9 June 2000

The PRETORIA ARMS AND AMMUNITION ASSOCIATION which was founded in May 1995 has the following objectives:

• To promote the collecting, study, restoration, preservation and legitimate use of all arms and ammunition and related items;
• To exchange information and knowledge amongst members and amongst associations and organizations with similar objectives;
• To promote the safe handling and possession of arms and to establish sound arms etiquette;
• To promote legitimate firearms sport and ethical hunting;
• To promote a sound knowledge of all relevant arms and hunting laws;
• To encourage members to apply for declaration as collectors of arms and ammunition, bona fide hunters and bona fide sports persons and to join the South African Gun Owners’ Association.

On behalf of the abovementioned association I have the pleasure to submit to you a memorandum dealing with the proposed Arms Control Bill. [I need to mention that I have also made submissions on the original draft.]

You will note that I do not extensively deal with the individual clauses. In the light of the comment submitted (and to be submitted) by the National Firearms Forum (NFF), the SA Gun Owners’ Association (SAGA) and various other bodies and individuals, I consider it superfluous to also deal with the specific clauses. I shall, however, refer to some of the clauses and where necessary, supply comment.

The thrust of our comment is as follows:

• It will be a useless piece of legislation which will do nothing to curb crime as no criminal is going to abide by it - in fact it will promote crime as numerous new crimes are created and many ordinarily law abiding gun owners will fall foul of it by accident, negligence and ignorance.
• The main aims and objects of the proposed legislation is totally wrong - in stead of making human and financial resources and equipment available for effective law enforcement of existing laws, the proposal addresses the wrong target group - the legitimate firearm owner.
• Many clauses of the bill, if accepted as law, appear to be unconstitutional.
• There are too many uncertainties, like the various provisions whereby the minister can legislate by means of regulation (which, incidently, has not as yet been drafted).
• The major penalty increases serve no purpose. It must be clear that stringent laws do not serve as a deterrent, effective law enforcement does.
• The new law will harass ordinary law abiding citizens to the extent that many will give up their constitutional rights resulting in fewer and fewer entries to the shooting sports, hunting and firearms collecting.
• The bill, therefor, has as its main object the eventual disarmament of all legitimate firearm owners.

With reference to your telephonic conversation with me during which you informed me that I would be invited to attend the debate in the Portfolio Committee, I reiterate once again my request to be granted the opportunity to make verbal representations before the Portfolio Committee.

The Committee’s kind consideration in this regard is greatly appreciated.

As mentioned in my letter, I do not intend addressing all the clauses which I believe are objectionable. To illustrate my point I shall, however, refer to certain clauses to point out the unconstitutionality and/or impracticality and/or unacceptability thereof.

I am of the view that the whole bill is objectionable in principle on the following grounds:

1. It is totally unnecessary and achieves nothing more than harassing licenced firearm owners.

2. In a crime-ridden country it does not contribute to combating crime - in fact it creates so many new crimes that many otherwise law abiding persons may through ignorance, misunderstanding, slight negligence, etc. fall foul of the law. This obviously will cause the understaffed and underpaid police service to enforce even more laws, while everybody knows that they have great difficulty in enforcing existing laws.

3. It is based on the premises that the government has as its main object the total disarmament of the population. This was clearly spelt out by Mr. A Cachalia who represented the ANC before a subcommittee of the Goldstone Commission in 1992. Especially in the light of proposals made in the bill it is interesting to note that amongst the ANC’s proposals then were the following: (i) That the evidential presumptions, and those proposed by the police, are contrary to accepted legal principles and should be scrapped; and (ii) That no provision should be made for mandatory minimum sentences as these seriously infringe upon the unfettered discretion of the courts.

4. It is also based on submissions made by foreign consultants like Sir Thomas Thorp, a former judge of New Zealand. Coming from a country where there is so little crime that the Attorney-General had to contact his counterpart in South Africa to find out about certain aspects of the use of arms in the commission of a murder, one cannot expect Mr. Thorp to understand the culture of arms possession and use in South Africa. It was further funded with British money. This is objectionable as the British have, over the last few years taken demonic steps to remove firearms from ordinary legal gun owners. Did they achieve what they intended to? Certainly not. The British government only succeeded in disarming ordinary legal gun owners whilst criminals did not concern themselves too much about their new laws. Violent crime has risen drastically and in most instances the victims were not able to defend themselves - not that the British public is well known for their ability to ably defend themselves.

5. Although it pretends to address illicit possession and use of arms, this is not the case as existing laws adequately address it. In terms of existing laws a person can be sentenced to up to 25 years imprisonment for certain contraventions of the Arms and Ammunition Act and to life imprisonment or very long terms of imprisonment for murder, rape, attempted murder, etc.

6. A system of re-registration and re-licensing is hardly practical, in fact it is most impractical. If we accept that there are about 4,5 million licenced firearms in the country which are licenced to about 3,4 million individuals and legal bodies, it will take massive human and financial resources to make it happen. There is no guarantee that all these firearms will be matched with the licensees, in fact the chances of tracing all these firearms and the licensees are extremely remote. I would like to point out just some of the practical problems regarding re-registration. As one can safely assume that the police would not have the human resources to visit the homes, offices, residences, caravans, informal living quarters, etc. of all the licensees, these people would probably be expected to report to their police stations with their licences and firearms. As many of these people are not regular users of firearms and would probably either not have handled their firearms at all or very little, this is an unsafe situation and a recipe for disaster. One can also assume that the criminals will have a ‘ball’, as the chances of robbery are extremely great. But not only will the process of re-licencing be very expensive, so too will the whole administration of the new law.

7. The biggest misconception on which the bill is based is that inanimate objects are being blamed for the crime situation in the country. The view-point is that ‘guns are bad’ and therefor they should be removed from the populace. In other words, the government does not trust its citizens with guns. Guns are nothing but tools in the hands of its users. If something bad is being done or there is evidence that something bad will be done, then the law is there to beused. If nothing bad is done or to be done, there is no reason to ‘cry wolf’. Keep the following in mind: "Guns are to crime what a camera is to pornography".

8. In the last instance the proposals are based on statistics which are highly suspect or non-existent.

For many years the pro-gun lobby has proposed that the person should be licenced and that firearms should be registered. At a first and not so careful reading of the bill one may come to the conclusion that this is exactly what the bill tries to achieve. This is, however, not so. I do not propose that we should not have a licencing system in South Africa. Since 1677 we have some form of licencing system, albeit then for the wrong reasons. I am of the view that we are so used to such a system that we must retain it but simplify it and make it better.

In the PROPOSED MINISTERIAL POLICY ON THE CONTROL OF FIREARMS IN SOUTH AFRICA (p11) the drafters said the following: "The recommendations include a proposal for a two-tier system of licensing: first licence the owner, then licence the firearm. The burden of proof is on the owner to demonstrate that he is a fit and proper person to possess a firearm. The checks which the Registrar of Firearms and the SAPS are required to carry out should be minimised.".

As this recommendation is (to some extent) based on the proposals that the SA Gun Owners’ Association (SAGA) and various other groups have made over the years, it is a great pity that this proposal did not find its way into the bill. I agree that the applicant must convince the Registrar that (s)he is a fit and proper person to possess arms - not a competent person as is suggested in the bill. I, however, do not agree that the second step should be the licencing of the firearm. This should be the registration thereof. Once a person has been declared a fit and proper person, (s)he should be allowed to acquire whatever firearms (s)he wishes, provided it is within the category granted by the SAPS and provided (s)he is still fit and proper. Although the person who had indicated that he merely wanted a handgun for personal protection will not be prohibited from obtaining a further one for the same reason, he would have difficulty in convincing the Registrar that her/his circumstances have changed to the extent that a further licence should be granted. However, the person who has been declared fit and proper for purposes of hunting, sport shooting and collecting of firearms, should be allowed to merely register those firearms against his/her name. There should be no burden on him/her to prove to the Registrar that (s)he needs the particular firearm and that all the checks need to be done every time (s)he applies for the registration of a new licence.

The proposal that an applicant must first qualify for a competency certificate is based on a total misconception of what is meant by competence. The question is one of fitness to possess and not competence with the firearm. Fitness to possess presupposes that the person has a proper disposition (eg. not an unrehabilitated alcoholic or a person addicted to drugs or one with a proven disposition to violence or one with a criminal record (of relevant previous convictions), a sound knowledge of firearm safety, a basic knowledge of the relevant laws (depending on the type of weapon and the use for which it would be put to) and a basic knowledge of the particular type of firearm) while competence presupposes the person’s ability to effectively use the particular type of firearm. For this reason the competence of a hunter cannot be tested by an ordinary firearms instructor who usually trains people in the use of handguns for personal defence or the competence of a practical pistol shooter tested by a clay target instructor.

A declaration of fitness to possess arms should be a prerequisite whereas a declaration of competence should be a serious recommendation. Competence cannot be achieved during one training course or session, it is a continuing process. For this reason competence cannot be a requirement for the issue of a licence. The SAPS should promote further training and persons granted licences should be encouraged to join clubs or shooting or hunting associations.

Rather than alienating licenced firearm owners, the government should have seen this process as an opportunity to extend a hand of friendship to these people who are almost without exception allies in the fight against crime and criminals. By introducing legislation which clearly has as an object the reduction of firearms in the possession of law abiding citizens, who have not been proven to have done anything wrong, and the eventual disarmament of the population, the government has succeeded in alienating these law abiding persons.

The ordinary person is sick and tired of crime and the authorities’ apparent inability to enforce law and order. They have quickly realized the benefits of a constitutional dispensation and the various freedoms and rights going with it. When government introduces legislation which infringe or limit these rights without effectively addressing crime, an outcry can be expected.

The drafters of the Proposed Ministerial Policy Document stated at p11 one of the most important principles: "The recommendations are as far as possible based on the principle that it is far more cost-effective to encourage and achieve compliance than to rely on enforcement. Enforcement is much more expensive and is not always effective. Too much emphasis on rigour may compromise compliance, particularly for existing firearm owners. Therefore, in principle, emphasis should be placed on getting firearm owners into the system so that they can be appropriately managed. If they are not in the system, they cannot be controlled except through enforcement, which is difficult at the best of times. In view of the limited resources available, it is preferable to focus on the licencing of the firearm owner rather than focusing excessively on the type of firearm and making the licencing process too complex.".

Although I do not in principle agree with the concepts of ‘appropriately managed’ and ‘controlled’, I accept that it has become part and parcel of the system and for this reason I am prepared to accept it. Such control measures must, however, be limited to the minimum and must infringe as little as possible on the rights of the law abiding citizen.

I whole-heartedly agree with the drafters that enforcement is at best secondary to voluntary compliance. Most licenced firearm owners are never in conflict with the law. Of those who do now and again come to grips with the law, very few commit serious offences. It must be a fraction of a percentage of such licensees who are arrested for and convicted of serious crimes.

However, the fact remains there are sufficient laws to deal with these transgressors.

Although lack of enforcement is one of the major problems in the criminal justice system, granting the right to over-zealous policemen to enforce trivial offences is so much more dangerous. Legislation should therefor be kept as simple as possible - clearly to be understood by the citizens and easily enforceable.

In our constitutional dispensation all laws and conduct must be subservient to the Constitution. In an effort to give the police more powers to effectively apply the law, the drafters have gone ‘over board’ and have vested the police and the Executive (minister) with draconian powers.

Examples of serious infringements of basic human rights are the following:

• Although the proposed presumptions contained in Chapter 15 are worded differently to those that have over the last couple of years been declared unconstitutional by the courts, and although the wording of the clauses in the present bill differ from those in the previous one, this is nothing other than a clever process of getting presumptions in through the back door. The wording clearly casts an onus of proof on the accused - something which is in direct conflict with an accused’s right to silence. Clause 120(2) can have no interpretation other than that the accused must testify in order to raise a reasonable doubt.
• The right to own property and not to be unfairly dispossessed thereof. It is contended that to force a person to dispose of his/her firearms merely because (s)he is no longer a dedicated hunter or sports person, in the absence of any detrimental changes of the owner, is contrary to the spirit of the Constitution.
• To force people to join associations which they would not otherwise voluntarily have joined, seems to be in conflict with the right to freedom of association. There are numerous hunters who are not members of hunting associations but who own a substantial number of rifles, who would be forced to dispose of their firearms merely they have no interest to belong to a hunting association. Although I believe membership of hunting associations should be promoted, I do not believe membership should be compulsory.
• It has become an accepted rule in our courts that unless the limitation of rights clause (section 36 of the Constitution) finds application, no searches and seizures take place unless a valid search warrant has been authorized. To grant the police (and remember, it includes the military working in conjunction with the police) the powers to search and seize and arrest without valid warrants, clearly constitute an abuse of powers. We are once again reverting back to a system which was heavily criticized by the present government. Unless a suspicion, based on reasonable grounds, exists, no warrant should be issued and no search and seizure should take place without a warrant. In this regard the law is clear - the public must be protected against the police. Every one is subservient to the Constitution - to grant the police the right to search, seize, arrest and infringe basic human rights without a just cause is to elevate them above the Constitution.
• To prescribe to firearm owners to only dispose of firearms through licenced arms dealers is to infringe the principle of free trade. Obviously there must be certain requirements and prerequisites with which such sellers and buyers must comply, but to restrict them to disposing of firearms only through dealers is going too far. In a system where everything is done by computers one can hardly understand why a system could not be devised by which it could be ensured that a new licence should not be handed over to the new owner unless the old licence of the previous owner is canceled.

5.1 The bill reflects that it contains a comprehensive and effective system of firearms control - but only firearms in the possession of those who had gone through the licencing process. Unless persons are found in possession of unlicenced firearms they will not be affected by this law, in fact, they will not register or licence, acquire safes, prevent their guns from being stolen or getting lost, carry guns in prescribed containers, not handle their guns while under the influence of drugs or alcohol, etc.

5.2 Preamble: In the light of most suspect statistics, I seriously doubt the correctness of the whole preambular clause. To state that the increased ‘availability and abuse of firearms and ammunition have contributed significantly to the high levels of violent crime’, is to generalize in the extreme. If firearms were abused by licenced firearm owners one immediately asks why these people were not investigated and prosecuted - the laws are there. If the firearms were abused by illegal possessors, why were they not prosecuted? There are also sufficient laws in this regard. The reason is actually obvious - it is not because of a lack of laws but because of a lack of enforcement. No law will change this. So, if this is one of the aims of the bill, it is doomed to failure! But, most importantly, the view-point is that licenced firearm owners play a significant part in the promotion of crime in our country. The departure point of the bill is wrong. It is to affect people who have done nothing wrong, people who have committed no crime and who normally will not. However, with he numerous penal clauses the chances are extremely good that any person may fall foul of the law.

‘Airgun’ - an airgun is an airgun is an airgun - there should not be a difference between ‘airgun’ and ‘specially dangerous airgun’. Both are airgun and the only difference should be that one category (.22 and larger) should be licenced and the other (smaller than .22) not. I have been informed by a member of the drafting team that the intention was to exempt #1 (caliber .177) airgun from the licencing process. It seems as if they had not succeeded in this as many such airgun will still be subject to licencing. I applaud the idea but then it must be unequivocally stated that such airgun are excluded from licencing.

‘Ammunition’ - this should not be broader than to include a cartridge and possibly (?) a primed case. As ‘cartridge’ is defined the reference should not be to ‘complete cartridge’. There is no difference between a cartridge and a complete cartridge.

‘Antique firearm’ - all firearms manufactured prior to 1 January 1870 must of necessity be antique firearms, irrespective what ammunition they fire. If self-contained cartridge firing guns were intended to be excluded, why not say so? I am of the view that all black powder firearms, including replicas, not firing self-contained cartridges ought to excluded from the licencing system - possibly they only need to be registered (like all firearms if my proposals are accepted).

‘Dedicated hunter’ - I would prefer we stick to the accepted term, bona fide hunter.

‘Firearm’ - no airgun should be included, however, special licencing provision must be made for airgun of .22 or larger caliber. The moment three parts of a single firearm are defined as firearms, you create a problem as separate licences may then be needed when the single firearm is taken apart for cleaning or repairs. I believe only the barrel should be licenced (as is presently the case) as no problems have been experienced with the present system.

‘Fully automatic’ - the ‘fully’ was probably included to dramatize - the operation of a firearm is either automatic, self-loading, mechanical loading or hand-loading of individual cartridges.

‘Imitation firearm’ - this definition is so vague that it would be declared invalid. As this would include many ordinary toy guns it might be wise to rather couple the possession of these imitation firearms to the motive of the possessor.

‘Police official’ - In the light of the powers granted to the police I would hate to see the military involved in the exercise of such powers. This is clearly an attempt to revert to a military state and cannot be tolerated as it infringes rights of individuals who are not involved in crime. In terms of the Constitution only the President may authorise the military to be involved in so-called police work. Although the military may have a role to play in assisting the police, they should not be granted the powers of the police.

‘Security officer’ - I believe the security officers employed by the state should also be subject to the controls of the law. These people should not receive special privileges merely because they are employed by the state.

‘Self-loading’ - Although this concept has the meaning ascribed to it, a court may rule that a revolver is also self-loading as the next shot is fired by the mere pulling of the trigger.

‘Specially dangerous airgun’ - As there is no such thing (in fact, the term implies that there are three different types of airgun - ordinary airgun, dangerous airgun and specially dangerous airgun) it ought to be deleted. These devices should be licenced whereas airgun smaller than .22 caliber should not. As they are not firearms, they need to be referred to as airgun with a greater caliber as .177. They can then easily be included in the licencing process.

Clause 2 - Subclauses (a) - (c) do not belong in this legislation as it is already effectively being addressed in other laws and the common law. The reason why it is apparently ineffective is because of a lack of committed and dedicated law enforcement. I agree that there must be an effective system by which the legal possession of firearms by civilians and state officials is controlled. I believe, however, that this bill goes too far and is too radical. Not only does it create a control system, it creates so many possible infringements that most ‘ordinary’ people will never be able to keep up. I can give you numerous examples where people who are supposed to know do not. This is another way of making life so miserable for the ordinary gun owner that (s)he may just surrender. With reference to subclause (e) it is beyond comprehension how reference could even be made to ‘efficient monitoring and enforcement’, as no law can dictate this. Monitoring and law enforcement is dependent on the commitment and availability of human and financial resources, not on what a law prescribes.

Clause 3 - This clause does not belong in our legal system. I can only be justified if we had a fully codified system. An interpretation of this clause may mean that possession of an unlicenced firearm can never be justified by our common law grounds of justification such as necessity, official authority, duress, etc.

Clause 4 - I am of the view that there should be no prohibited arms. There are people who have been properly screened who are not criminals and would not commit crime with the items they possess who would be negatively affected by this prohibition. In stead of declaring certain things prohibited, provision should rather be made for the strict control over it and the prescribing of conditions for its possession. I fully understand that the ‘ordinary’ person has no valid reason to possess such weapons, but why prevent a bona fide collector from ensuing his or her hobby or sport?

One of the most dangerous clauses which is found throughout the bill, is found in 4(3). To grant the minister such powers is to allow him to effectively disarm all civilians. Apart from the fact that the constitutionality of the minister’s powers to make regulations is seriously questioned, the unilateral act by the minister to prohibit ‘any other firearm’, is unacceptable.

Clause 5 - All airgun with the exception of those of caliber .22 and larger ought to be exempt from licencing.

Clause 6 - The law should not prescribe where an antique firearms should be fired. The owner may have the opportunity to shoot it at a gathering of collectors which takes place not necessarily on an accredited range or he has an opportunity to hunt with it before going through the red tape of obtaining the Registrar’s permission.

As no crimes have for many decades been committed with antique firearms and as they are not to be licenced it makes no sense to burden dealers to keep a register or to prescribe the sale through dealers only.

Clause 7 - As said before, I do not believe airgun under .22 caliber ought to be registered or licenced. The difference between airgun to be registered and those not should, however, not be measured in energy levels. I also believe that adults should be allowed to, without the intervention of dealers, dispose or acquire airgun.

Clause 8 - The ‘competency’ certificates ought to be replaced with ‘fitness’ certificates. Competence is not what we are after, fit and proper is.

Clause 11 - The fact that ‘competency’ certificates are required also for gunsmiths and dealers, illustrate my point that it should be ‘fitness’ certificates. A gunsmith or dealer should be fit and proper to do such business. It is none of the government’s business whether or not he is competent. This will be sorted out by free trade principles.

I am still of the view that the age restriction of 16 years should not be tampered with. Very few licences are issued to such persons and I do not believe that a single crime or irresponsible act has been committed by such a person with his or her licenced firearm. If there are such cases I would like to see the statistics. To allow the opened back door in clause 11(5) is meaningless as it will almost be impossible for a person who is denied the right to legally use a firearm for sport or hunting to prove that (s)he is a dedicated sports person or hunter.

Clause 12 - If a competency certificate (the applicant must actually only convince the Registrar that (s)he is fit and proper to possess an arm and not that (s)he is competent in its use) is a prerequisite for a licence, subclause (2) could be interpreted to mean that a licensee must every two years obtain a competency certificate. If this is not the case (and I believe it should not) it means that every time before a person wants to apply for a licence (with more than two years’ intervals), (s)he would first have to again undergo a competency test. To achieve what? Unless there are radical changes in a person’s application, (s)he should not be required to again undergo such a test. Obviously, if a person had for instance at his first application, only been tested for a firearm for self-defence and he now needs a firearm for hunting, (s)he needs to convince the Registrar that (s)he has the safe handling capabilities for a rifle as well. But this needs not to be tested during a full competency test.

Part of a dealer’s competence is obviously to deal with the public, to have sales capabilities, to have a knowledge of accounting, and to have a knowledge of firearms and ammunition. Would the test cover all these aspects? If not, it is not a competency test! What is required is a fitness test to establish whether the person has an acceptable knowledge of firearms and ammunition and the law relating to arms and ammunition and whether (s)he is safe and responsible to deal in arms and ammunition.

Clause 13 - The construction of the clause leaves much to be desired. Subclause (1) should read ‘Subject to the provisions of ss (2)...’

Clause 14 - During the deliberations of the Policy Committee I raised the problems inherent to a tiered licencing system, such as the difficulty to prove who possessed the gun when it got lost or was stolen. This is still relevant.

Clause 15 - Apart from the fact that these types of firearms would usually be required to be registered in the name of a company, something which is not allowed, the principle is wrong. Provision should be made for the licencing of these weapons in exceptional instances. Should a person be able to convince the Registrar that (s)he has a need for such a weapon the law should not prohibit it - the requirements should merely be stricter enforced.

Although this bill now allows the issuing of two licences for self-defence type weapons, it still is most unsatisfactory. As the personal circumstances of all people differ and various people have various different requirements, there should not be any restriction on either the number or type of self-defence type firearms on a person. Just as neither the government nor anyone else should tell me which car I should drive or which suit I should wear, so should no-one prescribe to me what weapon I should use for personal protection.

On a farm, the rifle or shotgun may be the best for home-defence whereas the pistol may be better to carry with the farmer while on his farm or the roads. If he was restricted to one firearm for defence his wife will be without a firearm for defence unless she also had to be granted a separate licence. This is also applicable to business people and ordinary people who take their personal survival seriously.

There is no reason why a defence firearm should not be used for hunting as well and why the law wants to prescribe that such a weapon should be used in accordance with regulations is incomprehensible.

Clause 16 - There is no reason why a semi or fully automatic weapon should not be used for self-defence. Why rifles are excluded is beyond all comprehension. In certain instances a rifle is the best possible solution during an attack. To prohibit it is to deny a person the right to defend himself. If he is in two minds whether or not to abide by the law, it may get him killed. Not everyone is aware that common law would authorise the use of any weapon during an unlawful and violent attack, any even this is presently cast in doubt as illegal possession seems to be possession without a licence, permit, authority or whatever.

How anyone would satisfy the Registrar that (s)he needs a firearm for self defence is difficult to understand as no-one can predict future happenings. At most one can say that you are a potential victim because of various circumstances. This being the case, in crime ridden South Africa, everyone is a potential victim.

Clause 17 - Specifically because of the ‘other legislation’ clause, this clause it unnecessary. If any other legislation (eg Nature Conservation Ordinance) prohibits the use of any particular firearm for the intended purpose this legislation should not concern itself with it. If a semi-automatic rifle is used for certain types of sport shooting or for hunting on proclaimed farms, why prohibit it, after all, the owner had already been checked and screened.

As the barrel and frame is already subject to licencing, why it is to be mentioned in this clause is not clear.

As especially farm owners are not necessarily members of hunting associations I cannot agree with a limitation of 4 firearms. Many of these people do more for the hunting sport than members of hunting associations and they are better hunters than most. To restrict them to two defence weapons and 2 sport and hunting weapons is unacceptable. Limitation should be based on facts not on legislative restrictions. The restriction in subclause (4) is also unacceptable. If the hunter, for instance, test fires his rifle on the operator’s farm, which is neither the place of the hunt nor an accredited shooting range, he is committing a crime. Apart from falling foul of the dislikes of the government, what has he really done wrong? And again the ‘regulations’ which nobody knows about!

Clause 18 - Is it not amazing that an occasional hunter may hunt with a semi-automatic handgun but the dedicated hunter, who is actually the person who should have less restricted rights, may not?

I also object to subclause (4) for the same reasons as supra.

It contradicts itself as a semi-automatic shotgun is at the same time allowed and disallowed. There are no reasons why semi-automatic shotgun and rifles should not be allowed for hunting. Throughout the world self-loading rifles are allowed for hunting - also in South Africa. As these rifles have possibly never been used in the commission of crime and as this law is the wrong avenue to promote hunting legislation, it should be left to the hunting industry to allow or disallow self-loaders.

Clause 19 - Subclause (1) also contradicts itself by at the same time allowing and disallowing semi-automatic shotguns. Why a restriction of 3 rounds is placed on a shotgun without any reference to a semi-auto rifle is not clear. I suggest there should be no restrictions for these types of arms.

I do not agree that firearms should for purposes of hunting be used on accredited ranges only.

Clause 20 - There ought to be no restriction on the use of collectors’ arms to use it for hunting as well.

Clause 21 - With subclause (3) I cannot agree if the holder of a licenced firearm cannot discharge any of his collector’s cartridges in those licenced weapons.

Clause 23 - I would have thought that the security companies are primarily going to be allowed to possess some of the so-called prohibited weapons. There must be a difference between the competence of a security officer and an ordinary citizen. The former must not only be fit and proper to possess, he must also be competent.

Clause 23 - Provision must be made for the fast-tracking of these applications as clients may need to borrow a firearm for hunting or sporting use at very short notice. If, for instance, a foreign hunter’s rifle gets damaged or stolen, he may want to continue with his hunt. This does not mean that he is necessarily going to use his professional hunter’s rifle. He may want to borrow one from a friend or even buy a new one at a dealer, but he cannot wait for the authorization to be approved through the bureaucratic structure. In such circumstances believe the station commissioner ought to have similar powers to help these people.

Clause 24 - As firearms are often built up from different components I do not agree that the barrel and the frame should be numbered. This can create so much confusion and may in fact lead to the arrest of an innocent person as the policeman at the road-block will not understand that the barrel and frame have different numbers. To avoid this confusion the only relevant number should be the one on the barrel, excepting on self-loading pistols where it should not be prescribe where the number ought to be.

Clause 25 - This clause is welcomed but does not go far enough as there are many instances where the borrower will not be under the immediate supervision of the lender.

Clause 26 - The renewal of firearms’ licences is totally unacceptable as it serves no purpose other to harass the law abiding citizen and to create a security risk. The latter is said on the basis that the regulations may prescribe that the licensee must prove that he still possesses all the firearms. Subclause (3) is a clear and serious infringement of the right to property. Where a person legally holds property he should never be required to prove to the bureaucratic system that he still needs it. Although the firearms which he originally acquired for sporting or hunting purposes may no longer be used for that, it may have specific sentimental value as he may have used it to hunt his first buffalo or obtained his national colours?

In any event, unless a service is rendered in return for renewals, there can be no justification. It is nothing but a method of additional taxation and harassment!

Clause 29 - Although the rationale has merit, it is totally unenforceable and will probably never be complied with. These requirements should be applicable to juristic persons only. The requirement should, in any event, be applicable to ‘material’ circumstances only.

Clause 30 - As I do not support the renewal system I do not agree with the validation periods. If laws are properly enforced those who transgress or abuse will be removed from the system and the innocent will not have to suffer. This is once again nothing but harassment and a reason for taxation.

Clause 31 - A licence should be terminated only upon the death or the declaration of unfit of the owner, the destruction of the arm or voluntary surrender or legal transfer of the arm. As it is human to err and as there may be many reasons why a person would not renew his licence (not to be construed that I agree) in time, I do not agree that the licence should on this ground be terminated. Obviously, companies that change the purpose or are wound up, are to be dealt with differently.

Clause 32 - Once again, to prescribe a period is impractical. Let’s say the person’s licence is lost while on a 21-day safari or while he is overseas. Why should he be forced to return to South Africa (or even to suspend his safari in the country) just to report or make an application in time. If you answer that he should do it upon his return to the country you are side-stepping your own proposal, if you say he must nevertheless report within 24 hours and apply within 7 days you admit to harassment.

Clause 33 - This I see as the nucleus of an effective service. However, the regulations must be clear. One should know (before this bill is implemented) what the regulations are and what the rights, duties and obligations or the CFR are.

Chapter 7 - In general and with certain reservations, I agree that dealers, manufacturers and gunsmiths should be licenced and regulated. However, their competence must be well defined. I do not agree that every partner or director should necessarily be a competent person. Some directors/partners may only have financial interests in te business and may not even live in the country.

A gunsmith should not be restricted to his gun smithing premises. Often they are performing services at shooting ranges or on a game farm. Why should this be disallowed?

Clause 77 - Why an importer or exporter should also be fit and proper is not clear. Such person would usually be a dealer (who is already a competent (fit and proper!) person ) or a person who either have a licence for the firearm or who must apply for one after he has imported the firearm into the country. The only requirements regarding transit should be that the firearms must be declared at all points of entry and departure - this is sufficient control without creating even more work for the Registrar.

Clause 79 - As we do not want to further harass foreign visitors (the criminals successfully do that already) a fast-tracking service regarding transit permits, etc. should be provided for. It must be issuable, with as little as necessary inconvenience, at the port of entry.

Clause 85 - Once again, is the person who is not even a South African citizen and who has taken a firearm through South Africa for a 21-day hunt in Botswana, required to within the prescribed periods report and apply? There is not reason why such reporting and application should not be done upon his return to the country and for this reason the customs/police officer at the port of entry must be able to issue it.

Clause 86 - Provided this clause is applicable only to professional transporters I do not object.

Clause 87 - To limit the carrying of a handgun in a rucksack or similar holder does not establish an eusdem generis and is in fact restricted that a person will not be able to carry his/her handgun in a handbag, attache case or similar carrying case.

In some instances, eg where a person has just bought a rifle or shotgun, he would be carrying it in the manufacturer’s box. He may not have had sufficient funds to also buy a gun case. If a rifle/shotgun is properly concealed there should be no further restrictions.

Clause 95 - Like in many other cases I do not agree with the minister’s powers to regulate the possession etc. of ammunition. Without any democratic input from affected persons he could autocratically prohibit things on advice by the police or his political masters.

Clause 96 - Although we appreciate the relaxation on the possession of reloading components on dedicated hunters and sportsmen, we do not agree with subclause (4) as it may often happen that a person sells a particular firearm in order to in the future buy one of a similar caliber again. He would now be contravening the law. If he is found manufacturing ammunition for calibers he does not possess I understand that he may be prosecuted.

Clause 97 - Often people want to have their firearms custom built and then they buy certain parts. With the parts individually he cannot do anything. Often he does not have another firearm capable of bearing that firearm part. As the part in itself does not constitute a firearm, I do not believe that these parts should be controlled as no purpose excepting harassment is served. Once it can be proved that the person was illegally manufacturing a firearm he can be prosecuted.

Clause 105 - I believe that the Registrar should have the legal authority to declare a person unfit to possess a firearm. He system must, however, be just and the persons to whom the power to hold such enquiries are to be delegated should receive proper training in this regard.

With regards to subclause (3) I have doubts as to the authority of the legislature to amend the Criminal Procedure Act by this bill.

Clause 106 - This clause contains the word ‘must’ which grants the courts no discretion. This is totally unacceptable as no court should be regarded as a mere rubber stamp. The courts have judicial independence and the judicial system is in fact one of the important pillars of a democracy. By prescribing that a court ‘must’ do something is to seriously interfere with its independence. The courts should be allowed to hold an enquiry and to make a finding based on the particular facts of the case. To prescribe to the court means that the legislature has in fact pre-judged the issue.

Clause 110 - This clause is so vague that it may in fact be void. It is not clear whether the police official may tell the bearer to after an expiration of time produce the licence and/or the firearm. I believe the wording should be improved for legal certainty.

I am of the view that the bearer should be able to identify himself and not necessarily carry his licence with him.

Clause 111 - Although the person so requested is at the stage not entitled to the rights provided for in section 35 of the Constitution, it would be wrong to obtain information in this way while knowing that you may charge the person eventually.

Clause 112 - Not only should state institutions be given reasonable notice of inspections, but private dealers, manufacturers and gunsmiths too.

Chapter 14 - The Criminal Procedure Act, 1977 (Act no. 51 of 1977) adequately deals with arrests, search, seizure and disposal of exhibits and is the correct vehicle to address this issue. No greater rights should be given to police regarding the search of persons or premises and the seizure of property when firearms are involved. The police already have these powers in terms of the Criminal Procedure Act and if properly and correctly done they do not experience any problems. Whether we are talking, arrest, search, seizure, ballistic testing, etc. it should not be done unless there exists a suspicion based on reasonable grounds that an offence is being or has been committed.

Chapter 15 - Although worded slightly differently to those presumptions which have already been declared unconstitutional and also somewhat different to the proposals in the previous draft bill, these proposed presumptions still appear to be unconstitutional as the accused is almost forced to speak and should therefor be scrapped. It is clear that the contrary can only be proved by a person called as a witness by the defence. This infringes his right to be presumed innocent.

Chapter 16 - I do not agree with the so-called administrative transgressions as they infringe on the constitutional principle of judicial administration. To allow any policeman to impose such fines is totally unjust and cannot be tolerated. To have increased sentences drastically also serves very little purpose as high sentences are not a deterrent - effective law enforcement and certain justice are.

Chapter 17 - I am of the view that the training curriculum for ‘competency’ testing should be developed in partnership with the industry and so too the educational programmes.

I have previously recommended that the appeal board must be independent and preferably be staffed from outside the Service. In the Policy Committee my opinion was (and still is) that all reviews and appeals should be done by magistrates.

Chapter 19 - Obviously compensation must be paid unless a weapon was seized and then declared forfeited. If it was seized and then unlawfully destroyed or lost compensation must be paid. The availability of state money is totally irrelevant. If firearms were handed in because of whatever legitimate reason reasonable compensation must be paid unless the former owner does not want it.

Clause 143 - These zones serve no purpose other than to harass law abiding citizens. The minister should not have the right to declare such a zone, let alone without any democratic input.

Clause 150 - Only the president should be able to exercise such a right and only for real emergencies.

Clause 150 - The regulations must be made available after the promulgation of the bill but before any part of it is put into operation.

Schedule 1; Clause 11 - This clause is a serious infringement on existing rights as it requires a licensee to once again apply for a licence for the same firearm and that in the absence of his having done anything wrong. As I have stated before I can agree with some form of audit but not with re-licencing and the accompanying payment of licence fees.

I have also indicated that I do not agree with the draconian sentences which are proposed. The mere technical contraventions hardly justify prosecution let alone such punishment.

I notice that reference is made to consultations that had allegedly been taken place. Although I am only a trustee of SAGA, I am unaware of any consultations that have taken place with them. I served on the Policy Committee in a dual capacity but that was the last time actual consultations have taken place. I am aware of some meetings but these could hardly be described as consultations.

If consultations had taken place I am certain the product would have looked somewhat different and would have been much more acceptable. We are still prepared to assist where our expertise is called for.