence and who are dependent on drugs or alcohol should not be allowed to handle firearms [section 101]
• the offences under section 11 (competency certificates), section 105 (declaration of unfitness by the Registrar) and section 106 (declaration of unfitness by a Court) should correspond - if a person commits an offence which disqualifies him/her from getting a competency certificate, the Registrar and the Courts should be obliged to declare them unfit.
• the appointment procedures for the Head of the Central Firearms Register [section 130], the Designated Firearms Officers [section 27(1) (h)] and the Appeal Board [section 131] should provide for community involvement
• Appeals should be heard at a local level involving community participation [section 136]
• The Firearms Free Zone provision should be brought into effect as soon as possible - especially with respect to schools [section 143]
• It must be made clear that firearms may not be stored in firearm free zones - ie people with guns must leave their guns at home [section 143]
• the regulations for this bill should be fast-tracked to avoid a lengthy delay between passage and enactment [section 150]
• existing gun owner’s licences should lapse after 3yrs from the date of commencement of the Act and not after 5 years [Schedule 1 - Item 1(1)]
• existing gun owners should be obliged to dispose of their excess guns through registered dealers only [Schedule 1 - Item 1(2)(b)]
• it must be made clear that existing licence holders will be required to obtain competency certificates upon application for renewal [schedule 1 -Item 11]
• existing licence holders should be required to pass the prescribed practical tests for the safe handling of firearms when applying for renewal of their licences [schedule 1 - Item 11(3)]
• pellet guns and toy guns should be banned
• a mechanism ensuring that gun related injuries and deaths are reported to the police needs to be built into the bill
• a mechanism making the reporting of gun related injuries and deaths mandatory for all health care workers needs to be built into the bill to aid the collection of statistics on gun related injuries and deaths

Gun violence in South Africa claims many victims every day. Children do not escape the violence. Not only do they witness gun violence in their own homes, on the streets where they play and in their schools, but they often become direct victims of the violence either as innocent bystanders or as specific targets.

There are no national statistics to show exactly how many children are victims of gun violence in South Africa. However, there are some localised or institution specific studies available which give a good indication of the problem - and all of the studies show an unacceptably high number of child victims.

The National Non-natural Mortality Surveillance System, a National Crime Prevention Strategy initiative, was started at the beginning of 1999. It collates information from 10 mortuaries in 5 provinces.

Provisional data for January to June 1999 shows that of 6188 deaths, 10,6% were fatal injuries to children under 18 years. Over half of the children died from fatal accidents such as traffic accidents, burns, falls, poisoning etc. A quarter died from murder. Nearly half of the murders were committed with a firearm.

A study conducted by the Child Health Policy Institute of UCT showed that over a period of 5 years (1992 to 1996) a total number of 1736 children under 19 years of age in the Cape Town area were victims of firearm-related incidents. Of the 1736 children, 322 died. The study also showed that the numbers were increasing each year.

Information about where the child was injured was not known in 52% of all cases seen at hospitals. However, in cases where the place of injury was known, the most common were on the road or pavement (76% of cases) and inside children’s own homes (15%).

The Child Accident Prevention Foundation of South Africa (CAPFSA) has been keeping a record of the number of children treated for gun shot wounds at Red Cross Children’s Hospital over the past ten years. Each year a short synopsis of the cases is produced.

The 1995 synopsis showed that a total of 39 children arrived at the hospital with gun shot wounds.

• The child victims ranged in age from 3 to 15 years;
• 29 were male and 10 were female
• Of the 39 cases, 12 occurred on the road or pavement, 11 inside the child’s own home, 5 just outside the child’s own home and 4 in public places.
• Most of the 39 children came from Khayelitsha (11) and Mitchells Plain (8).
• Although information on the circumstances surrounding each shooting is not easily obtained, 16 of the 39 cases had notes in the trauma forms giving some details. These include:

"caught in crossfire";

"found bullet and put in toy gun - went off:";

"gang activity"; "youngsters fighting";

"playing with gun";

"robbers trying to shoot uncle but shot child";

"shot when walking out of shop";

"caught in taxi crossfire";

"shot by SAPS while house breaking"

In 1998, Dr S P Muller, a senior surgeon at a public hospital in Kwa-Zulu Natal wrote a letter of concern to the Sunday Times.

A further 90-100 victims of violence do not reach the hospital but go straight to the local mortuary…about 80% have died of gunshot wounds." (1/11/98).

A large percentage of the health care budget is being spent on treating trauma related injuries. Firearm injuries make up a substantial portion of the costs. The high level of firearm violence in South Africa means that money, that should be spent on primary health care, education, housing and welfare, is being spent on treating gun shot victims. Reducing the number of guns in circulation would reduce the number of gun shot victims, ensuring more money is available for development and poverty reduction which is where children need it most.

Through our research and workshops held with Community Based Organisations, Schools and Youth groups, we have identified a list of circumstances in which children are most likely to be exposed to gun violence:

• Accidents
• Suicide
• Domestic violence
• Gun violence at schools
• Taxi warfare
• General crime
• Arrest situations
• Vigilante action

A gun in the home increases the chance of accidents due to lack of safe storage and guns being left loaded. Children often mimic shooting actions if they come across a gun, resulting in injuring themselves, a sibling or friend.

A 9 year old boy from Madombidza Village near Louis Trichardt took his father’s pistol to show to his 5 year old friend. The gun went off and the 5 year old was shot in the head. (Sowetan, 1/10/99)

Access to a gun at home poses a serious threat to suicidal teenagers. Whereas suicide attempts involving other methods are often discovered in time and the child’s life saved, suicide attempts involving guns seldom fail.

The National Victimisation Survey indicates that the majority of violent crime is not "predatory/stranger" crime. Most crimes occur in the victim’s house with the perpetrator being known to the victim. Many children are injured or killed in domestic violence situations.

Family murders are becoming an every day occurrence in South Africa. Easy access to firearms increases the likelihood of family murders occurring.

A security guard, from Bronkhorstspruit, fatally shot a couple and their three-year-old grandson before killing himself. The shooting occurred after his lover left him and went to live with the couple. (Sowetan, 28/10/99).

A police officer from Eldorado Park police station in Gauteng shot and killed his three children, aged 14, 12 and 11 years, before killing himself. (Sowetan, 5/10/99).

A porter at the Paarl Hospital in the Western Cape killed his lover’s four-year-old son before shooting himself. (Sunday Times, 3/10/99)

A Wellington (Western Cape) man shot and killed his wife and critically injured their three month old daughter by shooting her twice in the head. The shooting apparently started after the baby’s mother tried to stop the man from hitting the baby. (Paarl Post, 16/9/99).

In Margate, KwaZulu-Natal, a man shot and wounded his ex-wife and her nine-year-old daughter and then killed himself.

(Sunday Times, 12/9/1999).

In the Western Cape, a Gugulethu father shot his wife and 14 year old son. (Argus, 30/8/1999)

Some teachers and children carry guns in school and when arguments occur and a gun is readily available, death is often the consequence.

A Soweto matric pupil (22) who was distraught after a love affair ended, shot and killed a schoolmate (22) who was trying to calm him down and then shot himself. The youth had apparently borrowed the gun from a security officer. (Sowetan, 29/11/1999).

A high school teacher from Edward Phatudi High School in Atteridgeville, shot and killed a 20 year old school pupil while they were out on a school trip. (Argus, 14/9/99).

Many children use taxis to travel to and from school and there have been a number of reported incidents where children have been shot in taxi violence crossfire.

Children are often innocent bystanders who unintentionally get shot in robbery situations or gang violence. Sometimes they are deliberately shot.

In November 1999, an 11 year old girl was shot dead in the crossfire of a gang fight in Eerste River (Western Cape). She was shot in the head outside her home while chatting to friends. (Argus, 11/11/1999).

In terms of our law (Section 49 of the Criminal Procedure Act), children suspected of certain crimes may be shot if they run away when a civilian, security officer or police officer is trying to arrest them. This provision is unconstitutional and was amended by Parliament in 1998, but the amendment has not yet been put into effect.

A 10 year old boy was fatally shot when a police officer suspected a break in at a factory in Vryburg, Northern Cape. According to his mother, the boy was hunting for wild doves at the factory. The Magistrate’s Court found that the police officer had acted in terms of the law. (Ralosa vs The Minister of Safety and Security and Others, 1997)

A 13 year old street child who was part of a group of six that grabbed a motorist’s cellphone was shot in the leg by the motorist. The motorist said he was making a citizen’s arrest. Charges were laid against the motorist but were withdrawn by the Attorney General. (Argus, 13/8/98)

As the levels of frustration with law enforcement and the administration of justice increase, incidents of "popular justice" occur more frequently. Children who are suspected of committing crimes, especially street children, are also falling victim.

A 13 year old street child, Mpho Telane, was shot dead execution style in Bruma, eastern Johannesburg by two men. His 14 year old friend escaped after the trigger jammed. The shooting occurred after the local residents had accused the boys of stealing from their cars and houses. No suspects have yet been arrested. (The Star, August 1998)

Our detailed submission looks at the sections in the bill which deal with the above circumstances. We pay particular attention to the provisions dealing with age of eligibility to possess a firearm, the competency determination process, domestic violence, safe-storage and handling of firearms, firearm free zones, the collecting of statistics from hospitals and police follow up of shootings involving children.

Where possible, our submission provides suggestions (in the form of draft sections) to strengthen the bill to ensure that children are protected from gun violence in the future.

When "house guns" are not safely stored, children and youth are more at risk of injuring or killing themselves, siblings or friends. Criminals also have easy access to guns that are not stored in safes.

In order to reduce the number of accidental shootings and suicides among children and youth and to reduce the number of legal firearms stolen by criminals, the bill should be strict on the issue of safe storage of firearms and ammunition. The preamble should therefore mention that the bill is aimed at providing for stricter control over the storage of firearms and ammunition.

The bill refers to "an offence involving violence" in sections 11 (application for a competency certificate), and 106 (declaration of unfitness by court upon conviction to possess a firearm).

Many South African judges and magistrates still do not consider rape or other sexual offences to be violent offences. If the rape is not accompanied by physical force or obvious physical injury to the victim, the presiding officer may conclude that the offence is "not an offence involving violence". Evidence of this trend can be seen in rape cases where the victim showed no obvious signs of physical trauma and especially in some of the recent sentences determinations involving the application of the new minimum sentences law.

To ensure that rapists and sexual offenders are prevented from gaining access to guns, we would suggest that an offence involving violence be expressly defined as including rape and sexual offences.

Addition:

The bill should state that it is aimed at promoting responsible gun ownership.

Furthermore, in order to reduce the number of accidental shootings and suicides among children and youth and to reduce the number of legal firearms stolen by criminals, the bill should be strict on the issue of safe storage of firearms and ammunition. This section should therefore mention that one of the main purposes of the bill is to control the storage of firearms and ammunition.

"2. The purpose of this Act is to -

(c) enable the State to remove illegally possessed firearms from society, to control the supply, possession, storage, transfer and use of firearms and to detect and punish the negligent or criminal use of firearms;"

The bill provides that the Registrar may issue competency certificates, licences, permits and authorisations on receipt of the prescribed application form and including a full set of finger prints of the applicant if required by the Registrar. Thus not all applications will be required to be accompanied by a full set of finger prints.

In order to aid criminal investigations, we would recommend that all applications for competency certificates, licences, permits and authorisations should be accompanied by a full set of fingerprints of the applicant.

8(1) (a) on receipt of an application completed in the prescribed form, including a full set of fingerprints of the applicant (if required by the Registrar); and

We recommend that the age of eligibility should be increased from 18 to 25. Schools currently have youths older than 18 in the higher standards. Increasing the age to 25 will help to ensure that schools are gun free zones.

Youth between the ages of 18 and 25 are more prone to join and participate in illegal gang related activities than any other age group. Increasing the age to 25 will help reduce the number of guns in volatile gang infested areas.

Young adults are most at risk for firearm injuries. The 18 - 29 year age group has the highest proportion of firearm deaths for murder and suicide. Increasing the age limit to 25 would help reduce this statistic.

11(3) A competency certificate may only be issued to a person who

1. is (18) 25 years or older on the day the application is received by the Designated Firearms Officer;

11(5) Despite subsection (2) (a), the Registrar may, allow a person under the age of 18 25 years to apply for a competency certificate if he or she is satisfied that the applicant is a dedicated hunter, dedicated sports person or private collector.

The bill requires the Designated Firearms Officer to verify certain information about the applicant, including the following:

• that the applicant is of stable mental condition and is not inclined to violence
• that the applicant does not have a record of domestic violence
• that the applicant is not dependent on alcohol or drugs
• that the applicant is a fit and proper person

The family, especially the partner or spouse of the applicant, and the surrounding community are best placed to provide this information to the Designated Firearms Officer. Furthermore, there is no central database of domestic violence protection orders.

The competency application process should therefore provide for input and objection by the applicant's partner, family and surrounding community.

The offences listed in section 11 are qualified by the requirement that they must have carried a sentence of six months or more without the option of a fine. Most first time offenders for assault, sexual assault and threats of violence do not receive sentences exceeding 6 months.

If the portfolio committee is serious about reducing the number of women and children injured and killed in domestic violence situations, applicants who manifest early signs of violent tendencies should not be able to obtain legal access to guns. Convictions for assault, sexual assault, threats of violence and domestic violence offences are early warning signs of a domestic violence situation.

We would therefore recommend that the six months term of imprisonment qualification be removed. Once a person has a conviction for a violent offence, they should be considered incompetent to possess a firearm. The length of the sentence imposed should not be a relevant factor.

11(3) Any offence referred to in subsection (2) means an offence in respect of which -

1. the accused person was sentenced to more than six months imprisonment without the option of a fine;

Comment

Competency process should be stopped pending the outcome of an appeal

The bill provides that a person who has been convicted of a violent offence, for instance murder, is considered competent until the appeal process has been finalised. Such a situation could produce absurd consequences. Take for example a husband who has been convicted of assaulting his wife and sentenced to one year imprisonment. He lodges an appeal and obtains bail while awaiting the finalisation of the appeal. During this period he is considered competent to possess a firearm. He could therefore obtain access to a legal firearm. Such a situation is untenable.

In South Africa, on-one has a right to possess a gun (possession of a gun is a privilege, not a right), therefore the presumption of innocence does not play a role here and the state will not be violating an applicant's rights if they postpone the finalisation of the application until the appeal has been decided.

We would therefore recommend that if an applicant is awaiting an appeal decision, then the competency determination process should be stopped until the appeal process has been finalised.

Suggested re-draft:

11(3) Any offence referred to in subsection (2) means an offence in respect of which -

2. an appeal against the conviction or sentence has been finalised or the time for an appeal has elapsed a conviction has been secured and sentence determined; and

Addition:

11(6) If an applicant is appealing a conviction or sentence, the competency determination process should be suspended until after the appeal has been finalised.

Comment

Once incompetent, always incompetent

If a person has been convicted of a violent offence, they should never be able to own a firearm. The provision allowing a person to be considered competent if 5 years have passed since they served their sentence, should therefore be removed.

Suggested re-draft:

11(3) Any offence referred to in subsection (2) means an offence in respect of which -

3. the sentence has been served less than five years before the application for a competency certificate was received by the Designated Firearms Officer.

To ensure that the competency determination process is done thoroughly, the Designated Firearms Officer(DFO) will need to be adequately resourced. He or she will need a car, staff and a budget.

We request the portfolio committee to investigate whether there is a way of ensuring that the DFO's are adequately resourced to ensure that the competency testing process is watertight.

The bill now allows a person to have two guns for self-defence, one of which may be a shotgun. Before the bill was re-drafted, it allowed only one gun for self-defence. We would like to strongly motivate for the bill to be changed back to its previous position of allowing only one gun for self-defence. The bill is aimed at reducing the pool of legal guns available to criminals, however, a criminal who breaks into a house will now walk away with two guns instead of one, one of which could be a shotgun.

Next to handguns, shotguns are the firearms most commonly used by criminals when committing firearm related crime. Allowing people to possess shotguns for self-defence purposes will increase the pool of shotguns available to criminals.

As a second position; if certain categories of persons who live or work in particularly dangerous areas require shotguns, the bill should rather make special provision for such persons instead of allowing anyone who wants one to have a shotgun. The bill should further require serious justification from a person requiring a shotgun for self-defence purposes.

Restricted firearms should not be allowed to be owned for self-defence purposes.

This category of gun owners has the potential to become a loophole in the bill:

• The bill does not require occasional hunters or sports shooters to be registered with an accredited hunters association or sports club.
• Occasional hunters or sports shooters are allowed to own four firearms
• They only have to renew their licences after 10 years.

In order to ensure that this category is not abused we recommend that occasional hunters or sports shooters should be required to register with an accredited hunting association or sports shooting club - ie the licence application must be accompanied by an affidavit from the association or club stating that the applicant is a registered member of that association or club.

This will ensure that the register which the association or club is required to keep and submit to the Registrar annually, will contain details of occasional hunters and sport shooters. Otherwise there will be insufficient record of them and this provision will become a loophole.

Section 23 (5) provides:

"(a) The holder of a licence issued in terms of this section may only provide the firearm for use by another person subject to such conditions as may be prescribed.

(b) A security company which holds a licence to possess a firearm for business use may only provide the firearm to a security officer in its service who holds a competency certificate."

This section seems to indicate that a person who is not a security officer and who does not have a competency certificate may possess a gun if it is "provided" in terms of section 23(5) (a). Only the licence holder or "responsible person" is required to have a "competency certificate". This is similar to the old section 8(1) of the Arms and Ammunition Act which was recently amended to ensure that guns could not be lent out to person who do not have licences.

The import of this section needs to be clarified. If it allows firearms to be lent to person who do not have competency certificates - it should be deleted.

Section 23(5) (b) on the other hand, makes it clear that a security company may only issue a firearm to a security officer if the security officer holds a valid competency certificate. This provision is welcomed. In the past there was improper control over security companies who were issued block licences and in their discretion provided guns to security officers who had not been tested to determine whether they were fit and proper persons to possess a firearm. The private security industry employs approximately 300 000 people and thus represents a sizeable chunk of the gun owners in South Africa. Proper control of firearm possession and use in the industry is thus essential.

The bill requires the licence holder to notify the Registrar of any change with regard to any information which was submitted in respect of the application for the issue of that licence.

A licence holder who ceases to be competent to possess a firearm, for instance because he/she becomes dependent on alcohol or develops violent tendencies, is unlikely to submit such information to the Registrar.

A provision specifying that other interested persons may submit such information should therefore be added.

Period of validity of licence

The table of period of validity of licences specifies that a licence for occasional hunting and occasional sports-shooting remains valid for 10 years. In the light of the possible abuse of this category, we would recommend that the period of duration should be 5 years - particularly if the gun in question is a hand gun.

Section 33 requires the Registrar to set up a central firearms database, "as soon as practicable". The Central Firearms Database is essential for the effective operation of the new legislation. Without the central database, the legislation cannot be implemented properly.

We would suggest that the bill (or the committee report) set a time-frame for the drafting of regulations and the establishment of the central firearms database to ensure that these issue are receive priority in the Department of Safety and Security.

33. The Registrar must, as soon as practicable, within one year of Parliament passing this Act, establish a central firearms database in accordance with such regulations as may be prescribed.

See comment above under "central firearms database".

43. The Registrar must, as soon as practicable, within one year of Parliament passing this Act, establish a central dealers’ database as prescribed by regulation.

57. The Registrar must, as soon as practicable, within one year of Parliament passing this Act, establish a central manufacturers’ database as prescribed by regulation.

71. The Registrar must, as soon as practicable, within one year of Parliament passing this Act, establish a central gunsmiths’ database as prescribed by regulation.

82. The Registrar must, as soon as practicable, within one year of Parliament passing this Act, establish a central importers and exporters database as prescribed by regulation.

The draft bill does not go into detail when it comes to the safe storage of guns. Section 86 merely provides: "Firearms and ammunition must be stored and transported in the prescribed manner."

These provisions are not adequate in the light of the following:

• Criminals have easy access to guns if they are not stored in safes.

Currently about 82 guns are lost or stolen from private owners or state employees every day.

The Department of Safety and Security estimates that there may be as many as 200 000 privately owned guns which have been lost or stolen and have subsequently been added to the pool of illegal guns which is estimated to be 500 000 guns in total.

(Department of Safety and Security statistics)

One of the primary aims of the bill is to prevent legal firearms from being stolen and thus added to the pool of illegal firearms. To ensure that this aim is achieved, the bill should be very specific on the safe storage of firearms.

• Children injure or kill themselves, siblings or friends with "house guns" and bullets which are inappropriately stored eg in cupboards or desks.

The bill should provide that firearms and ammunition should be stored in safes to ensure that children do not have access to them.

Furthermore, licences should only be granted after the applicant has proven his or her ability to safely store the gun - ie - he or she must prove s/he has a safe. This requirement should be added to the list in the competency testing process.

The bill should also provide that firearm safes should weigh a certain weight or be attached to the building to ensure that criminals cannot easily remove them.

Providing express reference to safes in the bill instead of in the regulations will help ensure that the public are aware of the storage provisions (Acts are much more accessible to the public than regulations).

86(1) Firearms and ammunition must be stored in the prescribed safe, strong-room or device for the safe-keeping of a firearm in accordance with such regulations as may be prescribed.

The bill provides that employees of official institutions, such as police officers, must carry their guns "on his or her person in a prescribed holster" unless the specific permit indicates otherwise. We would suggest that the same standard of diligence be required of private gun owners and security guards. The carrying of firearms in bags should not be allowed as they can be easily stolen.

87. No person may carry a firearm in a public place unless the firearm is carried -

1. in the case of a handgun -

1. in a holster or similar holder designed, manufactured or adapted for the carrying of a handgun and attached to his or her person
2. in a rucksack or similar holder; or

The bill does not require employees of official institutions to obtain competency certificates before being issued with a gun. They are instead issued with permits in the discretion of the head of the relevant official institution.

A police officer from Eldorado Park police station in Gauteng shot and killed his three children, aged 14, 12 and 11 years, before killing himself. (Sowetan, 5/10/99).

A young police officer (28) from Vereeniging shot his estranged wife (23) dead and then killed himself (Sowetan, 22/10/99).

A police sergeant shot and killed his wife (23) who was being escorted by two police officers to fetch her personal belongings from the house. The police sergeant then shot and killed himself (Sowetan, 19/11/99)

A police sergeant from Elderado Park shot and killed his girlfriend during an argument and then shot himself in the head (Sowetan, 9/11/99).

Police officers who are dependent on alcohol or drugs or who have convictions for violent offences, should not be allowed to possess firearms. The bill does not make this clear.

Section 101 (8) provides that the head of the police may issue a firearm permit to a police officer if the police officer concerned is a fit and proper person to possess a firearm, and has completed the prescribed training and test for the safe use of the firearm.

The determination of whether the police officer is a fit and proper person lies in the subjective discretion of the head of the police. There are no objective criteria specified, such as a lack of criminal convictions for violent offences, as there are for private citizens and private security guards.

In the light of the high number of crimes being committed by police officers, especially domestic violence offences, we would recommend that police officers and other employees of official institutions should be subject to the competency determination process as prescribed for private citizens and private security guards.

Just as we do not want to allow private citizens with convictions for violent offences to obtain access to firearms, we do want the state to arm police officers who have convictions for violent offences.

101(8). The head of an Official Institution may only issue a permit in terms of subsection (2) if he or she is satisfied the employee -

1. that the employee is a fit and proper person to possess that firearm; and
2. is not dependent on any substance which has an intoxicating or narcotic effect;
3. has not been convicted of an offence involving the use of a firearm;
4. has not been convicted of an offence involving violence;
5. has not been convicted of an offence in terms of the Domestic Violence Act, 1998;
6. 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 or a similar restraining order issued in terms of any other legislation,
7. that the employee has successfully completed the prescribed training and the prescribed test for the safe use of the firearm.
8. has not been declared unfit to possess a firearm in terms of this Act or the previous Act.

105. The Registrar must, as soon as practicable, within one year of Parliament passing this Act establish a central Official Institution firearms database as prescribed by regulation.

The offences listed under section 11 (the section which regulates competency certificates), and the offences listed under sections 105 and 106 should correspond. If a person is not deemed competent to be issued a competency certificate in terms of section 11, they should also be automatically deemed unfit by the Registrar or a Court.

The Registrar or Court should not have a discretion to decide whether or not a person is unfit to possess a firearm if the person would in the ordinary course of events not qualify for a competency certificate .

105(1) The Registrar may shall declare a person unfit to possess a firearm if, on the grounds of information contained in a statement under oath or affirmation including a statement made by any person called as a witness by the Registrar, it appears that -

1. a final protection order has been issued by a court in terms of the Domestic Violence Act, 1998 against such person
2. that person has threatened to or expressed the intention to kill or injure himself or herself or any other person by any means;
3. that person is mentally unstable or has an inclination to violence
4. that person has failed to take the prescribed steps for the safekeeping of any firearm;
5. that person has provided information required in terms of this Act which is false or misleading.

105.(2) The Registrar may declare a person unfit to possess a firearm if -

1. that person has failed to take the prescribed steps for the safekeeping of any firearm;
2. that person has provided information required in terms of this Act which is false or misleading; or
3. that person is for any other reason no longer a fit and proper person to possess a firearm

Suggested re-draft

106.(1) A person must be regarded as being unfit to possess a firearm if -

(i) the unlawful possession of a firearm or ammunition;

(ii) an offence involving the unlawful use or handling of a firearm, whether the firearm was used or handled by that person or by another participant in that offence;

(iii)the failure to store firearms or ammunition in accordance with the requirements of this Act;

(iv)an offence involving the negligent handling or loss of a firearm while the firearm was in his or her possession or under his or her direct control;

(v) the handling of a firearm while under the influence of any substance which has an intoxicating or narcotic effect;

(vi)any other offence in the commission of which a firearm was used, whether the firearm was used or handled by that person or by another participant in the offence;

(vii)any offence involving violence or dishonesty, for which the accused is sentenced to a period of imprisonment of not less than 12 months without the option of a fine.

(viii)any offence in terms of the Domestic Violence Act, 1998

(3) (a) A court which convicts a person of an offence which does not fall into one of the listed offences in subsection 1 but which is listed in Schedule 2 of this Act, must enquire and determine whether that person is unfit to possess a firearm.

15. An offence -

4. in terms of the Domestic Violence Act, 1998;

[a domestic violence offence should involve an automatic disqualification so we have suggested above that it be added to section 106(1)]

Section 123(9) provides that a person who fails to lock their firearm in "a prescribed safe, strong-room or device for the safe-keeping of a firearm" or who "fails to keep the keys of such safe, strong-room or device in safe-custody" is guilty of an offence.

In the light of the many children who are injured or killed in accidental shootings while playing with the house gun, the Child Health Policy Institute supports this provision. The enforcement of this provision in relation to children injured in accidental shootings, may however prove to be difficult. At present, when children arrive with gun shot wounds at the trauma wards of hospitals, there is often no follow up by the hospital or the police as regards to the circumstances of the shooting.

Some method of ensuring that accidental shootings and other instances where children gain access to firearms or are otherwise shot, are investigated by the police, needs to be built into the Act.

Health care workers have proposed having a police officer stationed in the trauma ward or each hospital to take down the details of gun related injuries.

The bill provides that the National Commissioner of Police is the Registrar. We recommend that the office of the Registrar should be located within the Secretariate for Safety and Security to ensure independence. The head of the Secretariate or another appropriate person within the Secretariate should therefore be appointed as the Registrar.

The bill provides that the Registrar must appoint police officials as Designated Firearms Officers.

In our workshop with community based organisations, a concern regarding the impartiality and independence of the police was expressed. There were concerns that criminals, especially gang members, would be able to obtain access to legal guns through "having connections" with the Designated Firearms Officer.

In order to ensure that such corruption does not occur and to ensure that the public have faith in the independence and impartiality of the Designated Firearms Officers, we would recommend that the appointment procedure should provide for community involvement.

127(1) (h) must designate police officials as Designated Firearms Officers after providing an opportunity for the public to make nominations and lodge objections,

The Head of the Office of the Central Firearms Register will essentially perform the functions of the Registrar. This is a very important position and involves the exercise of discretion in the public interest. A transparent appointment process which involves the public would help to ensure that the public have trust in the Central Firearms Register and the Office of the Registrar.

The Office of the Central Firearms Register should be located within the Secretariate for Safety and Security to ensure independence .

130.(1) The Registrar must, with the approval of the Minister in consultation with the Minister, and after providing an opportunity for nominations and objections by the public, designate a police official appoint a person as Head of the Office of the Central Firearms Register.

An open and transparent appointment process which allows for public involvement should also be followed when appointing the members of the Appeal Board.

131(2). The Appeal Board consists of no more than five members who -

(a) must be appointed by the Minister in a manner which allows the public to make nominations and lodge objections; and

1. must as far as possible be broadly representative of the population of South Africa.

The bill provides that a person whose application has been refused may appeal to the Appeal Board. The Appeal Board will be centralised, which means that the local Designated Firearms Officer who refused to issue a competency certificate will be unable to appear in person to contest the appeal. On the other hand, the applicant will more likely be able to hire a lawyer to represent their case in person. Most appeals to the current Appeal Board are successful. We would therefore recommend that appeals should be heard at a local level, possibly involving the Magistrates Courts or locally constituted appeal boards with community representation.

The bill authorises the Minister to declare premises to be firearm free zones. We support this provision wholeheartedly and ask that this provision be put into effect as soon as possible.

The section restricts firearm free zones to "premises". Would a taxi qualify as a "premises"? We recommend that taxi's should be declared firearm free zones. To facilitate this, the wording in the section would need to be changed to expressly include motor vehicles and other types of vehicles such as aeroplanes. Or alternatively, "premises" could be defined in section 1 of the bill to include motor vehicles providing public transport.

The bill is not clear on how the firearm free zones will work, especially with regards to the storage of guns. The bill should make it clear that guns may not be stored at the entrance of the firearm free zone - ie - people must be informed that they must leave their guns at home. If guns are stored at the entrance, firearm free zones like schools and hospitals will become targets for criminals.

The bill requires lengthy regulations to be drawn up. The time lapse between passage of the Act and enactment is thus likely to be long. In the light of the life and death urgency of stricter gun control we recommend that the regulations should be prioritised and fast-tracked. This could be done by setting time-frames in the bill, the portfolio committee report or a committee resolution.

Item 1(1) provides that existing licences remain valid for a period of 5 years from the date this Act came into operation.

We recommend that the period of validity be shortened from 5 to 3 years. Existing licence holders may have guns far in excess of the limits specified in this bill. Furthermore, many gun owners have criminal records or are otherwise incompetent.

Item 1(2) (b) should be deleted. All guns should have to be disposed of through registered dealers. Existing gun owners should not be exempt from this provision.

Item 11 does not make it clear that existing licence holders will have to complete competency tests in order to renew their licences.

Furthermore, item 11(3) exempts existing licence holders who apply for renewal of their licences from having to complete the prescribed training and practical tests regarding the safe handling of firearms. Many existing licence holders do not know how to handle their gun safely as they were not subject to stringent tests under the old Arms and Ammunition Act.

Item 11(3) should therefore be deleted.

There have been many statistics mentioned in the run up to this bill, however there is no national initiative underway which records and collates gun shot injuries and deaths. An initiative of the NCPS, the National Non-natural Mortality Surveillance system, is currently recording non-natural deaths in 10 mortuaries. There are approximately 244 mortuaries in South Africa. The surveillance system has not yet been extended to hospitals - thus injuries are not yet being recorded.

A possible solution is for gun shot injuries and deaths to be declared a "notifiable condition" by the Minister of Health in terms of the Health Act of 1977. This would then oblige all health care workers and mortuaries to keep a record of gun shot injuries and deaths and send the information to the National Department of Health. This would ensure that National Government has a good indication of the extent of the problem and where the hot spots are.

We would like to express our support for all initiatives aimed at removing pellet guns and toy guns from shops. If the bill could address this issue, we would support such a provision.

The Child Health Policy Institute would like to wish you well in your deliberations on the bill and thank you for reading our submission.

Contact person:

Paula Proudlock

Advocacy Co-ordinator

Child Health Policy Institute

UCT