Firearms Control Amendment Draft Bill, 2015

The Department of Civilian Secretariat for Police has published the Draft Firearms Control Amendment Bill, 2015, and is asking you to comment.

Bill seeks to amend the Firearms Control Act, 2000, so as to:
▪ amend and insert certain definitions; to provide for the verification by accredited associations of applications to possess a firearm;
▪ provide that a semi-automatic firearm or semi-automatic shotgun may only be licenced to a person who has held a dedicated status as a sports-shooter for a period of at least two years;
▪ provide that additional motivation must be provided to the Registrar for the registration of any firearm licence that exceeds the stipulated two firearms licences for dedicated hunting or dedicated sports-shooting, taking into account the needs of the dedicated hunter and sports shooter, the type of firearm required, the shooting disciplines involved in, and that such motivation must be supported by the relevant accredited hunting association or sports-shooting organisation;
▪ provide for the validity period of competency certificates;
▪ provide for a penalty for late applications for the renewal of a firearms licences;
▪ provide for consequential amendments in respect of muzzle loading firearms in order to provide for control over muzzle loading firearms in respect of trading, manufacturing, marking, display of, disposal of and alterations thereto;
▪ provide for the compulsory application of microdots that comply with standard specifications on and the ballistic testing of all firearms licenced in terms of the Act;
▪ provide for the application of microdots on firearms and the ballistic sampling of firearms of Official Institutions registered in terms of the Act;
▪ provide for a licence in respect of a percussion-cap-and ball firearm;
▪ provide for the application of microdots on, and the marking of, muzzle loading firearms in dealers stock in a prescribed, non-damaging manner;
▪ provide for the ballistic sampling of firearms;
▪ provide for the designation of a Designated Firearms Officer at each police station, where practicable, with a clear description of functions, in order to strengthen the control over firearms in possession of the South African Police, other Official Institutions and private security service providers and to improve the processing of applications for competency certificates and firearm licences;
▪ provide for obligations of commanders, including station commanders in respect of the control over firearms;
▪ provide for the approval by the Minister of Police of a list of Designated Firearms Officers who will exclusively function as such and the factors to take into account in determining the same;
▪ provide for the Minister of Police to appoint additional members to the Appeal Board, to provide for the strengthening of the independence of the Appeal Board and the functions of the Appeal Board;
▪ provide for powers of the Minister of Police to prescribe matters pertaining to the processing of applications for firearm licences and competency certificates, the functioning of the Appeal Board and the carrying of firearms by security officers in the execution of their duties and functions;
▪ provide for the number of cartridges that may be possessed; to provide for transitional provisions in respect of percussion cap-and-ball firearms, including provision for an additional licence in the category of occasional hunting and sports shooting, in order to accommodate the licensing of percussion cap-and-ball firearms;
▪ provide for the compliance by Official Institutions to Chapter 11 of the Act;
▪ provide for transitional provisions in respect of the registration of actions, frames and receivers;
▪ provide for transitional provisions in respect of licences issued under the repealed Arms and Ammunition Act, 1969;
▪ provide for the amendment of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), in order to provide for minimum sentences where a firearm was used in a murder, rape or robbery and to provide for a minimum sentence for the illegal possession of any firearm;

Comments can be emailed to Mr A Soman at [email protected] by no later than Tuesday, 31 March 2015

Enquiries can be directed to Ms Thandeka Khumalo on tel (012) 393 4658


Background
The Firearms Control Amendment Bill, 2015 (the Bill), seeks to amend the Firearms Control Act, 2000 (Act No. 60 of 2000) (the Act). In the process of the putting into operation of the Firearms Control Amendment Act, 2006 (Act No. 28 of 2006), some deficiencies in the Act, had been noted, namely a that some consequential amendments are required in order to align the control over muzzle loading firearms with the control over firearms. Submissions were also made by the National Association of Arms Collectors of South Africa, pertaining to a lack of transitional provisions in respect of percussion cap-and-ball firearms. Although the same could be provided for in regulations, the impact of licensing percussion capand-ball firearms on the number of firearms which may be possessed can only be addressed through legislative amendment. A Task team appointed by the Minister of Police in the meantime investigated the Central Firearms Register and made recommendations to the Minister in order to address the problems experienced by the Central Firearms Register in the timeous and proper consideration of applications for firearms and making decisions on such applications. There was also some confusion on the proper interpretation of the provisions relating to the validity of competency certificates, the provisions relating to the issue of renewing competency certificates as well as the regulation of muzzle loading firearms. Whilst the amendment of the Act as well as the Firearms Control Amendment Act, 2006, is necessary, there was a critical review of all issues pertaining to the Act. Other amendments were also included, such as providing for a uniform period of validity for competency certificates, the designation of a Designated Firearms Officer at each police station, as far is practicably possible, to improve the control over firearms in possession of the police and other Official Institutions and private security service providers. In order to improve the control of firearms issued in terms of the Act, the amendment also seeks to provide for the compulsory application of microdots on all firearms that are licenced in terms of the Act. This will enhance the identification and tracing of al licenced firearms. The amendment also seeks to place a limit on the number of semi-automatic rifles and semi-automatic handguns that may be licenced to a dedicated-hunter or a dedicated sports-shooter. In SA Hunters A.O v Minister of Safety and Security Case No: 33656/09, the South African Hunters Association sought an urgent interim order in the High Court to declare the firearm licences issued in terms of the Arms and Ammunition Act, 1969 to be lawful and valid pending the finalisation of the main application as to the constitutionality of item 1(1) of Schedule 1 to the Act. The main application was against the commencement and implementation of item 1(1) of the Act, which provides for transitional provisions. Item (1)(1) to the Schedule provides that any licence which was issued in terms of the repealed Arms 3 and Ammunition Act, 1969 (Act No. 75 of 1969) and which was valid immediately before the date of the Act, remains valid for a period of five years from the date on which the Act comes into operation, unless such licence is terminated, cancelled or surrendered in terms of the Act. In addition, firearm licence holders must within this period apply for new licences in terms of the Act, lawfully dispose of any forearm not lawfully possessed and any firearm not disposed of may be forfeited to the State. In the main application the South African Hunters Association were to argue that the item 1(1) of the Act infringed the constitutional right to ownership (of a firearm); the right not to be prosecuted and imprisoned for the possession of firearms that were legally acquired in terms of the Arms and Ammunition Act, 1969; the right to lawful, reasonable and procedurally fair administrative action. The SA Hunters Association maintained that the five year period would expire before all the licence holders could apply and obtain licences and competency certificates due to backlogs in the South African Police Service, resulting in the applications not yet being processed and finalised in terms of the Act. The State did not have resources to implement the administration necessary to finalise the renewal of firearm applications and new firearm applications. Some licenses applications had been declined. As a result of this situation many lawful licence holders would be subject to criminal prosecution by virtue of not holding licences to possess their firearms in terms of the Act, and their firearms would be forfeited to the State. The High Court in the South African Hunters Association case held that a prima facie case had been made in respect of the pending main application as to the 4 absence of a justification for the limitations of the constitutional rights affected by the impugned transitional provisions. The respondent could not show any justifications for the limitations. Furthermore the North Gauteng High Court held that the legislature should have taken into account the available administrative facilities and should not have designed a transitional arrangement which cannot be implemented by the officials of the respondent. The North Gauteng High Court granted an interim order pending the finalisation of the main application as to the constitutionality of the impugned transitional provisions as contained in Schedule 1 to the Act. The court ordered that that firearm licenses which were issued in terms of the Arms and Ammunition Act, 1969 will be deemed to remain valid until the main application had been finalised. Based on this judgement, the Bill seeks to propose amendments to give effect to rectify the anomalous transitional provisions contained in Schedule 1 to the Act