1. BACKGROUND

After the publication of the Firearms Control Bill on 3 December 1999 [Government Notice 2627 of 1999 (Government Gazette No. 20688, dated 3 December 1999], the ICD, as it was invited to do by the said Government Notice, submitted its comments on the Bill to the Portfolio Clerk of your Committee on 28 January 2000.

Due to the fact that an amended version of the Bill was later introduced, the ICD found it fit to combine its previous and amended submissions on the previous and latest Bill in one consolidated document and to present this consolidated document, containing all the ICD’s submissions to this Committee, today to the Committee.

2. THE PURPOSE OF THE ICD’s ESTABLISHMENT AND EXISTENCE, ITS CORE FUNCTIONS AND STATUTIORY MANDATE AND THE INTEREST IT HAS IN MAKING SUBMISSIONS TO THIS COMMITTEE

1. The principal function of the ICD is to achieve the object laid down for it in section 222 of the Interim Constitution, namely to ensure that complaints regarding offences and misconduct allegedly committed by members of the SAPS are effectively and efficiently investigated [section 53(1)(a) of the SAPS Act, Act No. 68 of 1995, read with section 222 of the Interim Constitution, 1993].
2. In order to achieve its object, section 53(2) of the SAPS Act specifically provides that the ICD –

1. may of its own accord or upon receipt of a complaint, investigate any misconduct or offence allegedly committed by any SAPS member, and may, where appropriate, refer such investigation to the Commissioner concerned;
2. shall of its own accord or upon receipt of a complaint, investigate any death in police custody or as a result of police action; and
3. may investigate any matter referred to the ICD by the Minister [for Safety and Security] or a member of the Executive Council [Provincial Executive].

1. The ICD is functioning independently from the SAPS [section 50(2) of the SAPS Act]. In fact, the ICD is a separate Organisational Component in terms of Schedule 3 of the Public Service Act, 1994 and its functions are funded by money appropriated for that purpose by Parliament. These provisions clearly indicate that the ICD is not part of the Department of Safety and Security, but is accountable to the Minister for Safety and Security.
2. In giving the above mentioned investigative powers to the ICD the legislature, by enacting section 53(3)(a), of the SAPS Act, understandably realised that in order to properly perform these investigative powers, the ICD need to be given the same policing powers as those which vest in SAPS members in terms of the SAPS Act. In terms of the said section 53(3)(a), the Minister for Safety and Security may, upon the request of and in consultation with the Executive Director, authorise those members of the personnel of the Directorate, identified by the Executive Director, to exercise those powers and perform those duties conferred on or assigned to any member [of the SAPS] under the SAPS Act or any other law. In addition to this the ICD members so authorised by the Minister shall, in terms of section 53(3)(b) of the SAPS Act, have such immunities and privileges as may be conferred by law on a [SAPS] member in order to ensure the independent and effective exercise and performance of their powers and duties.
3. Virtually all members of the ICD’s investigative component, ie its investigators, have already been so authorised by the Minister to exercise the above mentioned policing powers. For reasons similar to those for which the SAPS deemed it necessary to issue its members with firearms for purposes of performing their functions, the ICD deemed it necessary to issue firearms to those investigators employed by it who had successfully completed a structured ICD training course in the possession, use and handling of firearms and whose psychometric testing did not yield negative results. In this regard it is to be mentioned that the ICD’s Handgun Policy and Procedure [Standard Operating Procedure Number 20], which also contains prescripts for the control of these firearms, was approved by the previous Minister for Safety and Security on 4 May 1999.

1. THE SUBMISSIONS

1. ICD ought to be identified, recognised and defined as a substantive, and not an accredited, Official Institution in clause 98(a) of the Bill

In accepting the principles outlined in paragraph 2 above, coupled with the fact that the ICD, with its structured internal control measures in regard to the issuing, possession, handling, use and control of its firearms as contained in the Ministerially approved Handgun Policy and Procedure, there is, with due respect, no reason why the ICD should not be identified and enlisted by its own name in clause 98(a) as an Official Institution. The recognition and identification of the ICD qua ICD in clause 98(a) of the Bill, together with the South African National Defence Force, the SAPS, the Department of Correctional Services, any intelligence service established in terms of the Constitution and the armaments acquisition agency of the State as a substantive Official Institution, and not to let the ICD acquire such status by way of accreditation with the Registrar in terms of clause 98(a)(vi), will inter alia have the effect –

1. That the ICD will not, as is contemplated in clause 100, be subject to such conditions in respect of the acquisition, use, safekeeping and disposal of firearms as may be prescribed and to such conditions as may be imposed by the Registrar. In fact, subjecting the ICD to the provisions of clause 100 [bearing in mind that the National Commissioner of the SAPS is to become the Registrar] may detrimentally affect the statutorily accepted independence of the ICD from the SAPS.
2. That the ICD need not apply to the Registrar for accreditation as an Official Institution, and need not run the risk of its application being turned down or, if accredited, its accreditation being cancelled.
3. The ICD will not beforehand need the Registrar’s [National Commissioner’s] written determination in terms of clause 99(6)(b) that clause 99(6)(a) is applicable before the Executive Director may give the ICD’s investigators the clause 99(6)(a) intended authorisation.
4. That the Registrar, in terms of clause 112(2), will have to give reasonable notice to the ICD before any clause 112(1) intended inspection of an office or premises of the ICD is conducted. To place the Registrar under such duty, it is submitted, is more in line with a recognition of the independence of the ICD and its mandate and functions than to allow the Registrar [as will be the position in terms of the Bill] to arrive unannounced at any office or premises of the ICD for purposes of such inspection.

To summarise : It is the ICD’s proposal to this Portfolio Committee that clause 99(a) of the Bill be amended

1. by deleting the word "and" in clause 99(a)(v);

(ii) by inserting the following as a new sub-clause 99(a)(vi):

"the Independent Complaints Directorate; and"; and

(iii) by amending the sub-clause number of sub-clause 99(a)(vi) to read

"(vii) any governmental institution accredited by the Registrar

as an Official Institution;"

1. Chapter 12 of the Bill (declaration of unfitness to possess a firearm) ought to be made applicable to Official Institutions and, therefore, the SAPS

0. It is the ICD’s contention that although the Bill duly emphasises the establishment of mechanisms for controlling the issuance and possession of firearms, it needs to go further by also emphasising the controlling and ensuring the (lawful) use of firearms by, especially, SAPS members, in so far as such control and ensurance, having regard to the purpose of the Bill, may be accomplished.
1. The impetus for this submission is founded on the consideration that all attempts should be made to prevent, or at least limit, the potentially growing number of instances where the use of their official (SAPS) firearms by SAPS members result in unnecessary killings, in particular instances of family murder, femicide, infanticide, suicide and/or other serious forms of domestic violence.

By way of illustration:

• The recent killing of a member of Parliament, Mr Bheki Mkhize, which we investigated – the killing of a lawmaker by law enforcement officials. What a terrible indictment.
• There is an upsurge in police members killing their families/wives/partners. We received two cases of domestic violence which included threats of violence by police member husbands, using their service firearms. These cases happened in two (2) different provinces. In the first province, the wife complained to the Station Commissioner of her police member husband. The Commissioner positively intervened and removed not only the service firearm of the husband, but also all his other firearms. In the second province, the wife had repeatedly complained to various police members, including her husband’s Station Commissioner. She informed them that her husband had threatened to kill her on numerous occasions and that he had also assaulted her. In addition there were a number of dockets, pertaining to violent crimes allegedly committed by her husband, being investigated – this clearly indicated a propensity for violence and this alone should have alerted the Station Commissioner to intervene. Despite this, no one took her seriously and she was eventually fatally shot by her husband, who also killed himself, leaving behind two (2) minor children.
• Police-related deaths (using a firearm) are still unacceptably high.

1. In the Bill itself (seen in its totality), virtually no provision is made for controlling the (exact) parameters within which a SAPS member may or may not use his/her firearm in the situations referred to in 3.2.2 above. This, it is submitted should come as no surprise because the lawful or unlawful and/or legitimate or illegitimate use of a firearm in the said situations is determined by the objective common law (for example, defence as a common law ground of justification) or other applicable statutory provisions (for example, section 49 of the Criminal Procedure Act). In short, the ICD realises that a distinction must be made between (i) the control over the possession of a firearm (which is regulated by the Bill – see, for example clause 2(d)), and (ii) the lawful use of a firearm (which is determined by the prescripts and/or principles of the objective law).
2. Be that as it may, it is clear that the Regulations to be promulgated in terms of the Bill will have quite an important impact on the eventual effectiveness or ineffectiveness of the Bill. These Regulations will have to cover aspects such as the conditions to be attached to the issuance of a permit to a SAPS member to possess and use his/her official firearm as well as the jurisdictional facts for the issuance of a permit, namely that a member is a fit and proper person to possess and use a firearm. The details of the training which a member will have to undergo before a permit is issued to him/her will, likewise, have to be regulated. The same will apply to the instructions which the NC "may" issue, prescribing inter alia conditions relating to the use of a firearm.
3. However, there exists the following area of uncertainty in terms of the Bill which, if not appropriately rectified, might lead to potentially unfortunate situations: Chapter 12 of the Bill, which deals with the Registrar’s (Commissioner’s) declaration of a person to be unfit to possess a firearm, is in terms of clause 99(1) not applicable to an Official Institution and, therefore, not applicable to the SAPS. In this regard it is, for example, to be noted that in terms of clause 105(1)(a) the Registrar (the NC) " may declare a person [which, ex hypothesi, includes a SAPS member] 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 – (a) a final protection order has been issued against such person in terms of the Domestic Violence Act, 1998 (Act No. 116 of 1998)" However, this provision is in terms of clause 99(1) not applicable to the SAPS. Surely this is, to put it euphemistically, an unfortunate situation.
4. It is therefore the ICD’s proposal that clause 99(1) be amended so that it will, ex abundanti cautela, also include Chapter 12 of the Bill, ie all the provisions dealing with the declaration of unfitness to possess a firearm, to be a Chapter of the Bill applicable to Official Institutions, and thus applicable to the SAPS. For purposes of giving effect to this proposal, it is suggested that clause 99(1) be substituted with the following clause :

"99(1) No provision of this Act other than this Chapter 12,

Chapter 12, section 112 and section 150, in so far as it relates to Official Institutions, applies to an Official Institution".

1. Reconsideration of the effect of clause 112

0. A further aspect of the Bill which the ICD wishes this Committee to consider relates to the powers of "police officials or persons authorised by the Registrar" to conduct inspections of premises in terms of clause 112 of the Bill. In terms of its current form, clause 112(1)(f) provides that any police official or person authorised by the Registrar may enter any office or premises of an Official Institution which may issue a permit to its employees to possess and use firearms and conduct such inspection as may be necessary to determine whether the requirements and conditions of this Act or of any competency certificate, licence, permit or authorisation issued in terms of this Act are being complied with.

3.3.2 However, before any inspection of an office or premises of an Official Institution is conducted, the Registrar must, in terms of clause 112(2)(a)(ii) and (b),

1. give notice of the intended inspection to the head of the SAPS; and
2. comply with such security arrangements as may be agreed upon with the head of the SAPS.

3.3.3 The potential problem with these provisions of clause 112 is the following: It is, in the first place, clear that an "office or premises" of the SAPS, as an Official Institution, includes a police station. In the second place, as was pointed out in paragraph 2.4 above, virtually all ICD investigators have been authorised by the Minister for Safety and Security in terms of section 53(3)(a) of the SAPS Act "…to exercise those powers and perform those duties conferred on or assigned to any member by or under this [SAPS] Act or any other law". The effect of this authorisation, and bearing in mind that "police official", for purposes of clause 112(1), means, inter alia, "a member of the SAPS as defined in section 1 of the SAPS Act [see clause 1(xxii) of the Bill], is that the ICD investigators so authorised will also be permitted to conduct the clause 112(1) intended inspections, provided, of course, that the information at the disposal of, or complaint received by, the ICD, relates to the non compliance of this Bill by SAPS members.

4. To avoid any possible misunderstandings or potential misinterpretation of this clause 112(1) and section 53(3(a) of the SAPS Act, it is therefore the ICD’s proposal that the words "Any police official or person authorised by the Registrar may enter any – ", as it appears in clause 112(1) be deleted and substituted by the words "Any police official, member of the Independent Complaints Directorate who has been authorised in terms of section 53(3)(a) of the South African Police Services Act, 1995 (Act No. 68 of 1995) to exercise policing powers or person authorised by the Registrar may enter any -".
5. In view of what was said in paragraph 3.3.3 above, it would further seem to be counterproductive for purposes of such inspections by ICD investigators still to require the Registrar [NC] to give notice to the head of the SAPS [!] of the intended inspection before such an inspection of, for example a police station, is conducted by an ICD investigator.