GUN CONTROL IN SOUTH AFRICA

THE NNP RESPONSE TO THE FIREARMS CONTROL BILL:

RATIONAL SOLUTIONS SHOULD PREVAIL

In late 1999 Cabinet adopted a policy position on firearms control that culminated in the publication of the draft Firearms Control Bill in Government Gazette No: 20688 on 3 December 1999. The Bill represents, in many respects, a fundamental departure from current practice regarding the control of firearms and ammunition in South Africa, and has caused wide-spread and vocal reaction, particularly from licensed gun owners throughout the country whose interests are most directly affected. The NNP strongly supports a legal framework that regulates responsible gun ownership. We believe that the current Act, though in need of some improvement, by and large provides such a framework. In this document, we point out the most pressing faults of the draft Bill.

Fundamental Issues

1.1 Philosophy and Points of Departure

The Preamble to the Bill focuses on the core issues of:

The high levels of crime;

The way in which the availability and abuse of firearms contributes to the high levels of crime;

The State’s duty to protect the right to life and personal security.

The inference from s (2) is clearly that the prevention of crime is to be effected, inter alia, through the control of the proliferation of legal firearms (s (2)(c)). It is also clear that in the eyes of the proposers, proliferation of illegal weapons goes hand-in-hand with proliferation of legal weapons (s 2 ( c)), and that criminals can and will be stopped in their actions by law, and particularly so by the control and regulation of the use of firearms in private ownership. These underlying assumptions give rise to the following comment:

The basic point of departure that over-restriction of private civilian ownership of firearms necessarily contributes to the prevention or curtailment of crime, and particularly of violent crime, flies in the face of a considerable body of reputable international evidence and criminological research indicating the contrary. Indications in Great Britain, Australia and the United States have consistently indicated the contrary – that the unreasonable restriction of private civilian firearm ownership is strongly correlated with increases in crime, and particularly with violent crime involving the use of firearms;

The preoccupation with the enactment of a new law to achieve crime reduction in South Africa discounts entirely the fact that it is application of law that has an impact on crime. Indeed Schedule 3 of the Bill creates a range of new offences in its efforts toward creating "....a more secure environment in South Africa…." . But it is arrest and conviction rates that, in the final analysis, contribute most directly to the reduction of crime. At a time when South Africa’s criminal justice system is in complete disarray, the wisdom of introducing an onerous new law that restricts the private citizens’ ability to defend themselves, and that renders them dependent upon a largely dysfunctional system for the protection of their rights and liberties, can only be seriously questioned. Present legislation in the form of the Arms and Ammunition Act 1969 (Act 75 of 1969) provides many mechanisms to achieve the stated objectives that are currently not implemented due to the incapacity of the system. In fact, it can be said that the new Firearms Control Bill, inter alia through the creation of a plethora of additional offences and administrative transgressions, seeks to deal with poor law enforcement by "creating guilt" without judicial procedure;

If the intention of the Bill is truly to prevent firearm theft from feeding the criminal market, how then can "official institutions" (state institutions), a significant source of stolen arms, in effect be exempt from many of the significant and relevant provisions of the Bill (s100)? The provisions of s102 and s103 (4) are potentially irreconcilable, and promise to create a battleground between the Registrar and "Official Institutions". Sufficient statistical evidence is simply not available in South Africa to indicate that stolen or lost private civilian weapons constitute a significant percentage of illegal arms, or that theft constitutes an even more significant percentage of legally registered firearms. In fact, using the Secretariat for Safety and Security’s own estimates reflected in the Cabinet Policy Paper (1999), the level of reported firearm theft, namely 30 220 cases in 1998, amounted to only 0.7% of all firearms registered with the Central Firearms Registry (CFR). The authorities admit they simply do not know the number of illegal arms in the country or the rate at which they continue to enter the country. In addition, CFR statistics on registration and theft are themselves at present also unreliable. This is surely the motivation for the re-licensing called for by the proposers of the new Bill. The NNP has no major objections to an audit, but regular re-licensing seems impractical and onerous. Crimes are committed with firearms acquired in other illegal ways. No adequate records are available indicating the origins of firearms used in crimes;

The proposers seem also to assume that each case where a firearm of a registered owner gets lost involves some culpability, and clearly set themselves the task of providing mechanisms for dealing with what they perceive to be a problem. However, firearms are frequently lost through no fault of their owners. In any event, the necessary mechanisms exist and are provided for in s 39(1)(k) of the 1969 Act. It would be illuminating to know how many licencees have in the past 5 years been prosecuted in terms of this provision for culpable loss of firearms. The existing act provides the necessary mechanism. It is, however, not properly implemented;

The Bill also clearly proceeds from the position that the over-regulation of the use of privately owned firearms will in some way contribute to the Bill’s objectives. The licensing and registration system proposed is based upon a rigid and cumbersome classification of firearms according to use, in effect disallowing flexibility in the perfectly reasonable alternative use of firearms registered for a particular purpose. It is not clear how these complex provisions can possibly contribute materially to the achievement of the objectives of the Bill. If anything, the rigidity in "use" classification could lead to an increase in the number of firearms, since a separate firearm is now required for each individual use. Evidence from other countries strongly suggests that registered gun owners, as a body, are in fact involved in only a minute percentage of crimes. The major problem is with the use of illegal firearms in crime. The inference from the Bill, however, is that its drafters believe legal civilian use in South Africa somehow contributes to crime levels or has a negative impact on the right to life or personal safety of the population at large. The notion appears somewhat contrived, seen in the light of the fact that no statistical evidence exists in South Africa to support this thesis; and

By focussing on legal firearm ownership in South Africa, the Bill in effect renders law-abiding firearm owners hostage to the very criminals who threaten society, and casts a shadow on the general right to freedom of lifestyle choice of private citizens in South Africa.

Constitutional Issues

The Right to Life

Whilst, in its Preamble, the Bill acknowledges the Constitutional "…right to life and to security of the person, which includes the right to be free from all forms of violence from either public or private sources…", it then proceeds to circumscribe the corresponding right to self-defence. It does this, inter alia, by limiting the choice of legitimate weapons that may be applied by an individual in defending him/herself against unlawful attacks. In terms of the provisions of the Bill:

No firearm may be used for self-defence unless licenced for that purpose (s16, s17, s18, and s19). If under personal attack whilst only in possession of a firearm licenced for a non-defensive purpose, the individual would, in fact, be committing an offence by using it to defend him/herself;

Effective self-defence firearms (such as semi-automatic shotguns) are prohibited from being licenced for that purpose (s15(1));

The licencee is limited to one firearm for the purpose of self-defence (s15(4)). This means that persons such as shop-owners and farmers who may have variable self-defence needs are not optimally able to accommodate those needs.

S15(3) of the Bill requires that every applicant for a licence for a self-defence firearm should convince the Registrar that his/her requirements cannot be met by any other means. The decision to issue a licence is then up to the discretion of the Registrar. But no clear standards for compliance are laid down. Exercise of the right to self-defence is thus potentially limited by bureaucratic procedure. The problem also lies in s15 (5)(c) that provides for a self-defence firearm to be used only "…in accordance with such regulations as may be prescribed..".

There is clearly a significant inconsistency in regard to the right to life. The right to life in the Constitution is fundamental and unqualified. The police in South Africa are clearly unable to ensure the safety of the individual and his/her property. Though the Bill allows discretion for numerous firearm licenses for sporting and hunting, it does not do the same for self-defence.

Other Rights

The Bill will infringe other Constitutional rights in the following ways:

The Right to Property could be potentially infringed by the following provisions of the Bill:

The termination of existing licences legally acquired, with the resultant potential loss without compensation under certain conditions of valuable firearms and related property (Chapter 16);

Diminution of value implied by the mandatory provisions of Schedule 1 (s1(2)). Owners will be required, inter alia, in terms of the provisions of s29(3) to dispose of their property under unfavourable conditions within a specified period or forfeit them to the State without adequate compensation;

Redefinition of the legal uses of existing firearms. The provisions of Chapter 6 of the Bill now limit the use of firearms acquired under the earlier legislation when no such limitation existed;

The provisions for example of s116 (2) relating to the disposal of property seized by the State go beyond the provisions of s41(c) of the present Act that accord to firearms the exact same status as property seized under the Criminal Procedure Act 1977 (Act 51 of 1977). The Bill in this regard discriminates against firearms as items of property to the potential detriment of their owners; and

S 142(2) (c ) provides for some compensation in the case of inherited arms, though not necessarily at current market value. Some relief is accorded in terms of s160 read with s157 (1)(ee) providing for a permit to possess arms inherited from specified relatives. However, the beneficiary is subject to the normal licensing provisions in respect of the use of his/her inherited property.

The Right to Associate Freely. In the cases of hunting and sport, licensing is made conditional upon membership of certain accredited associations or bodies. In these cases the Bill does not provide for the individual, who has the corresponding right to not associate, to acquire a firearm licence for sport or hunting (s17(3)&(4), s18(3)&(4), and s19(5). This clearly affects the rights of existing owners currently not subject to such a requirement, who would be obliged to join such an association or forfeit their licences and also their property;

The Right to Privacy. This is potentially infringed particularly through the provisions of s17 (3) and s18 (3). These provisions accord the Registrar discretion in determining the status of a licence applicant as either a dedicated hunter or a dedicated sports shooter, without specifying in the Bill the criteria to determine these licencee categories. For example, the requirement contemplated in Cabinet Policy that the individual should regularly provide particulars to an association or to the Registrar as to the minutiae of his/her hunting or sporting activities in terms of regulations pursuant to s157(zz), or any other similar requirement, constitutes a potential invasion of the right to privacy that has to do with the curtailment of criminal activity in South Africa.

The Right to a Fair Trial. This right is infringed in the following ways:

Through the presumptions provided for in Chapter 15. As indicated by Constitutional Court decisions there is very little scope for presumptions in South African law, the fundamental principle being that the onus lies with the prosecution to prove all elements of a crime. Regarding the presumptions in the present Arms and Ammunition Act (1969), the Constitutional Court has held that, if the absence of presumptions might mean that a guilty party were to escape conviction, this should be viewed as an inevitable consequence of the presumption of innocence. The rights of innocent persons must be given precedence since the consequences of wrong conviction are not trivial. The onus to prove guilt lies with the State; and

Through introducing the concept of administrative transgressions contemplated in Chapter 16 and particularly s126, and punishable at the Registrar’s discretion in terms of s129. Whilst in principle there is no objection to the introduction of administrative transgressions in the interest of practicality and for minor matters, this should not interfere with the individual’s access to a fair trial by a Court of Law. This is particularly important where the consequences of being found guilty of administrative transgressions are far from trivial, as indeed is evident from the fines and other sanctions provided for in Schedule 3 of the Bill. The procedures to be followed by the Registrar in exercising discretion are not sufficiently laid down in the Bill, nor is there any indication as to the procedure to be followed by the Registrar in exercising his/her discretion as to whether an administrative transgression was committed at all. The provision for appeal to an Appeal Board as provided for in s142 is also inadequate. The constitution of such a Board is again left to Ministerial discretion, and the individual is not accorded the right to appeal to a Court of Law. Read with s107 and particularly with s107(g), the Bill’s provisions accord the Registrar virtually unchallenged powers that even a Court of Law does not enjoy in terms of s108.

Other Issues with Constitutional Implications

The Bill generally accords the Minister considerable powers of discretion in regulating firearm matters without recourse to Parliament. Both the wisdom and the Constitutionality of such provisions are doubted:

s150 (1) (Emergency Provisions) provides for extensive discretion by the Minister in proclaiming certain emergency measures. The implications of not requiring the Minister to follow a procedure such as provided for in s4(2) and s14(2) to enable Parliamentary oversight, are serious ; and

s157(1) (zz) gives the Minister considerable powers to regulate matters unspecified, without recourse to Parliament. Such powers are patently open to abuse, and can be described as "draconian".

Points of Departure

Licensing the Owner and Registering the Firearm

Whilst it is international practice to distinguish between licensing of the owner of a firearm and registration of the particulars of individual firearms, no such clear distinction is made in the Bill. There is, however, evidence of an amalgamation of both concepts in the "licensing" requirements as set out in the Bill. Chapter 5 particularly deals with the matter of competency certificates as a requirement to be met by the owner or prospective owner of a firearm, whilst Chapters 3 and 6 in particular deal with the requirements to be met by firearms and other devices in order to be "licenced" in terms of the Bill. The lack of a distinction between these two concepts is clumsy, and leads to a lack of clarity on a number of issues such as whether, in terms of the relevant provisions of Chapter 6, the applicant for a firearm licence would have to re-qualify, in accordance with the provisions of Chapter 5, for each individual firearm licence he/she applies for. The logical implications of licensing for the owner are also not reflected in other provisions of the Bill where all sorts of complex and unnecessary restrictions are placed upon the actions of persons already declared fit and proper to possess firearms.

The Matter of Specified Use

The Bill’s approach to licensing in Chapter 6 is dominated by:

Identifying categories of firearm use ;

Determining types or categories of firearms, and the number of firearms to be allowed in each category of use for the purposes of licensing;

Requiring each and every firearm to be licenced in terms of a particular use category; and

Proscribing multiple use of certain categories of licenced firearms.

The clearest anomalies are, inter alia,:

The prohibition on the use of firearms for self-defence when these firearms are registered for hunting and sports shooting, on pain of prosecution in terms of s16 (6), s17(6), s18(5) and s19(9). Should such a firearm be the only weapon at hand or, indeed, the weapon of choice for self-defence purposes during a violent attack, a citizen may not use it to defend him- or herself;

The limitation of the number of firearms allowed to be licenced for self-defence, but not of the number of firearms allowed to be licenced for other purposes (s15(4), s16(5), s17(4), s18(4) and s19) despite the fact that the right to life is the most important right in the Constitution;

Paradoxically, the prohibitions on firearm use provided for in the Bill can, in fact, lead to a proliferation of firearms for various uses. Consider an individual who acquires a handgun licence for the purpose of hunting in terms of s17(1). In a situation which requires self-defence, such a person could not use that firearm for that purpose, and would therefore need to acquire a second firearm specifically for the purpose of self-defence, which otherwise they may not need to do;

The specification of minutiae of use, including specification of the premises or locations where firearms may be used (s15(5), s16(6), s17(6), s18(5)) despite the fact that such matters are traditionally effectively dealt with by means of local ordinances, and that there are also already penalties provided for the negligent use of firearms. This would for example mean that a farmer may not euthanase an animal on his farm using his firearm, or that he may not use a firearm registered for hunting or sporting use (and possibly also one registered for self-defence) to kill a dangerous snake. It would mean that a hunting rifle could not be discharged in a perfectly safe area unless that area was "…suitable for hunting…". Yet no indication is given as to how such "suitability" is to be determined. This provision is clearly not implementable. Besides, it accords persons the licence to possess a firearm without being able to practice with it in circumstances similar to those in which it will be used. In rural areas "…accredited shooting ranges…" are few and far apart. It is clearly preposterous to put such a burden on those living in outlying areas when they have perfectly adequate and safe areas to practice near at hand. Such provisions are more applicable to urban areas and to densely populated European countries where they had their origins, and not to the rural areas of South Africa.

The licensing classification according to use and restrictions upon that use, as provided for in the Bill, is simply not viable. Apart from the significant attendant bureaucratic over-elaboration of firearm control, it is not clear what possible benefit the specific approach adopted in regard to use-based licensing could have on the achievement of the stated objectives of the Bill. To deal with these very real and practical anomalies would in fact require a use-based system. The current system, as provided for in the Arms and Ammunition Act 1969 (Act 75 of 1969), is perfectly practicable and not contradictory of the objectives of the Bill. It can be introduced into the Bill by replacing the offending sections of Chapter 6 with the existing provisions - inter alia sections s14, s15, s16, s17, s18, s19, s20 and s28.

2. Additional Impact of the Bill and Associated Measures

If the Firearms Control Bill is to be passed, the implications will be numerous and complex. Many of its consequences are undoubtedly unintended. The following serve to identify and elaborate upon specific impact themes arising out of the provisions of the Bill and associated measures.

Practicability

Implementation of the provisions of the new Firearms Control Bill will place severe strains on the criminal justice system at many levels. Previous experience, particularly in Canada and Great Britain, has shown incontrovertibly that the effect of over-elaboration of firearms control measures is to divert manpower from front-line crime prevention and policing operations into an area of significantly lower benefit. It does not matter very much who pays for the new system, whether it is the taxpayer or "users" of the system, the diversion of resources from other more cost-effective applications is significant. There is every reason to believe that this experience will repeat itself in South Africa with far-reaching consequences for law-abiding citizens.

The Firearms Control Bill in its present form creates a plethora of new offences which would be hard to deal with by the already-overloaded courts in particular. This can be adduced to be the reason for the introduction of the so-called "administrative transgressions" in the Bill that are to be dealt with at the administrative level. The effect has been to create an alternative justice system in which citizens are denied recourse to the courts. It appears that the price to be paid for the implementation of the Bill is the surrendering of rights.

Current firearm legislation requires the Central Firearms Registry to keep a register of all licences issued. Severe criticism has been leveled regarding the integrity and efficiency of the systems at the CFR. Indeed it would appear that at present the address database of the CFR is less than 30% accurate. Currently, the registry has 245 staff members, with 105 vacant positions. In 1998 each employee received an average of 70 licence applications per month, of which 59 were approved. An ambitious Business Process Re-engineering (BPR) project is being undertaken to ensure that the CFR is able to carry out all the functions assigned to it in the new legislation. This will aim at optimising business processes, the information technology required to support these business processes, and the necessary human resources. However, the CFR in its current form will not be able to carry out its required functions given the limited budgetary resources. Some estimates put the cost of the implementation of the new Bill at R500 million per year.

In addition the existence of the CFR, albeit in a restructured and functional form, will in and of itself not contribute to stemming the flow of illegal firearms into South Africa. Sophisticated systems in Britain and other countries, though well managed and policed by professional police forces, have not succeeded in stemming the flow of illegal firearms across international borders. Other systems with similar objectives to those of South Africa’s CFR, such as the system recently implemented in Canada, are proving to be problematic and far more costly than originally estimated.

Implications for the Economy

The following indicate the significance of the firearm- and firearm-related industries in South Africa. These industries would all to a greater or lesser extent be affected by the provisions of the Firearms Control Bill:

There are over 600 firearm dealer licences in the hands of some 300 companies;

Turnover of the firearms industry in South Africa is estimated to be in the region of R1 billion a year;

The industry employs about 10,000 people. This includes support industries such as holster manufacturers and private ammunition manufacturers. However, it excludes the number of people employed by hunting operations and game lodges, private reserves and related tourism industries. It also excludes those employed by major arms manufacturers such as Somchem and its firearms and components subsidiaries;

A further 30 000 employees are estimated to be engaged in other major armaments manufacturing activities, 5% of whose production is absorbed by the local civilian market. The armaments industry is one of South Africa’s strongest foreign currency earners.

Hunting and tourism are two important firearms-related economic spin-offs for the country.

A major contribution to foreign and domestic tourism income derives from the activities of hunters in South Africa:

Domestic hunters (200 000 in number) R 770 million annually;

Foreign hunters (6 000 in number) R 113 million annually.

Hunting and directly related tourism activities provide work for an estimated 56 000 employees. Total contribution to GDP of hunting- and related activities is estimated to be as follows:

Hunters R 883 million

Employment in the hunting and related industries R 369,6 million

Game auctions R 53,7 million

Other related activities R 0,5 million

TOTAL R 1 306,8 million

The Costs of Firearm Ownership

The additional requirements for gun licensing provided for in the Bill, and the associated over-elaboration of firearm control measures and unnecessary encumbrance of administrative systems, will have significant and frequently unforeseen cost implications for South Africa, as they have already had in countries such as Canada and Australia. The stated policy approved by Cabinet requires that the cost burden of firearm control be borne by gun owners. The costs of firearm ownership may therefore be expected to escalate dramatically if the Firearms Control Bill in its present form is passed. The full implications of the Bill cannot, however, be fully determined in the light of the wide discretion accorded to the Minister to prescribe numerous requirements by way of regulations in future.

The inevitable consequence of the elaborate and potentially costly provisions of the Firearms Control Bill would be that many poorer people, and particularly previously disadvantaged groups who under the former administration may have found it difficult to acquire firearms legally but who live in circumstances where self-defence is of the utmost importance, will continue to be denied (legal) access.

Disproportionality of Punishment

As mentioned above, the Bill creates a number of new offences and administrative transgressions. Schedule 3 codifies these and provides for the sentencing and other sanctions applicable to these offences and transgressions. A number of anomalies arise. An ammunition collector in possession of more than 200 rounds of a given calibre can, in terms of s 19(11), be sentenced to a maximum of 5 years imprisonment. Yet collectors of cartridges such as headstamp, frequently exceed this limit. This in effect means that the perfectly peaceful and harmless pursuit of "headstamp" collecting is regarded as a serious threat to public peace and safety and deserves severe sanction. In terms of s 32(3), failure to notify the Registrar in writing of the disposal of a firearm, carries a maximum prison sentence of 15 years whilst negligent use of a firearm in terms of s130(3)(a) carries a maximum sentence of only 5 years. Many of the offences and other transgressions arise from the complex administrative requirements of the provisions of the Bill. The Bill does little if anything to provide additional leverage for the conviction of criminals. What it does is to place additional burdens upon law-abiding firearm owners.

Policy Issues

General

There has been a significant increase in the incidence of crime and criminality in South Africa for reasons totally unrelated to the availability of firearms. It makes little sense in times such as these to impose unilateral sanction on the law-abiding by way of restricting private civilian gun ownership and inhibiting and proscribing the capacities of law-abiding citizens to defend their lives and property against criminal depredations. Experience in Great Britain, Australia and the United States, to name but a few countries, strongly suggests that criminals will find the means to carry out their intentions.

Despite some of the most restrictive firearm laws in the world, the physical removal of hundreds of thousands of civilian firearms from private ownership, and highly professional policing in countries like Britain and Australia, the flow of illegal firearms has continued and armed crime has increased there. These countries now find themselves in a significantly worse position than before. Indeed the only visible result of the excessive gun control has been to contribute to a situation where now often only the criminals have guns.

In South Africa there is no reason to believe that the position will be any different. By its own admission government has no idea of the nature or extent of the flow of illegal arms into South Africa. The controls and resources are also not sufficient or of a high enough standard throughout the Southern Africa region to ensure that illegal firearms do not find their way into South Africa. It can therefore realistically be expected that illegal firearms will, for the foreseeable future, be readily available to criminal elements as they have been in other more developed countries.

Placing draconian restrictions upon private civilian gun ownership discounts the fact that, on balance, a responsibly armed citizenry operating within a regulated legislative framework, highly effective policing and an efficient judicial system present arguably the most cost-effective package for reducing all crime, and in particular violent crime. In South Africa one cannot make a case for draconian restriction of private civilian gun ownership – not on the basis of its material contribution to the stock of illegal firearms to crime, nor based on the fact that registered firearms owners themselves are significantly involved in crime. These "facts" cannot and have not been proven. In any event, the move to restrict and control a large variety of hunting, sporting and antique firearms, inappropriate as weapons of war and not of a type regularly used in criminal acts, reflects an irrational response to the very real problem of crime in South Africa, and places the entire motivation of the gun control exercise in question.

POLICY SOLUTIONS

The NNP supports a thoroughgoing, objective and impartial analysis of the profile of violent crime in South Africa and, indeed, of all crime involving firearms. There is simply too much speculation and subjectivity at present. The right to life is fundamental, as are other rights and freedoms. Whilst the limitation of rights in public interest is a feature of organised society, such limitation must demonstrably be for the benefit of the public. The limitation of the rights and freedoms of the law-abiding on the basis of the tenuous precepts generally advanced for the restriction of private civilian gun ownership in South Africa across the board, cannot be glossed over. What is required is an approach that sets as its first priority the curtailment of illegal arms trafficking in the Southern Africa region, the staunching of the flow of illegal firearms into South Africa and the reduction of the current stockpile of illegal firearms in the country.

Regarding the role of small arms in conflict in the sub-Saharan region, clearly the imperative must, in the interest of peace and development in the entire region, be the resolution of the circumstances giving rise to war and strife. There is a compelling case to be made out for the micro-disarmament of informal militias and other warring groups and the reduction of the capacity to make war. In the process, however, the capacity of ordinary citizens to protect their lives, property and to enjoy freedom from persecution must not be compromised. Equally there is the need to reduce the stock of such weapons of war as a source of supply for secondary illegal arms trafficking within the region.

POLICY SOLUTIONS

South Africa should support international initiatives toward the micro-disarmament of informal militias and warring groups and to reduce the capacity to make war. It should not support initiatives that infringe upon the rights and freedoms of peaceable law-abiding citizens of democratic constitutional states such as South Africa.

The Firearms Control Bill

By government’s own admission in the Cabinet Policy document of late 1999, the proximate problem with firearms control in South Africa does not derive from inherent difficulties with present legislation but from the fact that the provisions of this legislation are not enforced. The parlous state of the critically under-resourced Central Firearms Registry itself is merely one instance of this. There is no reason to believe that a new law, if also inadequately implemented, will leave South Africa in an improved position.

It has been established that the existing law, the product of a number of amendments over the years, is disjointed and fragmented. However, the case for an entirely new philosophy and approach such as proposed in the Bill, placing an even more onerous burden on an already severely overextended criminal justice system in which only a minute percentage of offenders are even now brought to justice, is tenuous to say the least. South Africa does not have the resources to indulge in flights of over-sophistication in a society that is already complex, and to seek to emulate other countries in its approach to firearm control that is neither appropriate to this country nor have been proven viable and effective elsewhere.

POLICY SOLUTIONS

Whilst there may be valid reasons for reviewing the existing legislation regulating arms and ammunition in South Africa (the Arms and Ammunition Act 1969(Act 75 of 1969)) in order to achieve greater clarity, practicability and cohesion, the question is whether it is a priority at this particular juncture. There is no good reason at this stage for modifying the fundamental philosophy and approach underlying the present legislation – particularly if this will result in unnecessary demands upon the limited public and private resources of the country and when it infringes upon the rights of its citizens.

Specific Policy Issues

Definition of Firearms

The definitions of firearms contained in the Bill are technically flawed and inadequate and reflect a significant lack of conversance with a complex subject. Included in the present definition of a "firearm" is any device that can be readily altered to be a firearm. This could even include a threaded pipe and can create ridiculous anomalies. In addition all firearm components are individually deemed to be firearms and are required to be individually licenced.

POLICY SOLUTIONS

It is essential that extensive consultation takes place with people and organisations in the shooting and firearms fraternity that are conversant with these technical matters so that definitional anomalies can be satisfactorily addressed.

Licensing and Registration

Licensing and registration represent two aspects in which the approach followed in the Bill deviates from the approach of current legislation. The principle of licensing firearm owners and registering firearms with a central registry has formed part of the firearm management regime in South Africa for some time now and is, in itself, not the issue. The problematic issue is certain modalities of licensing and registration that have implications for further provisions within the Bill.

POLICY SOLUTIONS

Responsible civilian gun ownership is accepted as a valid objective of firearm management in South Africa. The role of legislation should be to facilitate this rather than to regulate and control as the Bill attempts to do. There can be little objection to the fact that, to be able to licence their firearms, owners should have to demonstrate an appropriate basic level of proficiency with their firearms and an appropriate basic understanding of key aspects of the legislation and regulations applying to their ownership, storage and use. However, these requirements must not be such as to put firearm ownership beyond reach of those of modest means, education, etc, who wish legally to possess firearms. The emphasis of such requirements should be on the safety factor.

At present, although there are elements of both in the current approach, a clear distinction is not drawn between licensing the owner and registering the firearm. This distinction is also not clarified by the Bill. In terms of existing legislation, the Registrar does enjoy certain discretionary powers in respect of the issuing of a licence. There are a number of categories under which an applicant can apply for a licence, but thereafter no limitation is placed upon the use of the firearm. There are also provisions for background checks of the individual’s circumstances, knowledge of firearms in general, and of the law applying to firearms. This should be sufficient to prove to the Registrar that there is a specific need for the firearm in question. In the case of sporting and hunting firearms, membership of an organisation or association may be required. In practice it is not, except in the case of applicants for collector’s licences. The constitutionality of many of the provisions of Act 75 of 1969 have not yet been tested. The fact is that, due to the dysfunction of the Central Firearms Registry, many of these provisions appear not to have been applied.

In essence then, the major respects in which the provisions of the Bill deviate from present practice are: (Chapter 6)

Introduction of a firearm category designated as "restricted";

An increase from 16 to 18 years as age threshold for firearm ownership;

The creation of rigid licensing categories and the statutory requirement that in all circumstances a firearm be used only for the purpose for which the original licence was granted;

- The statutory determination of which firearms may be licenced for what purpose;

The limitation of the number of firearms that may be licenced for certain purposes;

The statutory determination of where firearms may be used and provision for the regulation of how they may be used; and

The statutory requirement for membership of an accredited association or organisation in respect of certain licence categories.

The present provisions for licensing provide a basis for a practicable and reasonable system to ensure, as far as is humanly possible, that arms are not possessed by persons in whose possession they will be a danger to their owners and to the public at large. These provisions for licensing should therefore be supported. As to the additional provisions introduced in the Bill:

The classification of semi-automatic shotguns and rifles as "restricted" is contrived since any firearm is "dangerous", as are many other items in common use. In any event, licenced owners are generally not the ones that abuse firearms or modify them for illegal purposes. In addition, the Minister is given wide discretion in declaring any firearm "restricted" or indeed "prohibited".

The introduction of rigidity in licensing categories for private civilian gun ownership, and the statutory restriction of the use of firearms to specific categories, creates numerous anomalies and is potentially unconstitutional. In particular it discounts the practical reality that firearms are, in fact, used for a multiplicity of perfectly legal purposes and it could have the unintended consequence of artificially creating a need for additional firearms for each such specific purpose. It cannot therefore be supported;

The limitation on the number of firearms to be licenced for a certain purpose creates a number of problems, also in respect of the self-defence category. It discounts the fact that if an individual has safekeeping facilities that comply with the requirements and is in every way a fit and proper person to possess a firearm, the number of firearms that person possesses is of little consequence. In fact there is reason to believe that multiple firearm owners with significant investments in their firearms will be far more inclined to care for them than would casual owners. In principle this provision cannot be supported;

Provisions relating to the determination of where and how firearms may be used are impractical and intrusive. These matters are best dealt with by means of local ordinances and other regulations specifically regulating hunting and other activities, and should be scrapped from the Bill. Wide and unspecified regulatory powers on the part of the Minister in respect of the use of firearms are also cause for concern;

The statutory requirement for membership of an accredited organisation or association as a prerequisite for a licence is potentially unconstitutional and raises a number of practical difficulties. Its administration will be extremely onerous for the CFR and accredited organisations and associations themselves. Application of this approach in Australia has placed sportsmen and women under inordinate and unreasonable pressure to perform in order to retain their dedicated status. Clearly in many firearm-related activities, such as hunting, which may be undertaken regularly but not necessarily annually, individuals may lose their dedicated status and their firearm licences where, for a variety of perfectly valid reasons, they do not engage in these activities for a specific period. These provisions should be removed from the Bill.

POLICY SOLUTIONS

A firearm management system based upon the following is supported by the NNP:

Licensing of the firearm owner. Since firearms are inanimate objects it is the owner that will ultimately determine their use, responsible or otherwise. Owners should be made subject to background checks as provided for in the Bill, excluding the requirement for membership of an organisation or association as a prerequisite, and be required to provide satisfactory evidence of appropriate competence and appropriate basic conversance with the law. Specifications should be determined by the South African Qualifications Authority with the full participation of associations and organisations representative of the firearm owning community. The conduct of testing of competency and basic conversance with the law should be outsourced to accredited organisations best able to provide such a service. Requirements must, however, not be unnecessarily onerous, and should not discriminate against any class of citizen. It should be required that competency with firearms be established only upon first licensing. Discretion in the issuing of an Owner’s licence should be circumscribed in the Bill by the provision of additional jurisdictional facts and there should be a mechanism of appeal to a court of law. Owner’s licences should be renewable every 10 years or upon material change of relevant circumstances; (in other words re-registration instead of re-licensing)

Licensing of the owner should be followed by registration of the particular firearm(s) in the name of that owner. Once the owner has been adjudged to be a fit and proper person to possess firearms, there should be a reasonable limit to the number of firearms to be registered in a particular owner’s name, subject to the owner progressively meeting the requirements for firearm storage. Such a reasonable limit in the case of firearms for self-defence would be 5 firearms, in the case of collectors it would be unlimited, and for serious hunters and sports shooters such a reasonable limit should be stipulated in legislation after proper consultation with all relevant role-players. The Registrar’s discretion in the registration of firearms should be closely circumscribed and generally limited to whether the requirements for safekeeping and storage of the relevant firearms are met, and that the firearms concerned are not "prohibited" firearms. An audit of firearms registered in the name of a particular owner should be conducted either with each renewal of the owner’s licence or with each application for registration of an additional firearm; and

Licensing of existing owners and registration of the firearms of current firearm owners should be automatic and competence requirements should be waived in the case of the licensing of owners with an unblemished record of firearm ownership over a specified number of years.

The Central Firearms Registry (CFR)

Clearly the CFR is at the heart of any firearm licensing and registration system. It is accepted that the CFR’s core function is not that of policing, and therefore this organisation should not absorb trained police officers that could otherwise be better applied in the front-line of policing. The CFR should also be right-sized to carry out its functions and should outsource as many of its functions as is cost-effective. As the Bill stands, the demands upon the CFR are particularly onerous, in fact significantly more so than the functions already required of the CFR. Not only do they involve licensing and registration, but also the management of due process in regard to the numerous new administrative transgressions created by Bill, the vetting of returns on hunting, sporting and collecting activities of individual firearm owners, the accreditation of shooting ranges, associations and organisations, the vetting of annual ammunition purchases by individuals, and the host of other requirements set out in the Bill. At startup the CFR will in addition be charged with the responsibility of re-registration and reissue of licences presently held by 2,4 million firearm owners and the re-registration over the first cycle of 3,5 million firearms. According to government’s estimates, the entire process of transformation of the CFR as well as re-licensing and reissuing of licences, should take approximately four years.

POLICY SOLUTIONS

For the present, keeping the CFR under the control of the National Commissioner of the SAPS, is supported. Already understaffed, it should be reengineered and right-sized to perform its functions effectively. Particularly the optimisation of business processes, information technology requirements and human resourcing need to be closely addressed. The Firearms Control Bill in its present form, however, makes unrealistic demands upon the CFR. The cost-effectiveness of many of these requirements is seriously questioned. The extent of these demands upon the CFR would diminish significantly to more manageable proportions were the unnecessary requirements stripped from the present Bill.

3.3.4 Ammunition and Components

The Bill introduces, for the first time, controls over ammunition. The definition of ammunition is broadened to include cartridge primers and propellant powder used by private citizens for the reloading of customised ammunition for own use. This is both problematic and impractical. Powder is granulated and, as the Bill reads at present, even a single granule would be construed to be ammunition, making a mockery of numerical limits. The possession and use of propellant is already adequately controlled under the Explosives Act. Primers are also only an active component of ammunition when inserted into a cartridge case. Definitions contained in the Act display a significant lack of conversance with technicalities.

POLICY SOLUTIONS

The definition of "ammunition" in the Bill must, for reasons of practicality, be brought into line with the international standard and relate only to complete cartridges. For practical reasons, components should be excluded from the definition.

The Bill introduces the concept of limiting the stock of ammunition and the rate at which ammunition can be purchased by firearm owners. The Registrar is given discretion in the matter of approving the purchase or possession of ammunition in excess of the limits prescribed in the Bill.

POLICY SOLUTIONS

Once a firearm owner has been duly licenced and found to be fit to possess a firearm(s), there can be little motivation for prescribing unreasonable limits on ammunition, provided only that such ammunition are properly and securely stored. To the extent that the Registrar is accorded discretion in the matter of determining limits on the possession and purchase of ammunition, additional jurisdictional indications should be specifically provided for in the Bill.

3.3.5 Firearm Free Zones

Declaring so-called Firearm Free Zones, particularly in response to firearm-related violence at schools and elsewhere in South Africa and abroad, has become a central policy issue and is addressed in the Bill (Chapter 20). The conventional wisdom as reflected in the Bill has it that the prohibition of firearms on certain premises and in certain areas will contribute to curtailing armed criminal violence. There are, however, strong arguments in support of the view that firearm-free zones, if not correctly and efficiently policed, may in themselves attract criminal violence. In the absence of deterrence there is reason to believe that firearm-free zones may well become soft targets for criminals. There is also a host of potential practical difficulties with the implementation of firearm free zones.

POLICY SOLUTIONS

If persons have been declared fit and proper to possess and carry firearms, the risk of their involvement in criminal acts using firearms is significantly reduced. There can thus be no reason to prohibit such persons from carrying their firearms. In fact the presence of a responsibly armed citizenry carrying firearms, concealed as required by s90 of the Bill, can be a deterrent to criminal elements. Those who are not licenced to possess and carry firearms will in any event be in contravention if they are apprehended and found in possession of firearms. Heavy penalties for such offences are already provided for in Schedule 3 of the Bill. The sheer practical complexity of implementing and enforcing firearm free zones renders the concept problematic. Much closer consideration of this matter is required as well as closer specification of jurisdictional facts applicable to the exercise of discretion by the Minister in this regard.

3.3.6 Presumptions and Other Asymmetric Provisions

Chapter 15 provides extensively for presumptions of guilt in terms of offences contemplated in the Bill. Whilst certain presumptions may withstand the test of the Constitutional Court, many presumptions as they stand in the Bill appear to reflect ignorance of decisions already taken by the Constitutional Court.

POLICY SOLUTIONS

Chapter 15 should be completely reworked to bring presumptions provided for in the Bill in line with the existing judgments of the Constitutional Court.

3.3.7 Penalties and Appeals

In Schedule 3 the Bill provides for harsh penalties and administrative fines and sanctions for 185 offences and transgressions. 89 of these offences are "criminal", providing for terms of imprisonment and heavy fines and sanctions, while 96 offences are "administrative transgressions", providing for heavy fines and other sanctions to be imposed by the Registrar and with no recourse of appeal to a Court of Law. In effect, therefore, the Bill creates an alternative legal system where those found guilty of administrative transgressions are denied the right of appeal to a Court of Law. This is potentially the subject of a challenge in the Constitutional Court.

POLICY SOLUTIONS

The principle of harsh penalties for criminal offences in terms of the provisions of the Bill is supported in the interest of providing the instruments necessary to act against criminal possession and use of firearms. However the Bill adds little to the arsenal of measures already available to act against those guilty of violent, criminal use of firearms in South Africa. Serious anomalies arise from Schedule 3 relating to the provisions made for sentencing and administrative fines and sanctions. These provisions will disproportionately penalise relatively minor technical transgressions created by the provisions of the Bill. These transgressions are of little importance in terms of the problem of criminal violence in South Africa. The schedule needs to be reworked in its entirety to establish reasonable proportionality.

In the interest of practicality and in order not to burden the Courts unduly the introduction of the concept of administrative transgression is accepted. The Bill nevertheless creates an excessive number of such offences that will place an extremely onerous burden on the Registrar. It is also critical that those found guilty of administrative offences bearing significant administrative fines and sanctions should have the right of appeal to a Court of Law.

3.3.8 Transitional Arrangements

Transitional provisions are made in Schedule 1 of the Bill.

POLICY SOLUTIONS

The provision in s1 (1) of Schedule 1, extending the validity of existing licences for a specified period from the date of commencement of the Act arising from the Bill, is welcomed. The capacity of the CFR to transform and to deal with licensing and reissue over and above its normal load of current licence applications in the five year period provided must however be seriously questioned. Extension of the validity of current licences for a period of 7 to 10 years would seem far more realistic.

4. The Way Forward

The Firearms Control Bill as it stands is deeply flawed. This makes implementation to a great extent impossible. Its provisions are also most onerous for legal firearm owners in South Africa and add very little to the battery of instruments and means available to focus on illegal firearms and to convict the real criminals guilty of perpetrating acts of violence. The Bill appears to reflect inappropriate international conventional 'wisdom' and entirely discounts the realities of responsible civilian firearm ownership in South Africa.

It is clear that all immediate priorities of the SAPS regarding legal civilian firearm ownership and use can be achieved within the framework of existing legislation. Therefore the focus should shift away from legal possession of firearms to illegal possession and to curbing the inflow of illegal firearms from neighbouring countries into South Africa. Amendment of current legislation may be a matter of good housekeeping but it is not a priority at present and would waste already limited resources. Instead, real efforts should be made toward enforcement of current legislation and, inter alia, toward the upgrading of the Central Firearms Registry as the nerve centre of firearm control in the country.

POLICY SOLUTIONS

The Firearms Control Bill should be withdrawn. If nothing else, the following should, at least, be done:

An Action Plan should be implemented that sets as its first priority the curtailment of illegal arms trafficking in the Southern Africa region, the staunching of the flow of illegal firearms into South Africa and the reduction of the current stockpile of illegal firearms in the country.

Existing legislation should be properly enforced;

Existing firearms in the country, including those belonging to the Government, should be audited in order to rehabilitate the database of the Central Firearms Registry.

The precepts upon which government policy towards unreasonable restriction of civilian firearm possession and use are based and which underlie the Firearms Control Bill, should be objectively reexamined;

The statistical basis upon which the conclusions underlying the motivation for the Cabinet Policy and the Bill are founded, should be objectively reexamined; and

If justified by the latter, the provisions of the Bill should be thoroughly reworked in close consultation with associations and organisations of firearm owners conversant with the technical complexities and nuances of private firearm ownership in South Africa.