This version of the tabled bill has been written as a response public submissions to the Portfolio committee. Some of the worst excesses of the previous draft remain. However, it must be stated that the current draft is considerably better written and presented than previous drafts.

The changes show that public submission does have some effect. It is therefore imperative that all concerned persons submit their concerns of the latest draft to the Portfolio committee. Submissions must be in by 12 June 2000 (as of 24/5/00). Contact details can be found at the end of this critique.

Of greatest concern is the presumptuously un-Constitutionality of the Bill. It still abuses Sections 7(2), 8(1), 9, 11, 12, 14, 15(1), 22, 25(1), 31(1), 35(3)(h), 36(1)(e), 41(1)(f), 43(a), 44(1)(a)(iii), 53(1), 55(2), 59(1), 75(1)(b) and 239 of the Constitution (Act 108 of 1996). This is shown in detail relating to the various sections of the proposed legislation in these notes.

Of greatest concern are:

Presumptions of guilt remain,

The Minister (and the Registrar) may still change aspects of the act without referring to Parliament,

The Right of any law abiding persons to possess the means to self defence is still not fully acknowledged and the granting of a licence is still open to discrimination,

A person may still be convicted for protecting his/her (or another’s) life from illegal murderous attack because s/he uses a firearm which is not licensed for self defence purposes,

A person’s need for various self protection firearms depending on the situation (dress code, local, function, security situation) is partially acknowledged but is not truly allowed for, and

Responsible persons who already hold more than 4 licences and who are not members of associations will be forced to give up some of their property.

The fight against crime has often been used by the bureaucrats of other countries as a cover for draconian legislation which does little against crime but which gives considerable powers to those very bureaucrats, at the expense of The People’s Rights and Freedoms.

The basis and philosophy of the proposed bill is still flawed. It is still based on misconceptions of crime and firearms. It would appear that the drafters of this bill do not know that it is the attacker who chooses violence rather than his/her victim. Research produced some surprising results. Besides the fact that most violence in this country is alcohol related, the research showed that:

• a firearm related attack is considerably less lethal than a non firearm related attack,
• generally firearm related attacks are more menacing than efficient,
• firearms are probably the most efficient means of deterring an illegal violent attack, therefore the possession of which, in private hands, has the greatest overall effect in deterring violent crime,
• one of the most common forms of family murder/suicide is to burn the family dwelling down with both the initiator and the remainder of his family locked inside, and
• the presence of firearms have little or no effect on the incidence of family violence.

There are aspects of the proposed bill which have merit. However, these are considerably outweighed by the flaws; some of which are discussed. There are probably many more which will require considerable more legal and constitutional competency than I possess, to discover and rectify.

There is little doubt that this legislation will have little, if any, effect on violent crime. As it stands, it may well increase murder rates and other violent crimes. Indeed, it will probable increase the demand for illegal weapons, since it will become extremely difficult to obtain legal firearms for self-protection purposes.

Given recent research, the lack of enforcement of current legislation and the way in which the proposed legislation has been written, it would appear that the drafters of the proposed bill have little or no knowledge of:

• The current legislation,
• crime and criminology, or
• firearms and their usage.

The Minister has therefore been extremely poorly advised and possibly, some of the drafters have a hidden agenda.

Legislation of this type is based on regulation. If there were a problem and a need for new legislation, the order of writing the legislation for this type of problem would be:

1. write the regulations,
2. determine the equipment, extra personnel and interaction between government departments,
3. draw up a budget, and finally
4. write the legislation based on the above.

Despite previous submissions, the legislation has not been written in this order. We still do not have access to the required regulations. So far there has been no indication of how the required budget will be spent. Only with a broken down budget will it be possible to determine whether the money will be well spent or if it could be better spent in the war against crime or in another manner to help the reconstruction and transformation of this country.

It would be fair to say that there will be no improvement in any aspect of the development and transformation of this country without an improvement in the criminal justice system. The situation is so desperate that money should be taken from all the other ministries and be given to Justice. A little should also go to the SAPS, to properly train them in taking evidence.

The current Firearms Act makes it illegal:

1. to be intoxicated in possession of a firearm,
2. to use a firearm in a dangerous or negligent manner,
3. to be in possession of an unlicensed firearm,
4. to deal in firearms without a permit (especially illegal firearms),
5. to sell ammunition to someone without a licence for a weapon of that particular calibre.

Yet, none of these offences are properly enforced, with the exception of ammunition sales.

If these major criteria are not enforced under the current law, why should the enforcement of the same offences be any better by merely changing legislation?

Data from the SAPS’ CIMC show that murder rates have been steadily falling since 1994, in conjunction with the increased licensed ownership of firearms (about 200 000 per year). If legal firearm ownership caused crime, the crime rates would not be dropping. The statistics also show that firearms are considerably less effective in murderous assaults than non-firearm weapons and that most murders are alcohol related.

This is indicative of the extreme complexity of violent crime. Research shows that poor ill thought out firearm legislation may, at best have no effect on violent crime and, at worse, dramatically increase violence and especially death rates. It shows that slick, feel-good and media-sexy legislation may exacerbate an already bad situation.

Professor Jacqueline Cock (1995) inadvertently shows that most firearms, especially 9mm pistols used in crime, can be explained by losses and thefts from the State. If the State, and especially the SAPS cannot apparently control their own issue weapons, how will they be able to control and administer the considerable number of firearms which will be confiscated? (What about the problems of warehousing, guarding and prevention of thefts and other losses?) As in Australia, there is a real risk that significant numbers of handed-in firearms will end up in the hands of the criminal element.

Given that most of the aims of the proposed bill can be achieved using current legislation, if enforced; given that violent crime is a highly complex issue; given that the CIMC is starting to undertake statistical analysis to undertake a better understanding of violent crime; and given that the proposed bill is inherently flawed, would it not be in the best interest of the Nation to delay this proposed bill for perhaps twelve to eighteen months to allow research and administrative technologies to catch up, and then utilise the considerable expertise in the general public that was ignored in the current draft, to develop a bill which will be not only Constitutional but will also be effective in reducing violence?

The bill states that the regulations are to be defined by prescription, or as yet undefined regulations, or change in regulations. Some require presentation before Parliament but sections: 10.(1) 64, 144 and especially 150 (which may be gazetted without Parliamentary scrutiny) of the proposed bill do NOT require Parliamentary scrutiny.

Sections 20(4), 22(5), 23(8)(b), 24(6), 26(7), 31(5), 40(2), 45(4)(a), 45(5), 50(a), 53(2), 58(c), 59(4), 64, 78, 81, 83(2)(c), and 90(2) allows the Minister or the Registrar (an unelected official) the right to make up, determine, change or otherwise alter rules, requirements and regulations without any form of scrutiny or supervision.

Each change in the regulations is, de facto, an amendment to the bill. Sections 7.(2), 41.(1).(f), 43.(a), 44.(1).(a).(iii), 53.(1), 55.(2), 59.(1), 75.(1).(b), and 239. of the Constitution states that all new laws and amendments to laws must go through the proper process, including public involvement, voting by at least 50% of the National Legislature, and presidential acceptance.

• Since Section 150 denies the Constitutional process required for amending legislation; the bill is un-Constitutional.
• It would be more Constitutional, and save the ‘House’ considerable wasted time if the regulations were defined, and all sections relating to gazetting, changes in regulations, and new prescribements be removed from the bill, prior to Parliamentary and public scrutiny.

Advocate Louis Kok, chief legal officer for the Department of Safety and Security is quoted, when referring to various infringements of Constitutional Rights in the Friday 19 November issue of the Cape Times, "All these aspects can and probably will be challenged from a constitutional viewpoint. We have decided to take a calculated risk with these provisions."

• The passage of a presumptuously un-Constitutional bill, is totally against the philosophy of the ‘African Renaissance’, and perhaps even contemptuous of the Constitution and the Parliamentary process?

If a new bill must be passed, the following changes to the current bill are strongly recommended. There will be other major errors which will require different expertise to pick up

Section 8 does not define the requirements of competency. Competency requirements can be changed at the whim of any bureaucrat.

• It is therefore recommended that Section 8 should include a further paragraph; 8(4) Notwithstanding any other section of this bill, all regulations and requirements for competency certificates, authorisations and accreditations (and any changes) must be notified in the Gazette which must be tabled in Parliament at least 14 days before publication thereof if Parliament is then sitting, and if Parliament is not sitting, within seven days of the commencement of the next sitting. 8(4)(a) Any changes in regulations must be scrutinised by Parliament and any other interested parties and changed accordingly.

Section 14 of the proposed bill allows for an additional licence in respect to the same firearm for a person who resides at the same address as the original licence holder. This firearm may go missing and both parties may deny responsibility. Further to this, a licence for a different firearm may be denied to the second person on the basis of the ability to have access to the first firearm.

This second licence allows for presumption of guilt, which is opposed, to Section 35(3)(h) of the Constitution.

If both persons cannot have access to the firearm at the same time, because they are in different places, does not denying the second person a licence for a separate firearm on the basis that there is already one in the household, remove the Right to life and Freedom from Violence (Section2 11 &12 of the Constitution) from the person who is not, at that time, in possession of the single firearm?

• An extra section be included, ‘14.(4) No person may be denied a licence for a firearm for self-defence on the basis that a second licence may be issued for a firearm already owned by a licensed person who resides on the same premises as a person who is applying for the new licence’.

Section 15 of the proposed bill inherently accepts that a firearm is a reasonable means of self-defence for a person subject to illegal attack. Furthermore, the ‘Common Law’ allows for any suitable and available means to protect oneself or another person from illegal violent attack.

However, section 15 is open to discrimination whether personal discrimination or administrative discrimination and discrimination of belief or opinion, or discrimination of perceived threat of illegal violence against a person, his/her family or his/her livelihood. Further to this, the applicant may not be able to write good Afrikaans or English due to poor literacy or because either language is not his/her first language.

If the denial of a firearm’s licence for self-defence is due to discrimination or a lack of understanding of a person’s livelihood and/or lifestyle; this is opposing Constitutional Sections 9. and 15.(1).

The only means to prove a threat to life or bodily integrity, is to be subject to illegal attack resulting in death or serious injury. A criminal attack, is by its very nature, unexpected. It is therefore not possible to show that there is a threat of attack prior to it occurring.

Due to the potential of denial of a licence to a person, otherwise competent to be licensed, prior to an illegal attack Section 15(2) is opposed to Sections 11, 12.(1).(c). and 22. of the Constitution and therefore un-Constitutional.

• Section 15.(2)(b) should be changed to, ‘15.(2)(b). The Registrar may only deny a fit person who complies with the regulations, a licence for a firearm for self-defence, with good reason, in writing, and can satisfy the applicant that the reason is not un-Constitutional.

Section 15.(3) acknowledges the need for further firearms for self-defence. Section 15 only allows one handgun and one shotgun (which is not semi-automatic) for self-defence. Under different situations either of these types of firearm may be inappropriate, resulting in death or bodily harm of the licensed victim, or other victims. Section 16 acknowledges this.

The Minister acknowledges by sections 15 and 16 that possession of a handgun, a non-semi-automatic shotgun and a semi-automatic shotgun, carbine or rifle may be entirely appropriate.

Sections 15 and 16 do not allow the need to possess two or more handguns due to differing environments, dress code or the need for large pistol and a smaller one when a long arm may be inappropriate; or the possession of a semi-automatic shotgun and a semi-automatic rifle/carbine due to physical inabilities, skills or other limitations.

In such matters, the need for a semi-automatic (a restricted weapon), or non semi-automatic rifle and/or shotgun may be only suitable means of self-defence given the terrain, other environmental factors or due to the time of day/night. Yet, at other times, such a long gun may be inappropriate. The nature of a person’s livelihood may require that long guns are not appropriate, e.g. a development worker or researcher who must carry any firearm concealed on his/her person and have sufficient consideration with communities not to display firearms.

Firearms jam or have stoppages due to breakage of minor parts, catastrophic failure of ammunition or due to ingress of dirt during an exchange of fire. There have been examples where a second firearm has saved lives, where not having the second one, would result in death of the victim(s). Denial of a licence for at least one further handgun for self-defence may lead to the death, bodily harm and/or destruction of livelihood of one or more persons and hardship to that person’s or those people’s families.

• Section 15(3) should state: 15(3)A person may hold up to three licences in terms of firearms contemplated in subsection (1).
• Section 16(4) should state: 16(4) A person may hold two licences in terms of this section.

Sections17(4), 18(4), 19(4), and 20(4) referring to occasional and dedicated hunting, sports firearms, and private collector’s firearms, in conjunction with Schedule 4, Table of Offences, means that any non-specifically self-defence firearm, used to save the life of, or prevent bodily harm of the user or some other person, automatically results in a fine or a sentence for the licensee and/or victim, in defiance of the ‘Common Law" and the Constitution.

• A further section be added; Section 145(c) ‘Notwithstanding any other section, no person may be convicted of a firearm related offence if a firearm, not registered for self-defence, is used to protect that person or another from illegal violent attack.’

What about the poor person in the rural areas who uses a shotgun or rifle for both defence and shooting vermin and small game? The separation of uses is discriminatory against the poor. Further to this, the legislation will make it necessary to own two firearms, where previously one was sufficient. This will cause a proliferation of firearms.

Given that one of the aims of this legislation is to reduce the number of licensed firearms, does legislation which only allows a firearm to be licensed only for a single purpose (and therefore more than one similar firearm for more than one purpose), achieve this, when the current bill allows multiple use of firearms?

• A further section be added; Section 145(d) ‘A firearm may be licensed for more than one use, if so required and appropriate.’ 145(d)(i) Multiple licensing of a firearm will not deny a competent person the Right to a purely self-protection firearm.

Section 27 allows the registrar to deny a previously responsible firearm licensee a renewal for no good reason.

• A sub-section should be added; 27(3)(a) The Registrar may not deny a renewal of a firearm licence without good reason, and in writing.

The only reason for re-licensing is to ensure that firearms are still in the possession of the licensee. To show good faith, and save considerable money, an amnesty for those with lost or un-reported stolen firearms would achieve the same ends. Presentation of competency certificates and proof of a safe would fulfil the other criteria.

Re-issuing of licences will not pick up unreported stolen firearms. The firearms registry is at present fully occupied with checking and dealing with licence applications. The proposed bill will take more police officers off the street and bite heavily into the budget. Furthermore, the required technology has not yet been specified, let alone installed.

However, it is possible to check on losses with the current technology and systems. It would require merely an addition to the software to allow police stations to confirm on the computer that licensees have all the firearms that are licensed, a certificate of training by an instructor belonging to a reputable training organisation, two letters of good character, confirmation of address and proof of ownership of a safe. It would not require more police officers. It would not increase the budget. And, it would work. And, it doesn’t require a change in legislation.

If any firearms legislation is properly enforced (it is not at the moment) the requirement for re-licensing and re-issuance of competency certificates is unnecessary and an unnecessary expense when such funds could be put to better use.

• Sections 27 and 30 should be withdrawn.

Section 34 of the proposed bill denies a person the right to sell his/her property as s/he sees fit. This is open to administrative abuse. This clause allows bureaucrats to deny a person the application for a firearm and concurrently denying the owner the Right to keep that firearm since the licence will be revoked immediately it is passed onto a dealer’s books. The owner then has the choice to sell the firearm to that dealer at a reduced price or re-apply for a licence for his/her own firearm.

This clause does not increase control of firearms, since the requirements for the new licensee are exactly the same, whether the sale is undertaken through a dealer or direct between owner and buyer. This is against the spirit of Sections 25.(1) and 36.(1).(e). of the Constitution.

• Section 34.(1) should therefore be revoked.

Section 62 of the proposed bill does not allow a person to undertake work upon his or her own property. This may include:

1. cleaning the firearm,
2. replacing simple parts such as a spring, or
3. polishing rough parts to improve reliability.

• Section 62 should be changed to, ‘62. Except for routine maintenance on a firearm, no person may, without a valid gunsmith’s licence, perform - ......’?

The purpose of Section 87(2) is to hide a firearm from view. It is written in an ambiguous fashion.

• Section 87(2) should be changed to; 87(2) ‘A firearm contemplated in subsection (1) must be reasonable hidden from view with the exception of persons in uniform. 87(2)(a) The person carrying the firearm must be able to excercise effective control over such a firearm.

The Section 94 restriction of 200 rounds will increase the amount of ammunition in the population. At present most people have a single spare box, but the law will encourage people to keep their full entitlement. Furthermore, many keen shots can shoot up to 500 in an afternoon. What about them?

Section 94 will in no way impact the illegal sale of ammunition. It may even encourage it.

• The whole of Section 97 should be deleted.

There are several sections in the proposed bill relating to presumption of guilt, infringing the Right to privacy and granting the police powers to stop business activities without trial; these conflict with Sections 14., 33.(1)., 35.(3).(h). of the Constitution. Sections 115 120, 123(3) and123(4) allow for presumptions of guilt. This is in conflict with Sections 14., 33.(1), 35.(3).(h), of the Constitution.

• Sections 115, 120, 123(3) and 123(4) should be deleted.

Section 143 discusses firearm free zones. Firearm free zones are not firearm free. They do not stop violent criminals from accessing such areas with firearms, nor are there sufficient (or any) guards/police when attacks take place. These areas only stop potential victims from being able to defend themselves and others from violent attack when they occur.

Firearm control zones, where persons are searched for illegal weapons but where licensed firearms would be allowed, would ensure that persons have the Right to protect themselves and other potential victims, but would make it considerably more difficult for violence to take place.

• Section 143 should be changed to refer to Firearm Control Areas.

In the case of ranges, none of our ranges will pass European regulations yet they are usually safer. Mine dumps and hills make excellent backstops. Also, if a piece of land is safe to hunt on, isn’t it safe to practice on?